On Wednesday, District Court Judge Michael Fitzgerald of the Central District of California dismissed Genesis B. v. Environmental Protection Agency, another "kids climate suit" against the federal government. In this case, as in the Juliana litigation, the plaintiffs sought to argue that the federal government is constitutionally obligated to take more aggressive action to control greenhouse gas emissions. Among other things, the Genesis plaintiffs sought to argued that discounting future harms
On Wednesday, District Court Judge Michael Fitzgerald of the Central District of California dismissedGenesis B. v. Environmental Protection Agency, another "kids climate suit" against the federal government. In this case, as in the Juliana litigation, the plaintiffs sought to argue that the federal government is constitutionally obligated to take more aggressive action to control greenhouse gas emissions.
Among other things, the Genesis plaintiffs sought to argued that discounting future harms from climate change constitutes invidious age discrimination under the Equal Protection clause. As extravagant as such substantive arguments were, the plaintiffs here faced a larger threshold problem: Demonstrating federal court jurisdiction to hear the claims.
In the order, Judge Fitzgerald noted that there was no basis upon which to distinguish this case from the Juliana case, which the Ninth Circuit ordered dismissed on standing grounds. However, Judge Fitzgerald did grant the plaintiffs leave to amend, offering them another opportunity to reformulate their claims. No doubt the plaintiffs will file an amended complaint, but I am skeptical it will produce a different result.
Today a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit granted the U.S. Department of Justice's petition for a writ of mandamus seeking dismissal of Juliana v. United States, the so-called "Kids Climate Case." The brief order was short and direct. It noted that the Ninth Circuit had previously concluded that the plaintiffs lacked standing and ordered the case dismissed. Contrary to the plaintiffs' claims, no intervening decisions changed that fact, and that there was no basis
Today a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit granted the U.S. Department of Justice's petition for a writ of mandamus seeking dismissal of Juliana v. United States, the so-called "Kids Climate Case."
The brief order was short and direct. It noted that the Ninth Circuit had previously concluded that the plaintiffs lacked standing and ordered the case dismissed. Contrary to the plaintiffs' claims, no intervening decisions changed that fact, and that there was no basis for the district court to allow the plaintiffs to amend the complaint.
This decision should not have been a surprise. It should also be a relief to those who hope to see further climate litigation, as the Ninth Circuit panel saw no need to consider issues beyond the plaintiffs' Article III standing, and dismissal of the case obviates any need for the DOJ to seek Supreme Court review. Judge Aiken was wrong to revive this case, and now the Ninth Circuit has killed it for good.
Meanwhile, there are other (more well-grounded) climate cases proceeding in state courts under state law. More on those cases in future posts.
I've reproduced the Ninth Circuit's order after the jump.
Here is the text of the brief order:
In the underlying case, twenty-one plaintiffs (the Juliana plaintiffs) claim that—by failing to adequately respond to the threat of climate change—the government has violated a putative "right to a stable climate system that can sustain human life." Juliana v. United States, No. 6:15-CV-01517-AA, 2023 WL 9023339, at *1 (D. Or. Dec. 29, 2023). In a prior appeal, we held that the Juliana plaintiffs lack Article III standing to bring such a claim. Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020). We remanded with instructions to dismiss on that basis. Id. The district court nevertheless allowed amendment, and the government again moved to dismiss. The district court denied that motion, and the government petitioned for mandamus seeking to enforce our earlier mandate. We have jurisdiction to consider the petition. See 28 U.S.C. § 1651. We grant it.
1. "[M]andamus is an extraordinary remedy . . . reserved for extraordinary situations." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). "[M]andamus is the appropriate remedy" when "sought on the ground that the district court failed to follow the appellate court's mandate." Vizcaino v. U.S. Dist. Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999); see also United States v. U.S. Dist. Ct. for S. Dist. of N.Y., 334 U.S. 258, 263 (1948). We review a district court's compliance with the mandate de novo. Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1080 (9th Cir. 2010).
2. The petition accuses the district court of failing to execute our mandate on remand. District courts must "act on the mandate of an appellate court, without variance or examination, only execution." United States v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006). "[T]he only step" that a district court can take is "to obey the mandate." Rogers v. Consol. Rock Prods. Co., 114 F.2d 108, 111 (9th Cir. 1940). A district court must "implement both the letter and the spirit of the mandate, taking into account the [prior] opinion and the circumstances it embraces." Pit River Tribe, 615 F.3d at 1079 (emphasis added) (cleaned up).
3. In the prior appeal, we held that declaratory relief was "not substantially likely to mitigate the plaintiffs' asserted concrete injuries." Juliana, 947 F.3d at 1170. To the contrary, it would do nothing "absent further court action," which we held was unavailable. Id. We then clearly explained that Article III courts could not "step into the[] shoes" of the political branches to provide the relief the Juliana plaintiffs sought. Id. at 1175. Because neither the request for declaratory relief nor the request for injunctive relief was justiciable, we "remand[ed] th[e] case to the district court with instructions to dismiss for lack of Article III standing." Id. Our mandate was to dismiss.
