PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS SECOND 

AMENDED COMPLAINT AND MOTION TO CERTIFY (ECF No. 547)

JULIA A. OLSON (OR Bar 062230) 

julia@ourchildrenstrust.org

Our Children’s Trust

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825 

PHILIP L. GREGORY (pro hac vice)

pgregory@gregorylawgroup.com

Gregory Law Group

1250 Godetia Drive

Redwood City, CA 94062

Tel: (650) 278-2957

ANDREA K. RODGERS (OR Bar 041029)

andrea@ourchildrenstrust.org

Our Children’s Trust

3026 NW Esplanade

Seattle, WA 98117

Tel: (206) 696-2851

Attorneys for Plaintiffs 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KELSEY CASCADIA ROSE JULIANA; 

XIUHTEZCATL TONATIUH M., through his 

Guardian Tamara Roske-Martinez; et al.,

Plaintiffs,

v.

The UNITED STATES OF AMERICA; et al., 

Defendants.

Case No.: 6:15-cv-01517-AA

PLAINTIFFS’ OPPOSITION TO 

DEFENDANTS’ MOTION TO DISMISS 

SECOND AMENDED COMPLAINT AND 

MOTION TO CERTIFY (ECF No. 547)

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

ARGUMENT.................................................................................................................................. 5

I. This Court Should Not Allow Defendants to Relitigate Issues Already Decided and Not 

Altered by the Second Amended Complaint. ..................................................................... 5

II. Plaintiffs Have Demonstrated Redressability and Thus Have Standing............................. 9

A. Declaratory Relief Satisfies the Redressability Requirements. ...................................... 9

B. Plaintiffs Have Established Standing by Declaratory Relief Alone and Whether 

Injunctive Relief Can or Will be Awarded is Irrelevant at this Stage of the 

Proceedings. .................................................................................................................. 13

III. This Case is Within the Court’s Competence................................................................... 15

IV. Defendants’ Continued Effort to Prevent Trial and Ignore this Court’s Prior Decisions 

Contravenes their Rule 11 and Other Obligations. ........................................................... 17

V. Interlocutory Appeal Should Be Denied as Certifying this Case Will Harm Plaintiffs 

and Result in Manifest Injustice. ...................................................................................... 22

A. This Court is Not Required to and Should Not Certify any of its Orders..................... 23

B. There are no “Controlling Questions of Law” That Warrants Interlocutory Appeal.... 24

C. Defendants Fail to Show a Substantial Ground for Difference of Opinion With 

Respect to the Partial Redress that Declaratory Judgment Will Provide...................... 25

D. Interlocutory Appeal Would Not “Materially Advance the Ultimate Termination of 

the Litigation.” .............................................................................................................. 25

E. Interlocutory Appeal Would Significantly Prejudice Plaintiffs.................................... 26

CONCLUSION............................................................................................................................. 28

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TABLE OF AUTHORITIES

Cases

Aetna Life Ins. Co. v. Alla Med. Servs., Inc., 

855 F.2d 1470 (9th Cir. 1988) .................................................................................................. 19

Am. Hotel Int’l Group, Inc. v. OneBeacon Ins. Co., 

374 F. App’x 71 (2d Cir. 2010) .................................................................................................. 7

Arizona v. California, 

460 U.S. 605 (1983).................................................................................................................... 6

Askins v. U.S. Dep’t of Homeland Sec., 

899 F.3d 1035 (9th Cir. 2018) ............................................................................................ 5, 7, 8

Bonser-Lain v. Texas Comm’n on Env’t Quality, 

2012 WL 3164561 (Tex. Dist. Aug. 2, 2012)........................................................................... 22

Brereton v. Bountiful City Corp., 

434 F.3d 1213 (10th Cir. 2006) .................................................................................................. 8

California v. Texas, 

141 S. Ct. 2104 (2021).............................................................................................................. 11

Christianson v. Colt Indus. Operating Corp., 

486 U.S. 800 (1988).................................................................................................................... 8

Dismone v. Browner,

121 F.3d 1262 (9th Cir. 1997) .................................................................................................... 6

Fleck & Associates, Inc. v. Phoenix, 

471 F.3d 1100 (9th Cir. 2006) .................................................................................................... 8

Flom v. Holly Corp., 

276 F. App’x. 615 (9th Cir. 2008)............................................................................................ 10

Gindes v. United States, 

740 F.2d 947 (Fed. Cir. 1984) .................................................................................................... 6

Haaland v. Brackeen, 

143 S. Ct. 1609 (2023)........................................................................................................ 11, 12

Held v. Montana, 

No. CDV-2020-307, Order on Defs.’ Mot. to Dismiss

(Mont. 1st Jud. Dist. Ct. May 23, 2023)................................................................................... 16

Herrera v. Wyoming, 

139 S. Ct. 1686 (2019).............................................................................................................. 11

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Hewitt v. Helms, 

482 U.S. 755 (1987).................................................................................................................. 10

In re Auto. Breakthrough Sciences, Inc., 

1996 F.T.C. LEXIS 478 (Nov. 5, 1996) ................................................................................... 24

In re Cement Antitrust Litig., 

673 F.2d 1020 (9th Cir. 1981) .................................................................................................. 24

In re Hawai‘i Elec. Light Co., Inc. (MECO II), 

526 P.3d 329 (Haw. 2023)........................................................................................................ 21

In re Maui Elec. Co., Ltd. (MECO I), 

506 P.3d 192 (Haw. 2022)........................................................................................................ 21

Juliana v. United States, 

947 F.3d 1159 (9th Cir. 2020) ........................................................................................... passim

Juliana v. United States, 

949 F.3d 1125 (9th Cir. 2018) .................................................................................................. 23

Juliana v. United States, 

No. 6:15-CV-01517-AA, 2018 WL 6303774 (D. Or. Nov. 21, 2018) ..................................... 22

Larson v. Valente, 

456 U.S. 228 (1982).................................................................................................................. 12

Massachusetts v. EPA, 

549 U.S. 497 (2007).................................................................................................................. 12

Mathur v. Her Majesty the Queen in Right of Ontario, 

No. CV-19-00631627 (Ont. Super. Ct. Just. 2020) .................................................................. 16

Medtronic Inc. v. Mirowski Fam. Ventures, LLC, 

571 U.S. 191 (2014).................................................................................................................. 12

Meese v. Keene, 

481 U.S. 465 (1987).................................................................................................................. 12

Molybdenum Corp. of Am. v. Kasey, 

279 F.2d 216 (9th Cir. 1960) .................................................................................................... 26

Moore v. Harper, 

No. 21-1271, 2023 WL 4187750 (U.S. June 27, 2023)............................................................ 13

Mowat Const. Co. v. Dorena Hydro, LLC, 

No. 6:14-CV-00094-AA, 2015 WL 5665302 (D. Or. Sept. 23, 2015)............................... 22, 23

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Nat’l Asbestos Workers Med. Fund. v. Phillip Morris, Inc., 

71 F. Supp. 2d 139 (E.D.N.Y. 1999) ........................................................................................ 23

Navahine F. v. Hawaiʻi Dep’t of Transp., 

Civil No. 1CCV-22-0000631, Order Den. Defs.’ Mot. to Dismiss 

(Haw. Cir. Ct. Apr. 19, 2023)............................................................................................. 14, 16

Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 

981 F.2d 429 (9th Cir. 1992) .................................................................................................... 18

Pepper v. United States, 

562 U.S. 476 (2011).................................................................................................................... 5

Polich v. Burlington N., Inc., 

942 F.2d 1467 (9th Cir. 1991) .................................................................................................... 8

Porter v. Martinez, 

68 F.4th 429 (9th Cir. 2023) ............................................................................................... 11, 14

Pub. Affs. Assocs. v. Rickover, 

369 U.S. 111 (1962).................................................................................................................. 16

Richardson-Merrell, Inc. v. Koller, 

472 U.S. 424 (1985).................................................................................................................. 22

Rucho v. Common Cause, 

139 S. Ct. 2484 (2019)........................................................................................................ 15, 16

Samuels v. Mackell, 

401 U.S. 66 (1971).................................................................................................................... 11

