On June 4, a three-judge panel of the Ninth Circuit heard the arguments for and against letting the claim of youth plaintiffs proceed against the U.S. government and various executive branch agencies for violation of their Constitutional rights in fostering and approving the extraction and use of fossil fuels to the detriment of the climate. Judges Murguia and Hurwitz of the Ninth Circuit were joined on the panel by Judge Staton of the Central District of California, who was sitting in designation to hear the case in Portland, Oregon. The arguments lasted around 65 minutes and both sides were provided with approximately 9 minutes of extra time in what Judge Murguia noted was a matter of great public interest. Many of the youth plaintiffs were present in the courthouse to hear the arguments that may help determine if their lawsuit moves forward in the District Court of Oregon.

Jeffrey Bossert Clark presented the argument for the Department of Justice on behalf of the government agencies named in the suit. He claimed that the lawsuit is a direct attack on the separation of powers. He further argued that the case presented a direct assault on constitutional design in three ways: 1) there is no case or controversy as required because the action would not be cognizable in the courts of Westminster, nor is it a case where Congress created a new set of rights; 2) the action appears to take on and skirt the Administrative Procedure Act (APA) and the organic statutes; and 3) the plaintiffs are trying to constitutionalize administrative law.

The Judges asked tough questions of both sides during the argument. The first question posed by Judge Hurwitz to Clark was whether there would be any set of facts that would allow a suit of this sort to move forward? Mr. Clark responded in the negative and reasoned it was because the executive branch and not the judicial branch is meant to handle exigent circumstances. The judge’s extreme hypothetical of raiders coming across the border from Canada to kidnap children from Oregon and having Governors and the President do nothing was not enough to sway Clark; he responded that the appropriate remedy if the executive is not taking action would be to remove that person from office through the electoral process.

Clark contested that the elements of standing from Massachusetts v. EPA, namely that a state brought the claim and the claim was one alleging procedural injuries, are not present in this case. Judge Hurwitz said that he was inclined to think that the plaintiffs have an injury in fact, but the real question is whether that injury is redressable. The Justice Department argued that the partial redressability from Massachusetts v. EPA is not applicable here because this case is not addressing a procedural right.

Julia Olson presented the argument for the plaintiffs. She argued that the stay should be lifted and the case allowed to proceed to trial because the District Court made the determination that there are material facts in dispute and the plaintiffs have the ability to bring the case directly under their Fifth Amendment rights. Judge Hurwitz pointed out to Olson that the panel is reviewing the determination of whether there is material fact de novo and does not need to give deference to the decision of the Judge Aiken below.

Judge Hurwitz asked Olson to provide an example where courts have found that inaction infringes substantive Constitutional rights. She argued that the claim is not for pure inaction; rather, that where the government has promoted the extraction of fossil fuels on public lands and used its discretionary authority to put children in harm’s way, it has acted in violation of Constitutional rights. She cited the line of danger creation cases in support of her argument. Furthermore, she argued that they could not bring a claim under the APA since the APA is used for discrete rulemaking rather than the systemic action that has occurred in the promotion of fossil fuels.

Judge Murguia argued that the courts have never taken an affirmative action on such a scale as would be required through orders in this case if the plaintiffs won at trial. Olson argued that it would be much like orders created in the wake of Brown v. Board of Education to desegregate school districts, and in many ways would be easier since the orders would apply to the federal government only and not all the states. Judge Hurwitz noted that the plaintiffs have presented compelling evidence that there is a real problem that may even rise to the level of criminal neglect, but that the tough question is whether the court gets to act because of that. Judge Staton wanted to know the lowest level of redressability appropriate in this case. She stated that if declarative relief was enough, there could be a standing issue. Olson responded that declarative relief is important, but will not provide the full relief sought by plaintiffs.

It seemed as though the judges were swayed by the argument that the plaintiffs make that there is a great harm here. However, they were concerned with having authority to support the arguments being made by the plaintiffs. Furthermore, they appeared wary of the seemingly monumental task of supervising any relief that might be necessary should the plaintiffs triumph at trial.