The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In February, the U.S. Court of Appeals for the Ninth Circuit ordered Juliana v. U.S., aka the "kids climate case," dismissed, yet the district court's ongoing proceedings continue to attract legal filings. Most recently, six state attorneys general filed an amicus brief urging Judge Aiken to disregard the previously filed brief by eighteen other state AGs arguing that Aiken lacks jurisdiction to approve a settlement.
Despite the Ninth Circuit's order, the plaintiffs filed a motion in March seeking to amend their complaint so as to establish Article III standing. The district court held oral argument on this motion last month. Judge Aiken also ordered the parties to attend a settlement conference even though (as DOJ argued) the court lacks jurisdiction for either.
In order to forestall a potential collusive settlement, under which the federal government agreed to measures the district cort lacks jurisdiction to impose, eighteen state AGs filed a brief challenging the court's jurisdiction (the Red State brief). The Biden Administration responded with a brief on June 22 arguing the states should be disregarded and denied the right to intervene. A few days later, on June 25, Judge Aiken heard argument on the plaintiffs' motion to amend and (at least according to news reports) appeared open to approving the motion.
The latest brief (the Blue State brief) challenges the Red State brief's claim that there is a risk of collusive settlement that may harm the public interest. According to the Blue State brief "the public benefits when the federal government is able to exercise its lawful rulemaking authority and discretion to resolve claims brought by States and state residents" and "States have a broad and unique range of interests in federal action to combat the wide-ranging effects of climate change" that were not adequately noted in the Red State brief.
Interestingly enough, the Blue State brief fails to address either the question of whether the Red States may intervene as of right or the underlying question of whether the district court has jurisdiction to approve a settlement given the Ninth Circuit's conclusion that the plaintiffs lack Article III standing. Instead, it argues that "when assessing the merits of proposed intervenors' intervention motion, this Court should decline to give weight to their claims of collusive litigation tactics and should consider the broader landscape of state interests implicated by this suit."
On potential relevance, the (extended) deadline for submission of a petition for certiorari in Juliana v. U.S. is next week.