San Diego Cnty. Credit Union v. Citizens Equity First Credit Union,

360 F. Supp. 3d 1039 (S.D. Cal. 2019)....................................................................................... 9

Sanchez-Espinoza v. Reagan, 

770 F.2d 202 (D.C. Cir. 1985).................................................................................................. 15

Sanders-Reed ex rel. Sanders-Reed v. Martinez, 

350 P.3d 1221 (N.M. Ct. App. 2015) ....................................................................................... 22

Steffel v. Thompson, 

415 U.S. 452 (1974).................................................................................................................. 14

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 

No. 20-1199, 2023 WL 4239254 (U.S. June 29, 2023)............................................................ 13

Teem v. Doubravsky, 

No. 3:15-cv-00210-ST, 2016 U.S. Dist. LEXIS 13452 (D. Or. Jan. 7, 2016).......................... 23

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Texas Comm’n on Env’t Quality v. Bonser-Lain, 

438 S.W.3d 887 (Tex. App. 2014)............................................................................................ 22

Theede v. United States, 

972 F.2d 1343 (9th Cir. 1992) .................................................................................................. 19

Urgenda Found. v. State of the Netherlands, 

Case No. 19/00135 (Hague Ct. App. 2019).............................................................................. 14

Uzuegbunam v. Preczewski, 

141 S. Ct. 792 (2021).............................................................................................. 10, 11, 23, 25

Webb v. Portland Mfg. Co., 

29 F. Cas. 506 (C.C.D. Me. 1838)............................................................................................ 11

Wisdom v. Gugino,

787 F. App’x 390 (9th Cir. 2019)............................................................................................... 8

Zdanok v. Glidden Co., Durkee Famous Foods Div.,

327 F.2d 944 (2d Cir. 1964) ....................................................................................................... 6

Statutes

28 U.S.C. § 1292(b)...................................................................................................... 5, 18, 23, 25

28 U.S.C. § 2201........................................................................................................................... 12

28 U.S.C. § 2202........................................................................................................................... 12

Rules

Fed. R. Civ. P. 11(b)..................................................................................................................... 18

Fed. R. Civ. P. 11(c) ..................................................................................................................... 18

L.R. 7-1(a)(1)(A) .......................................................................................................................... 19

L.R. 7-1(a)(2)................................................................................................................................ 20

Other Authorities

16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & 

Procedure § 3930 (3d. ed. 2012).............................................................................................. 26

Brendan O’Brien, Canadian wildfire smoke spreads, 100 million Americans under air-quality 

alerts, Reuters (June 29, 2023)................................................................................................. 27

Exec. Order No. 13990, Protecting Public Health and the Environment and Restoring Science 

To Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 25, 2021)............................................ 17

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Exec. Order No. 14008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619 

(Feb. 1, 2021)............................................................................................................................ 17

Exec. Order No. 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for 

All, 88 Fed. Reg. 25251 (Apr. 26, 2023) .................................................................................. 17

John T. Abatzoglou et al., Compound Extremes Drive the Western Oregon Wildfires of 

September 2020, 48 Geophysical Rsch. Letters e2021GL092520 (2021)................................ 27

Mark P. Gergen et al., The Supreme Court’s Accidental Revolution? The Test for Permanent 

Injunctions, 112 Colum. L. Rev. 203 (2012)............................................................................ 14

Nat’l Centers for Env’t Info., U.S. Climate Extremes Index (CEI) .............................................. 27

Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63 Duke L.J. 1091 (2014)......... 14

Sixth Oregon Climate Assessment, Oregon Climate Change Research Institute (Erica Fleishman 

ed., 2023) .................................................................................................................................. 27

The White House, FACT SHEET: How the Build Back Better Plan Will Create a Better Future 

for Young Americans (July 22, 2021)......................................................................................... 3

The White House, FACT SHEET: President Biden’s Executive Actions on Climate to Address 

Extreme Heat and Boost Offshore Wind (July 20, 2022) ........................................................... 2

The White House, Remarks by President Biden at the 27th Conference of the Parties to the 

Framework Convention on Climate Change (COP27) | Sharm el-Sheikh, Egypt (Nov. 11, 

2022)........................................................................................................................................... 3

The White House, Remarks by President Biden at the COP26 Leaders Statement (Nov. 1, 

2021)........................................................................................................................................... 3

The White House, Remarks by President Biden at the League of Conservation Voters Annual 

Capital Dinner (June 14, 2023).................................................................................................. 3

The White House, Remarks by President Biden Before Signing Executive Actions on Tackling 

Climate Change, Creating Jobs, and Restoring Scientific Integrity (Jan. 27, 2021).............. 2, 4

The White House, Remarks by President Biden on Actions to Tackle the Climate Crisis (July 

20, 2022)................................................................................................................................. 2, 4

The White House, Remarks by President Biden on Climate Resilience | Palo Alto, CA (June 19, 

2023)........................................................................................................................................... 2

U.S. EPA, Climate Change and Children’s Health and Well-Being in the United States (Apr. 

2023)......................................................................................................................................... 17

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U.S. EPA, Standards of Performance for New, Reconstructed, and Modified Sources and 

Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review, 86 

Fed. Reg. 63110 (Nov. 15, 2021) ............................................................................................. 17

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INTRODUCTION

For eight years and across three presidential administrations, the United States government 

and its Department of Justice (“DOJ”) have sought not justice under the rule of law, but to “kill 

the Juliana case” no matter its legal merit. The U.S. DOJ has used every rare legal tool, more times 

than in any other case in history, to silence the constitutional claims of twenty-one of our nation’s 

youth. Throughout the years of their failure, Defendants have been unwilling to accept the standing 

and valid claims of these young people and previous rulings that this meritorious case should 

proceed to trial. While they have been seeking to foil Juliana, every single administration has 

simultaneously expanded the United States’ fossil fuel energy system, thereby making this nation 

the largest producer of fossil fuels on Earth, exacerbating the climate crisis, and intensifying the 

constitutional injuries of these young Plaintiffs. Defendants’ current Motion to Dismiss

contravenes prior decisions of this Court and the Ninth Circuit, as well as President Biden’s own 

Executive Orders and commitments these Defendants have made to the American people, and 

especially its youth. This “rinse-and-repeat” Motion to Dismiss and attendant Motion to Certify 

seeking yet another interlocutory appeal should be summarily denied. This case involves an 

emergency of epic proportions: it is time for the United States to stand trial for creating an 

“environmental apocalypse” and putting these youth’s lives, health, and safety in jeopardy in 

intentional violation of the U.S. Constitution.

The “compelling” and “substantial evidentiary record,” which remains “largely undisputed 

by federal defendants,” Amend Order at 2, ECF No. 540, demonstrates that the lives, liberties, and 

property of American children, including Plaintiffs, face significant and ongoing harms due to the 

climate crisis. Defendants have long understood these risks caused by burning fossil fuels, yet 

nonetheless continue to permit, authorize, and encourage fossil fuel activities with deliberate 

indifference. See id. at 1. While Defendants argue in their Motion to Dismiss Second Amended 

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Complaint and Motion to Certify (“MTD”) that there is “no constitutional right” at stake for these 

youth Plaintiffs, MTD at 19, ECF No. 547, President Biden has stated that climate change 

represents “the existential threat to humanity,”1 a “clear and present danger to the United States,”2

and “an emergency” where long-awaited government responses are “going to save lives.”3

President Biden committed directly to “the young people organizing and leading the way” on 

addressing the climate crisis that “[y]ou have the full capacity and power of the federal 

government. Your government is going to work with you.”4 However, by its Motion to Dismiss, 

President Biden’s administration uses the full capacity and power of the federal government to 

work against young people, to keep evidence of this government’s affirmative actions causing the 

climate crisis out of the courtroom, and to deny Plaintiffs’ constitutional rights.

