After a five-year push just to secure a trial date, the landmark Juliana v. United States youth climate justice case is hanging by a thread, after two out of three judges who heard the case before the federal Court of Appeals for the Ninth Circuit concluded that it didn’t belong in court.
Our Children’s Trust, the legal charity managing the case, said it would appeal for an en banc hearing before a panel of 11 judges, the New York Times reports .
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Even though the Juliana plaintiffs “made a compelling case that action is needed,” wrote Judge Andrew Hurwitz, he and Judge Mary Murguia determined that climate change is not an issue to be decided by the courts. “Reluctantly, we conclude that such relief is beyond our constitutional power,” he concluded in a 32-page opinion. “Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.”
“They want to leave the key decisions to the ballot box,” said Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law. “So for now, all three branches of the federal government are sitting on their hands as the planet burns.”
Even so, the decision was “a disappointment but not a surprise,” Gerrard added, since “many U.S. judges  have vigorously enforced the environmental laws written by Congress but won’t go beyond that.”
“If ever there were a case where your heart says yes but your mind says no,” said University of Michigan law professor, former head of the environmental crimes section at the U.S. Justice Department, “Juliana unfortunately is that case.”
None of which stopped District Judge Josephine Staton from writing what Grist calls  a “searing dissent” that “lacerated the U.S. government” and argued that the 21 youth plaintiffs, ages 12 to 23, had standing to go to trial.
“In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity,” she wrote. “It is as if an asteroid were barreling toward the Earth and the government decided to shut down our only defences. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”
The judgement “reverses an earlier ruling by a district court judge, Ann Aiken, that would have let the case go forward,” the Times writes. “Instead, the appeals court gave instructions to the lower court to dismiss the case.” U.S. Assistant Attorney General Jeffrey Bossert Clark said the Trump administration was “pleased with the outcome,” contending that it “fell squarely outside the parameters” of Article 3 of the U.S. Constitution, which defines the role of the federal courts.
Our Children’s Trust Executive Director and Chief Legal Counsel maintained the case is “far from over”, telling the Times the request for an en banc hearing would be the next step. Olson “originally filed the federal suit in 2015 against the Obama administration, demanding both that the government drop policies that encouraged fossil fuel use and take faster action to curb climate change from a president already seen as friendly to environmental interests,” the Times recalls.
“Working under a legal principle known as the public trust doctrine, which can be used to compel the government to preserve natural resources for public use, the initial complaint stated that government officials had ‘willfully ignored’ the dangers of burning fossil fuels.”
Climate law specialist Ann Carlson of the UCLA Law School said she’d “always thought this case was creative and interesting but a long shot,” given “just how big the remedy was that the plaintiff were seeking in the case”, to “get the United States to stop emitting carbon into the atmosphere.” At a hearing in June, the Times recalls, Hurwitz pressed Olson on the lead role she was asking the courts to take: “You’re asking us to do a lot of new stuff, aren’t you?” he asked.
But Carlson pointed to the strongly sympathetic note the two justices took in a majority opinion that acknowledged the need for climate action. “There really is a giant dilemma here about the lack of political will to address the problem, the lack of judicial comfort in stepping in to solve the problem,” she told the Times.
Olson said the sweeping remedy described in the court decision wasn’t the only option available to it. “It doesn’t have to be the whole shebang,” she said. But for the Juliana kids, “the idea that their only recourse is to go to the very branches of government that are violating their rights when half of them can’t even vote is a preposterous notion.”
In a Friday evening e-blast to supporters, Our Children’s Trust stressed  that “we’re not done!” and laid out the process and prospects for seeking an en banc review.“Given the strength of the dissenting opinion of Judge Staton, articulating the apocalyptic conditions, the strength of the evidence, and the proper role of the government and the courts, we are optimistic that the 11-judge panel will reverse today’s majority decision and finally set the case for trial,” the organization stated. “Assuming the Ninth Circuit grants the en banc review, we expect briefing and argument of the case to be complete by year end.”