Yesterday, March 7, 2018, the 9^th Circuit rejected the Trump administration’s request for a writ of mandamus ordering the trial court to dismiss litigation brought by 21 children alleging that the government’s failure to address climate change had violated their constitutional rights.  It appears that the plaintiffs will get an opportunity to prove their claims.

It’s important to remember that this opinion is not about the merits.  It’s about whether the United States met the standard to be granted the “extraordinary” remedy of mandamus.  There are five factors in reviewing a mandamus request:

(1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief;

(2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal;

(3) whether the district court’s order is clearly erroneous as a matter of law;

(4) whether the district court’s order is an oft repeated error or manifests a persistent disregard of the federal rules; and

(5) whether the district court’s order raises new and important problems or issues of first impression.

The Court found that none of the factors weighed in favor of mandamus.  As to burdensome discovery, the United States hadn’t even filed a motion for a protective order in the District Court, so the Court of Appeals wasn’t about to say that the United States had no adequate remedy there.  On the merits, the Court basically said that the United States had made no showing that going through a trial and then the standard appellate process would be damaging in a way that is not correctable.

I’m still very skeptical, both of the plaintiffs’ likelihood of success on the merits and of the use of this kind of litigation to address the government’s responsibility for climate change.  However, with each passing day of this Administration, my willingness to entertain such litigation increases.

If there really is a trial, it could be quite a show.  I’m not sure it will be the trial of the century, but somehow I keep seeing images of Inherit the Wind.

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