The Trump administration filed a writ of mandamus petition with the Ninth Circuit Court of Appeals Friday, seeking an extraordinarily rare review of a Nov. 10, 2016 decision by U.S. District Court Judge Ann Aiken to deny its motion to dismiss Juliana v. United States. Further, the Trump administration is seeking "a stay of proceedings in the district court" while the Ninth Circuit considers its petition.
The Trump administration argues the Ninth Circuit should "exercise its supervisory mandamus powers to end this clearly improper attempt to have the judiciary decide important questions of energy and environmental policy to the exclusion of the elected branches of government."
The U.S. Constitution provides for three separate but equal branches of government, with no exception for energy and environmental policy.
Douglas A. Kysar, the Joseph M. Field '55 Professor of Law at Yale Law School who is not connected with the litigation, but recently co-authored Courting Disaster: Climate Change and the Adjudication of Catastrophe, said:
"Writs of mandamus are reserved for the most extraordinary and compelling situations in which ordinary rules of appellate procedure must be overridden to avoid a manifest injustice. For the Trump Justice Department to even seek a writ of mandamus in the current context is offensive to Judge Aiken, to the entire federal judiciary, and, indeed, to the rule of law itself. The writ should not be granted and we should all question why the Trump administration's lawyers are willing to try such a trick rather than forthrightly defend the case.
"When the Framers divided power within the government, they did it so that the branches could not only check and balance each other, but also poke and prod when necessary. The Juliana litigation is a powerful poke and prod to the entire federal government on the question of climate responsibility. In that sense, Juliana might well be the most important lawsuit on the planet right now and the government knows it. That's why Trump's lawyers are so desperate to avoid an honest fight."
Justice Anthony Kennedy, writing for the Supreme Court's majority in Cheney v. U.S., explained in 2004 that mandamus is a "drastic and extraordinary remedy" reserved for "only exceptional circumstances."
This Trump administration's filing comes just one day after Judge Aiken shut down another rare path to Ninth Circuit review, with an order denying the U.S. government and fossil fuel industry's motions seeking an interlocutory appeal.
"The U.S. Government is running from some of its youngest constituents, and all we're asking for is a plan to preserve our future," said Victoria Barrett, 18, of White Plains, New York, one of 21 youth plaintiffs.
"The U.S. government is trying to use every possible tool they can to avoid trial," Julia Olson, co-lead counsel for plaintiffs and executive director of Our Children's Trust, said. "Because they know applying the law to the facts and science in this case will mean certain defeat for them at trial. If the Trump administration was at all confident it could defend itself at trial, it would be preparing for trial."
Last month, motions were filed by three fossil fuel industry intervenor-defendants: the National Association of Manufacturers, the American Petroleum Institute and the American Fuel & and Petrochemical Manufacturers requesting the court's permission to withdraw from the litigation. For any defendant to leave the litigation, U.S. Magistrate Judge Thomas Coffin must grant permission. That matter is still pending.
"By this writ, the Trump administration insists the federal government can continue to support the fossil fuel system and inflict harm on our children and grandchildren," Phil Gregory, co-lead counsel for plaintiffs and partner with Cotchett, Pitre & McCarthy, LLP in Burlingame, CA, said. "We believe the Court of Appeals will affirm that our Constitution specifically protects our Nation's Posterity. As Judge Aiken wrote, 'the judiciary must not shrink from its role as a coequal branch of government.'"
An in-court case management conference, open to the public, is set for 10 a.m. PST on June 14 at the Wayne L. Morse U.S. Courthouse in Eugene, Oregon.
Juliana v. United States was brought by 21 young plaintiffs, and Earth Guardians, who argue that their constitutional and public trust rights are being violated by the government's creation of climate danger. The case is one of many related legal actions brought by youth in several states and countries, all supported by Our Children's Trust, seeking science-based action by governments to stabilize the climate system.