Novel Litigation Strategies Also on Trial in Kids’ Climate Suit

This case serves to illustrate two novel litigation strategies — the first that the plaintiffs are not non-governmental organizations (NGOs), but instead include 21 young individuals who claim their constitutional rights have been violated by the government’s policies on carbon dioxide emissions.

Second, the case is novel because plaintiffs are using the public trust doctrine instead of typical statutory law as a basis for claims. While public trust doctrine has a place in environmental law, it is unclear whether the Supreme Court will see fit to extend it to something more amorphous like climate change.

These legal theories have never before been tested — namely, that the plaintiffs’ due process and equal protection rights have been violated by the government’s policies toward climate change.

In this case, plaintiffs argue that the government has failed to protect public trust resources, specifically the atmosphere, for present and future generations. This theory, otherwise called “Atmospheric Trust Litigation,” is that the government has an affirmative duty to protect natural systems, because (1) resources are owned by all citizens under the public trust doctrine, (2) the atmosphere is one such resources kept in trust, and (3) the government is a “trustee,” thus has the responsibility to prevent future damage and repair past harms. In short, the theory attempts to create a link between the preservation of natural resources — soil, water, and now, air — and basic constitutional rights.

By contrast, in response to these arguments, the government contends that the executive and legislative branches of government are supposed to make decisions about environmental and energy policy — not federal courts.  The differences in these two positions presents a level of drama not typical for environmental rulemakings and regulatory challenges.

Procedural Battles and Background

Just over a week ago, the government petitioned the Supreme Court for a stay and a writ of mandamus, which is essentially an order where a higher court orders a lower court to take, or refrain from taking, a specific action. Mandamus is an extraordinary remedy that, if granted, would have required the Oregon district court to dismiss the case altogether. The Supreme Court refused and denied the stay without prejudice.

But in its most recent order, the Supreme Court hinted that the government may still be able to get the writ of mandamus it has been seeking from the Ninth Circuit. Generally, mandamus may be issued when:

• No other adequate means exists to attain the desired relief;
• The party’s right to issuance of a writ is clear and undisputable;
• The writ is appropriate under the circumstances.

In its order, the Court stated that “when mandamus relief is available in the court of appeals, pursuit of that option is ordinarily required.” The Court also noted that the three previous denials by the Ninth Circuit were without prejudice, and that some of the reasons for the denials might “no longer [be] pertinent.” Accordingly, the Court seemed to direct the Ninth Circuit to consider the following factors if the government petitions for another writ of mandamus:

• Whether litigation has progressed such that a writ of mandamus might be appropriate;
• Whether the legal issues have actually narrowed as the case has progressed;
• Whether there is still a possibility for the government to pursue relief by ordinary dispositive motions.

Thus far, the government’s dispositive motions have failed to stop the lawsuit from moving forward. On October 15, U.S. District Judge Anne Aiken denied the government’s summary judgment motion and motion for judgment on the pleadings. The government’s earlier motion to dismiss was also denied.

The Supreme Court’s latest order seems to encourage the government to pursue yet another mandamus petition with the Ninth Circuit. If the Ninth Circuit decides against issuing a writ of mandamus, the lawsuit will be the first of its kind to ever go to trial.

Stay tuned for further developments in this case.