Attorney Julia Olson said the Ninth Circuit Court of Appeals erred in allowing an early appeal of Juliana v. United StatesThe Ninth Circuit Court of Appeals has thrown a wrench into Juliana v. United States, granting a rarely used pre-trial appeal to the government. Photo credit: Robin Loznak

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By Karen Savage

The Ninth Circuit Court of Appeals has granted a petition by the Trump administration for a rare pre-trial appeal in the landmark constitutional climate lawsuit, Juliana v. United States. The appeals court agreed to the interlocutory appeal, which leaves the future progress of the case unclear.

Generally, interlocutory appeals consider certain aspects of a case while allowing other issues to proceed. The young plaintiffs in the case, 21 young people from around the country, have asked District Court Judge Ann Aiken to clarify how the case will move forward while the Ninth Circuit considers its appeal. They argue that they should be allowed to continue the discovery process and other pre-trial proceedings.

The Ninth Circuit’s decision came as somewhat of a surprise because it had denied repeated attempts by the government to short-circuit the case before trial. A three-judge panel voted 2-1 to grant this request, while denying other motions, including the government’s fourth writ of mandamus request. The writ of mandamus is even rarer than an interlocutory appeal because it requires the higher court to decide the lower court clearly abused its judicial power.

But granting the interlocutory appeal still throws the case into uncertainty.

Julia Olson, co-counsel for the youth plaintiffs, disagreed with the decision and said she was disappointed the trial would face further delays.

“The government has used the power of their office and the depth of taxpayer coffers to waste precious time and resources to avoid trial in this case, and now the court has capitulated with little scrutiny,” Olson said. “This case deserves rigorous analysis based on the evidence introduced in court. Our youth plaintiffs did not receive that consideration in this majority opinion.”  

Chief Judge Sidney Thomas and Circuit Judge Marsha Berzon voted for the government’s motion while Circuit Judge Michelle Friedland dissented.

“It is also concerning that allowing this appeal now effectively rewards the Government for its repeated efforts to bypass normal litigation procedures by seeking mandamus relief in our court and the Supreme Court,” Friedland wrote in her dissent. “If anything has wasted judicial resources in this case, it was those efforts.”

The case has survived numerous attempts by the government to dismiss it and this is the fourth petition for mandamus turned down by the Ninth Circuit. The Supreme Court has also rejected mandamus requests by the Trump administration.

The 21 young plaintiffs first filed suit in 2015 and argue that the federal government is violating their Constitutional rights to life, liberty and property by promoting an energy system that exacerbates climate change. They also say the government is failing to protect essential public trust resources and are asking for a science-based program to reduce carbon emissions and protect the climate for future generations.

Philip Gregory, co-counsel for the young plaintiffs, said the Ninth Circuit majority failed to explain why an interlocutory appeal is warranted.

“As Judge Aiken observed, this case would be better served by further factual development at trial,” Gregory said.

“The overwhelming evidence is that plaintiffs will suffer substantial harm from any further delay in resolving their claims. The more time that passes before a remedy is in place will result in irrevocable harm to plaintiffs and increased future litigation burdens.”

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