The severity of this existential threat, which the Ninth Circuit Court of Appeals held 

concretely endangers these young Plaintiffs’ lives, liberties, property, and equality, cannot be 

overstated. Juliana v. United States, 947 F.3d 1159, 1168 (9th Cir. 2020). Defendants’ Motion to 

Dismiss ignores the government’s own admissions, instead asserting that “[n]one of the 

government actions that Plaintiffs complain of classify or affect youth or posterity any differently 

1 The White House, Remarks by President Biden on Climate Resilience | Palo Alto, CA (June 19, 

2023), https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/06/19/remarks-bypresident-biden-on-climate-resilience-palo-alto-ca/ (emphasis in original).

2 The White House, FACT SHEET: President Biden’s Executive Actions on Climate to Address 

Extreme Heat and Boost Offshore Wind (July 20, 2022), https://www.whitehouse.gov/briefingroom/statements-releases/2022/07/20/fact-sheetpresident-bidens-executive-actions-on-climateto-address-extreme-heat-and-boost-offshore-wind/.

3 The White House, Remarks by President Biden on Actions to Tackle the Climate Crisis (July 20, 

2022), https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/07/20/remarks-bypresident-biden-on-actions-to-tackle-the-climate-crisis/.

4 The White House, Remarks by President Biden Before Signing Executive Actions on Tackling 

Climate Change, Creating Jobs, and Restoring Scientific Integrity (Jan. 27, 2021), 

https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/01/27/remarks-by-presidentbiden-before-signing-executive-actions-on-tackling-climate-change-creating-jobs-and-restoringscientific-integrity/. 

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than they affect other persons.” MTD at 29. But as President Biden has repeatedly emphasized, 

climate change necessarily entails “threats our children, grandchildren, and great-grandchildren 

are going to face,”5 and the government’s failure to act will “condemn future generations to 

suffer.”6 Particularly because “it is this younger generation that will inherit the worst impacts of 

this crisis,”7 he acknowledged “young people around the world, they feel the urgency of climate, 

and they feel it deeply. They’re committed to these issues. They know the stakes, and that’s their 

world we’re creating.”8 The DOJ, purporting to represent the Biden Administration, does nothing 

to explain the contradiction between the DOJ’s desperate defense of this case and the Biden 

Administration’s public pronouncements.

In their efforts to lock Plaintiffs out of the court system and the Constitution, Defendants 

further insist that Plaintiffs request the invocation of powers “entrust[ed] to Congress, not the 

Judiciary.” MTD at 18. Not only is this argument unresponsive to Plaintiffs’ Second Amended 

Complaint, it neglects the sober reality of the climate crisis and the need for a “whole-of5 The White House, Remarks by President Biden at the League of Conservation Voters Annual 

Capital Dinner (June 14, 2023), https://www.whitehouse.gov/briefing-room/speechesremarks/2023/06/14/remarks-by-president-biden-at-the-league-of-conservation-voters-annualcapital-dinner/.

6 The White House, Remarks by President Biden at the COP26 Leaders Statement (Nov. 1, 2021), 

https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/11/01/remarks-by-presidentbiden-at-the-cop26-leaders-statement/.

7 The White House, FACT SHEET: How the Build Back Better Plan Will Create a Better Future 

for Young Americans (July 22, 2021), https://www.whitehouse.gov/briefing-room/statementsreleases/2021/07/22/fact-sheet-how-the-build-back-better-plan-will-create-a-better-future-foryoung-americans/.

8 The White House, Remarks by President Biden at the 27th Conference of the Parties to the 

Framework Convention on Climate Change (COP27) | Sharm el-Sheikh, Egypt (Nov. 11, 2022), 

https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/11/11/remarks-by-presidentbiden-at-the-27th-conference-of-the-parties-to-the-framework-convention-on-climate-changecop27-sharm-el-sheikh-egypt/.

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government approach” or “unified national response.”9 President Biden has openly recognized that 

the government at large has a “duty right now . . . to the young people in this nation, and to future 

generations . . . to act boldly on climate” and that “Congress . . . has failed in this duty.”10 By 

seeking to close the courthouse doors and steer Plaintiffs down another path—one that Defendants 

are aware has already failed this nation’s children—who are ineligible to vote—Defendants’ 

actions effectively enable the nation’s willful destruction. Juliana, 947 F.3d at 1175 (Staton, J., 

dissenting) (“Plaintiffs bring suit to enforce the most basic structural principle embedded in our 

system of ordered liberty: that the Constitution does not condone the Nation’s willful 

destruction.”).

Plaintiffs respectfully request that this Court deny Defendants’ Motion to Dismiss Second 

Amended Complaint and Motion to Certify. In support of their current motions, Defendants have 

advanced, ad nauseam, the same set of legal arguments repeatedly raised and previously decided,

while ignoring entirely the new allegations in Plaintiffs’ Second Amended Complaint. As such, 

this Court’s prior decisions should control the determination of this Motion to Dismiss. With 

respect to Defendants’ argument on redressability, this Court already considered their arguments 

on this issue and ruled in its Amend Order that Plaintiffs have properly pled redressability in their 

Second Amended Complaint. As a result, that issue is also decided, making this Motion duplicative 

and moot. Further, even if aspects of this Motion to Dismiss were technically appropriate, 

9 The White House, Remarks by President Biden Before Signing Executive Actions on Tackling 

Climate Change, Creating Jobs, and Restoring Scientific Integrity (Jan. 27, 2021), 

https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/01/27/remarks-by-presidentbiden-before-signing-executive-actions-on-tackling-climate-change-creating-jobs-and-restoringscientific-integrity/.

10 The White House, Remarks by President Biden on Actions to Tackle the Climate Crisis (July 

20, 2022), https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/07/20/remarks-bypresident-biden-on-actions-to-tackle-the-climate-crisis/.

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Defendants mischaracterized Plaintiffs’ requested relief and failed to mention, let alone analyze,

the relevant allegations in the Second Amended Complaint which are responsive to the Ninth 

Circuit’s concerns. Defendants misinterpret recent precedent on declaratory relief, which has been 

deemed sufficient to confer standing even where it offers only partial redress. The relief now being 

sought by these youth Plaintiffs is fully within the power of Article III courts to grant. Not only 

should this Court deny the Motion to Dismiss, this Court also should not certify that order for 

interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

ARGUMENT

I. This Court Should Not Allow Defendants to Relitigate Issues Already Decided 

and Not Altered by the Second Amended Complaint.

In their Motion to Dismiss, Defendants seek to relitigate several issues that have already 

been briefed and decided multiple times throughout this litigation. While the Court is not 

exclusively bound by its prior decisions in reviewing Plaintiffs’ Second Amended Complaint and 

can correct any errors of law, Defendants moving to dismiss an amended complaint may only ask 

the Court “to determine that the plaintiff’s amended complaint did not cure the deficiencies of the 

initial complaint.” Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1043 (9th Cir. 2018)

(holding district court had discretion to rely on prior reasoning in reviewing motion to dismiss 

amended complaint).

The law of the case doctrine is instructive here and provides that “when a court decides 

upon a rule of law, that decision should continue to govern the same issues in subsequent stages 

in the same case.”11 Pepper v. United States, 562 U.S. 476, 506 (2011) (quoting Arizona v. 

11 Even though the issues Defendants raise in their Motion to Dismiss have been briefed and 

decided multiple times, Defendants’ moving papers notably omit any reference to the law of the 

case and, thus, fail to present any basis for this Court to reconsider its prior orders. For this reason 

alone, the Motion to Dismiss should be denied.

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California, 460 U.S. 605, 618 (1983)). The law of the case doctrine is animated by a policy of 

consistency and fairness, since “[n]o litigant deserves an opportunity to go over the same ground 

twice, hoping that the passage of time or changes in the composition of the court will provide a 

more favorable result the second time.” Dismone v. Browner, 121 F.3d 1262, 1266 (9th Cir. 1997)

(quoting Gindes v. United States, 740 F.2d 947, 949 (Fed. Cir. 1984)). “[W]here litigants have 

once battled for the court’s decision, they should neither be required, nor without good reason 

permitted, to battle for it again.” Zdanok v. Glidden Co., Durkee Famous Foods Div., 327 F.2d 

944, 953 (2d Cir. 1964) (emphasis added). 

