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https://www.newyorker.com/news/daily-comment/the-right-to-a-stable-climate-is-the-constitutional-question-of-the-twenty-first-century}:

no lnx

the Right to a Stable Climate Is the Constitutional Question of the Twenty-first Century

By Carolyn Kormann

June 15, 2019

On June 4th, in a packed courtroom in Portland, Oregon, Judge Andrew Hurwitz, of the United States Court of Appeals for the Ninth Circuit, posed an unusual hypothetical question.“Assume that we have rogue raiders come across the Canadian border of the Northwest. They are kidnapping children of a certain age and murdering them,” he said. “The White House refuses to do anything and Congress doesn’t act. Can those people”—the terrorized families and communities—“go to court to compel action?” He was asking Jeff Clark, the lawyer representing the federal government, the defendant in the case. Clark replied, “My answer is no.”

Judge Hurwitz, along with Judges Mary Murguia and Josephine Staton, was presiding over oral arguments in Kelsey Cascadia Rose Juliana v. the United States, better known as the climate kids’ lawsuit. In August of 2015, the twenty-one plaintiffs, who then ranged in age from eight to nineteen years old, sued the Obama Administration and various federal agencies, alleging that the government’s policies on fossil fuels advanced catastrophic climate change and therefore violated the right, guaranteed to them under the Fifth Amendment, that no one shall be “deprived of life, liberty, or property, without due process of law.”

In other words, as Judge Hurwitz’s hypothetical suggested, their suit is an attempt to compel action from a government that is ignoring (and furthering) a life-threatening danger that they face. Since then, the case has ricocheted through the courts, gaining strength as urgency around climate change has increased and the Trump Administration has continued to deny that a problem exists. (“The climate goes both ways,” President Trump said in London, last week. “I believe that there’s a change in weather and I think it changes both ways.”) Instead, the Administration has aggressively promoted and expanded the use of fossil fuels, recently announcing that natural gas would be rebranded as “freedom gas.”

Hurwitz asked his question at the start of the hearing, establishing the stakes and reflecting the gravity with which the judges were weighing the plaintiffs’ claims. It pointed to an issue at the heart of the case, and at the heart of most climate litigation—the separation of powers. “The central issue the Ninth Circuit is grappling with is what is the role of the courts vis a vis Congress and the executive branch,” Michael Gerrard, a professor at Columbia Law School and the faculty director of the Sabin Center for Climate Change Law, wrote me in an e-mail. “If a building is on fire and all the firefighters are off at a convention, can the neighbors break into the firehouse and run the firetrucks themselves? Or do they have to wait for permission, while the building burns down? Likewise, if the planet is on fire and Congress and the Administration are checked out, can the courts act on their own?”

Since most major environmental statutes date to the nineteen-seventies, and Congress has not been able to pass a single major environmental law since 1990, the Environmental Protection Agency, other federal agencies, and the courts have been forced to address current problems with laws that are decades old. (The main problem now is that the Senate will not act. In early May, as the House prepared to vote on a new bill, the Climate Action Now Act, which would force the Trump Administration to remain in the Paris climate agreement, the Senate Majority Leader, Mitch McConnell, said that it would “go nowhere.”) 

Once Trump was elected, and federal agencies no longer had a mandate to address climate change, the courts became the only branch of government where action might be possible. But, in the absence of adequate climate-policy laws, the courts must find their right to act in the Constitution. Two days after Trump’s election, a federal judge for the District of Oregon, Ann Aiken, found that right and issued a major decision, denying the government’s motion to dismiss the Juliana case. “Where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation,” Aiken wrote.

“I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” A trial date was set for early last year, then postponed until last fall. The government, meanwhile, turned to the Supreme Court, asking the Justices to prevent the trial from going forward. In November, they declined to do so, determining that the government needed to bring its objections before the Ninth Circuit first. The Ninth Circuit now must decide whether the case can, finally, proceed to trial.

During the hearing, Jeff Clark, from the Justice Department, argued that there is no substantive constitutional right to a stable environment.Julia Olson, the co-lead attorney for the plaintiffs and the executive director of Our Children’s Trust, a group that has been bringing climate-litigation cases around the country, argued that the government misunderstood the plaintiffs’ claims.

