Kelsey Juliana and Olivia Chernaik, plaintiffs in the youth climate casePhoto by Todd Cooper

What a Tangled Web We Weave, When First We Practice to … Try to Hold Up Kids’ Climate Cases in Court

The Department of Justice is all about trying to stop the climate case

On Friday, Nov. 2, the Supreme Court said the Our Children’s Trust constitutional climate case could move forward, but it left open the possibility that the Department of Justice could take its attempts to slow or stop the case back to the Ninth Circuit Court of Appeals.

So the Trump administration did that. And then some.

Juliana vs. United States, filed in 2015, is a youth climate suit based on the public trust doctrine that argues that if the government is causing harm to the climate system, it needs to be ordered to stop that harm. The youths, now ages 10 to 21, filed against the federal government in the U.S. District Court for the District of Oregon.

The federal government has tried repeatedly — and failed — to stop the suit. However it did succeed in delaying the 21 youths in the case from having their day in court scheduled for Oct. 29.

According to legal site Law360, before Friday’s Supreme Court ruling, plaintiffs in other climate cases were concerned a broad ruling on the children’s case could have affected those other cases. First Law 360 cites attorney Steve Berman, who represents those cities, saying he’s “concerned about a potentially broad ruling from the Supreme Court affecting climate torts.”

He noted that lower courts have already latched onto language in the high court’s April decision in Jesner v. Arab Bank which held that “litigants can’t use the Alien Tort Statute to sue foreign corporations for overseas human rights abuses and violence — for the notion that federal courts should be cautious in recognizing claims.”

The Law360 story goes on to say that attorney Dan Riesel “said the concept of whether there’s a conflict with the legislative function of the government and courts should steer clear is applicable across the board, whether it’s a constitutional case brought by individuals or a nuisance case brought by municipalities.”

Law360 cites Riesel as saying that while the youth climate suit and and the climate torts are based on different legal theories, “they share an aim to distinguish themselves from the Supreme Court’s 2011 ruling in American Electric Power Co. v. Connecticut hat federal common law claims relating to climate change are displaced by the Clean Air Act and U.S. Environmental Protection Agency regulations.”

However, the case is still in play, and the feds are enthused about their efforts to stop it.

According to Climate Liability News, “The federal government filed several repeat motions in the lower courts, including a fourth petition for a writ of mandamus to the Ninth Circuit, which just denied the last one on Friday.” The climate site reports that the “Department of Justice also filed a motion in District Court seeking permission to appeal its denials of previous motions as well as seeking a stay on the case. The latest mandamus request asks the Ninth Circuit Court to intervene should the District Court deny those motions.”

If it sounds complicated, it is.

The government also filed a separate motion with the District Court on Nov. 5, Climate Liability News reports, “requesting an immediate stay while [Judge Ann] Aiken reviews the motion to reconsider and while the Ninth Circuit reviews the mandamus petition” with an “emergency” request for a stay on proceedings. “Department of Justice attorneys say the court must act within 21 days to avoid irreparable harm to the government.”

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