9th Circuit denies 2nd government request in five months to kill broad climate change lawsuit

The federal government is seeking U.S. Supreme Court review of a Friday decision by the 9th U.S. Circuit Court of Appeals requiring the Justice Department to defend sweeping claims that numerous administrative agencies allegedly failed to act on knowledge of threats posed by climate change.

The lawsuit says the inaction violates the due process and public trust rights of 21 minors.

For the second time in five months, the 9th Circuit wrote Friday it would not order the dismissal of the lawsuit, despite repeated requests from the government to do so.

The court's most recent decision reiterated a prior order declining to stay all discovery and trial in the case. U.S. V. USDC-ORE, 2018 DJDAR 7109 (9th Cir. July 20, 2018).

Repeatedly, Justice Department lawyers have urged the 9th Circuit to direct U.S. District Judge Ann L. Aiken of Oregon to kill the case.

The claims in the lawsuit, which was filed against the Obama administration in Oregon federal court in 2015, are broad.

Congress, the U.S. Environmental Protection Agency and other government agencies have been aware for decades of the dangers inherent to rising carbon emissions, but allowed release rates of the gas to pass dangerously unhealthy levels, the complaint says.

The Justice Department casts the lawsuit as unprecedented and has objected to procedural rulings issued in the litigation thus far.

"This suit is an attempt to redirect federal environmental and energy policies through the courts rather than through the political process, by asserting a new and unsupported fundamental due process right to certain climate conditions," U.S. Solicitor General Noel Francisco said in a July 17 request that the U.S. Supreme Court issue a stay in the case.

On Friday, Francisco wrote to the Supreme Court saying intervention was necessary and its prior request for mandamus relief or certoirari "is now even more warranted...because nothing relevant remains to be done in the lower courts."

Last week, Justice Anthony Kennedy directed plaintiffs to respond by Monday.

Appellate procedures in the case began after Aiken denied the government's motion to dismiss in 2016 and declined to grant the government's request to certify an appeal. The Justice Department then sought a mandamus petition at the 9th Circuit.

The move didn't play well. During oral arguments in December, Judge Marsha S. Berzon suggested the government was impatient and dressed up an appeal from a failed summary judgment motion as a mandamus petition.

In March, the 9th Circuit denied the petition, saying the government had done little at the district court level to narrow the scope of the discovery presented by the case or to request removal of certain defendants from the suit.

Friday's per curiam decision, which came with no oral argument, was short and suggested the government had done little to remedy the weaknesses in its posture the last time around.

"No new circumstances justify this second petition, and we again decline to grant mandamus relief," the court said.

After the March decision, the government filed motions for a protective order seeking to halt all discovery, judgment on the pleadings and for summary judgment. The government's brief also says it requested the dismissal of the president as a defendant.

But Justice Department lawyers did not move to narrow the scope of discovery, the 9th Circuit said.

"[T]he government has not challenged a single specific discovery request, and the district court has not issued a single order compelling discovery," the 9th Circuit wrote Friday.

Woodside, California-based Philip L. Gregory, the plaintiffs' lead attorney, said the mandamus requests are evidence of the government's concern that the lawsuit raises legitimate questions.

"The Trump administration is scared to have the District Court hear young plaintiffs' stories, be presented with the climate science evidence and to analyze all that in light of the U.S. Constitution and the public trust," Gregory said in an interview Friday.