DOJ returns to 9th Circuit in efforts to kill sweeping environmental lawsuit

The Trump administration is asking for the third time this year that the 9th U.S. Circuit Court of Appeals kill an unprecedented lawsuit filed by 21 young plaintiffs who have charged the federal government with pursuing policies detrimental to the environmental safety of the Earth.

In a petition filed late Monday, U.S. Justice Department attorneys told the federal appeals court language the U.S. Supreme Court used in a Friday decision withdrawing a previously issued administrative stay in the case indicated the 9th Circuit was the appropriate venue for the requested writ of mandamus.

The government has been resolute in its efforts to stop the lawsuit, which was first filed in Oregon federal court against the U.S. government during the Obama administration. Juliana et al v. United States of America et al., 15-CV01517 (D. Ore., filed Aug. 12, 2015).

Twice this year, the 9th Circuit has rejected requests for writs of mandamus ordering U.S. District Judge Ann L. Aiken to dismiss the suit, which claims a constitutional right to a healthy environment through the public trust doctrine.

The Monday filing was part of a shotgun approach on the part of the government.

Justice Department lawyers also requested Aiken reconsider her decision not to certify requests for interlocutory appeal of several of her refusals to dismiss the case, which had been set to go to trial at the end of October before the Supreme Court issued an administrative stay.

If Aiken does not certify an appeal, the government requested the 9th Circuit order her to do so, which would allow the judges to review her decision under a less deferential standard than that required by a mandamus review.

On Friday, the justices said in their order removing the stay that the legal theories presented in the case are unparalleled.

The unsigned order pointed to a prior decision issued by the court denying an earlier request for high court intervention. The justices said the breadth of the plaintiffs' claims were "striking" and presented "substantial grounds for difference of opinion."

In numerous filings throughout the case at the district, circuit and Supreme Court levels, the federal government has objected to the discovery requirements the case poses, which it says would interfere with the duties of high ranking officials in the executive branch.

In prior rulings, 9th Circuit Chief Judge Sidney Thomas wrote for a unanimous three-judge panel saying requests to stop the case were premature because discovery burdens would likely lessen as the litigation proceeded in the months before trial.

On Friday, the justices said those circumstances no longer existed.

"Those reasons are, to a large extent, no longer pertinent," the Supreme Court said Friday, suggesting the 9th Circuit should reconsider its analysis of the mandamus request.

Neither Julia Ann Olson, an attorney with Our Children's Trust, nor Philip Gregory, who represent the plaintiffs, responded to requests for comment by press time Tuesday.