On Wednesday, the United States, who is the defendant in the constitutional climate change lawsuit brought by youths claiming that the government’s actions which have caused climate change have violated their fundamental rights to life, liberty, and property, filed an application for a stay with the Supreme Court of the United States. The stay seeks to suspend discovery and trial in the District of Oregon pending the disposition of its application for a writ of mandamus filed on July 5 in the Ninth Circuit. The stay application alleges that the courts are the incorrect forum for such claims and that the problems alleged by the plaintiffs are more suitable for the political process.
The government had filed for a writ of mandamus with the Ninth Circuit previously, but the Ninth Circuit declined to intervene and in the words of the government, “expected the claims to be ‘vastly narrowed as litigation proceed[ed]’ beyond that ‘very early’ stage of litigation.” The government argues that if the Ninth Circuit declines to intervene again, failure to grant a stay would require its participation in a very short discovery period, followed by a 50 day trial, which would be a violation of the limits on agency decisionmaking and the process imposed by the Administrative Procedure Act (APA) as well as the separation of powers. The government argues that these harms are grave and impending whereas the alleged harms to the plaintiffs caused by the accumulation of carbon dioxide in the atmosphere would be negligibly impacted by waiting for the mandamus petition to be decided.
The government asked for the stay pending the decision on the writ of mandamus by the Ninth Circuit; or alternatively, asks for the stay application to be construed as a petition for a writ of mandamus or writ of certiorari from the original mandamus decision of the Ninth Circuit and order a dismissal of the case.
According to the schedule set by Magistrate Judge Thomas M. Coffin, the trial was set for October 29, 2018 before Judge Ann L. Aiken. Disclosure of defendants’ expert witnesses was to take place by July 12, 2018 and exchange of defendants’ expert witness statements by August 13, 2018. Exchange of rebuttal expert witness statements is to take place by September 12, 2018.