Climate Change

Ninth Circuit Denies Petition for En Banc Rehearing in Kids Climate Case

The plaintiffs in Juliana v. United States may now file a petition for certiorari. They should be careful what they wish for.


The U.S. Court of Appeals for the Ninth Circuit denied the plaintiffs' petition for rehearing en banc in Juliana v. United States, the so-called "Kids Climate Case," earlier today. Although the petition had been pending for nearly a year, and the initial panel split over whether the plaintiffs had standing, the order was issued without any noted dissent.

The Ninth Circuit's decision was not particularly surprising. To call the plaintiffs' underlying theory aggressive would be an understatement, and the Supreme Court had previously indicated its skepticism of the trial court decision validating some of the plaintiffs' claims. The current Supreme Court is not particularly fond of aggressive and innovative litigation theories, sweeping environmental claims, or the assertion of previously unrecognized rights protected by substantive due process, yet the Juliana plaintiffs' claims combined all three, and sought injunctive relief against the federal government.

For those judges on the Ninth Circuit with sympathy for the plaintiffs' claims–or claims brought in other climate change cases–the real question was how to let the plaintiffs down easy, without foreclosing future litigation.

What is somewhat surprising is that the plaintiffs have announced their intention to file a petition for certiorari with the Supreme Court. It is not likely any such petition will be granted, but if it were, it would almost certainly end in complete defeat for the Juliana plaintiffs and would risk foreclosing other avenues for climate litigation. There are multiple climate-related cases pending in federal and state courts, many of which are based upon plausible theories of public nuisance. Supreme Court consideration of the Juliana case would threaten the viability of these suits going forward, as the current Court might be inclined to issue a broad ruling constraining the ability of plaintiffs to raise any climate claims in federal court.

Climate change is a serious problem, and creative litigation strategies may be a necessary tool to drive effective and equitable climate policy. Seeking Supreme Court review of the Juliana decision, on the other hand, is a fool's errand.

NEXT: Classes #8: Freedom of the Press II & Acquisition by Gift

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “Climate change is a serious problem, and creative litigation strategies may be a necessary tool to drive effective and equitable climate policy.”

    Fuck that. You want to impose your totalitarian fantasies, at least have the decency to get a legislature to do it. And fuck that too.

    1. I’m mad, and pretending a thing I don’t like the possible implications of doesn’t exist makes me feel better!

      1. Meh. Somebody will come along to feed ya, but it won’t be me.

      2. The phony Democrat brats need a time out.

      3. QA,
        There is no point in responding to a post such as mulched’s. It is a waste of time.

    2. Here on the other left coast, we have an Undersecretary of Environmental Affairs for Climate Change who is on YouTube talking about “breaking our will” and forcing us to stop heating our homes (it will be 10 degrees tomorrow night) and driving our cars because of this fascist bullshyte.

      While the Brave New People’s Republic has a RINO Governor, we now have a legitimate Mass GOP chair and he summed this up well:

      “Undersecretary Ismay’s loose comments sadly provide a window into the thinking of climate change bureaucrats: ‘one way or another, the average person is going to submit to our progressive agenda, or else we’re going to make them pay.’”

      1. Maybe you could provide a cite, because I live in MA also, and didn’t get the word that they are coming for my furnace.

        Of course, you’re probably full of shit, as usual.

        1. They want to shut off your gas. They said so.

        2. OK. The first url I found — of over a dozen. Both the Globe and the Herald have covered this, along with masslive and other papers.

      2. How convenient for them now that they can easily dismiss anyone who refuses to have their will broken not just as a denier, but Trumper insurrectionist and

  2. “and would risk foreclosing other avenues for climate litigation. ”

    Risk, promise. They depend on your perspective. Mulched pretty much says it: You want this sort of thing, get it through the legislature. Using the courts as policy making instruments is fundamentally illegitimate.

