The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.