9th Circuit hears arguments in youths’ sweeping climate change suit

Wrestling with a sweeping environmental lawsuit claiming the U.S. government has been derelict in its duty to protect what plaintiffs say is a constitutional right to a healthy environment, a federal appeals court appeared unsure Tuesday of what exactly complainants are seeking and whether their claims are grounded in legal authority.

"What cases can you give me that suggest inaction by the federal government deprives somebody of a substantive constitutional right?" 9th U.S. Circuit Court of Appeals Judge Andrew D. Hurwitz asked Julia Ann Olson, an attorney with Wild Earth Advocates who represents 21 youths suing the federal government over its response to climate change.

"How would a declaration here cure your injuries?" inquired Judge Mary H. Murguia, who repeatedly pressed Olson on the scope of and desired redress in the case.

The arguments came after more than a year of high profile appellate litigation testing whether the 9th Circuit could even hear an interlocutory appeal of U.S. District Judge Ann L. Aiken's decision to deny the federal government's request to quash the suit.

Plaintiffs filed the unprecedented litigation in the District of Oregon in 2015 against the Obama administration, claiming the federal government deliberately ignored the harm caused by rising carbon dioxide emissions in the Earth's atmosphere, effectively violating a constitutional right to a free and healthy life and a purported federal public trust.

Named defendants -- which include the president, eight federal departments and several cabinet members -- have fought the suit by arguing the youths have no standing to bring the case and saying any ultimate judgment stemming from the litigation would violate the separation of powers doctrine.

Twice last year the 9th Circuit denied mandamus petitions filed by the federal government seeking to reverse Aiken's decision to hear the case. In December, only after some nudging by the U.S. Supreme Court did the federal appeals court on a 2-1 vote approve a subsequent ruling on Aiken's part, certifying the case for appeal.

The current posture of the litigation allows the 9th Circuit judges to weigh in on the merits of the case in a way they were unable to in the mandamus context. Juliana v. United States, 18-36082 (9th Cir., filed Aug. 12, 2015).

Olson, arguing in a special sitting in Portland's district court to allow a flood of members of the public to watch the proceedings, tried to portray the litigation as the next step in decades of historic cases pursuing institutional change toward moral progress.

"Whenever there is a government system that is causing such catastrophic infringement to fundamental rights, it is the duty of the court ... to issue a decree that can redress that constitutional violation," she said, comparing the case at various times to landmark rulings advancing the interests of women and ethnic minority groups.

But Jeffrey Bossert Clark Sr., assistant attorney general for the Justice Department's Environment and Natural Resources Division, said the case sought to do too much too quickly.

"Obergefell didn't just spring from the Supreme Court's head like Athena from Zeus," he told the court, referencing the historic 2015 decision effectively legalizing same-sex marriage across the country.

Decisions like that and Brown v. Board of Education came after years of strategic litigation aimed at building a body of piecemeal case law that would support monumental outcomes, he said.

Murguia, Hurwitz and U.S. District Judge Josephine L. Staton, visiting from the Central District of California, all at times pressed Olson on the limits of her theory and tried to draw out from her concrete case cites granting the court authority to rule in her clients' favor.

"We would not be telling an agency to do something different ... instead we would be affirmatively, from what I can tell, telling the government to do something," Murguia said. "I'm trying to figure out if we've done anything like that on this scale to this proportion, almost drawing on a clean slate, and what your best authority is, especially when you have implicated so many different agencies in your allegations."

Olson said it would be appropriate to include every single named defendant, repeatedly comparing the case to Brown v. Plata, 563 U.S. 493 (2011), in which the Supreme Court on a 5-4 vote ordered the state of California to reduce its prison population by at least 137.5% within two years in order to comply with the Eighth Amendment's ban on cruel and unusual punishment.

That, she continued, was an effective example of ordering a concrete change based on an abstract theory.

Clark too faced skepticism from the panel, particularly on the scope of his separation of powers argument after he repeatedly invoked concern that "one district judge" had so much authority over the executive branch in this context.

"You're not quarreling with whether Judge Aiken reaches a different conclusion than a judge someplace else?" Hurwitz asked, seeking an answer on the power of the judiciary to intervene. "You're quarreling whether any judge sitting anywhere, any number, the three of us, nine on the Supreme Court, or one on the district court can deal with this issue, correct?"

The 9th Circuit earlier this year granted a motion to expedite the case. The text of the order does not make clear whether the directive applied to the deliberation process or the briefing schedule alone.