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No Standing In Kids Climate Case, 9th Circ. Says

By Juan Carlos Rodriguez

Law360 (January 17, 2020, 12:32 PM EST) — The Ninth Circuit on Friday threw out a lawsuit filed by a group of children who say the federal government’s failure to act to curb climate change is endangering their future, finding the legislative and executive branches of government are the only ones with the power to redress the kids’ alleged injuries.

In a 2-1 decision, the appeals court made several key findings regarding the youthful plaintiffs’ standing. It found the kids showed they have indeed been injured by the federal government’s policies. And they also held that the plaintiffs’ argument that the government’s policies are a “substantial factor” in causing the injuries could have been decided at trial. But the majority drew the line at whether a court could give the kids the relief they are seeking.

“There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular,” Ninth Circuit Judges Mary H. Murguia and Andrew D. Hurwitz said. “But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.”

They said that even if a court were to completely void all existing federal policies that were identified by the plaintiffs as contributing to climate change, that alone would not be sufficient to help the youths.

U.S. District Judge Josephine L. Staton of the Central District of California, who sat on the panel, said her fellow judges “throw up their hands” at the prospect of crafting an appropriate remedy and said she would have allowed the case to proceed.

“Considering plaintiffs seek no less than to forestall the nation’s demise, even a partial and temporary reprieve would constitute meaningful redress,” Judge Staton said. “Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the judiciary’s province.

The children alleged their constitutional rights are being violated because the federal government has helped proliferate the use of fossil fuels and pursued other actions that exacerbate climate change.

The federal government argued the plaintiffs can’t connect those policies to a specific injury and couldn’t show that a court could give them redress.

Ninth Circuit Judges Mary H. Murguia and Andrew D. Hurwitz and U.S. District Judge Josephine L. Staton of the Central District of California sat on the panel for the Ninth Circuit.

The plaintiffs are represented by Julia A. Olson of Wild Earth Advocates, Philip L. Gregory and Andrea K. Rodgers.

The government is represented by Jeffrey Bossert Clark, Eric Grant, Andrew C. Mergen, Sommer H. Engels and Robert J. Lundman of the U.S. Department of Justice’s Environment and Natural Resources Division.

The case is Juliana et al. v. the United States of America et al., case number 18-36082, in the U.S. Court of Appeals for the Ninth Circuit.