She said, “The Supreme Court has already recognized that the liberties that we all hold include our right to bodily integrity and personal security and family autonomy. So this court doesn’t need to step out of bounds and recognize any kind of new right, it can stick with the bedrock fundamental rights that we all—”

At this point, Judge Hurwitz interrupted her, saying, “Actually, to be fair, you’re arguing for us to break new ground.” He added, “I’m sympathetic to the problems you point out, but you shouldn’t minimize—you shouldn’t say this is just an ordinary suit, and all we have to do is follow A, B, and C, and we get there. You’re asking us to do a lot of new stuff, aren’t you?” Olson replied, “We’re asking the court to apply bedrock constitutional law and principles to a wholly new set of facts.”

The government, for its part, disputed some of those facts. Judge Aiken had found that the plaintiffs had standing to sue because they had demonstrated three things: that they had suffered particular, concrete injuries; that the cause of their injuries was “fairly traceable” to the government’s actions; and that the courts had the ability, at least partially, to remedy these injuries. On the first two parts of standing, the government’s case is weakening by the minute, owing especially to the growing body of attribution science—studies published in peer-reviewed journals that directly link extreme weather events, such as huge hurricanes and raging wildfires, to climate change. “Evidence to meet the standing burden has gotten much stronger,” Ann Carlson, an environmental-law professor at U.C.L.A., told me.

All the plaintiffs were in the courtroom for the hearing. They have each submitted sworn testimony to the court, explaining the personal injuries that climate change has caused in their lives. The youngest, Levi Draheim, who is now eleven, lives in the barrier-island community of Satellite Beach, Florida, which his family has been forced to evacuate several times, due to hurricanes and floods. Jayden Foytlin, who is fifteen and lives near the Louisiana coast, suffered emotional trauma when her home was severely flooded in 2016 and 2017. In her testimony, she describes how her family, having nowhere else to go, slept in the living room in a “house that was full of sewage and flood water damage.”

Journey Zephier, nineteen, of Hawaii, has watched treasured coral reefs near his home die, due to ocean acidification and warming temperatures, and last year saw his home flood when an unprecedented fifty inches of rain fell in less than twenty-four hours, which also caused landslides and power outages in his community. Jamie Butler, eighteen, had to leave her home and her relatives in the Navajo Nation, because of severe drought and water scarcity. Kelsey Juliana, the lead plaintiff (and the oldest, at twenty-three), grew up in Eugene, Oregon, where she is now an environmental-studies major at the University of Oregon. She, along with eight of the other plaintiffs, described adverse health impacts from the wildfires that rage in and around their home towns practically every year. Some also wrote about the damage that extreme weather events and climate threats have caused to their cultural heritage; others described psychological troubles—nightmares, anxiety, depression.

Olson and the other lawyers can make a strong case that the plaintiffs’ injuries are “fairly traceable” to the government’s actions, considering that, for instance, almost twenty-five per cent of U.S. carbon-dioxide emissions come from fossil-fuel development on federally owned land. There is also plenty of evidence that the government has known for many decades the dangers that adding greenhouse-gas emissions to the atmosphere would bring.The Ninth Circuit judges seemed more than sympathetic to these arguments—both to the plaintiffs’ injuries and to the fact that they could be linked to the government’s policies. “You present compelling evidence that we have a real problem,” Judge Hurwitz told Olson. “You present compelling evidence that we have inaction by the other two branches of government. It may even rise to the level of criminal neglect.” With statements like that, Carlson told me, “That’s about as sympathetic a panel as the plaintiffs are going to get.”

But Hurwitz and the two other judges hesitated about the third condition of standing—the ability of the courts to redress the plaintiffs’ injuries—which ultimately goes back to the separation of powers.He said, “The issue here is whether this branch of government, embodied by the three of us today, has the ability to issue the relief that your clients seek.” Olson argued that it did, because the case was not based on the government’s inaction (as Hurwitz’s hypothetical had implied) but, rather, on its affirmative and substantial actions to facilitate, subsidize, and promote a fossil-fuel-based energy system. 

The courts could, therefore, declare that the government must use its statutory authority to transition the economy away from fossil fuels, and order government agencies—such as the Environmental Protection Agency, the Department of the Interior, and the National Highway Traffic Safety Administration—to create national plans detailing how such a transition could be achieved. The evidence presented at trial—documents, cross-examination testimony, expert witnesses—would provide the specifics that such plans needed to include, Olson said.

