(CN) – Judges for the Ninth Circuit appeared poised Monday to allow a landmark environmental case – in which young people claim a clean planet is a constitutional right – to continue, despite the government’s claim that the case is setting up a “collision course” between the courts and the president.
Nearly two dozen children sued the federal government in 2014, claiming it had failed to safeguard a habitable climate for them and future generations, in violation of their rights to privacy, liberty and property.
Lawyers for the Obama-era Justice Department acknowledged the dire reality of climate change and the impending catastrophe. After Trump took office, observers expected lawyers in the case to retract those admissions.
Instead, they argued there is no constitutional right to a habitable environment. The government moved to dismiss the case, which U.S. District Judge Ann Aiken denied.
So the government took the unusual step of asking the Ninth Circuit for a mandamus finding that the Aiken exceeded her authority.
In San Francisco on Monday, U.S. Attorney Eric Grant told a three-judge panel that mandamus is justified by the kids’ outlandish claims.
“According to plaintiffs’ complaint, virtually every single inhabitant of the United States has standing to sue virtually the entire executive branch to enforce an unenumerated constitutional right to a climate system capable of sustaining human life,” Grant said. “And to enforce that right by means of a judicial order, the defendants prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2.”
Grant also repeated a claim the government has made since the case was filed – that discovery and the trial schedule are far too burdensome for the government to participate.
“The burdens of discovery are serious,” Grant said. “But those are not the only burdens. There will be, in the district court’s own words, a bifurcated trial. That trial is slated to include at least a dozen expert witnesses on the part of the plaintiffs, to be followed by a like number of witnesses for the defendants and perhaps by rebuttal experts. And then, as the district court also said, the case will proceed to the remedial phase.”
Judge Sidney R. Thomas, chief judge for the Ninth Circuit, interjected.
“How is that different from an antitrust case, a securities case or the ordinary products liability case?” Thomas asked. “What you have described is what happens in courts all the time. Why do we interrupt this at this particular phase?”
Grant said Judge Aiken made a mistake by refusing to dismiss the case.
“The district court is exceeding its jurisdiction in purporting to hold the trial of the century and then to go on in remedial proceedings that will require, essentially, the district court to administer federal environmental and energy policy,” Grant said.
Circuit Judge Alex Kozinski jumped in to say that though there is no precedent that establishes a constitutional right to a habitable environment, there is precedent for finding merit in new types of claims.
“The district court said yes, there is no prior case establishing this, but there always has to be a first case,” Kozinski said. “Ten years ago, there was no right to same-sex marriage and the courts managed to come up with a claim anyway.”
Circuit Judge Marsha S. Berzon said if the panel grants the government’s request, appeals courts would be “inundated” with claims that a district court had erred in not dismissing.
“If we granted the motion here, why don’t we grant it to the next person who comes in and says the same thing?” Berzon asked.
Judge Thomas agreed.
“If what you’re saying were true, we would be absolutely flooded with appeals by people who think their case should have been dismissed by the district court,” Thomas said. “And if we set the precedent on this kind of case, there’s no logical boundary to it.”
Grant claimed that this case is special because of the identity of the defendants.
“There is a boundary, your honor,” Grant said. “Those cases do not involve virtually the entire executive branch.”
But Thomas underscored out the huge volume of pro se cases against the government.
“You’d be surprised, but we do get a lot of suits here that are filed in this circuit and in other circuits against everybody in the government,” Thomas said. “And most of the time, they are dismissed by the district court, but sometimes they are allowed to amend, sometimes they are allowed to go forward. The subject matter may be unusual and it may be more substantive than those cases. But it’s not unusual for plaintiffs to allege all sorts of ills against everybody.”
Julia Olson, attorney for the kids, told the court the case is about firmly settled constitutional rights.
“Defendants argue that there should not be a newly recognized right to a climate system capable of sustaining human life,” Olsen said. “However, they don’t argue plaintiffs’ claim of infringement to recognized, substantive due process rights, including their rights to personal security and other liberties recognized by the Supreme Court.”
Judge Kozinski questioned that characterization.
“I thought the government was arguing that those rights don’t exist,” Kozinski said. “They argue there is no substantive due process right to having the government stop what you claim is global warming. I think the government’s argument is, there is no claim at all. It doesn’t exist. There is no such cause of action.”
Olson replied: “Under that theory, the youth in Brown v. Board of Education would not have a cause of action under the substantive due process or equal protection clauses of the 14th Amendment.”
Kozinski also asked Olson whether the kids in the case are situated specifically enough to bring their case.
“Isn’t whatever harm they are suffering the same as everybody else in the country?” he asked.
Olson said that wasn’t the case.
“They are suffering different harm,” Olson said. “The federal defendants have admitted in various documents that children are disproportionately experiencing the impacts of climate change. And, in addition, your honor, they will live far longer than you. They will live until late in the century, when the seas are projected by these federal defendants to be 10 feet higher. And in the evidence that’s before you, there is deposition testimony that the seas could actually rise as much as 30 feet. So the significance of the harm, the monumental threat that these injuries pose to these plaintiffs is very distinguishable from the rest of the country.”
The court did not say when it expected to issue a ruling.