Kids Climate Case to be Appealed Before Trial

A monkey wrench in the Works.

Previous posts have followed the twists and turns of the lawsuit Juliana vs. US, initiated and funded by Our Children's Trust.  In November the Supreme Court signaled their desire that lower courts rein in the scope of the lawsuit.  The District Court backed off and now the Ninth Circuit Court will take up the appeal in advance of any trial activity.  The significance and implications are described in an article by Karen Savage at Climate Liability News Appeals Court OKs Pre-Trial Appeal of Kids Climate Case, Siding With Government  Excerpts in italics with my bolds.

The Ninth Circuit Court of Appeals has granted a petition by the Trump administration for a rare pre-trial appeal in the landmark constitutional climate lawsuit, Juliana v. United States. The appeals court agreed to the interlocutory appeal, which leaves the future progress of the case unclear.

Generally, interlocutory appeals consider certain aspects of a case while allowing other issues to proceed. The young plaintiffs in the case, 21 young people from around the country, have asked District Court Judge Ann Aiken to clarify how the case will move forward while the Ninth Circuit considers its appeal. They argue that they should be allowed to continue the discovery process and other pre-trial proceedings.

The Ninth Circuit's decision came as somewhat of a surprise because it had denied repeated attempts by the government to short-circuit the case before trial. A three-judge panel voted 2-1 to grant this request, while denying other motions, including the government's fourth writ of mandamus request. The writ of mandamus is even rarer than an interlocutory appeal because it requires the higher court to decide the lower court clearly abused its judicial power.

But granting the interlocutory appeal still throws the case into uncertainty.

Chief Judge Sidney Thomas and Circuit Judge Marsha Berzon voted for the government's motion while Circuit Judge Michelle Friedland dissented.

The Ninth Circuit Dec.26, 2018 ruling (here) states:

An interlocutory appeal under 28 U.S.C. § 1292(b) is authorized when a district court order "'involves a controlling question of law as to which there is substantial ground for difference of opinion' and where 'an immediate appeal from the order may materially advance the ultimate termination of the litigation.'" Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 687–88 (9th Cir. 2011) (quoting 28 U.S.C. § 1292(b)). The district court properly concluded that the issues presented by this case satisfied the standard set forth in § 1292(b) and properly exercised its discretion in certifying this case for interlocutory appeal.

The petition for permission to appeal pursuant to 28 U.S.C. § 1292(b) is granted. Within 14 days after the date of this order, petitioners shall perfect the appeal in accordance with Federal Rule of Appellate Procedure 5(d). All pending motions are denied as moot.

Previously, the petitioners (Our Children's Trust) have repeatedly argued for a 50 day trial first and then appeal afterward.

In a reply brief, the federal government pushed back, telling the justices that it had made every possible effort in the lower courts to avoid reaching this point, but had been unsuccessful. The government emphasized that what the plaintiffs are asking the federal courts to do is extraordinary, "nothing less than a complete transformation of the American energy system – including the abandonment of fossil fuels." Such a request, the government continued, "has no place in federal court," so that granting the government a reprieve from the upcoming trial would "preserve the judiciary's essential role under the Constitution."

The government added that, contrary to the plaintiffs' assurances, the prospect winning on appeal after an "extensive" trial had already taken place would provide little comfort to the government, because of the enormous amount of resources that would have to be devoted to pretrial preparations and the trial itself.

For background on the lawsuit see:  Supremes Kick Kids Lawsuit Down the Road

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