The judges did not seem entirely convinced that the courts had the power to intervene in the activities of so many parts of the executive branch—at least eight government agencies would be involved. “I’m trying to figure out if we have done anything “on this scale, to this proportion,” Judge Murguia said. “I’m almost drawing on a clean slate.” Olson said that “the scale of the problem is so big because of the systemic conduct of the government.” As precedents, she pointed to Supreme Court cases in which the courts were deeply involved in the remedy of constitutional violations. In Brown v. Board of Education, the Court declared that segregation was unconstitutional in public schools, and then, in a follow-up ruling, ordered all federal, state, and local districts to desegregate. In Hills v. Gautreaux, the Court upheld an order requiring the Department of Housing and Urban Development to rectify discriminatory public housing.

In the government’s view, as Clark presented it, “the sweeping nature of the case” made it “a direct attack on the separation of powers” and “an assault on the Constitution’s design.” But, in the most basic terms, wasn’t the Constitution designed so that one branch of government can check the other two, if their behavior fails to protect and preserve individual liberties? It was, but, asHurwitz noted, “We may have the wrong Congress and the wrong President. That’s occurred from time to time over history. The real question for us is whether we get to intervene because of that.” That is to say, the judges need to decide whether they agree that the government’s action go beyond politics and are violating the plaintiffs’ constitutional rights—rights that only exist if we have a stable climate.

The judges will take a few weeks to issue their decision. If they decide in the plaintiffs’ favor, the government will likely petition the Supreme Court, again, to prevent the trial from proceeding. The Justices may decide that they need the full factual record that a trial would provide; they generally want things fully baked.

For observers thinking about long-term climate-litigation strategy, though, there is concern that the present bench of Justices might take the opportunity—either after the trial or in refusing to let it go forward—to set a precedent that could be damaging to environmental protections in lawsuits down the road. Worst of all, it might lead them to revisit Massachusetts v. E.P.A., the landmark 2007 decision that established that the E.P.A. has the authority to regulate greenhouse gases under the Clean Air Act. Justice Anthony Kennedy was the swing vote on that case; Chief Justice John Roberts wrote a dissenting opinion. “There is real worry,” Michael Gerrard said.

The strategic question of how far to push environmental cases is one that many groups face. All the challenges to the Trump Administration’s rollbacks of Obama’s climate policies are still pending in lower courts. If an environmental group loses, and takes the case to the Supreme Court, “you might get a decision that is even worse, that has greater reach,” Carlson said. Still, the fact that the Juliana case has come this far has had a galvanizing impact.Thousands of people, across the country and around the world, watched a live stream of the hearing—on the Ninth Circuit’s YouTube channel, on outdoor screens in parks—and the judges commented several times on the widespread interest in the case. It seemed indicative of what’s to come. In Olson’s concluding statement, she put the matter in its appropriate context. “If we look back on the twentieth century, we can see that race and sex discrimination were the constitutional questions of that era. And when our great-grandchildren look back at the twenty-first century, they will see that government-sanctioned climate destruction was theconstitutional issue of this century

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https://en.wikipedia.org/wiki/Juliana_v._United_States

Juliana, et al. v. United States of America, et al. is a climate-related lawsuit filed in 2015 by 21 youth plaintiffs against the United States and several executive branch officials. The plaintiffs, represented by the non-profit organization Our Children's Trust, include Xiuhtezcatl Martinez, the members of Martinez's organizationEarth Guardians, and climatologistJames Hansenas a "guardian for future generations". Some fossil fuel and industry groups intervened as defendants, but were later dropped at their request following the 2016 presidential election.

The lawsuit asserts that the United States government violated the plaintiffs' rights by encouraging and allowing activities relating to greenhouse gas emissions that significantly infringed upon their right to life and liberty. The case is an example of an area of environmental law referred to as "atmospheric trust litigation", a concept based on the public trust doctrine and international responsibility related to natural resources.

While similar past lawsuits have been dismissed by U.S. courts, Juliana v. United States gained attention in 2016 when U.S. District Court of Oregon Judge Ann Aikendeclined to dismiss it; Judge Aiken ruled that access to a clean environment was a fundamental right. In January 2020, a Ninth Circuit panel reversed Judge Aiken and dismissed the case on the grounds that the plaintiffs lacked standing to sue. Attorneys for the youth plaintiffs have appealed the dismissal.

