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Climate Change

DOJ Files Petition for Writ of Mandamus to End Juliana Climate Litigation

The Justice Department is wasting no time seeking to put this zombie litigation out of its misery, and the plaintiffs are not happy about it.


The Department of Justice is wasting no time in seeking to put a swift end to the Juliana "Kids Climate Case."

Last month, DOJ filed a motion for a stay in the district court so that the federal government could file a writ of mandamus to dismiss the case before having to engage in meaningful trial preparations. The district court has not ruled on the motion (though the plaintiffs have filed a brief in opposition). Nonetheless, on Friday the Justice Department filed its petition for a writ of mandamus with the U.S. Court of Appeals for the Ninth Circuit.

I doubt Judge Aiken will grant the Justice Department's motion (especially now) but I suspect the Ninth Circuit may look more favorably on the Justice Department's petition–and if they do not, this case could easily wind up back on the Supreme Court's docket.

Here is how the Justice Department's filing begins:

The climate crisis is an urgent problem, and the Executive Branch is taking a wide range of steps to address it, across many agencies and in many different forms. See generally Exec. Order 14,008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619 (Jan. 27, 2021). In this long-running case, however, Plaintiffs—a group of young people and a putative representative of future generations—seek sweeping relief from the Judicial Branch, not the political Branches, that would install the district court in a supervisory role over the federal government's response to climate change in its entirety. In a prior appeal, this Court held that Plaintiffs lack standing to sue because the unprecedented remedies they seek are beyond the judiciary's power. Juliana v. United States, 947 F.3d 1159, 1170-73 (9th Cir. 2020). Plaintiffs may challenge discrete government actions (or inaction), but their demand for changes to the government's overall response to climate change "must be made to the political branches or to the electorate at large" rather than in district court. Id. at 1175.

The Court thus concluded that the federal judiciary lacks jurisdiction over Plaintiffs' claims and directed the closure of the case by "remand[ing] this case to the district court with instructions to dismiss for lack of Article III standing." Id. Three years later, the district court decided that the case was not yet over and permitted Plaintiffs to file an amended complaint that purports to create Article III jurisdiction on the same flawed theory this Court rejected. The district court then largely denied the government's motion to dismiss the amended complaint. And although the court previously certified an immediate appeal from its denial of dispositive motions—leading to this Court's earlier mandate to dismiss—the district court refused to certify either its order permitting amendment or its order on the motion to dismiss, without explanation. The case is now headed to trial.

The Court should issue a writ of mandamus directing the district court to dismiss this case for lack of jurisdiction without leave to amend. The district court refused to recognize the limits of Article III jurisdiction and evaded the Court's mandate of dismissal. Indeed, citing this Court's decision, the district court acknowledged that "[s]ome may balk at [its] approach as errant or unmeasured." ECF No. 565 at 7 (attached as Exhibit 1) (citing Juliana, 947 F.3d at 1174). But this Court did not just "balk" at the district court's approach: the Court issued a mandate directing the district court to dismiss the case and an opinion holding that the district court lacked jurisdiction to manage the federal government's overall response to the complex and multifaceted issue of climate change. The district court reasoned that the Court's decision did not foreclose an "innovative" experiment in declaratory relief of the district court's devising. But this Court held that the district court lacks Article III jurisdiction to award even declaratory relief as a remedy for Plaintiffs' claims, and the district court's attempted innovation was simply the application of a different label to the injunctive relief this Court already foreclosed.

The Court should hold that the district court violated the rule of mandate by granting leave to file the amended complaint. In the alternative, the Court should order the district court to dismiss the case without leave to amend either for lack of Article III standing or for failure to state claims for relief. The Court should also issue an administrative stay and then order a stay of proceedings pending this Court's consideration of this petition. Plaintiffs oppose a stay and mandamus.

And here, for comparison, is the introduction to the plaintiffs' opposition to the motion for a stay.

The Solicitor General of the United States and the Department of Justice have singled out these 21 Youth Plaintiffs, eleven of whom are Black, Brown, and Indigenous, to use the most aggressive and discriminatory legal tactics to stop these Youth—with physical, emotional, cultural, property, and other tangible and deeply personal injuries—from having their trial against the United States federal government for its role in causing their injuries. Of the more than 40,000 civil cases in which the United States is a defendant represented by the Department of Justice, in only one case has the Solicitor General sought to stop the development of an evidentiary record at trial, in the ordinary course of litigation, purely on the basis that it costs the government too much money to proceed to trial: Juliana v. United States. These youth have been politically targeted and persecuted, for over eight years, as the enormous power and machine of the Department of Justice singles them out among tens of thousands of other plaintiffs, in an effort to stop our nation's youth from taking the witness stand, when every court to review the Juliana Plaintiffs' claims has said that there is life and death at stake, the survival of the nation is at stake, and there is merit to their constitutional claims. All they seek after trail is a declaratory judgment of their rights and the government's wrongs, just as the students in Brown v. Board of Education did 70 years ago.

But their government wants to hide the truth of the incriminating evidence from being presented at trial, circumvent the ordinary appellate process that would normally follow and would correct any mistake made by the lower courts, and wants at all costs to avoid a declaratory judgment that the Defendants might have acted, and might still be acting, unconstitutionally. These brave youth are the equivalent of citizen whistleblowers on the government's fossil fuel energy system, and the evidence of its conduct the government seeks to hide from the public, and they are being targeted unlike any other group of plaintiffs in any case in U.S. history as a result. These are children and youth, who come from the frontline communities of the climate crisis, the very youth this administration, and these Defendants, claim to want to protect. There is no other meaningful redress for these young Plaintiffs' injuries, but from the courts. It would be a colossal failure of democracy, the rule of law, and the third branch of government if their case never goes to trial. But at all cost, since the Trump administration took office and now through the Biden administration, the Department of Justice's mission has been, as stated by its own lawyers, "to kill Juliana v. U.S."

That Defendants once again seek a stay pending a petition for a writ of mandamus is nothing short of shocking. There is simply no basis for granting a writ of mandamus in this case, which would otherwise proceed to trial in routine fashion. In fact, the Department of Justice's own Justice Manual provides that a writ of mandamus is an "extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance." U.S. Dep't of Just., Just. Manual, Civil Resource Manual § 215. The Department of Justice fails to meet its own standard. The only emergency in this case is the climate emergency that Defendants created and the Department of Justice prolongs with further delays. Indeed, the only issue of public importance is the ongoing constitutional violations facing Plaintiffs with each additional day of delay.

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For those interested, here are my prior posts on the Juliana litigation: