By Juan Carlos Rodriguez Law360 (March 3, 2020, 3:50 PM EST) — Kids claiming the federal government is endangering their futures by not acting to curb climate change have asked the Ninth Circuit for en banc review of a
panel decision they say wrongly denied them their right to a trial.
The youths said Monday that the two judges on the split panel who agreed with the government that the lawsuit should be dismissed erred in finding that the legislative and executive branches of government are the only ones with the power to redress the kids’ alleged injuries and improperly deprived the plaintiffs of their right to try their claims in federal district court. The majority said the kids could have a case but don’t have standing because of the courts’ limitations.
The youths said the majority’s decision wrongly shifts authority and responsibility that belongs to the judicial branch to the other branches.
They said the ruling contains “significant errors of law” that run counter to the Constitution, the Declaratory Judgment Act, and decisions of the U.S. Supreme Court, and the Ninth and other circuits.
“If not remedied, these errors will debilitate Article III courts in deciding constitutional cases and controversies on the evidence at trial, thereby denigrating fundamental rights of life and liberty to constitutional suggestions — subject to the tyranny of the majority,” the kids said in their petition for en banc review.
Circuit Judges Mary H. Murguia and Andrew D. Hurwitz said in their January opinion that the kids presented compelling evidence about their alleged climate change-related injuries, such as being forced to move because of lack of drinking water and having to evacuate because of coastal flooding.
They said there’s also evidence that the government’s policies are a “substantial factor” in causing those injuries. But they said courts can’t give the kids an adequate remedy because the solutions are too big and outside the courts’ purview.
According to the kids, there are plenty of ways for courts to redress their injuries, such as a declaratory judgment that the government’s actions that contribute to “carbon emissions from fossil fuel production, extraction and transportation” also contributes to the children’s injuries and is a constitutional violation.
And while the majority said no remedy concocted by a court would completely resolve climate change, the kids say that bar is too high — measures that begin to address the problem are acceptable under Supreme Court precedent and rulings by other courts. (not least Brown v. Board of Education)
The youths’ lawsuit requests that the court order the government to prepare a remedial plan designed to restore the level of carbon dioxide in the Earth’s atmosphere to 350 parts per million by
- According to a recent report issued by the U.S. National Oceanic and Atmospheric Administration, the global average atmospheric carbon dioxide in 2018 was over 407 ppm. Judges Murguia and Hurwitz said that’s not something a court can order, but the kids argued otherwise in their petition, drawing parallels to a seminal civil rights case. “The majority’s analysis negates decades of remedial plans like those ordered and overseen by various circuits to enforce the declaratory judgment of Brown v. Board of Education ,” the kids said. They also targeted the majority’s reliance on the Supreme Court’s June decision in Rucho v. Common Cause, in which a divided high court held that partisan gerrymandering is “beyond the reach of the federal courts.” The kids said the panel applied the ruling to the standing question, but the ruling was actually based on the political question doctrine, which is a separate test. “Rucho affirms the distinct nature of the inquiries: prior to its political question analysis, the Supreme Court recounted its holding that plaintiffs can establish standing in partisan gerrymandering claims,” the kids said. In a statement issued in conjunction with the filing of the petition for en banc review, the kids said their age puts them in a difficult position. Fourteen-year-old plaintiff Avery M. said: “The judges told us we should take our issues to the political branches, but I am too young to vote so that’s not a
reasonable request.” The DOJ declined to comment Tuesday.
The plaintiffs are represented by Julia A. Olson of Wild Earth Advocates, Philip L. Gregory of Gregory Law Group and Andrea K. Rodgers of Law Offices of Andrea K. Rodgers. The government is represented by Jeffrey Bossert Clark, Eric Grant, Andrew C. Mergen, Sommer H. Engels and Robert J. Lundman of the DOJ’s Environment and Natural Resources Division. The case is Juliana et al. v. U.S. et al., case number 18-36082, in the U.S. Court of Appeals for the Ninth Circuit. — Additional reporting by Jimmy Hoover. Editing by Orlando Lorenzo