Case history

Background

Legal actions to affect climate change by federal and state-level governments have been attempted since the 1990s; one of the first known cases was led by Antonio Oposa, a Philippine lawyer that represented a class-action suit of 43 students against the Philippine government to protect a forest surrounding their village. Oposa had won the suit, which led to numerous other lawsuits around the world.[1] As of July 2018, there were over 1,000 such lawsuits filed across 24 countries, with 888 of those within the United States.[2] Such cases typically involve youth and children and other future generations, as they help to broaden the appeal of the action, and represent the class that would be most affected by government action or inaction.[1]

The Oregon non-profit organization, Our Children's Trust, was created by attorney Julia Olson to help formulate legal cases that could be taken against states and the federal government that would charge them with mitigating climate change under the public trust doctrine.[3] Olson established the non-profit with advice and assistance from Mary Christina Wood, director of the Environmental and Natural Resources Law Program at the University of Oregon, who had been studying the concept of the public trust doctrine and established the idea of "Atmospheric Trust Litigation" to take legal action to make governments responsible for actions related to climate change.[4][3]

Part of Our Children's Trust's inspiration was from Oposa's work in the Philippines.Since 2011, Our Children's Trust has been filing various state and federal lawsuits on behalf of youth, though most of these have been dismissed by courts, as courts generally have not ruled that access to a clean environment is a right that can be litigated against.[5][2][3]

Such cases are also generally dismissed as lawsuits cannot be initiated by "generalized grievances", and require plaintiffs with standing to sue and can demonstrate concrete harm that the government has done, and that the courts can at least partially redress the harm by order of the court.[6] Further, cases cannot be brought to court if they deal with a "political question" which cannot be resolved by actions of Congress and the President.[6]

A few related cases on climate change have made it to the Supreme Court. The first, which opened the way for the others, was Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). In that suit, twelve states sued the Environmental Protection Agency (EPA) for failing to regulate emissions of greenhouse gases and sought relief. The Court agreed with the states by a 5–4 vote on each of three issues: that the states had standing to sue the EPA for not issuing regulations, that greenhouse gases were air pollutants, and that the EPA was authorized to regulate them.[7].

The majority opinion stated that, while any regulation made by the EPA would be unlikely to stop global warming, the agency should be required to regulate such emissions to reduce the extent of global warming.[6]

Subsequent cases were less successful. For example, an attempt to sue public utilities for greenhouse gas emissions under a "public nuisance" theory invoking the federal common law of nuisance was unanimously rejected by the Court in 2011in American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), reversing a lower court decision in a case that also found an evenly divided court with regard to standing (as Justice Sotomayor did not participate).[8]

Also, a challenge to the EPA's subsequent regulations on greenhouse gases was upheld in part and denied in part in Utility Air Regulatory Group v. EPA, 573 U.S. _ (2014), a ruling which rejected the EPA's expansive reading of its powers by a 5–4 vote but permitted EPA to implement greenhouse gas regulation on existing monitored power plants by a 7–2 vote.[9][10]

Initial hearings

The present case was filed in August 2015 with the United States District Court for the District of Oregon, and was assigned to judge Ann Aiken, who was then the chief judge of the court.[11] The 21 youths, ranging from 8 to 19 at the time of filing, received pro bono representation from Our Children's Trust, and had support of climatologist James Hansen, acting as a "guardian for future generations" in the case filings.[12][13] (Hansen's granddaughter Sophie Kivlehan was one of the named plaintiffs.)[14] The youths were selected by Our Children's Trust as they all were able to demonstrate immediate "concrete injury" due to climate change, such as having their homes wiped out by excessive flooding, rising sea levels, and desertification which were tied to climate change.[6]

The case was filed against President Barack Obama and several agencies within the executive branch, and sought confirmation that their constitutional and public trust rights had been violated by the government's actions, and sought an order to enjoin the defendants from continued violation of their rights and to develop a plan to mitigate carbon dioxide emissions.

Among their arguments, the youths' attorneys asserted that the lack of governmental action on climate change discriminated against the youths' generation, since they would be most impacted by climate change but have no voting rights to influence that.[12]

Three fossil fuel industry groups, the American Petroleum Institute, American Fuel and Petrochemical Manufacturers, and the National Association of Manufacturers, initially intervened in the case as defendants, joining the U.S. government in trying to have the case dismissed.[15][16] Pre-trial hearings were held in March 2016 before U.S. Magistrate Judge Thomas Coffin.

