9th Circuit hears arguments on governmental responsibility for climate

A three-judge panel of the 9th U.S. Circuit Court of Appeals wrestled with an unprecedented case at the heart of American energy policy, global warming and the separation of powers on Monday.

If the plaintiffs succeed, the United States and several federal agency heads may be found liable for violating the due process and public trust rights of 21 children and young adults as well as a professor acting as the guardian of future generations.

The plaintiffs argued that the U.S. government failed to reduce carbon dioxide emissions for decades while knowing of the potentially devastating environmental effects of burning fossil fuels. USA v. USDC-ORE, 17-71692 (9th Cir., filed Aug. 12, 2015).

“What the complaint alleges is that the federal defendants collectively, and through the fossil fuel energy system, are affirmatively depriving these young people of their rights to life, liberty and property,” Julia Ann Olson, who represents the plaintiffs, told the court.

The case began in Oregon when James Hansen, a Columbia University professor, and Earth Guardians, an environmental rights group, sued the U.S. government, President Barack Obama and executive agencies including the Departments of the Interior, Transportation, Agriculture, Commerce, Defense, and State.

President Donald J. Trump was named a defendant after assuming office.

The plaintiffs asked the district court to issue an order requiring the government to reduce carbon dioxide emissions. The government contended that this was an improper attempt to have the judiciary overstep its bounds.

In 2016, U.S. District Judge Ann Aiken denied the government’s motion to dismiss the case, acknowledging that the claims it brought were groundbreaking, but ruling that the plaintiffs had a claim.

Aiken also denied the government’s motion to certify an appeal to the 9th Circuit, which prompted the government to petition for a writ of mandamus, seeking a reversal of her ruling.

On Monday, the court seemed wary of the fact that the government had dressed up an appeal from a failed summary judgment attempt as a mandamus petition.

“Really what this is, is an objection to the fact that [Aiken] didn’t certify the interlocutory appeal,” Circuit Judge Marsha S. Berzon told the government’s attorney, Eric Grant. “And maybe many judges would have, but she didn’t and that’s the system and that’s the way it’s set up.”

Chief Judge Sidney R. Thomas told Grant that granting mandamus in the case could open the 9th Circuit to a flood of daily mandamus petitions that otherwise wouldn’t be allowed.

The government has complained that allowing the case to proceed would put an unnecessary burden on members of the government. Berzon noted to Grant that the government has not yet moved to remove individual defendants, like the president, from the case.

At the core of the debate, though, was the power of a court to allow previously unrecognized claims to proceed in federal court. At various moments of the argument, 9th Circuit judges commented on landmark Supreme Court decisions, among them District of Columbia v. Heller, Baker v. Carr and Brown v. Board of Education.

When Grant told the panel that the plaintiffs’ claims were “meritless,” Judge Alex Kozinski noted that 10 years before Obergefell v. Hodges was decided by the U.S. Supreme Court, there was no standing to challenge law prohibiting same-sex marriages.

Grant was unable to provide the court with a precedential decision in which a court granted mandamus because a district court judge recognized standing improperly.

But Olson, who represents the plaintiffs with Philip Gregory, struggled to convince Kozinski that the case wasn’t controlled by an earlier 9th Circuit decision, which killed a lawsuit seeking to force Washington state agencies to close its oil refineries under the Clean Air Act because of standing issues.

Kozinski had questioned whether it was the “province of inferior lower courts” to create causes of action that don’t already exist.

Instead, Olson urged the court, prompted by a question from Berzon, to allow the trial to proceed.

“All the issues [the government] complains about are correctable on appeal,” Olson said.

An added wrinkle to the case is the change in government that has occurred since the case was filed. Kozinski noted that the Trump administration will likely depart from Obama-era environmental policies and contemplated the reality of a judicial order requiring action on climate change and a presidential administration that no longer acknowledges it as an issue.

“Who trumps at that point?” the judge asked.

If the case returns to the district court, Aiken has said she will proceed with a bifurcated trial. First there will be a liability finding, then it will turn to a remedy.

Thomas noted his concern with redressability, saying that the number of different agencies named in the complaint would require a high level of coordination to comply.