Supreme Court Stays Upcoming Juliana Trial

Chief Justice Roberts’ Order a Major Win for the Trump Administration

The presently-constituted U.S. Supreme Court doesn’t seem to care for climate change litigation or regulation.

On Friday the Supreme Court took the extraordinary step of freezing pending discovery and the scheduled October 29th trial date in the closely-watched Juliana v. United States litigation. In a brief order, Chief Justice Roberts stayed all district court proceedings in the Juliana case and ordered the plaintiffs to filed a response by October 24th to the Trump Administration’s just-filed petition to the Supreme Court seeking to dismiss the case.

Chief Justice Roberts

I’ve previously written about the Juliana case in a 2015 post when the litigation was first filed in U.S. District Court in Oregon and more recently here and here. Briefly, in 2015 21 children from around the United States–-acting under the auspices of the non-profit organization Our Children’s Trust–-filed suit against the United States in U.S. District Court for the District of Oregon. They contend that the federal government has violated the children’s legal rights by failing to take far more dramatic steps to reduce the nation’s greenhouse gas emissions and address urgent climate change concerns.

After U.S. District Court Judge Anne Aiken denied the federal government’s motion to dismiss and scheduled the Juliana case for trial later this month, the Trump Administration’s Justice Department mounted repeated efforts in the appellate courts to stay or dismiss the district court proceedings. The Ninth Circuit rejected those attempts in separate opinions issued in May and July of this year. The federal government appealed the Ninth Circuit’s July 2018 decision to the Supreme Court, but in a brief July 30th order Justice Anthony Kennedy rejected the government’s appeal as premature while noting that the breadth of the Juliana plaintiffs’ constitutional and public trust-based claims were “striking.” In his capacity as the Supreme Court justice serving as “Circuit Justice” for the Ninth Circuit, Justice Kennedy in his order urged Judge Aiken to “take those concerns into account in assessing the burdens of discovery and trial…” (Notably, Kennedy’s July 30th order in the Juliana case was his last official act as a U.S. Supreme Court justice before retiring the next day.)

Justice Kennedy is now gone, replaced by Brett Kavanaugh, who can be expected to be relatively less sympathetic to “impact” climate change litigation exemplified by the Juliana case. But today’s remarkable order in the Juliana case is the product of a far less publicized transition at the Supreme Court: Chief Justice Roberts replaced Justice Kennedy as the Circuit Justice assigned to the Ninth Circuit with…himself. (In recent years, statistics show that the Ninth Circuit is the most frequently-reversed federal circuit court in the nation; this trend may well account for Roberts’ particular interest in the Ninth Circuit’s decision-making.) That’s why Roberts’ name was on today’s order staying proceedings in the Juliana case pending consideration by all nine justices of the Trump Administration’s petition to stay or dismiss the case.

And with the conservatives justices now commanding a solid five-member majority on the Court, I’m not optimistic that the Juliana plaintiffs will ever see the trial of their claims come to pass.

Of course, this is not the first time the U.S. Supreme Court has taken extraordinary and previously-unprecedented steps to sidetrack efforts to address climate change concerns. In February 2016, the Supreme Court by a 5-4 vote ordered the U.S. Environmental Protection Agency to halt enforcement of the Clean Power Plan promulgated by the Obama Administration in late 2015–the first time the Court had ever stayed a federal regulation before a decision by the lower federal courts.

So it would appear that these days the U.S. Supreme Court isn’t hospitable to either innovative climate change litigation or major climate change regulatory initiatives by the Executive Branch. That leaves Congress.

Yikes.

3 Replies to “Supreme Court Stays Upcoming Juliana Trial”

Professor Frank said;
“…….Brett Kavanaugh, who can be expected to be relatively less sympathetic to “impact” climate change litigation exemplified by the Juliana case…..”

Dear Professor Frank,
That old noxious fad of “climate change” is largely behind us now and almost forgotten. With Justice Kavanaugh and a solid conservative majority on the Supreme Court, now we must focus on more important issues. The forced imposition of gay marriage on ordinary citizens without their consent, during the Obama administration, is a much more serious and pressing problem in today’s world than that old canard “climate change.”

The Supreme Court must reconsider and reverse its ruling in Obergefell as soon as reasonably possible.

As will be included in a presentation shortly, I have the following comments.

The case is direct. For 50 years, the United States government has been repeatedly briefed by scientists and experts on climate and atmosphere, warning that Carbon emissions must be zeroed lest there eventually be dire consequences. The Science of those determinations is 120-170 years old, and dramatically unchallenged. Your cell phones and computers would not work, and satellites would not operate if the physics involved were wrong.

Despite these warnings, Congress after Congress, President after President, Democrat or Republican, have each done nothing. They’ve done nothing even after they promised to do something. Promises on the books. Promises as ratified treaties which are supposed to have the force of federal law, as some supposed defenders of the Constitution choose to overlook.

So, the Juliana vs United States charges the United States with direct harm to the plaintiffs and to future generations by negligence, harm which is specific and more severe to them than to us. Moreover, it argues that this taking was done without due process. Whether or not President Donald Trump owns a substantial piece of that harming, he and his Executive represent 50 years of Presidents who have done nothing, and his administration is responsible for that, like it or not.

The United States owns at least 25% of the world’s cumulative Carbon emissions, and each emission in the last 50 years was permitted and facilitated by an agency of the United States Executive and by Congress. With climate change, unlike many pollutants, cumulative emissions are all that matter. CO2 in atmosphere does naturally go away, but only in thousands of years, beyond any reasonable timescale of human planning or existence. Accordingly, permits produce harm.