The U.S. Department of Justice argued that there was "no constitutional right to a pollution-free environment", and that the court system was not the proper venue to affect such changes.[12] Coffin ruled in April 2016 recommending that both motions to dismiss were denied; Coffin found that while the case was "unprecedented", it had sufficient merit to continue.[13]

Coffin's decision was upheld by Judge Aiken, who ruled in November 2016 that theright to "a climate system capable of sustaining human life" was a fundamental right similar to gay marriage as decided by the recent Supreme Court case, Obergefell v Hodges.[17]

According to Michael Gerrard, the director of the Sabin Center for Climate Change Law at Columbia University, "this decision goes further than any other court ever has in declaring a fundamental obligation of government to prevent dangerous climate change",[17] and Judge Aiken’s decision that there might be a constitutional right to a sound environment was the first such ruling ever from a federal court.[18] Preliminary trial dates were set for 2017.[17]

Following the 2016 election, the federal defendants filed a response to the plaintiff's complaint on January 13, 2017, one week before President Obama left office.[19] In their response, thefederal defendants denied that they had caused climate change or specific climate change impacts such as increased temperatures, drought conditions, warmer water temperatures, rising sea levels, and ocean acidification.[20]

About a month later, the complaint was amended to make the lead defendant newly-elected President Donald Trump.[20] In the months that followed, thefossil fuel industry groups requested that they be removed from the case, believing that the Department of Justice under the Trump Administration would vigorously defend the case, unlike the Obama Administration.[15] HMMN RATIONALE?

The National Association of Manufacturers, one of the fossil fuel groups, said that "as the dynamics have changed over the last several months, we no longer feel that our participation in this case is needed to safeguard industry and our workers".[15][16] In late June 2017, Judge Coffin released the fossil fuel industry defendants from the case, as well as establishing a trial date on February 5, 2018 before Judge Aiken.[21]

Government objections

In early June 2017, the Department of Justice filed a motion requesting that Judge Aiken rule on its prior motion for an interlocutory appeal to the Ninth Circuit of Judge Aiken's November 2016 decision on the justiciability of the plaintiffs' claims, by June 9 or the department would directly seek a writ of mandamus regarding the issue in the Ninth Circuit.[22]

Judge Aiken denied the motion requesting the interlocutory appeal on June 8,[23] leading the government to petition the Ninth Circuit for a writ of mandamus on June 11. The government's petition argued that the Ninth Circuit needed to act to correct "multiple and clear errors of law in refusing to dismiss an action that seeks wholesale changes in federal government policy based on utterly unprecedented legal theories".[24] The government also argued that the pre-trial discovery phase would cause the government harm due to the volume of data and evidence they would need to provide.[25]

After receiving responses from the plaintiffs, the Ninth Circuit opted in November 2017 to hear oral arguments before making their decision.[25] These arguments were held on December 11, 2017 in front of Judges Sidney Thomas, Alex Kozinski, and Marsha Berzon. A few days later, Judge Kozinski stepped down from the Ninth Circuit.[26] On December 21, 2017, Judge Michelle Friedland was appointed to replace Kozinski. Due to the Ninth Circuit's hearing, the planned trial date at District Court was put on hold.[27] On March 7, 2018, the Ninth Circuit Court of Appeals unanimously rejected the requested writ of mandamus in a decision by Judge Thomas.[28][29] The District Court trial was then rescheduled to start October 29, 2018.[30]

The government then petitioned the Supreme Court of the United States requesting a stay to delay the trial. On July 30, 2018, the Supreme Court issued a brief order, denying the government's request for a stay as premature but expressing skepticism about the lawsuit, as well as noting that the breadth of the plaintiffs' claims was "striking" and requesting that the District Court issue a prompt ruling on the government's motions challenging the overall justiciability of those claims.[31][32]

Following the Supreme Court's order, the government again presented two motions to dismiss the case to Judge Aiken in July 2018. One motion stated that the case, in addressing multiple government agencies, violated the Administrative Procedure Act, while the other motion challenged the youths' standing in the case.[33] While Judge Aiken said she would rule promptly on the motions, she had not issued her decision by October 5, causing the government again to request an emergency stay from the Ninth Circuitvia a second writ of mandamus, asking them to delay the case until Aiken ruled on the two motions.[34] On October 15, Judge Aiken ruled on the two motions, denying both. Aiken also removed President Trump as a defendant in the case without prejudice, meaning that he could be re-added to the case at a later stage, and reaffirmed the trial start date of October 29.[35]