    1. That’s OK, Biden is bringing back sue and settle…

      1. What’s worse is that he also is bringing back the bribe system — where they drop criminal charges in exchange for cash handouts to various leftist “nonprofits” who then wreak havoc with the money.

        Imagine if Trump had done that — say, perhaps, having the bribe paid to the NRA’s gun safety division, which I believe is an independent nonprofit. Think that might have raised some concerns???

        1. And he’s already helping China out. He just revoked a rule that would require schools to disclose Chinese Government Funding. Looks like China’s investment in Hunter is paying off already.

          1. I’d agree that the revocation is a favor for nothing in return. At a time when China has done plenty for the US (and other nations) to complain about, favors for free are stupid at best.

          2. Looks like you’re no better at reading (or honesty) now than you were a day, week, month, or year ago.

            The assertion that the Biden administration withdrew this draft rule from Federal Register is false,” a White House spokesperson told the Washington Examiner. “The Trump administration never submitted it to the Federal Register in the first place because OMB never completed its review of the draft rule during the Trump administration. It was stuck in OMB’s interagency review on Inauguration Day.”

            The Washington Examiner’s reporting had made it clear that the proposed rule had not made its way to the Federal Register nor gone into effect yet.

            The Biden spokesperson added: “On Inauguration Day, White House chief of staff Ron Klain released a memo freezing all regulatory process, very similar to those submitted by his predecessors during changes in administrations. That freeze meant that it was withdrawn from the OIRA process automatically and would needed to be resubmitted. This withdrawal applied to all other rules that didn’t make it through review with the change of administration.”

    2. There’s a saying, from your perspective everyone to the left of Ghengis Khan…

      Adler is a noted *conservative* on this. But you’re so far to the right on it…

      1. Whether the courts should be used to impose substantive policies on the elective branches that politics don’t cause them to pursue should not, ideally, be a liberal/conservative thing. It’s more of a democracy vs judicial tyranny sort of thing.

        If you want these environmental policies, persuade enough fellow politicians that elected officials will deliver them. Don’t use unelected judges to override democracy.

        1. You were just arguing for courts to override executive agencies recently, right?

          1. You understand the difference between non-elected executive agencies and elected branches (like legislatures and Congress) which actually write new laws, right?

            1. I understand courts are certainly not elected, do you? Executive agencies can, at least, be corrected by elections (Congress can change the underlying law and regulations and new Executives can name heads to change agency interpretations).

        2. Don’t use unelected judges to override democracy.

          I would be more sympathetic to this if I thought Congress was actually a democratically elected, representative, institution.

          1. Hey now. With words like that, you may be guilty of inciting a riot.

            1. That does sound rioty, almost like he’s denying the legitimacy of the election.

              1. Maybe with a months long campaign calling officials urging them not to seat the elected and tweeting hyperbole about a ‘steal’, ‘losing our Republic’, etc…

          2. Why are you following Trump’s example to undermine the credibility of elective government?

        3. Imagine the outcry (and social disorder) if SCOTUS were to rule that a fetus was a ‘person’ as defined by the 14th Amendment and hence that all abortions (including things like tubal pregnancies that will kill the mother) are strictly prohibited by the “life” clause.

          Think that things might get a tad “interesting”?

          The climate change fascists are too ideological to realize that they are incurring the same amount of wrath…

          1. Think that things might get a tad “interesting”?

            Sure; there’d be an immediate truckers’ strike if they did that.

      2. In what world is Adler a conservative on this?

        Oh yes, he looks at the consensus, but evidently he can’t understand the science.

        If you actually look at the science you will be underwhelmed.

  3. Chinese carbon emissions 2020: 9.04 Billion tons
    US carbon emissions 2020: 5.0 Billion tons

    Any legislation that doesn’t include China is a fool’s errand.

    Any legislation that ultimately just shifts carbon intensive production to China so the resulting products can be imported into the US is worse than a fool’s errand…it will INCREASE carbon emissions, if for no other reason than the transport emissions (but also less efficient Chinese factories.)

