What’s next for the Kids’ Climate Change lawsuit?

It’s been an eventful few weeks for the “youth plaintiffs” responsible for Juliana v. United States, the potentially groundbreaking lawsuit attempting to hold the federal government accountable for its decades-long failure to address the growing threat of climate change.

BACKGROUND: How the Supreme Court shakeup could affect the kids’ climate change lawsuit

On November 8, the Ninth Circuit stepped in to halt the case’s progress in federal district court in Oregon; that decision came less than a week after the Supreme Court allowed the case to move forward by lifting an administrative hold imposed by Justice John Roberts.

Perhaps this latest round of drama shouldn’t come as a surprise. The procedural history of the kids’ climate change lawsuit is already exceedingly long. Its length and complexity are a consequence of the federal government’s aggressive effort to prevent the case from ever going to trial, most recently scheduled to begin on October 29. The Ninth Circuit and the Supreme Court have already twice declined the government’s pleas to dismiss the litigation.

Why has Juliana once again returned to the Ninth Circuit? At least in part, it is because the Supreme Court continues to express its skepticism about the case.

But rather than detail of all the rulings leading to this point (an exercise equal parts dull and confusing), it may be more fruitful to focus on the big picture questions:  Why does the case continue to ricochet around the court system? And what is the likely outcome of all this maneuvering?

Superficially, the government’s increasingly repetitive court filings have an air of desperation. Such intervention by a higher court before a district court makes its final ruling is considered an “extraordinary remedy,” and the term nicely captures the institutional reluctance for interrupting the normal course of litigation. In applying that standard, the Supreme Court and the Ninth Circuit each found that a review of the legal issues in Juliana would be premature.

At the same time, both courts have expressed discomfort with the plaintiffs’ legal theories. In July, the Supreme Court pointedly commented on the “striking” breadth of the lawsuit. The Ninth Circuit similarly cautioned that the claims are “quite broad” and that some of the requested remedies might exceed the power of the judicial branch.

The Supreme Court’s latest order seemingly invited the government to once more ask the Ninth Circuit to review the case:

“Although the Ninth Circuit has twice denied the Government’s request… the court’s basis for denying relief rested, in large part, on the early stage of the litigation, the likelihood that plaintiffs’ claims would narrow as the case progressed, and the possibility of attaining relief through ordinary dispositive motions. Those reasons are, to a large extent, no longer pertinent.”

The government naturally seized on the opportunity, filing a motion with the Ninth Circuit just days later seeking dismissal of the case. Perhaps with the Supreme Court’s implicit directive in mind, the Ninth Circuit responded by issuing its stay last week.

What’s more, the Ninth Circuit’s order encourages the district court to “promptly resolve” the government’s new request to allow an immediate appeal of the legal issues in the case. If the district court agrees, the matter could go directly to the Ninth Circuit without any need to satisfy the standards for “extraordinary” relief.

The Ninth Circuit may have prompted the district court simply in order to tie up loose ends. But notably, the decision also quotes the Supreme Court’s observation that the viability of the plaintiffs’ case presents “substantial grounds for difference of opinion.”

The Supreme Court’s choice of that phrasing was deliberate. The language parrots the statutory standard that the district court will apply when considering the government’s request to accelerate its appeal, a standard that the Supreme Court evidently believes has largely been met.

Which leads back to the questions raised above: Why has Juliana once again returned to the Ninth Circuit? At least in part, it is because the Supreme Court continues to express its skepticism about the case. What happens next? Although the district court has been resolute in its intent to hold a trial, the Ninth Circuit may be more receptive to the Supreme Court’s message, hoping to avoid a quick reversal.

It’s been three years—and a mountain of legal filings—since the plaintiffs in Juliana demanded that the government finally take action to protect them from the ongoing climate crisis. With tenacious, committed lawyering, they have overcome multiple legal hurdles to arrive at this point. Whether they will be permitted to press their case in open court, however, remains to be seen, and for the moment, that decision largely rests with the Ninth Circuit.

Michael Mayer practiced environmental law in the Northwest for close to a decade and now teaches climate change law at Seattle University School of Law.