In their moving papers, Defendants provide no reason why this Court should deviate from 

its prior rulings on Defendants’ first Motion to Dismiss, Motion for Judgment on the Pleadings,

and Motion for Summary Judgment. These prior decisions resolved all issues Defendants raise in 

their new Motion to Dismiss, with the exception of redressability, which the new allegations in the 

Second Amended Complaint are intended to address. Defendants point to nothing in the Second 

Amended Complaint, the law, or the evidence, nor do they cite changed circumstances that should 

alter this Court’s prior orders as to: the injury and causation prongs of standing; a cognizable case 

or controversy; the constitutional rights asserted to life, liberty, personal security, property,

equality, a climate system that sustains life, public trust resources, and to be free from state-created 

danger; the Administrative Procedure Act (“APA”) not barring the claims. See Appendix A (Table 

identifying the issues raised in Defendants’ pending Motion to Dismiss and where in the record 

the issue was already briefed, argued, and decided).

As Defendants acknowledged in their response to Plaintiffs’ Motion to Set Pretrial 

Conference, ECF No. 548, redressability was the singular issue on which the Ninth Circuit 

reversed and remanded for dismissal without prejudice. As such, it is the only element of the 

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Second Amended Complaint that Defendants could substantively argue in their present Motion to 

Dismiss “did not cure the deficiencies of the initial complaint.” Askins, 899 F.3d at 1043; see also

Am. Hotel Int’l Group, Inc. v. OneBeacon Ins. Co., 374 F. App’x 71, 74 (2d Cir. 2010) (“[T]he 

findings of a district court not expressly or implicitly addressed on appeal remain the law of the 

case.”). Redressability was the only deficiency identified by the Ninth Circuit. As to whether the 

Second Amended Complaint corrected that singular deficiency identified by the Ninth Circuit,

12

the Parties briefed and argued that issue extensively on the Motion for Leave to Amend in the 

futility analysis and the Court’s Amend Order centers on and conclusively decides that legal 

question.13 Transcript of Oral Argument at 13:2-11, 20:19, 22:9-21, 23:9-15, 25:9-14, ECF No. 

504; Pls.’ Mot. for Leave to Amend at 8-10, ECF No. 462; Defs.’ Opp’n to Mot. for Leave to 

Amend at 12-14, ECF No. 468. Thus, Defendants’ pending Motion to Dismiss seeks to relitigate 

the redressability issue, without any new law or other information that should change this Court’s 

prior order. Amend Order at 17 (“[T]he relief plaintiffs seek fits like a glove, where plaintiffs 

request consideration of declaratory relief independently of other forms of relief, such as an 

injunction.”).

Finally, Defendants also seek to relitigate the issue of whether the “rule of mandate” 

required this Court to dismiss Plaintiffs’ First Amended Complaint with prejudice and without

12 Plaintiffs maintain their objection to the Ninth Circuit’s opinion as to redressability, which was 

wrongly decided. If the Court wishes to revisit that issue at this stage, Plaintiffs refer to the Court 

to their prior briefing which responds to Defendants’ arguments. See, e.g., Ninth Circuit Dkt. 156

at 9-14. 13 “Defendants opposed the motion for leave to amend on the grounds that . . . the proposed 

amendment would be futile because it cannot cure the jurisdictional defects that require dismissal.

Defs.’ Resp. in Opp’n to Mot. for Leave to Amend, ECF No. 468.” MTD at 7.

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leave to amend.14 As Defendants acknowledge: “Defendants opposed the motion for leave to 

amend on the grounds that the Ninth Circuit mandate required this Court to dismiss the case . . . .” 

MTD at 7. Based on extensive briefing on the mandate issue, this Court decided this issue; that 

decision should be controlling here since Defendants argue nothing new to support their arguments 

briefed over two years ago. Amend Order at 11 (“This Court . . . does not interpret the Ninth 

Circuit’s instructions as mandating it ‘to shut the courthouse doors’ on plaintiffs’ case . . . .”).

The new allegations in the Second Amended Complaint are solely intended to address the 

narrow redressability concerns identified by the Ninth Circuit and, at this stage in the case, 

Defendants can only seek to re-litigate dismissal with respect to the new allegations and requests

for relief in the Second Amended Complaint. Otherwise, Defendants would get yet another “bite 

at the apple,” which causes further delay and prejudices Plaintiffs. See Christianson v. Colt Indus. 

Operating Corp., 486 U.S. 800, 816 n.5 (1988) (“Perpetual litigation of any issue—jurisdictional 

or nonjurisdictional—delays, and therefore threatens to deny, justice.”); Wisdom v. Gugino, 787 

F. App’x 390, 392 (9th Cir. 2019) (upholding denial of multiple motions which were “identical to 

the issues [ ] raised in other motions”).

This Court should exercise its discretion to apply the law of the case and “follow the same 

reasoning” to reject the instant Motion to Dismiss which is “substantially the same” as motions

this Court has already addressed. Askins, 899 F.3d at 1043; see also San Diego Cnty. Credit Union 

14 Significantly, Defendants cite no authority supporting their request that the Second Amended 

Complaint should be dismissed with prejudice. It is black letter law that a dismissal as to standing 

is without prejudice. Fleck & Associates, Inc. v. Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006)

(citing Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“Since standing is 

a jurisdictional mandate, a dismissal with prejudice for lack of standing is inappropriate, and 

should be corrected to a dismissal without prejudice.”)); Polich v. Burlington N., Inc., 942 F.2d 

1467, 1472 (9th Cir. 1991) (finding dismissal improper without granting leave to amend unless 

“the complaint could not be saved by any amendment”).

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v. Citizens Equity First Credit Union, 360 F. Supp. 3d 1039, 1046-47 (S.D. Cal. 2019) (relying on 

prior analysis to deny defendants’ motion to dismiss after filing of an amended complaint). Since 

Defendants have presented no reason that justifies reconsideration of this Court’s prior rulings on 

motions to dismiss, judgment on the pleadings, summary judgment, and leave to amend, and have 

not moved for reconsideration here, the Court should summarily deny the instant Motion to 

Dismiss citing its prior orders.

15

II. Plaintiffs Have Demonstrated Redressability and Thus Have Standing.

A. Declaratory Relief Satisfies the Redressability Requirements.

After considering the Parties’ briefing and oral argument on whether Plaintiffs’ 

amendments to their complaint cured the redressability deficiency identified by the Ninth Circuit, 

this Court held: 

Under the [Declaratory Judgment Act], the relief plaintiffs seek fits like a glove, 

where plaintiffs request consideration of declaratory relief independently of other 

forms of relief, such as an injunction. . . . This Court finds that plaintiffs’ proposed 

amendments are not futile: a declaration that federal defendants’ energy policies 

violate plaintiffs’ constitutional rights would itself be significant relief.

Amend Order at 17. This Court explained:

It is a foundational doctrine that when government conduct catastrophically harms 

American citizens, the judiciary is constitutionally required to perform its 

independent role and determine whether the challenged conduct, not exclusively 

committed to any branch by the Constitution, is unconstitutional. Marbury v. 

Madison, 5 U.S. (1 Cranch) 137, 176-78 (1803). The judicial role in cases like this 

is to apply constitutional law, declare rights, and declare the government’s 

responsibilities. No other branch of government can perform this function because 

the “judicial Power” is exclusively in the hands of Article III courts. U.S. Const. 

Art. III, § 1. The issue before this Court now is not to determine what relief, 

15 To the extent the Court disagrees and considers it necessary to re-address each basis for dismissal 

here, Plaintiffs rely upon and incorporate by reference their prior briefs and oral argument on each 

issue, as well as this Court’s orders on the same. See Appendix A. Plaintiffs also preserve their 

objection that their Ninth Amendment claim was wrongly dismissed by this Court in its Opinion 

and Order deciding summary judgment, but that issue can be addressed on appeal after trial on the 

merits.

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specifically, is in its power to provide. This Court need only decide whether 

plaintiffs’ amendments—alleging that declaratory relief is within an Article III 

court’s power to award— “would be subject to dismissal.” Carrico, 656 F.3d 1002. 

