The Trump Administration, out of patience with lower courts’ handling of a sweeping, three-year-old lawsuit demanding that the government act to create a safer environment, asked the Supreme Court on Thursday morning to end that case altogether and, in the meantime, to halt any move toward a trial at the end of this month.
In a flurry of requests, filed with Chief Justice John G. Roberts, Jr., Administration lawyers made a broad legal assault on a case filed by 21 children who are worried about their own and the nation’s environmental future. A federal judge in Eugene, Ore., District Judge Ann L. Aiken, has set a trial to begin on October 29, focused on her ruling that there is a constitutional right to “a climate system capable of sustaining human life.”
The children’s claim, one of the new government filings argued, “amounts to the astounding assertion that permitting or encouraging the combustion of fossil fuels violates…the Constitution and [that] a single district court in a suit brought by a handful of [individuals] may decree the end of the carbon-based features of the United States’ energy system without regard to [federal laws that Congress passed] to address such issues with broad public input.”
The federal lawyers argued that the mere existence of the lawsuit violates a host of federal laws and undermines the Constitution’s doctrine of separating powers between the branches of the federal government, with the judiciary taking over from the politically elected branches.
The challenge was sent to the Chief Justice because he is currently assigned to handle emergency filings from the federal Ninth Circuit, a judicial region which includes Oregon. Although a single Justice in that capacity can issue temporary orders to a lower court, the more common practice on an issue of importance is to have the full Court act. Whether to pass a matter along to eight colleagues is for the individual Justice to decide, however.
The Administration submitted two specific documents, but together they included all of these requests:
First, an immediate order by the Chief Justice or by the full Court to stop all proceedings in Judge Aiken’s court, until the Justices can act on several more sweeping requests.
Second, the broader order the government prefers, in the form of a mandate to Judge Aiken to dismiss the case outright, for a variety of reasons under federal laws and the Constitution.
Third, as an alternative to that, an agreement by the Justices to review and overturn a July decision by the U.S. Court of Appeals for the Ninth Circuit, refusing to stop the trial judge from compelling a wide group of federal officials to answer questions by the children’s lawyers about government policy and the harms to the environment, and allowing Judge Aiken to move the case toward a full trial on the children’s legal arguments.
Fourth, as a further alternative, an agreement by the Justices to directly review and then overturn Judge Aiken’s October 15 decision clearing the case for trial on October 29 and allowing the trial to decide all but one of the lawsuit’s broad claims of illegality and unconstitutionality of government policy stretching back over decades. (The only claim the judge threw out was a violation of the Ninth Amendment, which says that there are existing constitutional rights even though not mentioned explicitly in the Constitution.)
If the Court does agree to do grant review in any one of those three forms, the Administrations asks it to decide three questions:
First, do the 21 children who sued and an organization that joined their lawsuit along with a lawyer acting as a guardian for children born in the future have any right even to sue to pursue their claims? The government claims that the children cannot show that they are personally harmed as a result of government policies, and that any harm they might suffer is shared by everyone so no individuals are in a position to sue. The government also contends that no court has the power to remedy the harms that the lawsuit claims, since federal policies must be challenged agency by agency.
If the Court were ultimately to rule on that issue, which is technically focused on whether those suing have “standing” to be in court, the case would be ended without any further activity because Judge Aiken’s court would lack any authority to hear such a case. This is basically a constitutional argument, keyed to the phrase in Article III that the Constitution only grants power to the federal courts to decide actual “cases or controversies,” not abstract legal questions.
Second, should the case be dismissed outright because the lawsuit is based only on a claim that the Constitution itself has been violated, but should have been pursued — if at all — under the procedures of the federal law that spells out when and how the actions of a specific government agency can be challenged in a federal court?
Third, should the case be dismissed because there is nothing in the Constitution or in other legal doctrine establishing any right to “a climate system capable of sustaining human life”?
The Supreme Court refused last July 30 to step in at the Administration’s request to curb the pre-trial proceedings Judge Aiken was handling, but it did remark pointedly that the claims made by the children’s lawyers had “striking breadth and counseled he trial judge to be cautious as she proceeded further on issues on which there are clearly differences of opinion among legal analysts.
The Administration’s new maneuvers pursued in the Thursday filings are somewhat unusual, because Judge Aiken has never ruled in a final way that the children’s claims will prevail, and thus there is no specific decision against the government to form the basis of the government appeal. Moreover, Judge Aiken expressly rejected an Administration request to permit it to file a pre-trial appeal to challenge her October 15 ruling rejecting the government’s specific challenges.
That is why the Administration is primarily focusing on the “mandamus” procedure to try to get the case before the Justices even without permission to pursue a pre-trial appeal as such. Mandamus is not often used to get a higher court to issue commands to a lower court on how to handle a pending lawsuit that has not yet been tried. It appeared to be the only option that the Administration had left to try to stop the case before the trial. (The case is not scheduled to be a trial by a jury; Judge Aiken would handle all of the chores of deciding the facts as well as the law.)
