In recent articles in The Recorder, Boyden Gray & Associates partner Andrew Varcoe and Professor Douglas Kysar, the Joseph M. Field ’55 Professor of Law at Yale Law School, offered dueling views on a rare mandamus petition that the U.S. Department of Justice recently filed in the U.S. Court of Appeals for the Ninth Circuit.

In the lawsuit, Juliana v. United States, filed in the U.S. District Court for the District of Oregon, the plaintiffs assert that they have a constitutional right to a viable climate system under the Due Process Clause of the Fifth Amendment. Further, they ask a federal district judge to order the President and various members of his Cabinet to establish a national remedial plan to fight climate change. Late last year, the district court denied the government’s motion to dismiss the case.  In June of this year, the district court denied the government’s request to certify an interlocutory appeal.  In response, the Justice Department quickly filed a mandamus petition asking the Ninth Circuit to direct the district court to dismiss the action.  The mandamus petition remains pending before the Ninth Circuit.

In his article, Will the Ninth Circuit Rein in What Might Be “the Most Important Lawsuit on the Planet”?, Varcoe argues that “[s]eeking mandamus in a case like Juliana is eminently defensible,” and that case law on justiciability, substantive due process, and the public trust doctrine “does not augur well for the fate of what is, in the end, a highly unconventional lawsuit.” Varcoe further suggests that the political question doctrine may require dismissal of the suit. 

In his response, In ‘the Most Important Lawsuit on the Planet,’ Who Exactly Should the Ninth Circuit Rein In?, Kysar emphasizes that “[t]he government has a constitutional responsibility not to knowingly take actions that significantly threaten the life of present and future generations,” and argues that “the remedy sought by the Juliana plaintiffs is quintessentially appropriate for judicial resolution: They seek to ensure that the federal government’s actions are consistent with their constitutional rights, and to reaffirm the core principle that even the sovereign is subject to the rule of law.”

Varcoe said, “Although I personally share many of the plaintiffs’ concerns about air pollution and climate issues, I’m not sure that a federal constitutional lawsuit of this kind is workable as a means of addressing such challenges. I appreciate Professor Kysar’s thoughtful response to my piece, which raises fundamental and important questions about the role of courts in responding to complex policy problems when citizens believe that the political branches of government are failing their basic duties.”