The government took the rare step of appealing the case prior to a ruling, claiming the 21 young plaintiffs asked for an impossible number of documents they believe will show decades of government policies that flew in the face of its own findings.
According to the kids, the government has known for decades its policies have created an imminent environmental catastrophe, through inaction on climate change and federal subsidies and contracts with oil companies.
The government also claims what the kids want – a court order forcing the government to stop climate change – threatens the separation of powers between the courts and the executive branch of government.
A trial was scheduled to begin Feb. 5, which would have put the Trump administration in the awkward position of defending an answer filed by Obama-era U.S. attorneys that painted a devastatingly bleak environmental future and acknowledged the government has known for decades that it was making the situation worse.
On the other hand, the Justice Department lawyers under Trump could try presenting evidence in the rigorous environment of a federal courtroom that climate change either does not exist or is not caused by humans.
A group of constitutional scholars weighed in on the issue in an amicus brief filed this past week. Siding with the kids, the scholars speculated that it was this position – lodged between a political impossibility and a logical one – that forced the government to ask the Ninth Circuit for a way out of the case.
Though the government may want to avoid having to argue climate change one way or the other before a federal judge, “there is no constitutionally founded reason for federal courts to duck controversial issues so as to guard against embarrassing defendants,” the scholars wrote.
Speaking to the government claim that the case would threaten the separation of powers, the law professors said the preemptive appeal “misapprehends the role of federal courts,” by seeking to squelch courts’ fundamental role in evaluating whether a government action impedes the liberty of its citizens.
A three-judge panel for the Ninth Circuit shrugged off the government’s arguments Wednesday, finding the normal course of litigation would address its concerns.
Noting that the United States is a defendant in nearly 20 percent of civil cases filed in federal court, Chief Circuit Judge Sidney R. Thomas wrote that federal rules of procedure anticipate defendants will sometimes face burdensome litigation.
“Congress has not exempted the government from the normal rules of appellate procedure,” Thomas wrote for a panel that included Circuit Judges Marsha S. Berzon and Michelle T. Friedland. “But, as noted, litigation burdens are part of our legal system, and the defendants still have the usual remedies before the district court for nonmeritorious litigation, for example, seeking summary judgment on the claims. And if relief is not forthcoming, any legal error can be remedied on appeal.”
And while the scope of discovery sought by the kids may be daunting, the trial judge has not yet issued a single discovery order, making mandamus at this point “entirely premature,” Thomas wrote.
Even novel legal theories must be allowed play out at the district court level, the panel found. And the government can appeal any eventual ruling, just like other defendants.
“There is little doubt that the legal theories asserted in this case raise issues of first impression,” Thomas wrote, “but the district court’s order denying a motion to dismiss on the pleadings – which is all that has happened thus far – does not present the possibility that those issues will evade appellate review.”
Letting the government skip the line would create a precedent that would result in an unworkable pileup of cases in appellate courts, Thomas wrote.
“There is enduring value in the orderly administration of litigation by the trial courts, free of needless appellate interference. If appellate review could be invoked whenever a district court denied a motion to dismiss, we would be quickly overwhelmed with such requests and the resolution of cases would be unnecessarily delayed.”
Julia Olson, executive director and chief legal counsel of Our Children’s Trust and the kids’ lawyer, said she was looking forward to arguing the case in court.
“The Ninth Circuit just gave us the green light for trial. We will ask the district court for a trial date in 2018 where we will put the federal government’s dangerous energy system and climate policies on trial for infringing the constitutional rights of young people.”