Jonathan H. Adler reports on the astonishing attempt to revive the climate lawsuit at Reason District Court Judge Revives Kids Climate Case.  Excerpts in italics with my bolds and added images.

Years after the Ninth Circuit ordered the case dismissed,
it is brought back to life with a surprising trial court order.

This afternoon (June 1, 2023), Judge Aiken on the U.S. District Court for the District of Oregon revived  Juliana v. United States, aka the “Kids Climate Case,” by granting the plaintiffs’ motion to amend their complaint, some two years after the motion was filed.

This is a remarkable order because the U.S. Court of Appeals for the Ninth Circuit previously ordered the case dismissed due to a lack of standing. The original Ninth Circuit panel ruling was in January 2020, and the court denied en banc rehearing in February 2021. The plaintiffs filed a motion to amend in March 2021, which was opposed by the Department of Justice on the grounds that “the mandate rule requires [the district] court to dismiss the case.” Despite the DOJ’s opposition, the district court further ordered a settlement conference, and whatever jurisdiction the district court may have retained over the case should have expired when the plaintiffs failed to petition for certiorari.

Judge Aiken clearly sees things differently.  As for how the proposed amendments address the standing problems identified by the Ninth Circuit, Judge Aiken wrote:

Plaintiffs assert that their proposed amendments cure the defects the Ninth Circuit identified and that they should be given opportunity to amend. Plaintiffs explain that the amended allegations demonstrate that relief under the Declaratory Judgment Act alone would be substantially likely to provide partial redress of asserted and ongoing concrete injuries, and that partial redress is sufficient, even if further relief is later found unavailable. . . .

Plaintiffs’ Second Amended Complaint thus requests this Court to:
(1) declare that the United States’ national energy system violates and continues to violate the Fifth Amendment of the U.S. Constitution and Plaintiffs’ constitutional rights to substantive due process and equal protection of the law;
(2) enter a judgment declaring the United States’ national energy system has violated and continues to violate the public trust doctrine; and
(3) enter a judgment declaring that § 201 of the Energy Policy Act has violated and continues to violate the Fifth Amendment of the U.S. Constitution and plaintiffs’ constitutional rights to substantive due process and equal protection of the law. . . .

Here, plaintiffs seek declaratory relief that “the United States’ national energy system that creates the harmful conditions described herein has violated and continues to violate the Fifth Amendment of the U.S. Constitution and Plaintiffs’ constitutional rights to substantive due process and equal protection of the law.” (Doc. 514-1 ¶ 1). This relief is squarely within the constitutional and statutory power of Article III courts to grant. Such relief would at least partially, and perhaps wholly, redress plaintiffs’ ongoing injuries caused by federal defendants’ ongoing policies and practices. Last, but not least, the declaration that plaintiffs seek would by itself guide the independent actions of the other branches of our government and cures the standing deficiencies identified by the Ninth Circuit. This Court finds that the complaint can be saved by amendment. See Corinthian Colleges, 655 F.3d at 995.

The Ninth Circuit’s initial decision dismissing the Juliana case was likely the best outcome the plaintiffs could have hoped for, as it avoided substantive Supreme Court intervention (after the justices had indicated their concern about the case). By reviving the case, Judge Aiken is tempting fate—and risking a broader legal judgment that could preclude a broader array of climate-related suits.

Comment:

The Ninth Circuit Court in Juliana observed that there was no explicit right to a stable climate system in the United States Constitution,  and held that, even if such a right existed, the issue was not justiciable because the Court could not grant an effective remedy.

What’s at Stake in Held vs. Montana

From Montana Free Press:  In a 2011 Montana lawsuit, Our Children’s Trust directly petitioned the Montana Supreme Court to declare that Montana has a duty to protect and preserve the atmosphere. The court rejected the petition, stating that there was no reason the youth plaintiffs couldn’t follow the normal channels of litigation through a lower court, followed by an appeal to the Supreme Court. To that end, Held was filed in Montana’s First Judicial District Court with the intent of establishing a court record that can, if needed, be appealed to the Montana Supreme Court, according to attorneys for the plaintiffs.

Filed in March 2020, the lawsuit, Held v. Montana, was brought by 16 youth plaintiffs from across Montana who allege the state has violated their constitutional right to a clean and healthful environment. The complaint focuses on two statutes — provisions of Montana’s state energy policy, which explicitly promotes the use of fossil fuels, and an amendment to the Montana Environmental Policy Act (MEPA), which prevents the state from considering how the state’s energy economy contributes to climate change.

But on May 23, Lewis and Clark County District Court Judge Kathy Seeley agreed with the state, writing that the only relief she could have offered would have rolled back the statute, which the Legislature already did.

However, Seeley stayed firm on her decision to allow the case to proceed to trial, which was a landmark victory for climate change advocates when she initially set a bench trial in 2021.  In the recent court filing, Seeley wrote there are five facts in dispute to be taken up at trial, including “whether climate impacts and effects in Montana can be attributed to Montana’s fossil fuel activities.”

In the judgment of the Court, the following material facts are in dispute:
1. Whether Plaintiffs’ injuries are mischaracterized or inaccurate.
2. Whether Montana’s GHG emissions can be measured incrementally.
3. Whether climate change impacts to Montana’s environment can be measured incrementally.
4. Whether climate impacts and effects in Montana can be attributed to Montana’s fossil fuel activities.
5. Whether a favorable judgment will influence the State’s conduct and alleviate Plaintiffs’ injuries or prevent further injury.

Comment:

HvM raises the issue whether it is the appropriate role of the Court to endorse and compel what it may view as a desirable policy. The majority in Juliana acknowledged that based on the evidence, it would be good for the government to adopt “a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular.” The majority, however, explained that responsibility for the myriad decisions that go into formulating such a comprehensive policy is allocated to the legislative and executive branches of government, not the courts. Even though the details of implementation of the policy would be left to the discretion of the government, the Court would inevitably be called upon to “pass judgment on the sufficiency of the government’s response to the order, which necessarily would entail a broad range of policymaking.”  Further, “given the complexity and long-lasting nature of global climate change, the court would be required to supervise the government’s compliance with any suggested plan for many decades.”

Comment: 

Readers likely know that this is one of the few times that the substance of climate alarm claims is on trial, and that the skeptical case against them can be made persuasively.  In 2011 Dr. Ed Berry of Montana made the case against the petition to the state supreme court.  But he has been left out of this one, and doubts the strength of the defense that will be presented. The proceedings began on June 12, 2023, and you can follow them along with his commentary.

Montana’s AG censored the science he needed  to defeat Held v Montana