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Climate Change

Justice Department to Seek Mandamus to End Juliana Litigation (Again)

Will Judge Aiken finally accede to the law and allow this particular climate case to end?

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The Department of Justice is not acquiescing to Judge Ann Aiken's efforts to keep Juliana v. U.S., the so-called "kids climate case," on life support. In a new filing the Department has asked Judge Aiken for a stay of the litigation so that the Department may file a writ of mandamus with the U.S. Court of Appeals for the Ninth Circuit seeking to have the case dismissed or, in the alternative, to allow interlocutory review.

As I noted here, Judge Aiken denied the federal government's motion to dismiss in December. This ruling was bad enough. What was worse–indeed, astounding–was her denial of the federal government's request that she certify the case for interlocutory review and failure to provide any explanation (let alone justification) for the denial. This was as reckless an act of judicial defiance as we have seen from any district court in the past three years.

From the DOJ filing:

The Court should stay proceedings in this case pending Defendants' forthcoming petition for a writ of mandamus. The Ninth Circuit ordered this Court to dismiss this case: "[W]e reverse the certified orders of the district court and remand with instructions to dismiss for lack of Article III standing." Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020). The Ninth Circuit's opinion in this case forecloses the theory that a declaratory judgment, standing alone, can redress Plaintiffs' alleged injuries, as required to show Article III standing. Id. at 1170. The Court's December 29, 2023, Order therefore violates the rule of mandate. . . . And even if the Court's order does not violate the mandate, the Supreme Court's observation still pertains: "the justiciability of [these Plaintiffs'] claims presents substantial grounds for difference of opinion." July 30, 2018, Supreme Court Order, ECF No. 330-1.

Because this Court denied Defendants' motion to certify its orders for interlocutory appeal, the government will seek a writ of mandamus from the Ninth Circuit to enforce its mandate and direct the Court to dismiss this case in its entirety. If granted, the government's petition will end this case, and any public resources spent on further litigation while the petition is pending would be wasted. The government therefore respectfully requests the Court to enter a stay of all proceedings in this Court pending resolution of the mandamus petition, as the Ninth Circuit did when considering the government's prior mandamus petition in this case.

The question now is how Judge Aiken will respond. From the start of this litigation she has shown herself quite sympathetic to the plaintiffs' cause, embracing their extravagant legal theories and resisting the federal government's procedural defenses. Now, however, she is directly contravening controlling legal authority about this very case.

According to the docket, the plaintiffs will be responding to the federal government's motion this week. Then Judge Aiken faces a choice: Grant the stay and allow the Ninth Circuit to consider the writ of mandamus, or refuse and force the Justice Department to proceed on an emergency basis.

As has been clear for some time, the question is not so much whether this litigation will end, but how it ends, and whether Judge Aiken's shenanigans produce rulings that hamper other climate change litigation.

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For those interested, here are my prior posts on the Juliana litigation: