A Final(?) Attempt to Resurrect the Kids Climate Case

The Juliana plaintiffs are again seeking Supreme Court review of their case.

The plaintiffs in Juliana v. United States--aka the "kids climate case"--are back at the Supreme Court asking the justices to bring their case back from the dead.

The lawsuit (which I have covered repeatedly) claims there is a federal constitutional right to a stable environment enforceable in federal court. While one district court judge accepted these arguments, the Ninth Circuit has repeatedly concluded the plaintiffs lack standing to press their audacious claims.

Back in May, the U.S. Court of Appeals for the Ninth Circuit granted the federal governments writ of mandamus to end the district court's proceedings and ordered the case dismissed. Since then, the plaintiffs sought a writ of mandamus from the justices to vacate the Ninth Circuit's judgment and bring the case back, but the justices were not having any of it.

Now the plaintiffs have filed a petition for certiorari, challenging the Ninth Circuit's conclusion that they lack standing and approach to mandamus. Cleverly, the plaintiffs have sought to tie their standing argument to issues being considered in another case on the docket later this term (Gutierrez v. Saenz). But it is unlikely to be enough.

This cert petition is unlikely to attract much interest from the Court. The real question is whether it will influence how the justices evaluate other pending petitions for certiorari, such as those seeking high court review of state tort law claims against fossil fuel companies. Insofar as the Juliana petition (combined with the Montana Supreme Court's recent Held decision) raise the salience of climate litigation, they could feed the impression that climate litigation is out of control and needs a corrective. In this sense, the filing could make it more likely that the Court grants certiorari in the Honolulu case and issues a ruling cutting back climate litigation across the board. In the alternative, the justices may recognize it as a fringe filing and deny it without a second thought.

Comments

[Stupid Government Tricks]

IANAL, but this seems a more likely outcome than helping them.

the filing could make it more likely that the Court grants certiorari in the Honolulu case and issues a ruling cutting back climate litigation across the board.

Like those gun cases where the hoplophobes refused to petition for certiorari for that very reason. They have to be pretty desperate to take such a suicidal step.

[Life of Brian]

As the kids might put it, they should have... https://www.youtube.com/watch?v=moSFlvxnbgk

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

What is justiciable in a scientific claim by a non-scientist? I SEE NONE

[Krayt]

It's a good use of democracy to decide just how much environmental damage is acceptable as a trade off for progress.

We love democracy. Until we don't. Whence slamming one's fist on the table and shouting, "There oughta be a law!"

Granted, that doesn't funnel money into lawyer pockets, while simultaneously allow politicians to hide, oh, I see the problem.

[Longtobefree]

" . . . claims there is a federal constitutional right to a stable environment enforceable in federal court."

Yep.
Article 8, section 2.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Utterly irrelevant.

[Rossami]

Ah, you got me. I actually looked it up...

[Stupid Government Tricks]

Same here. Then I wondered what Peter was on about, and tried a different source. No wonder IANAL.

[JoeFromtheBronx]

Groups from various sides put forth radical arguments and SCOTUS generally has ignored them. They can, should, and I would think would here too. As noted in the past, I think there appears to be an exaggerated concern about the litigation, including its coverage.

[Absaroka]

The courts are just not the right place to make this kind of decision, here or in the Montana case.

A court could say "The only practicable future is a nuclear one, so Yucca flats must be funded and no state or locality may stop construction of any nuclear power plant". Or it could say "Nukes are too dangerous and therefore must all be shut down forthwith". How does a constitutional right to a clean environment inform a court about whether that new hydropower or solar project is more or less environmentally worthy than the resident endangered species? Etc, etc.

It's not like politics is the best way to decide these questions, but it is the least bad option.

[MaddogEngineer]

You are correct of course. But the people who wish to implement "collective rights" to things, like their idea of a clean environment, or universal access to medical care, do not care about such trivialities.

In the American common law constitutional system, such "human rights" should never be recognized, because their non-sense for courts to arbitrate, requiring overstepping the separation of powers (NB: yes of course, some state constitutions do not have high wall of separation like the federal one). Of course that ship has sailed, with written state constitutional rights to an education, leaving judges deciding questions of spending levels. It only gets worse, and anti-democratic, from there.

