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Climate Change

States Seek to Intervene to Prevent Settlement in Kids Climate Case Ninth Circuit Already Ordered Dismissed

The district court has ordered a settlement conference in Juliana v. U.S., even though the Ninth Circuit held federal courts lack jurisdiction to hear the claims.


Seventeen state attorneys general are seeking to intervene in Juliana v. United States, the so-called Kids Climate Case, in order to make sure the federal government from settling a case it has already won.

The underlying legal claims in Juliana are audacious, to say the least. Specifically, the plaintiffs claimed that the federal government has violated their substantive due process rights to life, liberty, and property, and failed to uphold its "public trust" obligation to hold certain natural resources in trust for the people and for future generations, by facilitating the continuing development and consumption of fossil fuels. While the district court warmly embraced these claims, they did not fare so well with appellate courts.

The U.S. Court of Appeals for the Ninth Circuit ordered the case dismissed in 2020 because the plaintiffs lacked Article III standing, and then rejected the plaintiffs' petition for rehearing en banc. Nonetheless, the district court is holding on to the case.

As I noted here, the plaintiffs filed a motion seeking to amend their complaint in March. Although the Justice Department has maintained (correctly, in my view) that the district court lacks jurisdiction to do anything but enter a motion to dismiss, the Judge Aiken seems to feel otherwise. In response to the plaintiffs' motion, Judge Aiken scheduled oral argument on the motion, and ordered the parties attend a settlement conference.

The states' motion for intervention is a precautionary move, meant to protect against the possibility of a collusive settlement between the plaintiffs and a potentially sympathetic Biden Administration.

From the motion's introduction:

Recent events leave the States of Alabama, Alaska, Arkansas, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia (the "Proposed Defendant-Intervenors," or the "States") with no choice but to move for limited intervention in this case to ensure their interests are not undermined through settlement of a dispute that this Court lacks jurisdiction to adjudicate. The States request limited intervention to argue that, pursuant to the Ninth Circuit's clear holding, Plaintiffs lack Article III standing to bring their claims and that therefore any settlement of those claims in this Article III Court is improper. Specifically, the States seek to intervene for the limited purposes of opposing Plaintiffs' motion for leave to amend and file a second amended complaint (Doc. 462); participating in settlement negotiations; and, if necessary, objecting to any proposed settlement. The States do not intervene to litigate the merits of Plaintiffs' claims; rather, the States argue that any such adjudication is barred by Article III. And the States do not waive their Eleventh Amendment sovereign immunity, but instead expressly reserve it. . . .

Because Defendants decisively prevailed in this litigation, their agreement to participate in any post-mandate settlement discussion necessarily raises concerns. At best, they will preserve their victory; at worst, they will arrogate to themselves policymaking powers that the People entrusted to their elected representatives, not the Department of Justice, and in so doing harm the States and their citizens. Based on the federal government's approach to other high-profile litigation in the time since the Ninth Circuit's mandate issued, the States have cause to believe the latter is likely

In effect, the states are filing to help ensure that the district does what it should: Dismiss Juliana as the Ninth Circuit instructed. It is an aggressive move, to be sure, prompted by the unusual obstinacy of the district court.