A panel of federal appeals court judges in San Francisco seemed inclined Monday to allow a wide-ranging climate-change lawsuit to continue in pretrial proceedings for the time being.
The lawsuit, described as “obviously novel and unprecedented” by the trial judge in the case, was filed in U.S. District Court in Eugene, Ore., in 2015 by 21 children and youths who were then between the ages of 8 and 19.
They claim the U.S. government has violated their constitutional due process right to life and liberty by allowing and encouraging the use of fossil fuels that destabilize the earth’s climate through carbon dioxide emissions.
Government agencies and officials “have acted with deliberate indifference to the peril they knowingly created,” the lawsuit alleges.
The defendants are numerous U.S. agencies, including the interior, agriculture, state and defense departments, and, originally, President Barack Obama, now replaced by President Donald Trump as a defendant.
The lawsuit asks for a court order requiring the government to develop a national plan to phase out fossil fuel emissions.
The trial judge, U.S. District Judge Anne Aiken of Eugene, turned down a Justice Department request to dismiss the case last year, and then in June of this year rejected the department’s request for her to allow a pretrial appeal to the 9th U.S. Circuit Court of Appeals.
The Justice Department then sought a different route of appeal, asking the 9th Circuit to dismiss the case with a writ of mandamus, a less common order that is most often used when a lower court abused its authority or made a serious mistake.
A three-judge 9th Circuit panel held a nearly hour-long hearing on the request Monday and will issue a written ruling at a later date.
Justice Department attorney Eric Grant argued that the lawsuit was an extraordinary case justifying the writ procedure:
“The district court here is exceeding its jurisdiction. The plaintiffs are seeking unprecedented standing to pursue unprecedented claims to receive unprecedented remedies.”
But all three judges expressed concerns that dismissing the case with a writ would set a precedent for allowing a deluge of similar appeals, instead of permitting cases to play out in the trial courts.
Chief Justice Sidney Thomas said:
“We would be absolutely flooded with appeals from people who think that their case should have been dismissed by the district court. There’s no logical boundary.”
In July, the appeals court stayed proceedings in the trial court until it rules on the writ request. If the case is allowed to continue, the next steps would be evidence gathering, a possible summary judgment motion and/or a trial, now scheduled in Aiken’s court on Feb. 5. The case can be appealed again at later stages.
Eighteen of the 21 plaintiffs attended the hearing at the 9th Circuit’s courthouse, according to their lawyer, Julia Olson.
Olson told the judges:
“We simply ask the court to lift the temporary stay and let us go back to the district court so these young people can present scientific evidence and make their case.”