(CN) — The 21 young people behind a landmark climate lawsuit will appeal its dismissal to the U.S. Supreme Court, their attorney said after the Ninth Circuit refused a rehearing on Wednesday.
Led by Kelsey Rose Juliana, the young people sued the government in 2015. They claim multiple administrations had affirmatively created an imminent climate catastrophe by ignoring their own scientists, who have warned since the 1960s that continuing policies and subsidies promoting the fossil fuels industry would lead to disaster.
Days before the case was set to go to trial before a federal judge in Eugene, Oregon, lawyers with the Trump Justice Department filed an unusual appeal: they asked the Ninth Circuit to dismiss the case before the lower court had ruled.
And in 2020, the Ninth Circuit ordered the case to be tossed out. While the three-judge panel found plenty of evidence that the government knowingly caused climate change by subsidizing the fossil fuel industry, they said in a split ruling that courts lack the authority to craft climate policy that ensures a planet capable of sustaining human life.
U.S. Circuit Judge Andrew D. Hurwitz, a Barack Obama appointee, wrote that the courts can’t give the kids what they seek: an order requiring the government to phase out fossil fuels and draw down atmospheric carbon dioxide, thereby ensuring a livable planet.
Hurwitz “reluctantly” ordered the lower court to dismiss the case. He compared the situation to a song from the 1960s that warned humanity that it was “on the eve of destruction.”
“The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer,” Hurwitz wrote. “A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.”
But Hurwitz said the courts can’t write climate policy. That task falls to the U.S. Senate, the House of Representatives and the president. Hurwitz was joined by U.S. Circuit Judge Mary H. Murgia, a Bill Clinton appointee.
“That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”
U.S. District Judge Josephine L. Staton, an Obama appointee sitting by designation from the Central District of California, wrote a blistering dissent saying she would have let the kids go to trial in Oregon.
“In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response — yet presses ahead toward calamity,” Staton wrote. “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the nation.”
Staton’s dissent opened a channel for the kids to request a rehearing before a full panel of 11 of the judges currently serving on the Ninth Circuit. En banc hearings consist of 10 randomly appointed judges, plus the chief judge.
But on Wednesday, the judges announced they had voted on the request but hadn’t mustered the majority necessary for a rehearing.
Julia Olson is executive director and chief legal counsel for Our Children’s Trust and the attorneywho argued the case before the Ninth Circuit. The law firm crafts suits based a novel legal theory pioneered by Mary Wood, director of the Environmental and Natural Resources Law Center at the University of Oregon. Wood’s book, “Nature’s Trust,” argues that people have a constitutional right to a habitable environment.
Olson said Wednesday that the kids would appeal the case to the U.S. Supreme Court.
“It’s now up to the U.S Supreme Court to protect the ability of our federal courts to interpret the U.S. Constitution and resolve controversies through a declaration of law,” Olson said in a statement. “A central component of our democracy since Marbury v. Madison is the ability of our courts to declare what the law is, and resolve the real controversies brought to them by the people. The Ninth Circuit has deprived people in that circuit the ability to seek a resolution of a real controversy with their government that is harming the health and safety of children.”
Meanwhile, a parallel suit in Washington state has hit a wall. Thirteen young people, including two members of the Quinault Indian Nation whose current and ancestral home in Taholah has to be moved to higher ground due to sea level rise, filed an action similar to the one turned down by the Ninth Circuit.
King County Superior Court Judge Michael Scott dismissed the case in 2018, using logic similar to that employed by Judge Hurwitz — that although the climate crisis is dire, the courts can’t dictate government policy.
On Monday, the state appeals court affirmed that decision.
“We firmly believe that the right to a stable environment should be fundamental,” Judge Lori K. Smith wrote for the three-judge panel. “In addition, we recognize the extreme harm that greenhouse gas emissions inflict on the environment and its future stability. However, it would be a violation of the separation of powers doctrine for the court to resolve the youths’ claims.”