Bench Memos

Law & the Courts

Supreme Court Gives Ninth Circuit a Chance to Block the Climate-Change Lawsuit

On Friday, the Supreme Court issued an order denying the federal government’s motion for a stay of the impending trial in the wildly adventuresome climate-change lawsuit in Juliana v. United States. At first blush, this might seem like a significant loss for the federal government. But the text of the Court’s order strongly suggests otherwise.

Most importantly, the Court makes clear that it is denying the government’s motion “because adequate relief may be available in the United States Court of Appeals for the Ninth Circuit.” Specifically, the government may seek mandamus relief from the Ninth Circuit. The Court points out that even though a Ninth Circuit panel has twice denied the government’s request for mandamus relief at earlier stages of the litigation (see opinions from March and July), those denials were “without prejudice” and were based on “reasons [that] are, to a large extent, no longer pertinent.”

The Court’s order also suggests substantial agreement with the government’s argument that the lawsuit is (in the Court’s paraphrase) “beyond the limits of Article III.” The Court states:

The Government notes [not “argues”] that the suit is based on an assortment of unprecedented legal theories, such as a substantive due process right to certain climate conditions, and an equal protection right to live in the same climate as enjoyed by prior generations. The Government further points out that plaintiffs ask the District Court to create a “national remedial plan” to stabilize the climate and “restore the Earth’s energy balance.” [Emphasis added.]

I gather that if* the government petitions the Ninth Circuit for a writ of mandamus, the same very liberal panel—chief judge Sidney Thomas, Marsha Berzon, and Michelle Friedland—that denied its two previous requests will rule on that petition. We’ll see if they grant relief this time. If not, my bet is that the Supreme Court will then step in.

* Update: The government filed such a petition on 11/5.

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