The Volokh Conspiracy

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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.