Amend Order at 18. Finally, this Court determined:

Here, plaintiffs seek declaratory relief that “the United States’ national energy 

system that creates the harmful conditions described herein has violated and 

continues to violate the Fifth Amendment of the U.S. Constitution and Plaintiffs’ 

constitutional rights to substantive due process and equal protection of the law.” 

(Doc. 514-1 ¶ 1). This relief is squarely within the constitutional and statutory 

power of Article III courts to grant. Such relief would at least partially, and perhaps 

wholly, redress plaintiffs’ ongoing injuries caused by federal defendants’ ongoing 

policies and practices. Last, but not least, the declaration that plaintiffs seek would 

by itself guide the independent actions of the other branches of our government and 

cures the standing deficiencies identified by the Ninth Circuit. This Court finds that 

the complaint can be saved by amendment. See Corinthian Colleges, 655 F.3d at 

995. 

Amend Order at 19.

By their Motion to Dismiss, Defendants pretend this ruling never happened, ignoring that 

this Court fully considered and decided Defendants’ arguments that Plaintiffs should not be able 

to amend their complaint and proceed to the merits based on lack of Article III standing and 

redressability. Because this issue has been resolved by this Court at this pre-trial stage, and can be 

appealed after a merits determination and final judgment, there is nothing more to litigate on 

Article III standing and Plaintiffs’ Second Amended Complaint.

It is worth noting here, however, that Defendants’ slim treatment of Uzuegbunam 

misconstrues the Supreme Court’s opinion. MTD at 16. It was the behavior-shifting quality of the 

remedy that persuaded the Court to declare nominal damages sufficient to confer Article III 

standing because the remedy served to resolve a controversy. Uzuegbunam v. Preczewski, 141 S. 

Ct. 792, 801 (2021) (citing Hewitt v. Helms, 482 U.S. 755, 761 (1987)); see also Flom v. Holly 

Corp., 276 F. App’x. 615, 616 (9th Cir. 2008) (holding the value of a judgment is the “judicially 

sanctioned and material change in the legal relationship between the parties”). There is no question 

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that declaratory relief similarly affects Defendants’ behavior, if not more so, because it instructs 

Defendants as to what the law requires. See, e.g., Samuels v. Mackell, 401 U.S. 66, 73 (1971)

(“Ordinarily . . . the practical effect of [injunctive and declaratory] relief will be virtually identical

. . . .”); Herrera v. Wyoming, 139 S. Ct. 1686, 1712 (2019) (Alito, J., dissenting) (“The [Declaratory 

Judgment] Act . . . allows a person to obtain a definitive ex ante determination of his or her right 

to engage in conduct . . . .”). Uzuegbunam’s analysis did not turn on whether the relief was 

retrospective or prospective in nature, and such semantic distinctions misstate the redressability 

requirement. 141 S. Ct. at 799 (“[T]he law tolerates no farther inquiry than whether there has been 

the violation of a right”) (citing Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508-09 (C.C.D. Me. 

1838)). 

Defendants’ reliance on California v. Texas and Haaland v. Brackeen to argue against the 

sufficiency of declaratory relief is both misguided and misleading. Both cases support this Court’s 

Amend Order. See ECF No. 505 (Plaintiffs’ Notice of Supplemental Authorities analyzing 

California v. Texas). California v. Texas did not alter the law stated by Uzuegbunam. In that case, 

the Supreme Court dismissed for lack of an injury fairly traceable to defendants’ conduct, not 

simply because declaratory relief was insufficient redress. California v. Texas, 141 S. Ct. 2104, 

2113-17 (2021) (holding that plaintiff states failed to establish standing where they “failed to show 

how this injury is directly traceable to any actual or possible unlawful Government conduct”). The

instant case presents no such issues—as the Ninth Circuit has already found, the injuries suffered 

by Plaintiffs are plausibly traceable to Defendants’ conduct, and thus a declaration that such 

conduct is unconstitutional would alleviate Plaintiffs’ injuries. Juliana, 947 F.3d at 1169; see also 

Porter v. Martinez, 68 F.4th 429, 438 (9th Cir. 2023) (finding redressability requirement satisfied 

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because district court could issue declaratory relief and confirming that the “constitutional 

minimum” of redressability “depend[s] on the relief that federal courts are capable of granting.”).

In Haaland, a declaratory judgment would not have been binding on state officials, who 

were nonparties to the suit, and hence would not have afforded the plaintiffs any redress. Haaland

v. Brackeen, 143 S. Ct. 1609, 1639 (2023) (“[S]tate officials are nonparties who would not be 

bound by the judgment.”). The situation in Juliana is wholly different, as the federal officials that 

are either directly responsible for or have authority over the conduct causing Plaintiffs’ injuries 

are parties to the suit, Juliana, 947 F.3d at 1169, and would be bound by any declaratory judgment 

issued by this Court. Defendants’ claim that declaratory relief is insufficient to confer standing is 

incorrect, directly in conflict with Congress’ intent in 28 U.S.C. §§ 2201-2202, and entirely 

unsupported by the precedent they themselves cite. See, e.g., Haaland, 143 S. Ct. at 1639

(“[declaratory] relief conclusively resolves ‘the legal rights of the parties.’”) (citing Medtronic Inc. 

v. Mirowski Fam. Ventures, LLC, 571 U.S. 191, 200 (2014)).

As this Court is well aware, the redressability prong of the standing analysis does not 

require that the remedy resolve the entire problem giving rise to Plaintiffs’ injuries. Mitigating the 

harm caused is sufficient. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 525 (2007) (“While it 

may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it 

by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to 

slow or reduce it.”); Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (“[A] plaintiff satisfies the 

redressability requirement when he shows that a favorable decision will relieve a discrete injury 

to himself. He need not show that a favorable decision will relieve his every injury.”); Meese v. 

Keene, 481 U.S. 465, 476-77 (1987) (holding partial relief would qualify as redress for standing 

purposes).

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Defendants present no basis for this Court to deviate from its June 1, 2023 ruling that “a 

declaration that federal defendants’ energy policies violate plaintiffs’ constitutional rights would 

itself be significant relief.” Amend Order at 17. In fact, this position received support from two 

recent Supreme Court decisions. See Students for Fair Admissions, Inc. v. President & Fellows of 

Harvard Coll., No. 20-1199, 2023 WL 4239254, at*8-9, *23 (U.S. June 29, 2023) (finding that 

plaintiffs seeking declaratory relief to redress injuries due to race-conscious admissions had 

standing, although the Court’s final holding did not solve racism and continued to allow 

“considering an applicant’s discussion of how race affected his or her life, be it through 

discrimination, inspiration, or otherwise”); Moore v. Harper, No. 21-1271, 2023 WL 4187750, at 

*8-10 (U.S. June 27, 2023) (“Since early in our Nation’s history, courts have recognized their duty 

to evaluate the constitutionality of legislative acts. . . . The idea that courts may review legislative 

action was so ‘long and well established’ by the time we decided Marbury in 1803 that Chief 

Justice Marshall referred to judicial review as ‘one of the fundamental principles of our society.’”).

B. Plaintiffs Have Established Standing by Declaratory Relief Alone and 

Whether Injunctive Relief Can or Will be Awarded is Irrelevant at this Stage 

of the Proceedings.