In response, on October 18, 2018, the U.S. government submitted an emergency motion to the Supreme Court, again requesting to stay the trial.[36][37] The government claimed that, "Absent relief from this court, the government imminently will be forced to participate in a 50-day trial that would violate bedrock requirements for agency decision making and judicial review imposed by the [Administrative Procedure Act] and the separation of powers."[38][39]

Chief Justice John Robertsof the Supreme Court granted the stay the next day, pending receipt of a response to the government's brief from the plaintiffs.[40][37][41] An environmental law professor at UCLA opined, with regard to this stay, "It's certainly a signal that the court is uncomfortable with the underlying legal theory of the Juliana case."[14] On October 24, 2018, Judge Aiken filed an order vacating the trial start date of October 29 and placing a hold on the rest of the trial schedule.[42]

On November 2, the Supreme Court (by a 7–2 vote) denied the government's request for a writ of mandamus and vacated the stay, holding that the government could still be granted pretrial relief from the Ninth Circuit.[43][44] In its order, the court noted that, even though the Ninth Circuit had already denied the government's request for relief twice, the reasons supporting its denials on the prior occasions "are, to a large extent, no longer pertinent".[45] The order was issued without prejudice, leaving open the possibility that the case could return to the Supreme Court again prior to trial, depending upon the actions taken by the Ninth Circuit.[45]

Interlocutory appeal

On November 8, 2018, consistent with the Supreme Court's order of November 2, 2018, the Ninth Circuit granted an indefinite stay on the trial pending its ruling on the government's request for a writ of mandamus, as well as requesting briefs from both the plaintiffs and the trial court on the writ and requiring the trial court to rule on the government's renewed motion for an interlocutory appeal.[46][47] On November 21, 2018, Judge Aiken reversed her position and granted the government's request for an interlocutory appeal, putting the entire case on hold until the higher courts have ruled on this appeal.[48][49][50] On permission granted, the government filed a petition with the Ninth Circuit on November 30, 2018, for interlocutory review of the order on motions to dismiss and the order on motions for judgment on the pleadings and summary judgment. An answer was filed with the Court by the plaintiffs on December 10, 2018.[51]

On December 26, 2018, the Ninth Circuit denied the requested writ of mandamus as moot but granted the interlocutory appeal by a 2–1 vote.[52] Subsequently, as requested by plaintiffs, the Ninth Circuit set an expedited schedule for the appeal, requiring the government's opening appeal brief by February 1, 2019, the plaintiff's response brief by February 22, 2019, and all briefing to be completed by March 8, 2019.[53] The government's appeal brief again challenged the unique constitutional and statutory rulings on standing, fundamental rights, and the public trust doctrine made by the district court.[54]

On February 7, 2019, the plaintiffs filed an "extraordinary motion" asking the Ninth Circuit to issue a preliminary injunction by March 19, 2019, blocking the federal government from approving any fossil fuel production activities either on federal land or needing federal approval, such as coal mining on federal land, oil or natural gas drilling offshore, or pipelines that need federal approval.[55][56].

In opposition, the federal government noted that the case was filed over 3.5 years before the plaintiff's initial request for an emergency injunction.[57][58] Meanwhile, the plaintiffs argued in part that the appeal was improvidently granted and that the case should be returned to Judge Aiken.[59] The Ninth Circuit scheduled oral argument on the appeal for the week of June 3, 2019 in Portland,[60] and the appeal was ultimately heard on June 4 in front of a different three-judge panel from the Ninth Circuit consisting of Mary H. Murguia, Andrew D. Hurwitz, and Josephine Staton (sitting by designation), all of whom were appointed to the bench byPresident Obama.[61]

Some legal experts believed that the interlocutory appeal "could (and, indeed, likely will) bring this litigation to an end" due to the Supreme Court's already-expressed skepticism.[50] Other experts, such as the director of Columbia University's climate change center, noted that any decision in favor of the plaintiffs likely would be reversed by the Supreme Court, which has been reluctant to declare new rights and which unanimously held in American Electric Power Co. v. Connecticut that it was not for the courts to decide appropriate levels of pollution.[18]

On January 17, 2020, on a 2–1 vote, the Ninth Circuit panel dismissed the case for lack of Article III standing. Writing for the majority, Judge Hurwitz wrote that "it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs' requested remedial plan.

