Last year, when the
Ninth Circuit Court of Appeals granted a mandamus petition and ordered that the complaint in
Juliana v. United States be dismissed for the second time,
I acknowledged that I had become more skeptical about the prospects for citizens’ climate litigation. Unfortunately, the grounds for such skepticism only seem to be getting stronger over time.
Last week, Judge Dana Christensen, of the District Court for the District of Montana, dismissed the complaint in
Lighthiser v. Trump, a case in which the plaintiffs challenged three of President Trump’s Executive Orders. Judge Christensen ordered dismissal because plaintiffs could not satisfy the third prong of the their required demonstration that they have standing, i.e., redressability.
Redressability itself has two factors.
To establish Article III redressability, “plaintiffs must show that the relief they seek is both (1) substantially likely to redress their injuries; and (2) within the district court’s power to award.
The Court found that the relief sought by plaintiffs was substantially likely to redress their injuries, but concluded that such relief was not within the Court’s authority to provide.
It is the Court’s view that the relief sought here raises the same Article III concerns at issue in Juliana. Granting Plaintiffs’ injunction would require the Defendant agencies and—ultimately—this Court, to scrutinize every climate-related agency action taken since January 20, 2025, to determine whether it was implemented pursuant to the Challenged EOs or to some other Government policy. In other words, this Court would be required to monitor an untold number of federal agency actions to determine whether they contravene its injunction. This is, quite simply, an unworkable request for which Plaintiffs provide no precedent.
Judge Christensen felt that the 9th Circuit’s decision in
Juliana v. United States compelled the result in
Lighthiser. However, it is evident that he was not thrilled at having to dismiss the case. He clearly among those who believe that
ubi jus ibi remedium still has meaning. He thus closed his opinion with what I can only describe as a cri de coeur:
The Court reads Juliana to mandate this outcome. If the Ninth Circuit disagrees, the undersigned welcomes the return of this case to decide it on the merits.
Like Judge Christensen, I think the dismissal was compelled by the decision in
Juliana. Like Judge Christensen, I wish it weren’t so.