This Court has found that, as alleged in the Second Amended Complaint, declaratory 

judgment would at least partially, if not wholly, redress Plaintiffs’ constitutional injuries caused 

by Defendants’ ongoing policies and practices. Amend Order at 19. That is sufficient to deny 

Defendants’ Motion to Dismiss. Whether any further injunctive relief would be warranted or 

granted is ultimately an issue for the merits, as that goes to the scope of the remedy, not the 

constitutional minimum for redressability.16 Amend Order at 18 (“The issue before this Court now 

16 Substantially similar arguments to those raised by Defendants here, attempting to assert that 

remedies cannot fully redress Plaintiffs’ injuries, have previously been denied by courts at the 

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is not to determine what relief, specifically, is in its power to provide . . . [but only] whether 

plaintiffs’ amendments . . . ‘would be subject to dismissal.’”); Porter, 68 F.4th at 438. As the 

Supreme Court explained in Steffel v. Thompson, 415 U.S. 452 (1974), “requir[ing] that all of the 

traditional equitable prerequisites to the issuance of an injunction be satisfied before the issuance 

of a declaratory judgment is considered would defy Congress’ intent to make declaratory relief 

available in cases where an injunction would be inappropriate.” Id. at 471. For that reason, the 

Supreme Court in Steffel held “the Court of Appeals was in error when it ruled that a failure to 

demonstrate irreparable injury—a traditional prerequisite to injunctive relief, having no equivalent 

in the law of declaratory judgments—precluded the granting of declaratory relief.” Id. at 471-72 

(citations omitted). See Mark P. Gergen et al., The Supreme Court’s Accidental Revolution? The 

Test for Permanent Injunctions, 112 Colum. L. Rev. 203, 206, 241 (2012) (noting that courts have 

determined no additional requirements are needed to render a declaratory judgment effective 

against a government actor unless “a party cannot be trusted to respect rights in the future,” thus 

requiring an injunction); Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63 Duke 

L.J. 1091, 1123 (2014) (“[I]n many cases in which a plaintiff seeks prospective relief, a declaratory 

judgment and an injunction are interchangeable. Both resolve uncertainty about the law and both 

bind the losing party.”) Then-Judge Scalia aptly described the issue as follows: “[T]he 

motion to dismiss stage. See, e.g., Order Den. Defs.’ Mot. to Dismiss at 3, Navahine F. v. Hawaiʻi 

Dep’t of Transp., Civil No. 1CCV-22-0000631 (Haw. Cir. Ct. Apr. 19, 2023) (Dkt. 179) (“The 

court understands this argument, but first, it is factual, which is generally fatal on a 12(b)(6) 

motion. Second, and more importantly, reduced to its essence, Defendants’ argument is that it is 

not required to do anything because the problem is just too big and the State’s efforts will have no 

impact. Putting aside that negative thinking will not solve the problem, the law requires that as 

trustee, the State/HDOT must take steps to maintain [the climate] to keep [it] from falling into 

disrepair.”); see also Urgenda Found. v. State of the Netherlands, Case No. 19/00135 ¶ 61-62 

(Hague Ct. App. 2019) (holding that the State’s inability to provide complete redress to plaintiffs’ 

climate-related injuries does not absolve it from the obligation to take measures to address the 

hazards of climate change).

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discretionary relief of declaratory judgment is, in a context such as this where federal officers are 

defendants, the practical equivalent of specific relief such as injunction or mandamus, since it must 

be presumed that federal officers will adhere to the law as declared by the court.” SanchezEspinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985).

III. This Case is Within the Court’s Competence.

Defendants’ reliance on Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019), to argue 

that Plaintiffs do not present a justiciable claim is misguided and does not account for the new 

allegations in Plaintiffs’ Second Amended Complaint which allege how declaratory relief would 

remedy the Plaintiffs’ injuries. MTD at 17; ECF No. 542 at ¶¶ 12-14, 19-A, 22-A, 30-A, 34-A, 39-

A, 43-A, 46-A, 49-A, 52-A, 56-A, 59-A, 62-A, 64-A, 67-A, 70-A, 72-A, 76-A, 80-A, 85-A, 88-A, 

90-A, 95-A to -D. The issue in Rucho was not that the solution was too complex for courts to 

implement, nor was it that a court-ordered solution would impermissibly intrude upon other 

branches’ constitutional powers. Rather, the Supreme Court refused to “reallocate political power” 

in the absence of a clear legal standard to limit their discretion. Rucho, 139 S. Ct. at 2507. It was 

for this reason the Ninth Circuit cited Rucho in support of its holding that Plaintiffs’ request for a 

remedial plan is not within the Court’s power to order. Juliana, 947 F.3d at 1173. While Plaintiffs 

maintain their objection to the Ninth Circuit’s application of Rucho, the instant case now presents 

no such issues—the constitutional violations alleged by Plaintiffs can be declared, and would not 

require the Court to enter into an intervention “unlimited in scope and duration.” Rucho, 139 S. 

Ct. at 2507. This Court and the Ninth Circuit previously established the instant case does not raise 

a nonjusticiable political question under the Baker factors, and Defendants provide no reason for 

why that Baker analysis should change under the operative Second Amended Complaint. Juliana, 

947 F.3d at 1174 n.9 (“Contrary to the dissent, we do not find this to be a political question . . . .”);

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Order Den. MTD at 16, ECF No. 83 (“At its heart, this lawsuit asks this Court to determine whether 

defendants have violated plaintiffs’ constitutional rights. That question is squarely within the 

purview of the judiciary.”). Nothing in Rucho’s conclusions, nor in the Ninth Circuit’s application 

of Rucho, supports a dismissal for lack of standing in the present case given the new allegations in 

the Second Amended Complaint. 

As this Court has itself found, the Declaratory Judgment Act clearly conveys the power to 

grant declaratory relief to Article III courts. See, e.g., Pub. Affs. Assocs. v. Rickover, 369 U.S. 111, 

112 (1962). In particular, the Declaratory Judgment Act gives “federal courts competence to make 

a declaration of rights.” Id.; Amend Order at 17-19. Defendants do not show why the constitutional 

rights asserted by Plaintiffs would be an exception to that rule. The redress sought by Plaintiffs in 

this case is entirely within this Court’s power to grant. 

Two related cases in state courts, as well as cases being litigated in courts around the world,

demonstrate that the issues presented in Plaintiffs’ Second Amended Complaint are within the 

competence of the judiciary. The federal judiciary is at least as competent to decide constitutional 

questions regarding climate change as state courts and the courts of other democracies across the 

world. See, e.g., Order on Defs.’ Mot. to Dismiss at 25-26, Held v. Montana, No. CDV-2020-307

(Mont. 1st Jud. Dist. Ct. May 23, 2023) (holding that the constitutionality of climate issues should 

be determined at trial which was conducted in June 2023); Order Den. Defs.’ Mot. to Dismiss at 

10-11, Navahine F. v. Hawai‘i Dep’t of Transp., Civil No. 1CCV-22-0000631 (Haw. Cir. Ct. Apr. 

19, 2023) (finding that state constitutional climate change challenge to transportation system does

not present a political question and must be resolved at trial); Mathur v. Her Majesty the Queen in 

Right of Ontario, No. CV-19-00631627, 27-29 (Ont. Super. Ct. Just. 2020) (finding that a 

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challenge to affirmative government conduct in permitting climate change was justiciable, as 

violations of constitutional rights “are not pure policy decisions”).

IV. Defendants’ Continued Effort to Prevent Trial and Ignore this Court’s Prior 

Decisions Contravenes their Rule 11 and Other Obligations.

Defendants have now repeatedly engaged in conduct that is heavily disfavored by the Ninth 

Circuit and may amount to an abuse of this Court’s process. Defendants’ improper conduct

includes raising identical issues and arguments which have already been decided by the Ninth

Circuit and this Court in earlier proceedings, failing to meet and confer with Plaintiffs in good 

faith, representing legal positions that are contrary to the Biden Administration’s Executive 

Orders, Federal Register Notices, Reports, and public statements, and mischaracterizing the law.17

First, Defendants repeatedly raise the same arguments in their moving papers, ignoring all 

of this Court’s prior orders on these precise issues, failing to even cite to them or distinguish them,

17 See, e.g., Exec. Order No. 14096, Revitalizing Our Nation’s Commitment to Environmental 

Justice for All, 88 Fed. Reg. 25251, 25252 (Apr. 26, 2023) (“The cumulative impacts of . . . 

stressors, including those related to climate change and the environment, further disadvantage 

communities with environmental justice concerns. People in these communities suffer from poorer 

health outcomes and have lower life expectancies than those in other communities in our Nation.”);

Exec. Order No. 14008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619, 

7622 (Feb. 1, 2021) (“[W]e face a climate crisis that threatens our people and communities, public 

health and economy, and, starkly, our ability to live on planet Earth.”); Exec. Order No. 13990, 

Protecting Public Health and the Environment and Restoring Science To Tackle the Climate 

Crisis, 86 Fed. Reg. 7037, 7041 (Jan. 25, 2021) (declaring that government agencies tasked with 

assessing the impacts of greenhouse gas emissions must “reflect the interests of future generations 

in avoiding threats posed by climate change”); U.S. EPA, Standards of Performance for New, 

Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and 

Natural Gas Sector Climate Review, 86 Fed. Reg. 63110, 63261 (Nov. 15, 2021) (to be codified 

at 40 C.F.R. pt. 60) (“The EPA believes that the GHG emission reductions resulting from 

implementation of these proposed standards and guidelines, if finalized will further improve 

children’s health.”); U.S. EPA, Climate Change and Children’s Health and Well-Being in the 

United States 4 (Apr. 2023), https://www.epa.gov/system/files/documents/2023-

04/CLiME_Final%20Report.pdf (“Children are uniquely vulnerable to climate change . . . . 

