Climate Change Litigation Heating Up?

On October 30, in Sinnok, et al. v. State of Alaska, et al., the Superior Court, sitting in Anchorage, AK, granted the state’s motion to dismiss the plaintiffs’ (a “group of Alaska youth ages 5 to 20”) complaints that the state has contributed to climate change through its actions with respect to fossil fuels and carbon emissions. The plaintiffs sought injunctive relief in the form of a court order to the state to prepare an accounting of carbon emissions and to create a climate recovery plan. They also sought a declaratory ruling that the state’s actions violated their fundamental rights to a “stable climate system.”

The trial court held that if it granted this relief, it would be acting in contravention of the separation of powers as enunciated by the U.S. Supreme Court in Baker v. Carr, because it would be adjudicating an issue of public policy that is best reserved to the political branches. While acknowledging the contrary conclusions rulings of the U.S. District Court for Oregon in Juliana v. U.S., which held that the Baker factors have no role to play in that court’s deliberations, there is no precedent in Alaska for taking such an action.

Meanwhile, the Oregon federal court’s ruling in the Juliana climate change litigation have twice been before the U.S. Supreme Court as the Government has sought—so far in vain—to halt this litigation on separation of powers grounds.

On July 30, 2018, the U.S. Supreme Court denied the Government’s application for a stay as being premature. The Court noted that the “breadth of the… claims is striking, and the justiciability of those claims presents substantial grounds for difference of opinion.” The District Court was advised to take these concerns into account in assessing the burdens of discovery and trial.” Apparently, the trial court has scheduled a 50-day trial to begin soon. A few days ago, the Government sought another stay of these proceedings in the U.S. Supreme Court pending disposition of a petition for writ of mandamus.

On November 2, 2018, this petition was also rejected, although Justices Thomas and Gorsuch would have granted the application. The Court noted that, “at this time,” the Government’s petition for mandamus relief does not have “a fair prospect for success” at the U.S. Supreme Court because appropriate relief may be available from the U.S. Court of Appeals for the Ninth Circuit. While the Ninth Circuit has denied similar requests for relief by the Government, their rulings were made in the early stages of the litigation, and its reasons then for denying relief “are to a large extent, no longer pertinent.” Accordingly, the Government may be encouraged to again seek appropriate relief from the Ninth Circuit.