American Government Dragged, Kicking and Screaming, a Little Closer to Realty

“The question of the last few years has not been do we have a case, but rather how far will the federal government go to prevent justice?”
-Kirnan Ooman

In 2015 a group of kids and young adults, with the support of Our Children’s Trust, filed a lawsuit accusing the American government of dereliction of its duty to safeguard the rights of the 21 plaintiffs, and by extension the generations they represent:

The federal government has known for decades that carbon dioxide pollution was causing catastrophic climate change and that massive emission reductions and a nation-wide transition away from fossil fuels was needed to protect plaintiffs’ constitutional rights.

The lawsuit has been progressing since then, going through the pre-trial discovery process, and resolving a number of issues between the two parties without input from the courts. Despite this progress, the government has been trying, without success, to get the whole thing dismissed. The latest attempt, now by the Trump administration, was to try for a “writ of mandamus”. Basically, their claim was that because the lawsuit was about policy and lack thereof, the plaintiffs’ attempt to seek justice through the courts actually threatened the separation of powers.

I think it’s worth underscoring this one point. While the Trump administration is not solely to blame for the efforts to fight this lawsuit, the particular way they chose to go about it says a lot about how little these people care about consistency, justice, OR the separation of powers. Practically from day one, Trump’s Executive Branch has been actively meddling with both the Legislative and judicial branches. This has ranged from trying to guarantee the loyalty of judges, to pressuring the Attorney General, to direct interference in congressional efforts to figure out how deep Russia’s influence in our current government is.

There is an argument to be made that we have never had a greater threat to the separation of powers than the administration of President Donald J. Trump.

So it is with no small amount of satisfaction that I can say that this latest attempt to obstruct justice did not succeed. The judge pointed out they didn’t even really meet the minimum threshold for consideration for a writ of mandamus, which is intended to allow for scenarios under which current law doesn’t cover the issue well enough to provide justice through ordinary means:

The panel denied without prejudice a petition for a writ of mandamus in which federal defendants sought an order directing the district court to dismiss a case seeking various environmental remedies.
Twenty-one plaintiffs brought suit against defendants – the United States, and federal agencies and officials – alleging that the defendants contributed to climate change in violation of the plaintiffs’ constitutional rights. The defendants argued that allowing the case to proceed would result in burdensome discovery obligations on the federal government that would threaten the separation of powers.

The panel held that the defendants did not satisfy the five factors in Bauman v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir.1977), at this stage of the litigation. Specifically, the panel held that mandamus relief was inappropriate where the district court had not issued a single discovery order, nor had the plaintiffs filed a single motion seeking to compel discovery. The panel also held that any merits errors were correctable through the ordinary course of litigation. The panel further held that there was no controlling Ninth Circuit authority on any of the theories asserted by plaintiffs, and this weighed strongly against a finding of clear error for mandamus purposes. Finally, the panel held that district court’s order denying a motion to dismiss on the pleadings did not present the possibility that the issue of first impression raised by the case would evade appellate review. The panel concluded that the issues that the defendants raised on mandamus were better addressed through the ordinary course of litigation.

I’m encouraged. I believe that the reason all these efforts have been made to block the lawsuit is that it has a solid chance of winning. We know that the plaintiffs are correct about the nature of climate change. We know that the U.S. government, far from trying to solve the problem, has actively worked to make it worse. Not only that, but the optics of this are also terrible for those in power. It’s a group of dedicated, well-informed young folks trying desperately to get the people running the show to actually do their jobs, and to take some interest in the future of the world. Children are one of the most popular rhetorical tools in politics, and it’s hard to insist that your policies are all about protecting the kids when the kids are actively working through the legal system to call you out for NOT protecting them.

Maybe it’s something in the air? Today’s youth have grown up learning about all the ways in which their so-called leaders have not only failed in their duty, but have actively pillaged the future for personal gain. In light of that, it’s not surprising that they’re working to force change.


  1. Brian Drayyton says

    Good piece. The separation of powers argument can be suggested in order to roll back all kinds of judical relief (Brown vs. Board of education, anyone?) — but since legislatures are systematically removing more and more avenues for citizen redress against corporations and governments, rulings like this one are encouraging.

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