Climate impacts experienced during childhood can have lifelong consequences stemming from 

effects on learning, physical development, chronic disease, or other complications.”); see also 

supra, Introduction (public statements of the Biden Administration).

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and refusing to address the substantive content of the Second Amended Complaint. See supra, Part 

I; Appendix A. Defendants have failed to show clear error, changed law, new evidence, changed 

circumstances, or manifest injustice in this Court’s prior rulings on these same issues. Pursuant to 

the Federal Rules of Civil Procedure, “[b]y presenting to the court a pleading, written motion, or 

other paper—whether by signing, filing, submitting, or later advocating it—an attorney or 

unrepresented party certifies that . . . it is not being presented for any improper purpose, such as 

to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Fed. R. Civ. P. 

11(b) (emphasis added). “If, after notice and a reasonable opportunity to respond, the court 

determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any 

attorney, law firm, or party that violated the rule or is responsible for the violation.”18

The Ninth Circuit has held that pretrial motions that effectively repeat previously 

unsuccessful or decided arguments against the same party may constitute harassing behavior under 

Rule 11, even absent direct evidence of harassment.19 See, e.g., Nugget Hydroelectric, L.P. v. Pac. 

Gas & Elec. Co., 981 F.2d 429, 439 (9th Cir. 1992) (affirming that a “second motion to compel 

largely duplicated [a] first motion to compel, which earlier had been denied,” so raising 

“sufficiently similar” arguments could be inferred as harassment); Theede v. United States, 972 

18 Plaintiffs are aware that requesting any formal sanctions under Rule 11(c) would require a 

motion made separately and served upon Defendants at least 21 days before being filed with the 

Court or, alternatively, a finding “[o]n the Court’s Initiative” that the other party must show cause. 

Fed. R. Civ. P. 11(c). At this time, Plaintiffs do not seek to file this Rule 11 motion, but to put 

Defendants on notice and flag for this Court that Defendants’ current and continued actions would 

justify such a motion.

19 Bent on inundating Plaintiffs and this Court with additional pleadings, Defendants just informed 

Plaintiffs of two additional motions Defendants anticipate filing this week: (1) a motion for

certification for interlocutory review under 28 U.S.C. § 1292(b) of the Court’s order granting leave 

to file an amended complaint (ECF No. 540); and (2) a motion to stay litigation pending resolution 

of Defendants’ motion to dismiss, the request to certify any denial of that motion for interlocutory 

review (ECF No. 547), and the motion to certify the order granting leave to amend the complaint.

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F.2d 1343 (9th Cir. 1992) (affirming that “repeated motions for default judgments in complete 

disregard of the district court’s unequivocal refusal to grant the motions” was frivolous); see also

Aetna Life Ins. Co. v. Alla Med. Servs., Inc., 855 F.2d 1470, 1477 (9th Cir. 1988) (explaining that 

“the motion [to dismiss] in this case may warrant sanctions under the improper purposes prong of 

Rule 11 because the cumulative effect of the Defendants’ litigation tactics could indicate the 

motion was filed for an improper purpose”).

In this case, the instant Motion to Dismiss raises issues and arguments addressed by this 

Court’s prior orders and the Ninth Circuit. See Appendix A. In doing so, Defendants ignore this 

Court’s denial of their first Motion to Dismiss, Motion for Judgment on the Pleadings, Motion for 

Summary Judgment, as well as this Court’s order to file an amended complaint, and the Ninth 

Circuit’s holding that only definitively reversed prior orders due to the second prong of 

redressability. See id. Defendants’ conduct in repeating previously decided arguments is made all 

the more pernicious by the fact that they do not mention, let alone analyze, any of the new 

allegations in Plaintiffs’ Second Amended Complaint designed to cure the redressability concerns 

identified by the Ninth Circuit.

Second, Defendants are obliged to meet and confer with Plaintiffs before filing a motion 

to make “a good faith effort through personal or telephone conferences to resolve the dispute.” 

L.R. 7-1(a)(1)(A). Defendants are in violation of Local Rule 7-1(a)(1)(A) because there was no 

“good faith effort . . . to resolve the dispute” when there is no one on Defendants’ side of the call 

who can even attempt to “resolve the dispute,” much less make a good faith effort. See Appendix 

B (July 3, 2023 letter from Plaintiffs’ counsel to Defendants’ counsel). Throughout the course of 

this litigation, Defendant’s counsel has represented that the decisions and instructions on the

motions filed come from “upper management,” including the Solicitor General’s Office or the 

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20

Attorney General’s Office. Counsel have repeatedly stated during meet and confers, including the 

one on June 22, 2023, that “we do not make the decisions” and “we are the messengers.” Each 

time Plaintiffs attempt to confer on substance of the motion, Defendants’ counsel points to “upper 

management” and makes clear that counsel has no authority to confer for the purpose of attempting 

to resolve the dispute as the Local Rule requires. 

Local Rule 7-1(a)(2) requires the parties discuss “each claim, defense, or issue that is the 

subject of the proposed motion.” Defendants’ counsel did not discuss each of Plaintiffs’ claims in 

the Second Amended Complaint and their defenses in the Motion to Dismiss when the parties met 

and conferred on June 22, 2023, instead stating Defendants were filing on grounds that had 

previously been briefed and decided. Even had Defendants discussed each basis for moving to 

dismiss, they would have had no authority to make a good faith effort to resolve any of those 

defenses, even though doing so might have avoided a duplicative motion that ignores this Court’s 

prior orders, is contrary to President Biden’s Executive Orders, is contrary to Supreme Court and 

Ninth Circuit precedent, and reargues issues decided many times over by the courts.

With respect to Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint, 

counsel inaccurately and intentionally misrepresented Plaintiffs’ position to the Court:

In compliance with Local Rule 7-1, on June 22, 2023, the Parties conferred 

telephonically to resolve the dispute that informs this motion to dismiss and the 

request to certify any order denying the motion to dismiss for interlocutory appeal. 

Plaintiffs indicated that they oppose both the motion to dismiss and the request to 

certify for interlocutory appeal. 

MTD. On June 22, Plaintiffs set forth their position by email and requested Defendants’ counsel 

include that language as part of the motion: 

Plaintiffs oppose both the Motion to Dismiss and request to certify for interlocutory 

appeal because, as Defendants acknowledged during the meet and confer, the issues 

being raised have already been briefed and decided multiple times by both the 

District Court and the 9th Circuit Court of Appeals. It is also Plaintiffs’ position that 

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21

counsel of record lack authority to substantively confer on the motion since the 

decision to file the motion had already been made by the Solicitor General’s Office, 

and/or the Attorney General’s Office, thereby denying plaintiffs an opportunity to 

confer with those attorneys who have the capability to explain and/or modify the 

government’s position.

Third, Defendants repeatedly seek to advance legal arguments that are wholly incompatible 

with their outward public representations. Defendants, who purport to represent the Biden 

Administration, filed this Motion to Dismiss to bar these young Plaintiffs from finally presenting 

evidence at trial of the harms they are suffering, to avoid working with youth on addressing the 

climate crisis that the federal government ostensibly views as an “existential threat” that children 

will “inherit the worst impacts of,” and to deny the need to address problems Defendants have 

already conceded are within their “duty.” See supra, Introduction. Defendants have therefore 

pursued a factual and legal approach that is directly contrary to the Biden Administration’s express 

position.