As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches."[62]

 In dissent, Judge Staton characterized the majority as shirking its judicial responsibility to rectify a grave constitutional wrong in the manner the U.S. Supreme Court laudably did in its landmark Brown v. Board of Education decision, stating, "My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary."[63] She further argued, "No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution."[64]

In an analogy from her impassioned dissent that became widely cited in the news media,[65][66][67] Judge Staton stated that "[i]n 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. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation."[68] Lawyers for the plaintiffs stated their intent to appeal this dismissal to the full Ninth Circuit sitting en banc,[62][69] and subsequently filed such a petition. ^[70]

Involved parties

see below

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FAIL

https://www.ecowatch.com/juliana-v-united-states-tossed-2644863188.html

An  appeals court tossed out the landmark youth climate lawsuit Juliana v. United States Friday, arguing that the courts are not the place to resolve the climate crisis.

The three-judge panel on the Ninth Circuit Court of Appeals agreed with the 21 young plaintiffs that the U.S. government had actively contributed to climate change by supporting a fossil-fuel based economy and that the young people had been injured by its actions, The Guardian explained. However, the majority ruled that the courts did not have the power to order a plan for government action to address the crisis, as the 12-to-23-year-old plaintiffs had requested.

"Reluctantly, we conclude that such relief is beyond our constitutional power," Judge Andrew D. Hurwitz wrote in the court's opinion. "Rather, the plaintiffs' impressive case for redress must be presented to the political branches of government."

[twt]

The  decision raises the question of where young people can turn to ensure their futures are protected.

"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," the young people's lead lawyer Julia Olson told The New York Times.

In her dissent, Judge Josephine L. Staton agreed, criticizing her colleagues for "throw[ing] up their hands."

"Where is the hope in today's decision?" she wrote. "Plaintiffs' claims are based on science, specifically, an impending point of no return. If plaintiffs' fears, backed by the government's own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?"

The lawsuit was filed in 2015 by the 21 plaintiffs with the support of the nonprofit Our Children's Trust, according to Climate Liability News. It argues that by supporting a fossil-fuel based economy despite evidence it was contributing to climate change, the federal government violated the public trust and the young plaintiffs' constitutional rights to life, liberty and property.

For example, plaintiff Levi Draheim, 12, has had to repeatedly evacuate his home in Satellite Beach, Florida because of more extreme storms, according to The Guardian. Jaime Butler, 19, has been separated from her home and relatives in Navajo Nation because of water insecurity.

The federal government has tried to dismiss the case several times since it was filed, according to Climate Liability News. And Assistant Attorney General Jeffrey Bossert Clark told The New York Times that the government was "pleased with the outcome" of Friday's decision.

However, Our Children's Trust and the plaintiffs have vowed to keep fighting and to ask the full Ninth Circuit to review the decision, the group announced in a press release.

"We will continue this case because only the courts can help us," Draheim said. "We brought this lawsuit to secure our liberties and protect our lives and our homes. Much like the civil rights cases, we firmly believe the courts can vindicate our constitutional rights and we will not stop until we get a decision that says so."

If the full Ninth Circle refuses to hear the case, the group would then have to appeal to the Supreme Court, Climate Liability News explained.

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https://en.wikipedia.org/wiki/Andrew_D._Hurwitz

andrew David Hurwitz (born October 1, 1947) is a United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit.

Education and clerkships

Hurwitz graduated cum laude and Phi Beta Kappa from Princeton University in 1968 with an Artium Baccalaureus degree in Public and International Affairs.[1] While at Princeton he earned the ignominious distinction of participating in the longest winless streak of the men's soccer team, as part of the 0-7-3 squad in 1966.[2]

He earned his Juris Doctor from Yale Law School in 1972, where he served as a member of the Board of Editors[3] and the Note and Comment Editor[4] of the Yale Law Journal.[1]

After law school, he clerked for Judge Jon O. Newman of the United States District Court for the District of Connecticut.[5] and for Judge John Joseph Smith of the United States Court of Appeals for the Second Circuit.[1]

From 1973 to 1974, he clerked for Associate Justice Potter Stewart of the United States Supreme Court.[6]

