{"id":5349,"date":"2017-12-08T15:00:00","date_gmt":"2017-12-08T20:00:00","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=5349"},"modified":"2017-12-08T15:00:00","modified_gmt":"2017-12-08T20:00:00","slug":"4-things-to-listen-for-in-mondays-juliana-oral-argument","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2017\/12\/08\/4-things-to-listen-for-in-mondays-juliana-oral-argument\/","title":{"rendered":"4 Things to Listen for in Monday\u2019s Juliana Oral Argument"},"content":{"rendered":"

By Michael Burger<\/em><\/p>\n

On Monday, a panel of the United States Court of Appeals for the Ninth Circuit will hear oral arguments in Juliana v. United States<\/em><\/a>. The argument will be live streamed here<\/a>, at 1 pm EST\/10 am PST. Below, I flag four key issues that may figure (more or less) prominently in the judges\u2019 questioning.<\/p>\n

As everyone who reads this blog by now knows, Juliana<\/em> is a climate change case brought by twenty-one individuals, all 19 or younger at the time of filing, and a plaintiff named Future Generations, as represented by scientist James Hansen, against the federal government. The plaintiffs allege that the government\u2019s failure to address climate change in a way consistent with climate science is a violation of their constitutional rights and the public trust doctrine. On November 10, 2016, two days after Donald Trump was elected president, a federal district court judge in Oregon issued an order<\/a> denying the government\u2019s motion to dismiss the case. In her opinion, the judge found, among other things, that the youth plaintiffs have standing to sue, that the U.S. Constitution supplies a substantive due process right to a \u201cstable climate system,\u201d and that the public trust doctrine does apply to the federal government and may be enforced in court. The federal government then petitioned the Ninth Circuit for a writ of mandamus terminating the case, and moved to stay the district court proceeding, including the discovery process. This is an unusual move, and a writ is rarely granted. The Ninth Circuit granted the stay. Monday\u2019s argument concerns whether the appeals court should decide the interlocutory appeal, or else send the case back to the district court.<\/p>\n

<\/p>\n

The Ninth Circuit will be considering a number of factors, including whether the district court\u2019s decision was clear error and whether the government will be damaged or prejudiced if the writ does not issue. The government has argued that all of the district court\u2019s substantive decisions are clearly erroneous: that is, that plaintiffs do not have standing, that there is no substantive due process right at stake, and that there is no public trust obligation that applies here. The government has also argued that moving forward toward trial would significantly harm the government, both because of the burdens of discovery and because doing so would violate the separation of powers. Having followed this case closely, I\u2019m particularly curious to see whether or how the court addresses these four issues:<\/p>\n