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Wednesday, February 26, 2020

Ninth Circuit says 'Kids Climate Case' has to seek redress through government or voters, not court

Federal Court

By John Sammon | Jan 23, 2020


SAN FRANCISCO (Legal Newsline) – The U.S. Court of Appeals for the Ninth Circuit on Jan. 17 turned back a lawsuit filed by a group of youth climate activists suing the federal government over alleged inaction on climate change, saying the court lacks jurisdiction in the matter.

“We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box,” Judge Andrew Hurwitz wrote

“That the other (government) branches may have abdicated their responsibility to remediate the problem, does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”

Pending at the Ninth Circuit is the dismissal of climate change lawsuits brought by San Francisco and Oakland against the fossil fuel industry. A three-judge panel will hear oral arguments Feb. 5.

The plaintiffs need to seek action by forcing change in government or through the election process, the Ninth Circuit opinion in the kids' case read.

While Hurwitz and Judge Mary Murguia agreed climate changes poses a serious threat, they disagreed on whether the case could be put forward in a court.    

Judge Josephine Staton dissented with Hurwitz's opinion and said the plaintiffs have standing to challenge the government.

"In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response – yet presses ahead toward calamity," Staton wrote. 

"My colleagues throw up their hands, concluding that this case presents nothing fit for the judiciary. On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. 

"But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution."

Known as the “Kids Climate Case” because of the young ages of some of the plaintiffs, the suit alleged the government contributed to climate change because it implemented policies for continued burning of fossil fuels. The plaintiffs alleged this was a violation of their constitutional rights.

The plaintiffs sued the Trump Administration, U.S. Department of Energy, Environmental Protection Agency (EPA), Office of Management and Budget, U.S. Dept. of Commerce and Transportation, U.S. Department of the Interior and other government agencies.

Last May, the Ninth Circuit denied a motion by the federal government to dismiss the lawsuit. Chief Circuit Judge Sidney R. Thomas decided at the time it would be premature to toss the case based on the Trump Administration’s assertion the discovery process would be burdensome.

The U.S. District Court for the District of Oregon denied a request by the government to dismiss the case, which resulted in attorneys for the Trump Administration filing an appeal with the Ninth Circuit asking for a writ of mandamus   

In addition to violating the Constitution, the plaintiffs allege the government's lack of action to combat climate change injured the plaintiffs personally by causing them medical problems, damaging property and recreational interests, and causing psychological harm. The plaintiffs sought relief ordering the government to implement a plan to phase out fossil fuel emissions and to draw down atmospheric carbon dioxide.

The Ninth Circuit brief stated there was little dispute climate change was taking place at a rapid rate and that it could wreak havoc on the earth if left unchecked. 

However, the opinion also noted it was beyond the power of the court to order the plaintiffs’ remedial plan where anything effective would require a host of complex policy decisions by the executive and legislative branches of the federal government.

The appeals court reversed the orders of the Oregon court and remanded the case back to the district court with instructions to dismiss the case for lack of Article III standing. The plaintiffs can seek review by the entire Ninth Circuit.

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