The Trump administration is ramping up efforts to quash a climate change lawsuit brought by 21 young people.
Trump's legal team on Friday took an unusual step that shows just how determined the Justice Department is to keep Juliana v. United States from going to trial.
Lawyers filed a "writ of mandamus" petition with the Ninth Circuit Court of Appeals to review a federal judge's decision from November, which denied the government's motion to dismiss the precedent-setting lawsuit.
A mandamus is considered a "drastic and extraordinary" remedy reserved for "really extraordinary causes," Justice Anthony Kennedy wrote in the Supreme Court's 2004 majority opinion Cheney v. U.S. The administration essentially wants to leapfrog over a lower court in hopes of finding a more favorable ruling in a higher court.
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The youth lawsuit uses a novel legal approach that's also being tested in India, the Netherlands, and other countries around the world. Juliana v. United States relies on a version of the public trust doctrine, which holds that the government is responsible for preserving certain natural resources for public use. In this instance, the resource is the country's "life-sustaining climate system," including the "atmosphere, waters, oceans, and biosphere."
"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," Victoria Barrett, an 18-year-old plaintiff from White Plains, New York, said in a statement provided by Our Children's Trust, the organization behind the lawsuit.
To understand why the Trump administration is going to such lengths, let's review some recent history.
In 2015, a group of citizens, now ages 9 to 21, filed a lawsuit accusing the federal government and energy companies of failing to rein in greenhouse gas emissions and curb fossil fuel use, despite mounting evidence on human-caused global warming. Plaintiffs claim that failure violates their "constitutional rights to life, liberty, and property."
The Obama administration and industry groups filed motions to dismiss the lawsuit, and in April 2016, U.S. Magistrate Judge Thomas Coffin denied those motions. After reviewing Coffin's decision, U.S. District Court Judge Ann Aiken in Oregon also rejected the motions — setting a landmark precedent for climate issues as legal rights.
"I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society," Aiken said in her Nov. 10, 2016, opinion.
In February, after Trump was sworn in, the young plaintiffs filed a legal notice saying they were replacing Obama with Trump as the main defendant. Weeks later, the Trump administration and fossil fuel companies filed separate motions to the District Court seeking review of Aiken's decision to the Ninth Circuit.
That was an unexpected step; it's unusual for the government to try to appeal a case to a higher court before a lower court has ruled on the lawsuit. Trump's team also filed a motion to delay trial preparations until after its appeal is considered.
That brings us to the present.
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Last week, the Trump administration filed a notice to the District Court of Oregon, giving the court until June 9 to issue a decision on its appeal to the Ninth Circuit. If the court didn't issue a decision, defendants said they would seek a ruling directly from the Ninth Circuit.
On June 8, a day before the so-called deadline, Aiken denied the Trump administration's request, arguing that involving the higher appeals court at this point in the legal proceedings is "not warranted."
The decision was a big blow to Justice Department efforts to avoid going to trial. In response, the administration filed the rare "writ of mandamus" petition asking the Ninth Circuit to review Aiken's decision.
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The petition accuses the Oregon district court of committing "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."
Douglas Kysar, a law professor at Yale Law School who is not involved in the litigation, called the writ "offensive to Judge Aiken, the entire federal judiciary, and, indeed, to the rule of law itself."
"We should all question why the Trump administration's lawyers are willing to try such a trick rather than forthrightly defend the case," he said in a statement provided by Our Children's Trust.
The Ninth Circuit's decision will have important implications for the future of the lawsuit, and whether it goes to trial.
If the latter happens, we can already guess what Trump will tweet in response: "See you in court."