Legal and political career

Hurwitz practiced law in Phoenix for nearly 30 years before becoming a judge. He was a partner at Osborn Maledon from 1995–2003, and an associate and partner at the predecessor firm Meyer Hendricks Victor Osborn & Maledon from 1974 to 1980 and from 1983 to 1995.[1] His practice included commercial litigation, administrative law, and government affairs, but he was best known as one of the most skilled appellate specialists in Arizona.[citation ^needed]

His most notable case as an appellate attorney came in 2002, when he successfully argued Ring v. Arizona before the United States Supreme Court.[7] Representing Timothy Ring and several other death row inmates, he argued that in murder cases the Sixth Amendment requires juries, rather than judges, to make factual determinations that aggravating circumstances exist that qualify defendants for the death penalty. The Supreme Court agreed in a 7-2 decision that dramatically altered capital sentencing in Arizona and a number of other states.

From 1980 to 1983, Hurwitz took a break from the practice of law to serve as chief of staff to Governor Bruce Babbitt.[1] Among the projects he oversaw for Governor Babbitt was the creation of the Arizona Health Care Cost Containment System (AHCCCS), an innovative program to control Medicaid costs.[8] His experience in the governor's office led then-Secretary of State Rose Mofford to tap him to lead her transition team during the 1988 impeachment of Governor Evan Mecham.[9] When Mofford became governor after Mecham's removal from office, Hurwitz became her chief of staff.[10] He later served as co-chair of the transition team for Governor Janet Napolitano.[1]

In addition to his work for three Arizona governors, Hurwitz has held a variety of other public service positions. He served as a member of the Arizona Board of Regents overseeing the state's public university system from 1988 to 1996, including a term as president of the Board of Regents from 1992 to 1993.[1][11] He chaired two City of Phoenix committees focused on neighborhood improvement and street environment from 1986 to 1990.[1] He also served on the boards of directors of the Arizona Center for Law in the Public Interest (1986–1988) and the Children's Action Alliance (1999–2003). In addition, he has been an adjunct and visiting professor at the Sandra Day O'Connor College of Law at Arizona State University since 1977, teaching Ethics, Supreme Court Litigation, Legislative Process, Civil Procedure, and Federal Courts, among other classes.[1]

Judicial career

Hurwitz was appointed to the Arizona Supreme Court in 2003 by Governor Janet Napolitano, replacing former Chief Justice Stanley G. Feldman.[12] In the 2006 election, he received another six-year term, with more than 77% of Arizona voters casting ballots in favor of his retention in office.[13]

In March 2009, he was elected to serve a five-year term as Vice Chief Justice when Justice Rebecca White Berch was elected Chief Justice.[14]

Notable opinions he authored include:

In addition to his judicial duties, Judge Hurwitz served as a member of the Advisory Committee on the Federal Rules of Evidence. He was appointed to the advisory committee by Chief Justice William H. Rehnquist in 2004, and reappointed by Chief Justice John G. Roberts in 2007.[14] He is a member of the American Law Institute (since 2002) and a master of the Horace Rumpole Inn of Court (since 1997).[14]

Federal judicial service

On November 2, 2011, President Obama nominated Hurwitz to be a United States Circuit Judge of the Ninth Circuit.[15] On January 26, 2012, he received a hearing before the Senate Judiciary Committee and on March 1, 2012, his nomination was reported to the floor of the Senate by a vote of 13 ayes to 5 nays. All ten Democratic Senators voted aye along with Republican Senators Tom Coburn, Lindsey Graham and Jon Kyl, while Republican Senators John Cornyn, Chuck Grassley, Orrin Hatch, Mike Lee and Jeff Sessions voted no.[16] On June 7, 2012, Senate Majority Leader Harry Reid filed for cloture on Hurwitz's nomination. On June 11, 2012, cloture was invoked by a vote of 60 ayes to 31 nays. On June 12, 2012, he was confirmed by voice vote and received his commission on June 27, 2012.[17]

Notable Ninth Circuit Opinions

Personal

Paul Bender (left) Jon Kyl (center) Andrew D. Hurwitz (right) speaking at Arizona State University

He is a native of Boonton, New Jersey, having moved there with his family at the age of 3[18] and a graduate of Boonton High School.[citation ^needed] He is married to Dr. Sally Hurwitz, formerly an associate dean at the Mary Lou Fulton Teachers College at Arizona State University.[19]

See also

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