On the eve of Thanksgiving, a federal district court judge may have conceded that there will be no federal trial in a case to force the federal government to take more aggressive action to curb greenhouse gas emissions so as to forestall global climate change. After a not-too-subtle rebuke from the Supreme Court and U.S. Court of Appeals for the Ninth Circuit, the trial court judge in Juliana v. U.S. placed the planned trial on hold in order to allow for an interlocutory appeal of the court's denial of the federal government's motion to dismiss the case. This action came in response to a none-too-subtle rebuke from the Supreme Court suggesting the trial court was a bit out of line—a message that does not bode well for the plaintiffs' claims.

The Juliana case is likely the most ambitious and aggressive climate change suit filed to date. Filed on behalf of children who are not yet able to vote, the suit's claim is that by failing to control the emission of greenhouse gases, the federal government has violated the plaintiffs's substantive due process rights to life, liberty, and property, and failed to uphold its "public trust" obligation to hold certain natural resources in trust for the people and for future generations.

However serious the threat posed by climate change—and it is quite serious—these are audacious and aggressive claims. It is also not clear that they are the sort of question that can be adequately adjudicated in federal court. Accordingly, the federal government sought to have the claims dismissed on multiple grounds, including that the plaintiffs lacked standing to sue, that their claims presented nonjusticiable political questions and the failure to state a claim for which relief could be granted.

After the district court denied the government's motion to dismiss, the government immediately sought leave to file an interlocutory appeal, which the district court also rejected.

Faced with the prospect of expansive and intrusive discovery requests—and a looming trial—the federal government sought relief in the form of a writ of mandamus and a stay of the proceedings from the Supreme Court to force the trial court back into line. This was an aggressive move, to be sure, but one the Solicitor General's office believed was warranted given the unprecedented nature of the plaintiffs' claims and the trial court's unwillingness to allow its initial decisions to be challenged.

The SG's aggressive response to the trial court's intransigence paid off with a November 2 order from the Supreme Court. While the Court did not grant the government's motions, it made very clear that a majority of justices thought the district court was out of line. A stay of the proceedings was premature, the Court's order explained, because there was still an opportunity for the U.S. Court of Appeals for the Ninth Circuit to provide "adequate relief." This was not-so-subtle hint that the Ninth Circuit heard loud and clear, issuing its own stay of the proceedings on November 8 and inviting the district court to reconsider its refusal to allow interlocutory review.

The actions taken by the Supreme Court and Ninth Circuit left the trial court little alternative but to reverse course. In her order, Judge Aiken tried to defend her handling of the case, but it does not go very well. After recounting the proceedings to date, the judge identifies the relevant legal standards for an interlocutory appeal, thereby demonstrating how her initial decision was in error.

With respect to the question of interlocutory appeal, appellate review is generally available only after a final judgment has been entered by a district court. 28 U.S.C. § 1291. The Interlocutory Appeals Act, 28 U.S.C. § 1292(6), provides a limited exception to that requirement: "When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, [s]he shall so state in writing in such order." 28 U.S.C § 1292(b). "Even where the district court makes such a certification, the

court of appeals neve1theless has discretion to reject the interlocutory appeal[] and does so quite frequently." James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 (9th Cir. 2002) (citing to 16 Wright, Miller & Cooper § 3929, at 363). Congress did not intend district courts to certify interlocutory appeals "merely to provide review of difficult rulings in hard cases." US. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). Rather such ce1tification should be granted only "in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation." Id. . .

The district court should have seen this coming. The Juliana case has regularly been trumpeted as the "trial of the century," a climate Scopes trial, to demonstrate the urgency of climate change and force federal action. As Judge Aiken noted in her denial of the government's motion to dismiss, this case "is of a different order than the typical environmental case." Indeed, to recite the underlying legal arguments—that there is a judicially enforceable constitutional right to federal climate control under some combination the public trust doctrine and substantive due process—and to consider the relief plaintiffs sought is to make plain the ambitious and unprecedented nature of the plaintiffs' claims, and to make plain the district court's error in denying the prior request for an interlocutory appeal. There is no question but that there is "substantial ground" to question the district court's initial ruling on multiple dispositive motions that could (and, indeed, likely will) bring this litigation to an end. If this case did not satisfy the standard for an interlocutory appeal, it's not clear what case ever could.

Judge Aiken, however, is unbowed. Her order continued:

The function of trial courts in our judicial system is to initially consider the myriad evidence and legal issues offered by the parties and then refine them to their most essential form, rendering judgment and relief as the law allows. Our judicial system affords district courts the respect of operating under an assumption that such courts do not "insulate hotly contested decisions from [] review simply by fast-tracking those decisions and excluding them from its published determination." Indep. Producers Group v. Librarian of Cong., 792 F.3d 132, 138 (D.C. Cir. 2015). Here, the Court has deliberately considered all motions brought by the parties, and its decisions are accessible for appellate scrutiny. . . .Trial courts across the country address complex cases involving similar jurisdictional, evidentiary, and legal questions as those presented here without resorting to certifying for interlocutory appeal. As Justice Stewart noted, "the proper place for the trial is in the trial court, not here." Baker v. Carr, 369 U.S. 186, 266 (1962) (Stewart, J., concurring.) Importantly, the Supreme Court has recognized that "[p]ermitting piecemeal appeals would undermine the indepe1idence of the district judge[.]" Id. Additionally, ordinary adherence to the final judgment rule is in accordance with the sensible policy of "avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate

appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment." Id. (quoting Cobbledick v. United States, 309 U.S. 323,325 (1940)). The Court notes again that this three-year-old case has proceeded through discovery and dispositive motion practice with only trial remaining to be completed. This Court stands by its prior rulings on jurisdictional and merits issues, as well as its belief that this case would be better served by further factual development at trial. The Court has, however, reviewed the record and takes particular note of the recent orders issued by the United States Supreme Court on July 30, 2018, and November 2, 2018, as well as the extraordinary Order

of the United States Court of Appeals for the Ninth Circuit in United States v. USDC-ORE, Case No. 18-73014 issued on November 8, 2018. At this time, the Court finds sufficient cause to revisit the question of interlocutory appeal as to its previous orders, and upon reconsideration, the Court finds that each of the factors outlined in § 1292(b) have been met regarding the previously mentioned orders. Thus, this Court now exercises its discretion and immediately certifies this case for interlocutory appeal. The Court does not make this decision lightly. Accordingly, this case is STAYED pending a decision by the Ninth Circuit Court of Appeals.

The question now will be what issues the Ninth Circuit wants to hear on appeal. There are multiple threshold issues from which to choose, including standing and the political question doctrine, as well as the viability of the plaintiffs' legal theory. Whatever path the Ninth Circuit takes, I suspect it will not be good for the plaintiffs, as it is clear this case now has the Supreme Court's attention, and it is unlikely to look favorably on the merits of the plaintiffs' claims. So, in some sense, the question for the plaintiffs is likely how they would prefer to lose. The choice matters because judgments on some issues, such as standing, could effect the viability of future climate-based claims in the future. By overplaying the plaintiffs' hand, Judge Aiken may have actually set back the cause of using the courts to advance climate policy—or so it seems right now.

The developments in the Juliana case were not the only Thanksgiving weekend climate change developments. On Friday, the federal government released the latest National Climate Assessment, which paints a none-too-pretty picture of what global climate change has in store if atmospheric concentrations of greenhouse gases are not stabilized. Yet however much the report suggests action on climate change is needed, the Juliana developments suggest that those who think the remedy is to be found in federal court may be looking for love in all the wrong places. Meaningful climate policy will have to come from the political process, and that will remain a long, hard slog.