The Volokh Conspiracy

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Climate Change

Kids Climate Plaintiffs to Seek Rehearing En Banc

The Juliana v. United State climate litigation may continue.


Last week, a divided panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the plaintiffs in Juliana v. United States, the so-called "Kids Climate" case, lacked standing. Almost immediately, counsel announced that the plaintiffs would seek en banc review of the decision.

In an addendum to my prior post on this case, I argued that seeking en banc review is a tactical mistake. As I explained, should the plaintiffs prevail in front of an en banc court, this would likely send the case to the Supreme Court and a broader loss for the plaintiffs -- a loss that could have significant repercussions for other climate change lawsuits in the courts.

Upon reflection, I may have been too critical of the plaintiffs' tactical decision. Under the Ninth Circuit's rules, en banc will only be granted if a majority of those judges in active service vote for such review. Given the current composition of the Ninth Circuit, obtaining a majority in support of en banc reconsideration would seem to be quite a heavy lift.

As of the time of this writing, there are 29 judges in active service on the Ninth Circuit. If one were to assume that the court would split along ideological lines on an en banc petition, the plaintiffs' odds would seem pretty good, as 16 of the 29 judges were nominated by Democratic Presidents. Yet we should not expect such a split in this case for two reasons.

First, and most importantly, the plaintiffs' arguments are sufficiently aggressive and outlandish that they may not even command majority support among Democratic nominees, let alone the whole court. Indeed, both judges in the panel majority were Obama nominees, and they both voted against the plaintiffs. Second, en banc review is generally disfavored. Most judges require something more than "the panel got it wrong" to justify en banc rehearing, and few are likely to vote in favor of a petition that asks the court to stretch the bounds of existing precedent. En banc rehearings are generally reserved for instances in which there's a need to reconsider or clairfy prior circuit precedent, not pick a fight with prior Supreme Court decisions.

All this means that the plaintiffs are not risking too much by seeking en banc review. The petition is very unlikely to be granted, but there is an opportunity that the petition will provoke additional opinions endorsing the need for action on climate change, which may help the plaintiffs build additional support for their cause.

NEXT: "Fraudulent Lawsuits and Illegal Hacks to Silence Online Consumer Complaints"

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  1. "Most judges require something more than "the panel got it wrong" to justify en banc rehearing..."

    But in this case a lack of action by the judiciary will result in the end of the world. Surely that's enough.

  2. It's a publicity stunt and naturally they want more publicity. If people had to pay the other side's costs when they lose I think a lot of this silly stuff would not happen.

  3. They've already lost in the most friendly jurisdiction they could find. As the article points out, they lost despite drawing judges who be most likely to be sympathetic even within that jurisdiction. At this point, it seems obvious that this has nothing to do with actually winning the case. This seems like a transparent last-ditch effort to keep the topic "alive" until election season.

  4. This stunt makes the cynic in me wish they'd go ahead and rule on the merits, and then remember the possibly-apocryphal Stalin quote of "How many divisions does the Pope have?" Judges do sometimes force governments to spend money, right? like when they told California its prisons sucked. But to try to force trillions ... smh and laughing.

  5. Even if they could potentially win, this is not something that the American courts could possibly solve. This is an absurd case on its face.

    What could the remedy be? Demand immediate cessation of all fossil fuel combustion? Even if this wouldn't actively destroy our civilization causing the deaths of billions, there is no way to apply it worldwide.

    This isn't "brave" or "defiant". It's willfully ignorant of the way the world works.

    1. Murder trials have no remedy other than prison. Maybe they want to throw every fossil fuel company employee into jail.

      1. Post-facto criminalization of fossil fuel production. Don't we have a constitutional clause against that?

        Even though without fossil fuels, we wouldn't have a small fraction of our modern technology. Airplanes, reliable oceanliners, Trees for anything other than wood, electronics, plastics, cars. None of it possible without fossil fuel use, both past and present.

        Anyone who wishes to arrest people for producing fossil fuels is willfully ignorant of history, technology, and law.

        1. Stalin, Mao, Pol Pot had no trouble with ex post facto criminalization, why not here in the U.S. ? Seems fair.

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