On December 26, a divided panel of the U.S. Court of Appeals for the Ninth Circuit accepted an interlocutory appeal of the presiding District Court’s pre-trial rulings in the novel climate change case that is being tried in Oregon. The case is Juliana, et al. v. United States of America.
In its ruling, the Ninth Circuit held that the District Court certification of this case for interlocutory appeal satisfied the provisions of 28 U.S.C. § 1292(b). Ninth Circuit precedents authorize such an appeal when a District Court order “involves a controlling question of law as to which there is a substantial ground for difference of opinion”—which aptly characterizes the U.S. Supreme Court’s view of this litigation.
On November 2, 2018, the U.S. Supreme Court denied without prejudice the Government’s application for a stay but noted the Government’s claim that this litigation ís “beyond the limits of Article III” … and that “the suit is based on an assortment of unprecedented legal theories, such as a substantive due process right to certain climate conditions, and an equal protection right to live in the same climate enjoyed by prior generations.” That action set in motion the proceedings that culminated in the Ninth Circuit’s decision to review these interlocutory orders.
In his dissent, Circuit Judge Friedland stated that, based on his review of these actions, the District Court felt compelled to make that declaration—that the grounds for an appeal were met—”even though the court did not believe that to be true.”