4. The district court gave two reasons for allowing amendment. First, it concluded that amendment was not expressly precluded. Second, it held that intervening authority compelled a different result. We reject each.
The first reason fails because we "remand[ed] . . . with instructions to dismiss for lack of Article III standing." Id. Neither the mandate's letter nor its spirit left room for amendment. See Pit River Tribe, 615 F.3d at 1079. The second reason the district court identified was that, in its view, there was an intervening change in the law. District courts are not bound by a mandate when a subsequently decided case changes the law. In re Molasky, 843 F.3d 1179, 1184 n.5 (9th Cir. 2016). The case the court identified was Uzuegbunam v. Preczewski, which "ask[ed] whether an award of nominal damages by itself can redress a past injury." 141 S. Ct. 792, 796 (2021). Thus, Uzuegbunam was a damages case which says nothing about the redressability of declaratory judgments. Damages are a form of retrospective relief. Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 608–09 (2001). Declaratory relief is prospective. The Juliana plaintiffs do not seek damages but seek only prospective relief.
Nothing in Uzuegbunam changed the law with respect to prospective relief. We held that the Juliana plaintiffs lack standing to bring their claims and told the district court to dismiss. Uzuegbunam did not change that. The district court is instructed to dismiss the case forthwith for lack of Article III standing, without leave to amend.
PETITION GRANTED.
For those interested, here are my prior posts on the Juliana litigation:
The Securities and Exchange Commission (SEC) has gone rogue. The commission has now finalized a rule that will bully publicly traded companies into reporting environmental information that has no relevance to the financial concerns that matter to investors. As much as environmental activists may want this information to shame companies into embracing their political agenda, it is not the SEC's role to demand financially irrelevant disclosures—muc
The Securities and Exchange Commission (SEC) has gone rogue. The commission has now finalized a rule that will bully publicly traded companies into reporting environmental information that has no relevance to the financial concerns that matter to investors. As much as environmental activists may want this information to shame companies into embracing their political agenda, it is not the SEC's role to demand financially irrelevant disclosures—much less to demand companies speak on political and social issues like climate change.
The SEC's new rule requires companies to give a public accounting of their annual greenhouse gas emissions. Still worse, the rule strong-arms companies into telling the public whether they are taking steps to combat climate change and forces companies to hazard guesses about how climate change might affect their operations far into the future. But none of that has anything to do with the SEC's statutory mission of helping investors understand the financial risks and rewards of investment.
The SEC was established to regulate public companies in the wake of the financial crisis that triggered the Great Depression. Toward that end, the law requires companies to disclose to investors "material information…as may be necessary to make the required statements, in light of the circumstances under which they are made, not misleading." For example, companies must provide information about market volatility, pending lawsuits, and significant management changes, because that type of information could affect a company's financial performance.
Disclosures about whether a company is prioritizing climate change concerns are categorically different from the sort of disclosures the SEC has long required, for at least two reasons. First, the new rule requires disclosures across the board from all large companies. That's a marked departure from the "facts and circumstances" test the SEC has long employed, which requires information that could affect the financial performance of individual companies, not environmental or social conditions.
With its extraordinary unpredictability, and a time horizon crossing decades, climate change's impact on any given company is practically impossible to assess. Requiring disclosure of greenhouse gases thus tells investors nothing relevant to a company's financial situation; it will lead to baseless speculation and reams of information that investors cannot possibly apply to investment decisions now.
Of course, none of this is news to supporters of the rule. Their goal is not to inform investors, but to bludgeon companies into toeing the climate change line. The new rule has nothing to do with financial considerations and everything to do with political considerations. As SEC Commissioner Mark Uyeda declared in dissent, "shareholders will be footing [the] bill" to institutionalize an ESG department in every publicly traded corporation in America.
The SEC's power grab is unprecedented and dangerous. While some investors may care about greenhouse gas emissions, their desires do not justify compelling companies to make disclosures about whether they are prioritizing climate change concerns. If that low bar could trigger SEC regulation, there would be no end to the subjects the agency could require companies to report, including their positions on abortion, gay marriage, and immigration. But forcing companies to parrot the party line on the environment is not the SEC's job.
If the SEC is going to be transformed into the environmental and social thought police, that decision must come from Congress. Our Constitution empowers only Congress to make the law—and, importantly, to take responsibility for the consequences. As SEC Commissioner Hester Peirce stated, "Wading into non-economic issues involves tradeoffs that only our nation's elected representatives have the authority and expertise to make."
The consequences of the greenhouse gas rule are grave. It will fundamentally alter the SEC's mission. It will force companies to play a larger role in politics—something that neither the major political parties nor most companies seem to want. By peppering investors with irrelevant information, it will make them less informed about what actually matters. It will divert companies from their core purpose of maximizing shareholder wealth and creating products that increase everyone's standard of living. And it will violate the First Amendment by compelling companies to disclose information that is not intrinsically linked to their financial performance.
Pacific Legal Foundation, where we work, will file a lawsuit against the SEC in the coming days to block enforcement of this rule and vindicate constitutional principles. Here's hoping that the courts will not allow this rule to stand.
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