And so, the days of Juliana v. United States came to an end. Just over a week ago, on May 1, 2024, the Ninth Circuit resolved the Climate Kids Case. Juliana defied numerous principles of separation of powers, majoritarian democracy, and judicial prudence. In this case, plaintiffs argued—among many other things—that they had a substantive right to a “climate system capable of sustaining human life.” To that end, they asked for declaratory and injunctive relief against the United States and various executive officials. In particular, they sought an order compelling the defendants “to prepare and implement . . . an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system . . . .” They further asked the court to “[r]etain jurisdiction over this action to monitor and enforce Defendants’ compliance with the national remedial plan and all associated orders of this Court.” Three successive administrations—those of Presidents Obama, Trump, and Biden—opposed this litigation. The Ninth Circuit appears to have drawn the epic to a close.
It should not be lost on any of us what the political landscape would have been like if the plaintiffs had prevailed. On a routine basis, public servants would have been obliged to present their ideas, in draft, to a federal judge in Oregon. No doubt, after they submitted their ideas to the court, interested parties (most notably the plaintiffs) would then have submitted comments and counter-proposals. Then the judge, consistent with the continuing jurisdiction the plaintiffs had in mind, would have decided on the best path forward. Acts of Congress contrary, or even arguably contrary, to the judge’s orders immediately would have become vulnerable to a motion to enlarge the injunction. Our nation would have been put into receivership.
This is roughly the model for administrative agencies. When they have new or amended regulations in mind, they publish a “notice of proposed rulemaking,” or “NPRM,” in the Federal Register, ask for comments, and hold hearings. After the comments and the hearings, they publish their final rule. But we are not contemplating here an expert agency with responsibility for a narrow and specialized segment of the economy. Instead, we are contemplating a legal generalist supervising the entire economy for decades to come. Nor are we contemplating anything that Congress ever authorized, unless the political branches’ mere decision to confer jurisdiction is also an abdication of the authority to govern.
Government by continuing injunction is about as far from majoritarian democracy as one can imagine. It is serious enough when a judge takes over a school district or prison. But in those situations at least the nature of the infractions tend to be clear, as are the steps forward. If there are too many inmates to a cell, more cells must be built, or prisoners must be released or transferred. In other words, there are “judicially discoverable and manageable standards” for resolution of the case. Not here.
This case illustrates how our judicial system, one of the world’s best, can be profoundly contorted. It also illustrates why a robust system of writs must be in place to protect us from such occurrences. Litigators know the points at which they can bring pressure on cases they see as frivolous: Iqbal motions, motions to dismiss for lack of standing, motions to dismiss for lack of judicially discoverable and manageable standards, motions for protective orders from abusive discovery. But the effectiveness of these moves largely depends on the inclinations of the judge. If the judge sees fit to deny these motions, the litigant is typically compelled to try the case because such denials are interlocutory and typically not amenable to immediate appeal. This principle can hold even when the cost of trying the case is so very high that the defendant might feel obliged to settle.
To be sure, the federal government has the resources to respond to any suit. After all, the United States landed three divisions on the beaches of Normandy on D-Day. But discovery can be vexatious and costly if it requires senior public servants to devote significant time and energy to answering interrogatories and sitting for depositions. And, during all of this, they are not doing for the public as a whole what they were elected or appointed to do. Relatedly, parties may be discouraged to intervene as defendants because they too may become subject to onerous discovery.
The escape valve for all of this is writ practice. It is often criticized, including by some very serious scholars, but it has its place. And it worked here. On January 17, 2021, after the United States had sought multiple writs of mandamus from the Ninth Circuit and a stay from the Supreme Court, the district court “reluctantly” agreed to certify its orders denying the government’s dispositive motions for interlocutory appeal.
Even here, the choreography was subtle. After the Ninth Circuit denied a petition for a writ of mandamus by the United States, it then sought a stay from the Supreme Court, which that Court denied in two short paragraphs. Tellingly, however, the second of those two paragraphs signaled the Court’s estimation of the case:
The Government’s request for relief is premature and is denied without prejudice. The breadth of respondents’ claims is striking, however, and the justiciability of those claims presents substantial grounds for difference of opinion. The District Court should take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.
Back before the district court, the government moved for summary judgment and judgment on the pleadings, which motions the court largely denied. The government asked the district court to certify its orders for interlocutory appeal, which the district court, at least at first, declined to do. The government then filed a new petition for a writ of mandamus in the Ninth Circuit. While that petition was pending, the Ninth Circuit “invited” the district court to “revisit” the question of certification, which it did. The Ninth Circuit subsequently allowed the United States to take an immediate appeal.
On January 17, 2020, the Ninth Circuit held that the plaintiffs lacked standing to sue because they could not establish a means of ameliorating their asserted injuries that a court could actually identify and administer. As the court explained, it was “beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.” The court then remanded the case “with instructions to dismiss for lack of Article III standing.”
One might have thought the case would then have ended. But it did not. The district court allowed the plaintiffs to amend their pleadings on the ground that a new decision by the Supreme Court justified the amendment. Once again, the case looked like it would go to trial. Yet another petition for a writ of mandamus ensued, which the Ninth Circuit granted last week. This time, the court’s disposition of the case was more precise than it had previously been, instructing the court below “to dismiss the case forthwith for lack of Article III standing, without leave to amend.” This may be it, but who knows?
The Ninth Circuit’s decision is correct. For any of a number of reasons, both substantive and procedural, this case should not have been allowed to proceed. The plaintiffs in this case either took an extraordinarily reductionist view of public policy or grossly underestimated the complexity of the relief they were seeking. Even assuming the acuity of their concerns, no court could answer, for example, the difficult question of whether the developing world’s need for better health and nourishment depends more on continuing access to fossil fuels, at least in the short term, than upon aggressive protection of the atmosphere. Similarly, no court could answer the difficult question of whether the entire world’s need for security depends more on fossil fuels, at least in the short term, than upon aggressive protection of the atmosphere. And, at home, no court could answer the difficult question of whether the need for meaningful, gainful blue-collar work depends more on fossil fuels, at least in the short term, than upon aggressive protection of the atmosphere. Nor could any court answer the difficult question of whether we are prepared as a nation for the potential austerity that might accompany the kind of dramatic move away from fossil fuels that the plaintiffs appeared to demand. These are choices for the electoral process.
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