Adam—Today’s docket features a cert petition from 21 kids who unsuccessfully challenged the federal government’s policies—policies they claim are worsening climate change. Highlighted article and cert petition attached.
The topic du jour is too technical to be interesting, although who knows what the M5M will report—it’s all messy procedural stuff.
But lurking behind the petition is a really nice constitutional issue you should know about—namely, the “Political-question Doctrine.” This is the notion that the judiciary doesn’t get to dictate policy. Under Article III, the courts are empowered with interpreting laws and deciding disputes—that’s it. Policy is a matter for the “political” branches—i.e., Congress and the President. (Despite what Justice Sotomayor [famously said](https://youtu.be/ug-qUvI6WFo?si=QktVWBgLeHTvycuJ&t=30).)
**A short history of a long case****.**
The climate kids (probably adults by now) filed this case in the U.S. District Court for the District of Oregon in 2015 (yes, they’ve fought both the Trump and Biden administrations). They complained that federal fossil-fuel policies have caused them psychological harm, impaired recreational interests, exacerbated medical conditions, and damaged property. The trial judge found that they had standing to pursue their claims that the federal government has deprived them of a supposed Fifth Amendment right to a “climate system capable of sustaining human life.” (A pretty remarkable position, given that they’re all alive enough to perpetuate this aging lawsuit.)
For nine years, the case bounced around among Oregon, the Ninth Circuit, and SCOTUS. Last June, the Ninth Circuit ruled in an interlocutory (mid-case) appeal that the courts lacked jurisdiction to decide the case. The opinion kicked off with a little melodrama (emphasis mine):
In the mid-1960s, a popular song warned that we were “on **the eve of destruction**.” _[Note from me: 60 years? Longest eve of destruction ever.]_ The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. 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. The plaintiffs claim that the government has violated their constitutional rights, including a claimed **right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.”** **The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek**—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” **Reluctantly**, we conclude that such relief is beyond our constitutional power. Rather, the **plaintiffs’ impressive case for redress** must be presented to the **political branches of government.**
The Ninth Circuit’s opinion starts on page 159 of the PDF (labeled “103a”). I’ve highlighted a few passages in the PDF so you can get the full flavor for the Court’s kid-friendly approach. I’ve also highlighted part of the discussion on Article III’s limits on judicial power (starting on page 176/118a). Thank goodness for separation of powers.
After this analysis, the Ninth Circuit ordered the trial judge to dismiss the case. But the trial judge did not obey that mandate. Instead, she allowed the climate kids to amend their complaint to keep it on life support. The feds filed a writ of mandamus (another form of mid-case appellate review), and the Ninth Circuit basically said “we meant what we said” and again ordered the trial judge to dismiss the case without further ado.
**The cert petition****.**
Yesterday, the kids filed their cert petition with SCOTUS seeking to reverse the Ninth Circuit’s mandamus decision. Despite what the M5M may say, they are _not_ complaining about federal climate-change policy. Nor are they challenging the Article III “Political-question Doctrine.” Rather, they’re just arguing that the Ninth Circuit’s mandamus writ was wrongly analyzed and decided. All in a really technical way.
This is a problem for them because, despite what many people think, SCOTUS is _not_ a court of error-correction. It allows errors to stand all the time. It lacks the ability to correct every error out there, and thus has total discretion in which cases it hears and which ones it rejects. And to be heard, a case must present a really serious question. Technicalities rarely carry the day.
Even in the unlikely event that SCOTUS were to grant cert, it wouldn’t be deciding anything having to do with climate change or federal policy. It would decide a narrow issue over whether the Ninth Circuit properly employed technical rules governing mandamus relief.
Have a great weekend, brother, due to climate change. 🤠
**—Rob**