Full Ninth Circuit Declines to Rehear Constitutional Youth Climate Case, Leaving Unprecedented Unpublished Panel Decision in Place

FOR IMMEDIATE RELEASE

August 10, 2026

Contacts:  
Julia Olson, Chief Legal Counsel, 415.786.4825, julia@ourchildrenstrust.org
Helen Britto, Communications Director, 925.588.1171, helen@ourchildrenstrust.org
Nicole Funaro, Director of Media & Storytelling, communications@publicjustice.net

Denial leaves intact the first circuit court opinion in U.S. history to deny judicial review of an unconstitutional executive order, as youth plaintiffs assess next steps

SAN FRANCISCO — The full Ninth Circuit Court of Appeals today declined to rehear Lighthiser v. Trump, a constitutional climate case brought by 22 young Americans from Montana, Oregon, Hawai’i, California, and Florida. The denial leaves in place a three-judge panel decision that is the first circuit court opinion in U.S. history to deny Article III judicial power to review an unconstitutional executive order, a decision made in an unpublished opinion.

The June 2, 2026 panel decision dismissed the case without deciding whether the executive orders are constitutional or whether the youth plaintiffs are being harmed by the federal government’s conduct. The district court in Montana had previously found “overwhelming evidence” that the plaintiffs are being harmed by climate change, that the executive orders are meaningfully increasing carbon dioxide emissions and worsening those harms, and that fossil fuel pollution is driving a “children’s health emergency.” The panel disregarded those findings. Today, the full Ninth Circuit declined to correct that error.

The youth plaintiffs’ petition for rehearing identified three fundamental errors in the panel’s decision. First, the panel ignored uncontested facts and evidence and the district court’s own factual findings, including that the executive orders will generate an additional 205 million annual metric tons of carbon dioxide by 2027, rising to 510 million metric tons annually by 2035. Rather than accepting those findings as true, as required at the motion-to-dismiss stage, the panel substituted its own speculation, concluding that the link between the executive orders and the plaintiffs’ injuries was “mere conjecture.” Second, the panel’s reasoning conflicts with multiple recent Supreme Court decisions the panel never cited, including rulings striking down Trump’s tariff and birthright citizenship executive orders using the same legal standards that should have applied here. Third, the panel’s holding that courts have no power to review these executive orders at all puts the Ninth Circuit at odds with the D.C., First, and Fourth Circuits.

That panel decision was issued as an unpublished opinion, meaning the court itself indicated it should not be used as precedent. The full Ninth Circuit’s denial leaves that reasoning in place without endorsing or correcting it.

“No circuit court in American history has ever said it lacked the power to review an unconstitutional executive order. Until this case,” said Julia Olson, Chief Legal Counsel and Co-Executive Director of Our Children’s Trust. “Today the full Ninth Circuit had the opportunity to correct that historic mistake. Instead it let it stand. The President cannot lawfully direct a sweeping fossil fuel agenda that endangers children’s lives with no meaningful judicial check. That is not the country the Constitution created. And we are not done fighting for the one it promised.”

“I did not want to spend my teenage years in courtrooms. I wanted to go to school, spend time outside, and imagine a future without fear,” said lead plaintiff Eva Lighthiser. “But my government made a choice that is actively harming me and my fellow plaintiffs’ lives, and we made a choice to do something about it. That harm has not changed. And it will not change until our government is held accountable.”

“In this case, not a single government official even attempted to controvert that climate change is real, that it is rapidly changing our environment in the United States, and that its responsible for causing a children’s health emergency,” said Dan Snyder, Director of Public Justice’s Environmental Enforcement Project. “The Youth of this Country are being forced to shoulder this Administration’s preference for aiding their wealthy friends in the fossil fuel industry. We will continue fighting in the courts to ensure all of our children have a planet that is capable of sustaining life for them and future generations.”

Lighthiser v. Trump was filed in May 2025 on behalf of 22 young Americans. In September of that year, the case made history when youth plaintiffs presented live testimony in a federal constitutional climate case for the first time in U.S. history, with expert witnesses including a Nobel Prize-winning climate scientist and former White House Chief of Staff John Podesta testifying without contradiction that the executive orders are already making the plaintiffs’ lives worse. The constitutional questions raised in this case remain unanswered.

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Our Children’s Trust empowers young people to enforce their constitutional rights in court when governments endanger their lives, health, and futures by fueling the climate crisis. www.ourchildrenstrust.org

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