  4. We are supposed to believe that climate change actually exists but NEVER would an election get rigged…..Yeah…. Right….

    1. Are you still whining on the ‘waah, my guy was ahead at 10 pm on election day and then lost later! Must be a steal!!!’ train? Pathetic.

    2. Yeah. We are. Because evidence.

      Not that you give a fuck about that.

  5. “Climate change is a serious problem” Do you even hear yourself? The climate changing – as it always has and always will – is a serious problem?

    1. Uh, yeah, for lots of people. You’re like ‘floods have always happened, who thinks that it’s a problem!!!’

      1. But what does climate change have to do with floods?

        We offer hear, floods, droughts, and wildfires are caused by climate change, but the IPPC itself says there is “low confidence” that there is any relationship between any of those catastrophes and climate change.

        In fact the data shows that loss of life in natural disasters is 1/10 what it was 100 years ago, while property damage is 10x what it used to be. All that indicates is rising affluence, and people building on coasts and rivers where they used to know better.

        1. Analogies, how do they work?

          1. I’d prefer not to have a glacier on top of me.

    2. OK. You’re a moron. I suggest you get a tattoo to that effect on your forehead, to give people advance warning.

  6. “What is somewhat surprising is that the plaintiffs have announced their intention to file a petition for certiorari “

    Why is that surprising? They are fascist ideologues — of course they are going to do this. They are fascist ideologues….

    “It is not likely any such petition will be granted”

    I’m not so sure. All it takes is three votes and I can see a belief that they can kill this now, drive a stake through its heart, and not have to deal with the more messy cases.

    1. Four votes. But maybe.

  7. Other than issues involving discrimination, I really can’t think of a social problem that the federal judiciary has ameliorated in the slightest. So creative litigation strategies may keep lawyers busy, and full of self-admiration (not that they need much help there), but are unlikely to provide much social benefit.

    1. Y81,
      I have to agree on you about that.

  8. “creative litigation strategies may be a necessary tool to drive effective and equitable climate policy”

    no, thats what elected officials are for.

    1. Vox populi vox dei…until it gets in the way.

      It’s almost like this is about raw power.

  9. “The current Supreme Court is not particularly fond of aggressive and innovative litigation theories*”

    * Not applicable to cases involving (certain) gods or all guns.

  10. So there’s some sanity in the 9th Circuit after all.

  11. “Climate change is a serious problem, and creative litigation strategies may be a necessary tool to drive effective and equitable climate policy.”

    Just because there may be a problem does not mean it is within the provence or the power of the courts to solve it.

  12. “the real question was how to let the plaintiffs down easy, without foreclosing future litigation.”

    What does litigation have to do with it?

    Get the votes, pass a law, or sit down and shut up.

  13. In other jurisdictions, the most recent news is that last week a case along these lines succeeded in the administrative court in Paris:

  14. The courts are extremely ill-equipped to address “science” related litigation.

    A prime example is how both the trial court and the appeals court botched the NR/Steyn Slapp case. Both courts believed mann claims of being exonerated in 5 investigations in which he wasnt even being investigated. This is spite of being shown the falsity of Mann’s claims.

    When two courts botch what is easy to detect especially since it was pointed out in the cross pleading, How does one think the courts have the capacity to ascertain the validity of the science. Ignoring daubert or some level of daubert just not applicable if the subject is politics instead of actual science.

  15. Although I think climate change is real, under our constitutional sytem policies and programs for general societal problems have to be created by legislatures, not courts.

    1. Climate change is real, yes. The problem is the solutions being proposed are basically to punish wealthy western countries for their past carbon sins by transferring their wealth to poor countries and of course China. They think it’s fine for all of us to live like the Chinese did before the 1980s (or Brooklyn hipsters do now)-getting around only by bicycle and washing your 1 pair of underwear once a week. Meanwhile, they will not date bring up the one thing that is necessary – that people in poor countries stop breeding like rabbits, because that is racist according to them.

      1. You missed China’s 1-child policy?

Please to post comments