9th Circuit certifies interlocutory appeal in sweeping climate change lawsuit

The U.S. Justice Department scored a victory for the Trump administration this week, fending off -- for the time being -- an unprecedented lawsuit seeking to hold the federal government responsible for increases of greenhouse gas emissions in the earth's atmosphere.

Late Wednesday, a divided panel of the 9th U.S. Circuit Court of Appeals affirmed a federal district judge's decision to certify an interlocutory appeal in the lawsuit, previously scheduled for trial in October.

Chief Judge Sidney R. Thomas and Circuit Judge Marsha S. Berzon said in the Wednesday order that U.S. District Judge Ann Aiken exercised appropriate discretion in allowing the federal government to pursue an interlocutory appeal of her decision not to dismiss the sweeping claims. Juliana v. United States, 18-80176 (9th Cir. filed Aug. 12, 2015).

Aiken denied the government's prior requests for such relief, and in her Dec. 21 order, she said her reversal of course was not a decision taken lightly. "This court stands by its prior rulings on jurisdictional and merits issues, as well as its belief that this case would be better served by further factual development at trial," she wrote.

Circuit Judge Michelle T. Friedland authored a dissent Wednesday, suggesting Aiken buckled only after the Justice Department took the remarkable step of requesting on multiple occasions mandamus intervention.

"Although the district court's statements that [interlocutory appeal] factors were met would ordinarily support certification, here it appears that the court felt compelled to make that declaration even though -- as the rest of its order suggests -- the court did not believe that to be true," Friedland wrote.

The lawsuit, brought by 21 children and young adults, seeks to hold government officials responsible for allegedly ignoring hard science dating back decades that put lawmakers on notice of the threat posed by climate change. The suit was filed while Barack Obama was president. The Trump Justice Department has fought vociferously to kill it, arguing, among other things, that discovery burdens were impossible to meet and later challenging the theories underlying the complaint.

Plaintiffs' attorneys, Julia Olson from Our Children's Trust and Philip L. Gregory, a sole practitioner from Woodside, say government inaction violates the public trust doctrine and the right to life, liberty and property.

Federal defendants have argued in court that the plaintiffs' request -- a judicial order requiring the government to act on climate change -- would be unconstitutional. Such a remedy would violate the separation of powers, the Justice Department has said.

Three times this year the government sought writs of mandamus seeking an appellate court to order Aiken to kill the suit. Those failed, but in October, Chief Justice John G. Roberts Jr. issued a stay in the case, stopping the trial from proceeding. That order was eventually lifted, but the 9th Circuit issued its own stay in November.

The government's reluctance to defend the suit has been a central issue of the appellate battles that have ensued in the last year. During oral arguments for the first mandamus petition before the 9th Circuit in late 2017, Berzon chided the Justice Department for trying to find a workaround to the rules of appellate procedure.

"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 a year ago. "And maybe many judges would have, but she didn't and that's the system and that's the way it's set up."

In a footnote to Wednesday's dissent, Friedland blasted the government for its procedural maneuvering over the past year, building on the concerns previously articulated by Berzon.

"It is also concerning that allowing this appeal now effectively rewards the government for its repeated efforts to bypass normal litigation procedures by seeking mandamus relief in our court and the Supreme Court," Friedland wrote. "If anything has wasted judicial resources in this case, it was those efforts."