[JoeFromtheBronx]

What is "anti-democratic" here, especially since the people agreed to these provisions, as compared to denying legislative carte blanche on any number of issues involving negative rights?

Legislatures do not have complete ability to formulate gun policy, for instance, and judges second guess them on the point. They have to determine "history and tradition" on that.

Spending levels are not a clear line in the sand. Judges have to examine spending in various cases, including equal protection, cruel and unusual questions, and many state-specific issues.

Collective rights have ancient roots. Courts have a role in the application. The issue is one of line drawing.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Domcoracy determines a fair and just way to an end that might not be good at all. And that is right. You give a child every advantage and they turn out bad. That does not mean you should not have done what you did. That is the first point,.
But more , you seem to admit these things must be decided. Why aren't they. Well look at your own example: Kerry going to China, China utterly ignoring him -and why? Because he winked at organ harvesting, and Uyghur and Falun Gong persecution (not to mention ongoing Christian persecution)
Nothing gets decided,nothing, if we let the Kerry's of the world get away with horrible abuses. This was all from Pelosi and Biden at its source. Do you remember the two of them saying "oh , we must help those Afghani women" -- THEY DID NOTHING
Whaever the outcome of the nuclear power/climate changte argument if it is a result of winking at horrible human rights abuses I'd rather die, reallly

[John F. Carr]

The Supreme Judicial Court of Massachusetts sometimes responds to an overly aggressive argument by ruling harder than necessary the other way.

For example, a man who killed his girlfriend argued on appeal that he was entitled to be found not guilty because he heard she slept with another man. The argument was dumb. At best discovery of infidelity created a question for the jury about whether the defendant had the mental state required for murder. It was not a defense as a matter of law. But the defendant claimed he could not be found not guilty on the facts of the case. The SJC reacted by saying henceforth hearing about infidelity would never mitigate murder. (Defendants who witness infidelity can still try their luck.)

[ReaderY]

The argument is not entirely dumb. Spanish law permitted killing when caught in flagranto delicte. And in a North Carolina heart balm tort case from about half a century ago, Mazza v. Huffaker, the Supreme Court of North Carolina refused to overturn the jury’s rejection of the lover’s counterclaim for assaulting him and slashing his tires despite overwhelming evidence the plaintiff did these things, on grounds that the plaintiff’s culpability was sufficiently diminished that the jury could find it excusable.

Mind you that was a particularly extreme case - the lover was the plaintiff’s psychiatrist, whom the plainitiff had engaged to provide, among other things, marital therapy. And it was truly in flagrante delicto, the plaintiff had found them in bed when he came home. Nonetheless, the concept that mental angiish in the immediacy of discovering an affair can give rise to a diminished state of culpability has sufficient precedent, at least in the courts of conservative states, that a defense lawyer might be obligated to present it.

[TwelveInchPianist]

"the lover was the plaintiff’s psychiatrist, whom the plainitiff had engaged to provide, among other things, marital therapy."

Isn't that part of the service? Like when the mechanic takes your car for a spin to see if everything's working right?

[MaddogEngineer]

I strenuously object!

[DaveM]

+1! I love that movie.

[ReaderY]

Why isn’t there a federal constitutional right to immortality? Surely dying violates the constitutional right to life. The courts must order the federal government must to put a stop to this death business!

[ReaderY]

Why is state tort law the federal government’s business? Since there is no federal common law, what right does the Supreme Court have to impose its own uniform policy on the country on this subject in the absence of an explicit federal mandate?

That a uniform federal approach might be good policy is no reason for federal courts to arrogate to themselves the power to impose one in either a liberal or a conservative direction.

[Davy C]

>Since there is no federal common law

There totally is. The Bill of Rights even refers to common law being used by federal courts.

[Stupid Government Tricks]

Are you referring to the Seventh Amendment?

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ...

If they can ignore such a clear $20 requirement, they can ignore anything.

[Hugo S. Cunningham]

If anyone states under oath that they were relying on oil companies (rather than the government or university scientists) to warn them to use less oil, they should be prosecuted and locked up for perjury.