A federal appellate court has declined the Justice Department’s request to bring an early end to a lawsuit brought on behalf of 21 young people who claim the federal government is failing to address climate change and provide a livable climate.
The U.S. Court of Appeals for the Ninth Circuit on Wednesday denied the DOJ’s petition for a writ of mandamus, finding the request to knock out the lawsuit was “entirely premature.” The unanimous panel decision written by Chief Judge Sidney Thomas noted the government’s complaints about “potentially burdensome discovery” seemed out of place given the government lawyers hadn’t asked the trial judge for any ruling narrowing the plaintiffs’ discovery requests. Thomas also found that though the case raises issues of first impression, it should be allowed to run its course before the appellate court addresses the merits.
“If appellate review could be invoked whenever a district court denied a motion to dismiss, we would be quickly overwhelmed with such requests, and the resolution of cases would be unnecessarily delayed,” Thomas wrote.
A spokesperson for the DOJ didn’t immediately respond to a request for comment.
Redwood City-based attorney Philip Gregory, who is part of the plaintiffs’ legal team, said Wednesday morning that “it’s clear that the panel saw through the federal government’s ruse that our case was imposing a staggering discovery burden on this administration.”
Gregory, who left Cotchett, Pitre & McCarthy last month and started his own firm, said that “given the urgency of the climate situation,” the plaintiffs would ask the trial judge, U.S. District Judge Ann Aiken of the District of Oregon, for an early 2018 trial date.
Wednesday’s Ninth Circuit decision echoed some of the concerns two of the judges on the panel—Thomas and Marsha Berzon—expressed during oral argument last year that the lawsuit might be too broad to be practically resolved by the courts. But Gregory said the plaintiffs are prepared to narrow their case to address those concerns. Gregory said the plaintiffs already told the magistrate judge working on the case that they were going to “focus on the state of the climate now, the climate science now, and the remedies that need to be done now.”
“What we’re going to do is certainly go to great lengths to focus on the current situation,” rather than trying to determine what the government knew in the past, he said.
The third member of Wednesday’s unanimous panel, Judge Michelle Friedland, was assigned to the case after oral argument. Former Judge Alex Kozinski sat for oral arguments, but abruptly retired in the wake of multiple sexual harassment allegations.