Jackson Kelly PLLC

Energy and Environment Monitor

U.S. Supreme Court Allows Kids' Climate Trial to Proceed

November 13, 2018

By: Robert G. McLusky

We have written before about this case where a group of children have sued the United States Government for its failure to protect them from the effects of climate change.  October 30, 2018.  In prior rulings, a federal district court judge in Oregon has rebuffed efforts by the United States to dismiss the case on the grounds that it presents non-justiciable “political” questions rather than questions that fall within the scope of the federal judiciary. 


The U.S. had recently been granted a reprieve from a scheduled trial when the U.S. Supreme Court granted a writ to stay the trial while it considered granting more permanent relief.  However, on Friday, November 2, 2018, the Supreme Court denied the request to stay the trial.  The basis of the denial, however, is procedural in nature and did not address the merits of either the children’s or the government’s claims.  Instead, it notes that the request for a stay should first be directed to the Ninth Circuit Court of Appeals even though that court has rebuffed earlier efforts to stay the case.  The Supreme Court’s order specifically notes that it is denying the relief “without prejudice”—meaning that the United States can go back to the Supreme Court if the Ninth Circuit, as expected, denies the same request for a stay.


In the meantime, however, the 50-day trial had been scheduled to begin on October 29, 2018, but had been held in abeyance only because of the earlier administrative stay entered by the U.S. Supreme Court.  The Supreme Court has suggested that the Ninth Circuit should be permitted to rule on the petition before the trial goes forward.


After the Supreme Court sent the case back to the lower court, the government asked the trial court to reconsider the government’s earlier request to allow an appeal to the Ninth Circuit if the trial court refused to dismiss the case.  See Deft’s. Motion to Reconsider.  Ordinarily, appeals from trial court orders that do not resolve a case in its entirety are not appealable absent agreement of the district and appellate courts.  In addition, the Ninth Circuit Court of Appeals issued an order staying the trial pending its review of a petition for mandamus to have the case dismissed for raising only political questions.  The Ninth Circuit also encouraged the district court to rule promptly on the government’s request to reconsider its request that the district court approve of an interlocutory appeal of the political question issues to the Ninth Circuit in advance of a trial.


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