January 17, 2020 4:07PM

Ninth Circuit “Reluctantly” Dismisses Kids Climate Case

Today, a split panel on the U.S. Court of Appeals for the Ninth Circuit “reluctantly” dismissed Juliana v. United States, known colloquially as the “kids’ climate case.”

We should all be thankful for the court’s avowed restraint—for much of this controversy, judges in the circuit seemingly champed at the bit to take on central planning of the American economy. A big assist is due the Supreme Court, which bench‐​slapped some sense into the Ninth Circuit.

Here’s the backstory. In 2015, a group of children filed suit in a federal district court in Oregon, alleging that the federal government infringed on on their putative constitutional right to a climate unaffected by anthropogenic global warming.

On its face, the kids’ case is silly. For starters, it’s not terribly plausible to claim there’s an unenumerated constitutional right to a specific atmospheric concentration of greenhouse gases. But let’s assume there is, for the sake of argument. What could a court do about it?

As a remedy, the Juliana plaintiffs sought for the court to order the government to draw up a comprehensive climate plan–one that is subject to judicial approval and ongoing oversight.

The requested relief, therefore, is a court‐​ordered scheme to regulate the American economy. If the plaintiffs had their druthers, a single federal district court judge would become, after the president, the most powerful official in the country. Obviously, that’s a big practical problem with the plaintiff’s argument.

From a legal perspective, the Constitution vests Article III judges with the “Judicial power.” National regulatory plans, by contrast, emanate from the “legislative” or “executive” powers that are the province of the political branches of government. Simply put, judges have no constitutional authority to initiate and oversee major climate policy. 

For these reasons, judges in other circuits have been quick to nix similar challenges. Last February, for example, U.S. Eastern District of Pennsylvania Judge Paul Diamond dismissed a near‐​identical suit. According to Judge Diamond, the Constitution does not guarantee children a right to a “life‐​sustaining climate system.” After disavowing both “the authority [and] the inclination to assume control of the Executive Branch,” he concluded that climate change regulation “is a policy debate best left to the political process.”

Yet, in Juliana, U.S. Oregon District Judge Ann Aiken entertained no such reservations. Not only did she deny two of the federal government’s procedural motions to stop the case, but she initially refused to certify her orders for interlocutory appeal—that is, she refused to allow the government to appeal her procedural orders before the case went to trial. It seemed as if she wanted to try Juliana.

The Ninth Circuit, too, seemed eager for the case to proceed. Twice, the court denied government petitions to end the case.

If all these judges in the Ninth Circuit were so eager to take the case, then how did Juliana get dismissed today?

The answer involves unmistakable signals sent from the Supreme Court. At various points during the litigation, the federal government asked the Court to pause the case. In denying these motions as untimely, the Court included language that unequivocally imparted its concern regarding the constitutional viability of the claims at issue in Juliana.

For example, in July of 2018, the Court observed that “The breadth of respondents’ claims is striking,” and further directed District Court Judge Aiken to “take [justiciability] concerns into account.” A few months later, the Supreme Court basically ordered the Ninth Circuit to hear the federal government’s appeal (on justiciability grounds).

After the Supreme Court’s second order, the Ninth Circuit leaned on Judge Aiken to certify her procedural orders and thereby permit the government’s appeal. Last June, the Ninth Circuit held oral arguments. Today, it “reluctantly” dismissed the case, holding:

We reluctantly conclude … 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. That the other 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.

It bears noting that a majority on the three‐​judge panel dismissed Juliana over the impassioned (though wrong) dissent of Judge Josephine L. Staton. So a third of the panel would have allowed the case to proceed, while the rest ended Juliana only with “reluctance.” It may not be pretty, but I welcome the outcome nevertheless.