Climate Change

Will the Justice Department Settle a Case the Ninth Circuit Already Dismissed?

Judge Aiken has ordered a settlement conference in the Kids Climate Case.


In January 2020, the U.S. Court of Appeals for the Ninth Circuit concluded that the plaintiffs in Juliana v. U.S. — the so-called Kids Climate case—lacked Article III standing and ordered the case dismissed. This February, the Ninth Circuit denied the plaintiffs' petition for rehearing en banc. Unless a petition for certiorari is filed the case is over—or so you may have thought.

On March 9, the plaintiffs filed a motion seeking to amend their complaint in the district court. The Department of Justice, for its part, filed a brief against the motion arguing (correctly in my view) that the district court lacks the jurisdiction to consider this filing because the Ninth Circuit ordered the case dismissed for lack of standing. As the DOJ brief concluded:

the mandate rule requires this Court to dismiss the case. Granting Plaintiffs' motion to amend, or not dismissing the case with prejudice, would violate that rule. And given the similarities between the operative Complaint and the proposed complaint, in light of the Ninth Circuit's ruling, amendment would also be futile.

Note here that the Ninth Circuit could have remanded the case to the district court for "further proceedings consistent with" its opinion, but that's not what it did. It instead the court chose to "remand this case to the district court with instructions to dismiss for lack of Article III standing."

Judge Aiken, who had previously ruled in favor of the plaintiffs and resisted interlocutory appeal of her decisions, scheduled an oral argument on the plaintiffs' motion for June 25. In addition, she has ordered a settlement conference between the plaintiffs and the Department of Justice before a magistrate judge. This is interesting. On the one hand, there does not seem much need for DOJ to settle anything. After all, the federal government prevailed on jurisdictional grounds in the Ninth Circuit and there is zero chance that holding will be reversed by the Supreme Court. On the other hand, DOJ's brief opposing the plaintiffs' motion to stay the Ninth Circuit's mandate conceded that "[a]s long as a case is pending—even if it is pending in the Supreme Court—it can be settled." With this concession, it seems DOJ opened the door to Judge Aiken's order.

It would seem quite foolhardy for the federal government to enter into any sort of settlement in this case, particularly any settlement that is judicially enforceable. The Ninth Circuit ruled definitively for the government and, as I already noted, the Supreme Court is not going to side with the plaintiffs in this case on standing. I suppose it is possible the Biden Administration might like the idea of a settlement that would further force the federal government's hand on climate policy, but any such settlement would contravene longstanding Justice Department policy and would also be quite the provocation to the Ninth Circuit and (more importantly) the Supreme Court. For this reason, I doubt any sort of meaningful settlement is likely, but we will see.

NEXT: Perhaps the Shortest Standing Opinion You'll Ever Read

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  1. Does anybody have standing to intervene if DoJ throws the case?

    1. I think if the settlement has any effect on any 3rd party they could contest the settlement.

      For instance an agreement to restrict CO2 emissions, or impose a carbon tax would definitely create standing to oppose the settlement.

  2. Writ of Mandamus?

  3. Settlement in this case just confirms it’s about lawyers seeking money. Who cares if the world burns, assuming everything the kids(‘ lawyers) claim. We got our yachts, diesel powered.

    1. It’s not about money. This is well known activity with the administration, nicknamed “sue and settle” that they use to bypass Congress. The administration wants to have a mandate to regulate something. Therefore, they coordinate with NGOs to sue the government. The administration either throws the case or concedes outright that they are at fault for not regulating whatever it is. The government gets their mandate. The NGOs get what they want, and the government pays the winning party’s attorney bills. Win-win all around, with the small exceptions of representative government and the integrity of the courts.

      The fact that this is an already-dismissed case just means that the Bien administration no longer even cares to pretend that this is collusion.

      1. Said this earlier but comment didn’t POST. Adler is incredibly naive here. This was one of the main vehicles for changing election lols last year.

      2. U.S. v. Miller — liberals’ favorite gun case — was also sue and settle.

        1. U.S. v. Miller, which should not be one of liberals’ favorite gun cases since it implicitly upheld the individual rights theory of the 2A, was a criminal prosecution, not a sue and anything.

          1. It was still collusive, picked as a case because they knew that Miller would not be represented. Not exactly “sue and settle”, but the same in the sense that the fix was in.


            “On June 2, 1938, Miller and Layton were both indicted on one count of violating 26 U.S.C. § 1132(c) by transporting an un-taxed short-barreled shotgun in interstate commerce. Both Miller and Layton pleaded guilty, but Ragon refused to accept their plea and appointed Paul E. Gutensohn as counsel. On June 11, 1938, Miller and Layton demurred to the indictment, claiming that it presented insufficient evidence of a transfer requiring payment of a tax and challenging the constitutionality of the NFA under the Second and Tenth Amendments. Surprisingly, Ragon immediately issued a memorandum opinion sustaining the demurrer and quashing the indictment. He held that the NFA violates the Second Amendment by prohibiting the transportation of unregistered covered firearms in interstate commerce.

            United States v. Miller immediately became the first Second Amendment test case. On September 21, 1938, Miller and Layton were both re-indicted on one count of violating 26 U.S.C. § 1132(j) for transporting an unregistered short-barreled shotgun in inter-state commerce. On January 3, 1939, Miller and Layton demurred again, claiming the NFA registration and taxation provisions violate the Second Amendment. Ragon immediately re-issued the same memorandum opinion. Miller and Layton were free men and promptly disappeared. The next day, Governor Bailey appointed Gutensohn to finish the term of State Senator Fred Armstrong, who had died on December 10, 1938. The appointment sparked a political firestorm.”

            IOW, a total put up job, specifically designed to produce a test case where the government would not have to face opposing counsel.

  4. What has stopped extreme Biden Administration overreach so far? Which radical climate agenda items have they said no to?

    A regime with more traditionally American values might back away and leave it alone. Let’s see what this one does.

    1. “A regime with more traditionally American values”

      Keep whining about how disaffected conservatives are increasingly out of touch with the liberal-libertarian mainstream that has won the culture war and will continue to shape our progress against Republican preferences. It confirms that our nation is improving and that bigotry, superstition, ignorance, and backwardness (regarding which right-wingers use defensive euphemisms such as “traditional values” and “conservative values” these days) are continuing to recede in America.

      1. Conservatives may have lost the culture war, but I can assure you that reactionaries will win it. The arc of history is long, but it bends away from liberalism.

        1. Conservatives lost. They deserved to lose. They will continue to lose. They are on the wrong side of history and of morality.

          Good luck with rooting for the clingers to become competitive again.

          1. Kirkland, you really need to get help for your low self esteem. Or is it narcissism? Are you still perpetuating hoaxes?

  5. A small point — if, as the court of appeals held, the plaintiffs lack standing, then shouldn’t the case be dismissed without prejudice rather than with prejudice as is customary when dismissing for lack of subject matter jurisdiction or lack of personal jurisdiction?

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