Jackson Kelly PLLC

Energy and Environment Monitor

U.S. Supreme Court Stays Kids' Climate Suit

October 29, 2018

By: Chris M. Hunter

On October 19, 2018, the United State Supreme Court temporarily stayed a suit filed against the President and various executive agencies brought by 21 minors, an organization known as Earth Guardians, and “future generations” by and through their self-appointed guardian, Dr. James Hansen, who is a well-known climate scientist and climate change activist.  See In Re United States of America, et al.. Stay Order. The suit alleges that the government’s policies related to fossil fuels and climate changes are violating the constitutional rights of the named plaintiffs as well as future generations.


We have previously written about climate change-related suits filed on behalf of minors. April 4, 2017.  This suit does not challenge any specific agency action or inaction.  Rather, the plaintiffs allege that the “affirmative aggregate acts” of the government over the past 50 years in the area of fossil fuel production and energy regulation has caused a “dangerous climate system,” which amounts to a systematic violation of various constitutional rights. The suit asks the district court to address the alleged violations of their due process rights by ordering the President and various federal agencies to prepare and implement a national remedial plan designed to address climate change. 


The federal defendants moved to dismiss the suit numerous times, arguing that the suit is an attempt to redirect federal environmental and energy policies through the courts rather than though the political process and that the requested relief ignores the procedural and substantive limitations of the imposed upon the agencies by statute and the Administrative Procedure Act (“APA”).  Further, the government argues that the suit violates the constitutional separation of powers by effectively requiring the district court to usurp the role of Congress and the President in enacting a government-wide regulatory framework and calling upon the expertise and resources of the Executive Branch to formulate climate change policies aimed at effectuating whatever climate change framework the District Court comes up with.


Despite being presented with a case that seems to clearly violate limitations on agency decision making imposed by the APA, as well as general principles regarding separation of powers, the District Court has repeatedly refused to dismiss the case.  The District Court found that the plaintiffs have sufficiently pled standing by alleging that they had been harmed by the effects of climate change through increased droughts, wildfires, and flooding; and that the government’s failure to regulate fossil fuels had caused their injuries.  Specifically, the District Court found that the Fifth Amendment’s protection against deprivation of life, liberty, or property without due process of law, included a previously unrecognized fundamental right to a climate system capable of sustaining human life.  The court also found that the suit adequately stated a claim under the federal public-trust doctrine, which requires the government to protect and maintain public resources for public use.  The District Court determined that it could redress these injuries by ordering the government to stop permitting, authorizing, or subsidizing fossil fuels and moving swiftly to phase out CO2 emissions. 


The Ninth Circuit denied the government’s petition for a writ of mandamus ordering dismissal of the suit in July 2018.  The government filed a stay application with the shortly thereafter, which the Court denied as premature on July 30, 2018.     On October 15, 2018—only two weeks before the scheduled start of the trial—the District Court issued an order largely denying the government’s various dispositive motions.  The Justice Department then filed an emergency petition for writ of mandamus/petition for writ of certiorari with the U.S. Supreme Court on October 18, 2018, which sought an order directing the District Court to dismiss the suit.  The next day, the Justice Department filed a motion for stay of the October 29, 2018 trial date until the Court had a chance to rule on its mandamus petition.  Judge Roberts issued an order that same day staying proceedings and discovery in the matter pending the Court’s consideration of the plaintiffs’ response to the government’s stay request, which was filed on October 22nd.


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