Government challenge to kids’ case moves forward

By Ellen M. Gilmer | 12/27/2018 01:10 PM EST

The kids’ climate case will take another detour.

Plaintiffs in the kids’ climate case outside a courthouse.

Plaintiffs in the kids’ climate case outside a courthouse. @youthvgov/Twitter

The kids’ climate case will take another detour.

The 9th U.S. Circuit Court of Appeals yesterday granted government lawyers permission to appeal lower court decisions allowing Juliana v. United States to move to trial.

The now-famous case features a group of children and young adults suing the federal government for its role in climate change. A federal district court in Oregon has repeatedly denied requests to sideline the lawsuit.


The litigation has pingponged through the legal system, even making it to the Supreme Court on two occasions. The justices in November rejected the Trump administration’s bid to spike the case, noting that relief from the 9th Circuit was available instead.

The district court has since begrudgingly certified its previous orders that allowed the trial to move forward. The certification, in turn, allows the government to seek an appeal at the 9th Circuit.

A panel of judges for the appeals court yesterday granted the government’s request to pursue a mid-case challenge, known as an interlocutory appeal.

Justice Department lawyers now have two weeks to file a formal challenge, and briefing and arguments will then play out at the 9th Circuit.

Judge Michelle Friedland dissented from the decision. She noted the district judge appeared skeptical of the efficiency of allowing a 9th Circuit appeal before the lower court proceedings have concluded.

Friedland, an Obama appointee, advocated for deference to the district court’s judgment on whether a mid-case appeal was appropriate.

Lawyers for the youth plaintiffs criticized the 9th Circuit’s majority decision as poorly analyzed.

"The government has used the power of their office and the depth of taxpayer coffers to waste precious time and resources to avoid trial in this case, and now the court has capitulated with little scrutiny," Our Children’s Trust Executive Director Julia Olson said in a statement today.

"This case deserves rigorous analysis based on the evidence introduced in court," she added. "Our youth plaintiffs did not receive that consideration in this majority opinion."

The plaintiffs have already filed a request with the Oregon district court to restart pre-trial and trial proceedings, which it froze last month.

"Plaintiffs believe this Court’s stay of proceedings has lifted now that the two Petitions pending in the Ninth Circuit have been resolved," they wrote today. "Thus, this Court should resume exercising its jurisdiction over issues still remaining for the district court to decide."

They say the district court is free to weigh various procedural and factual issues that are not part of the 9th Circuit appeal.