Should the plaintiffs of Juliana fail, the last government branch, the judiciary, abdicates responsibility for solving this urgent problem. And so, then, the Constitution will have failed one of its existential requirements: To provide for the common defense. For Nature has laws, too, and we have been breaking them for a long time, ever more intensely. But She does not have courts of grievance or redress. She just acts. The consequences are, from nearly every reputable source, grave. Proof will come with time. But delay will also seriously impede reversibility.

While disappointing, were Juliana to be overturned, this should not be a reason for despair. It would not, in my opinion, mean the Constitution should be replaced. It would just mean, that as interpreted, it is useless for solving certain kinds of critically important problems. Its failure would imply the Constitution is becoming a dusty, old thing, irrelevant, like the Articles of Confederation are to us, a ceremonial relic. Let’s hope not.

There will be solutions for solving climate in any case, Constitution or not. They may well be horrifically expensive, and there’s no solution without first zeroing emissions, but solutions will exist. These solutions won’t be consistent with the Constitution, however: They will be beyond it. I hope Chief Justice Roberts and his colleagues consider the import of that.

And lest the collected lawyerships take umbrage at their casuistry-based primacy being challenged, glory in it. Kavanaugh primacy or not, courthouses will quake at the repercussions of unmitigated climate change, whether because of direct natural effects, or social blowback.

“Chief Justice Roberts replaced Justice Kennedy as the Circuit Justice assigned to the Ninth Circuit with…himself.”
This is incorrect. Roberts named Kagan as Kennedy’s replacement, effective 10/19. https://www.supremecourt.gov/about/circuitAssignments.aspx
Not sure why Roberts signed the stay order in Juliana, but it wasn’t because of a new circuit assignment.

Comments are closed.

Reader Comments

bqrq says:

October 20, 2018 at 1:28 pm

Professor Frank said;
“…….Brett Kavanaugh, who can be expected to be relatively less sympathetic to “impact” climate change litigation exemplified by the Juliana case…..”

Dear Professor Frank,
That old noxious fad of “climate change” is largely behind us now and almost forgotten. With Justice Kavanaugh and a solid conservative majority on the Supreme Court, now we must focus on more important issues. The forced imposition of gay marriage on ordinary citizens without their consent, during the Obama administration, is a much more serious and pressing problem in today’s world than that old canard “climate change.”

The Supreme Court must reconsider and reverse its ruling in Obergefell as soon as reasonably possible.
Jan Galkowski says:

October 21, 2018 at 9:16 pm

As will be included in a presentation shortly, I have the following comments.

The case is direct. For 50 years, the United States government has been repeatedly briefed by scientists and experts on climate and atmosphere, warning that Carbon emissions must be zeroed lest there eventually be dire consequences. The Science of those determinations is 120-170 years old, and dramatically unchallenged. Your cell phones and computers would not work, and satellites would not operate if the physics involved were wrong.

Despite these warnings, Congress after Congress, President after President, Democrat or Republican, have each done nothing. They’ve done nothing even after they promised to do something. Promises on the books. Promises as ratified treaties which are supposed to have the force of federal law, as some supposed defenders of the Constitution choose to overlook.

So, the Juliana vs United States charges the United States with direct harm to the plaintiffs and to future generations by negligence, harm which is specific and more severe to them than to us. Moreover, it argues that this taking was done without due process. Whether or not President Donald Trump owns a substantial piece of that harming, he and his Executive represent 50 years of Presidents who have done nothing, and his administration is responsible for that, like it or not.

The United States owns at least 25% of the world’s cumulative Carbon emissions, and each emission in the last 50 years was permitted and facilitated by an agency of the United States Executive and by Congress. With climate change, unlike many pollutants, cumulative emissions are all that matter. CO2 in atmosphere does naturally go away, but only in thousands of years, beyond any reasonable timescale of human planning or existence. Accordingly, permits produce harm.

Should the plaintiffs of Juliana fail, the last government branch, the judiciary, abdicates responsibility for solving this urgent problem. And so, then, the Constitution will have failed one of its existential requirements: To provide for the common defense. For Nature has laws, too, and we have been breaking them for a long time, ever more intensely. But She does not have courts of grievance or redress. She just acts. The consequences are, from nearly every reputable source, grave. Proof will come with time. But delay will also seriously impede reversibility.

While disappointing, were Juliana to be overturned, this should not be a reason for despair. It would not, in my opinion, mean the Constitution should be replaced. It would just mean, that as interpreted, it is useless for solving certain kinds of critically important problems. Its failure would imply the Constitution is becoming a dusty, old thing, irrelevant, like the Articles of Confederation are to us, a ceremonial relic. Let’s hope not.

There will be solutions for solving climate in any case, Constitution or not. They may well be horrifically expensive, and there’s no solution without first zeroing emissions, but solutions will exist. These solutions won’t be consistent with the Constitution, however: They will be beyond it. I hope Chief Justice Roberts and his colleagues consider the import of that.

And lest the collected lawyerships take umbrage at their casuistry-based primacy being challenged, glory in it. Kavanaugh primacy or not, courthouses will quake at the repercussions of unmitigated climate change, whether because of direct natural effects, or social blowback.
Andy Coghlan says:

October 22, 2018 at 2:23 pm

“Chief Justice Roberts replaced Justice Kennedy as the Circuit Justice assigned to the Ninth Circuit with…himself.”
This is incorrect. Roberts named Kagan as Kennedy’s replacement, effective 10/19. https://www.supremecourt.gov/about/circuitAssignments.aspx
Not sure why Roberts signed the stay order in Juliana, but it wasn’t because of a new circuit assignment.