Environmentalists and legal observers who have been closely watching Juliana et al. v. United States, the landmark climate change case that pits 21 young plaintiffs against the federal government, are likely experiencing a case of procedural whiplash.  

The day after Christmas, the Ninth Circuit Court of Appeals ruled in favor of the Department of Justice’s latest legal maneuver to short-circuit the case and granted what is called an “interlocutory appeal” —a relatively rare decision in which the appellate court agrees to adjudicate some aspect of a case even before the trial itself has concluded. Then, on January 7, the appellate judges told the government lawyers they need to file their briefs no later than February 1. In short, the Trump administration gets its chance to appeal, but it needs to be quick about it.  

The federal appellate judges are apparently becoming impatient with the government’s serial efforts to get the case dismissed or delayed. The December 26 ruling was two-to-one, with the dissenter, Judge Michelle Friedland, writing, “allowing this appeal now effectively rewards the Government for its repeated efforts to bypass normal litigation procedures by seeking mandamus relief in our court and the Supreme Court. If anything has wasted judicial resources in this case, it was those efforts.”

Indeed, the Trump administration attorneys spent most of 2018 filing petitions to throw the case out or to stay proceedings. The original October 29 trial date came and went, even though much of the discovery process was complete. If the trial had taken place as planned, it would have been completed by the end of December. But in November the government petitioned the Ninth Circuit Court of Appeals for yet another writ of mandamus—a procedural leapfrog that is even more extraordinary than an interlocutory appeal. It was the sixth such petition from the Trump administration, including two petitions the defendants submitted to the Supreme Court. The first five mandamus petitions were all slapped down by both higher courts. 

Andrew Welle, a staff attorney Our Children’s Trust, the organization that filed the Juliana case, says that while the government asked the appellate court to consider several legal issues, the Ninth Circuit court has not indicated which points it will be addressing. Welle points out that if trial were simply allowed to run its 50-day course, the case would likely be finished long before the appellate court got around to issuing its opinion—and then the higher courts would have a full record upon which to contemplate the inevitable appeal from the losing side. “This case has gone through a lot of very strange, unorthodox procedural gymnastics as a result of the government’s tactics that we consider bordering on harassment,” Welle says. The government is “trying to delay trial based on arguments that have already been rejected.” 

The young plaintiffs allege that US government policies have fueled greenhouse gas emissions, and in the process have deprived a whole generation of American citizens of their constitutional rights to “a climate system capable of sustaining human life.” Further, the plaintiffs allege that federal government actions are a violation of the public trust since, they argue, the atmosphere must be considered a common resource to be protected for the well-being of all citizens. 

Given the novelty of the plaintiffs’ claims, it is likely that the case will once again find its way to the Supreme Court. The Roberts court may be a surprisingly sympathetic venue, according to Shiloh Hernandez, a staff attorney at the Western Environmental Law Center. Hernandez notes that Chief Justice John Robert’s year-end report contained what Hernandez called an “odd” mention of the string of natural disasters that have hit the United States. In the course of thanking federal court staff for their service, Roberts mentioned “the floods in Florida and North Carolina, Super Typhoon Yutu in the Northern Mariana Islands, the Alaska earthquake that damaged the Anchorage courthouse, and the new wildfires in Northern California.” 

Noting that four of those five disasters are climate-related, Hernandez sees a glint of hope that the urgency and reality of climate change may finally bring some new clarity to climate liability cases. For now, however, stay tuned.