Plaintiffs may continue with environmental suit against government, 9th Circuit rules

Plaintiffs seeking to hold the U.S. government responsible for allegedly disregarding the threat of carbon dioxide emissions for decades while knowing about serious environmental harms they posed will be able to continue with their unprecedented lawsuit, the 9th U.S. Circuit Court of Appeals ruled Wednesday.

In a unanimous opinion written by Chief Judge Sidney R. Thomas, the court said that the government acted prematurely when it requested mandamus relief after U.S. District Judge Ann L. Aiken in Oregon denied the Department of Justice motion for summary judgment in the case.

The plaintiffs, who are 21 children and young adults and an environmental professor acting as the "guardian" of future generations, sued the Obama administration in 2015, alleging it violated their due process and public trust rights by ignoring what they said is a threat of global warming. President Donald J. Trump and several of his agency heads were substituted as defendants last year.

"The American government has acted with deliberate indifference in addressing the concerns of the systemic fossil fuel system," attorney Philip L. Gregory, of Gregory Law Group in Woodside, said in a phone interview after the decision came down.

"The importance of this trial is to show the American people that the federal government has known for more than 50 years that it is facing an 'apocalypse,'" said Gregory, who represents the plaintiffs. He said the word 'apocalypse' was used by President Richard M. Nixon's environmental adviser, Daniel "Pat" Moynihan, in a memo written in the 1970s. DOJ lawyers filed a petition for a writ of mandamus after Aiken denied the government's request to appeal her summary judgment denial.

During oral arguments in December, 9th Circuit Judge Marsha S. Berzon suggested that the government was being impatient and 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," Berzon told Deputy Assistant Attorney General 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."

Thomas' opinion echoed many of Berzon's sentiments, repeatedly stressing the fact that the litigation should proceed further at the district court level before any appellate review commences. USA v. USDC-ORE, 2018 DJDAR 2156.

The government has argued that the discovery that would be involved in the case would be exceptionally burdensome. It has also said that the inclusion of the president as a defendant was unnecessary and would drain excessive time from the executive office.

But in the opinion, Thomas noted that no discovery orders had yet been issued and that the government had never requested to remove the president from the case at the district court level.

Addressing the five factors of Bauman v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir. 1977), which governs mandamus petitions within the circuit, Thomas underscored the early stage of litigation at which the case came to the panel. He wrote, at the end of his opinion, "There is enduring value in the orderly administration of litigation by the trial courts, free of needless appellate interference."

Noting that the circuit lacked any clear precedent pertaining to the plaintiffs' theories, Thomas said that Bauman's clear error requirement could not be met and wrote that the proceedings below did not suggest that the court would be unable to address any questions of first impression that the lawsuit posed.

Thomas said that the government essentially sought a dismissal of a legal claim it views as untenable simply because it is a burden to defend.

"But ... litigation burdens are part of our legal system, and the defendants still have the usual remedies before the district court for nonmeritorious litigation," he wrote, acknowledging that the government's claims concerning the merits of the case could be true. "And if relief is not forthcoming, any legal error can be remedied on appeal."

Julia Ann Olson, an attorney at Wild Earth Advocates, who argued for the plaintiffs before the court, compared the government's request for mandamus to its extraordinary request to skip the 9th Circuit in the ongoing litigation pertaining to the administration's decision to end DACA.

"The only thing the Trump administration had to complain about was having to follow the ordinary course of action in federal court," she said. "And the court has said, 'You need to follow the ordinary course of action.'"

When the lawsuit was filed, the Obama-era DOJ admitted in its answer to the complaint several allegations concerning the state of the climate and the science allegedly backing those claims.

But Olson and Gregory said that since Trump became president, the government has indicated that it may seek to amend its answer to the complaint. The DOJ did not respond to a request for comment on whether it plans to do so.

Olson said that, with the 9th Circuit's ruling, the plaintiffs plan to move forward with the suit and will ask for a trial date in 2018.

"The 9th Circuit panel properly noted that what this case needs is a fully developed record from trial, where we put on the climate science and the judge makes an appropriate decision regarding: first, on liability, and then on remedy based on the science," Gregory said.

Judge Michelle T. Friedland sat on the panel with Thomas and Berzon. She replaced former Judge Alex Kozinski, who was assigned to the case before his retirement.