Fourth, in their Motion to Dismiss, Defendants incorrectly claim that “[n]o court has held 

that the climate system or atmosphere is protected by a public trust doctrine.” MTD at 28. In fact, 

the Hawai‘i Supreme Court has already recognized that the public trust relates to “protection of 

air and other trust resources affected by climate change.” In re Maui Elec. Co., Ltd. (MECO I), 

506 P.3d 192, 202 n.15 (Haw. 2022); see also In re Hawai‘i Elec. Light Co., Inc. (MECO II), 526 

P.3d 329, 347-48 (Haw. 2023) (Wilson, J., concurring) (“The climate system is a ‘natural resource’ 

held in trust by the State for the benefit of present and future generations . . . . The climate system 

also encompasses all other natural resources, including ‘land, water, [and] air.’ In order for the 

other natural resources mentioned in Article XI, section 1 to be conserved for future generations, 

the level of atmospheric CO2 must be reduced to below 350 ppm. That is, Hawaiʻi’s beauty, land, 

water, air, minerals and energy sources all depend upon a stable climate system, and a stable 

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climate system is only possible if atmospheric CO2 concentrations are limited to below 350 ppm.”) 

(internal citation omitted). Other courts have similarly found that the atmosphere is a public trust 

resource. See, e.g., Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221, 1225 (N.M. 

Ct. App. 2015) (“We agree that Article XX, Section 21 of our state constitution recognizes that a 

public trust duty exists for the protection of New Mexico’s natural resources, including the 

atmosphere, for the benefit of the people of this state.”); Bonser-Lain v. Texas Comm’n on Env’t

Quality, 2012 WL 3164561 (Tex. Dist. Aug. 2, 2012), rev’d on other grounds, Texas Comm’n on 

Env’t Quality v. Bonser-Lain, 438 S.W.3d 887 (Tex. App. 2014).

V. Interlocutory Appeal Should Be Denied as Certifying this Case Will Harm 

Plaintiffs and Result in Manifest Injustice.

Continuing their long-standing tactic of delaying Plaintiffs’ day in court by any means 

necessary, Defendants again ask this Court to certify the resulting order on the Motion to Dismiss

for yet another interlocutory appeal. In doing so, Defendants in effect are asking this Court to 

“abandon the deeply-held distaste for piecemeal litigation.” Richardson-Merrell, Inc. v. Koller, 

472 U.S. 424, 440 (1985). As this Court has previously stated, interlocutory appeals are “certainly 

the exception rather than the rule.” Juliana v. United States, No. 6:15-CV-01517-AA, 2018 WL 

6303774, at *2 (D. Or. Nov. 21, 2018). In their Motion to Certify, Defendants made no showing 

as to why a second interlocutory appeal would clear that high bar. Certifying this appeal “would 

only result in increased complexity and additional delay.” Mowat Const. Co. v. Dorena Hydro, 

LLC, No. 6:14-CV-00094-AA, 2015 WL 5665302, at *14 (D. Or. Sept. 23, 2015). The Court 

should deny this request to certify and grant Plaintiffs the opportunity to proceed to trial on the 

merits, an opportunity Plaintiffs were promised nearly five years ago.

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A. This Court is Not Required to and Should Not Certify any of its Orders.

Under 28 U.S.C. § 1292(b), the district court has discretion to certify a case for 

interlocutory appeal only where the court is “of the opinion that [it] involves a controlling question 

of law” as to which there is “substantial ground for difference of opinion” and where “an 

immediate appeal from the order may materially advance the ultimate termination of the 

litigation.” Satisfaction of these three requirements is a “minimum” for certification. Nat’l 

Asbestos Workers Med. Fund. v. Phillip Morris, Inc., 71 F. Supp. 2d 139, 162 (E.D.N.Y. 1999)

(cited in Teem v. Doubravsky, No. 3:15-cv-00210-ST, 2016 U.S. Dist. LEXIS 13452, at *3 (D. Or. 

Jan. 7, 2016)). This Court retains unfettered discretion to deny Defendants’ Motion to Certify. 

Mowat Const. Co., 2015 WL 5665302, at *5. It is for “district judges to determine whether an 

immediate appeal will promote judicial efficiency.” Juliana v. United States, 949 F.3d 1125, 1126 

(9th Cir. 2018) (Friedland, J., dissenting). Since this Court clearly found that the case would benefit 

from a trial on the merits, Amend Order at 8 (“[a] party should be allowed to test his claims on the 

merits rather than on a motion to amend . . . .”), no certification should be granted. 

The grounds on which this Court previously certified the case for interlocutory appeal—

namely, the then-recent orders issued by the Supreme Court and the Ninth Circuit with respect to 

Plaintiffs’ First Amended Complaint—have already been reviewed in the previous interlocutory 

appeal and no longer justify interlocutory appeal at this stage. Further appeal would result in delay, 

inefficiency, and the parties re-briefing the same issues. This Court already stated the recent 

holding in Uzuegbunam, together with the new allegations in Plaintiffs’ Second Amended 

Complaint (which Defendants do not reference in their Motion), resolved the singular issue with 

which the Ninth Circuit disagreed with this Court. Amend Order at 13-14. Hence, Defendants’ 

argument that “[t]his Court granted a motion to certify most of the same issues for interlocutory 

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appeal” weighs in favor of denying a second interlocutory appeal. MTD at 34. At this point, 

Plaintiffs should finally be afforded their right to put their evidence on at trial.

B. There are no “Controlling Questions of Law” That Warrants Interlocutory 

Appeal.

“While Congress did not specifically define what it meant by ‘controlling,’ the legislative 

history of 1292(b) indicates that this section was to be used only in exceptional situations . . . at 

the very least, a controlling question of law must encompass ‘every order which, if erroneous, 

would be reversible error on final appeal.’” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th 

Cir. 1981) (internal citations omitted); see also In re Auto. Breakthrough Sciences, Inc., 1996 

F.T.C. LEXIS 478, at *1-2 (Nov. 5, 1996) (A question of law is deemed controlling “only if it may 

contribute to the determination, at an early stage, of a wide spectrum of cases,” and not merely “a 

question of law which is determinative of the case at hand.”). As detailed above, this Court has 

already ruled on the issues Defendants raise in their Motion to Dismiss and found the issues do not 

present grounds for dismissal. See Amend Order at 9-10 (holding that the Ninth Circuit’s mandate 

did not prohibit Plaintiffs from filing additional pleadings), 15 (finding that Plaintiffs have 

standing), 18 (finding that redress is within the power of the Court). Defendants present no 

argument for why this Court should revisit its holding in the order granting leave to file a Second 

Amended Complaint. In fact, Defendants do not engage with this Court’s reasoning in requesting 

certification, aside from briefly stating their belief that “the Court should never have granted leave 

to file [the Second Amended] complaint.” MTD at 34. Defendants make no attempt to show why 

their request clears the aforementioned bar of an exceptional situation required to warrant 

certification for interlocutory appeal. In re Cement, 673 F.2d at 1026.

Defendants willfully ignore that one of the issues they raise has already been resolved on 

appeal to the Ninth Circuit. Consider Defendants’ contention that there remains a question of 

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whether “[p]laintiffs are required to bring their constitutional challenges . . . under the APA.” MTD 

at 33. The Ninth Circuit explicitly found that “[w]hatever the merits of the plaintiffs’ claims, they 

may proceed independently of the review procedures mandated by the APA.” Juliana, 947 F.3d at

1167-68. This failure to accept law of the case and contend with the orders of this Court and the 

Ninth Circuit is illustrative of the DOJ’s contempt shown for ordinary practices of litigation in this 

case.

C. Defendants Fail to Show a Substantial Ground for Difference of Opinion

With Respect to the Partial Redress that Declaratory Judgment Will 

Provide.

Defendants’ Motion to Certify wholly fails to meet their burden to show that there is a 

substantial ground for a difference of opinion on declaratory judgment providing important

redress, as required by § 1292(b), particularly when the Supreme Court is clear in Uzuegbunam

that such equitable relief provides redress. Defendants base their argument on the now nearly fiveyear old Supreme Court order, preceding Uzuegbunam and based on Plaintiffs’ prior complaint 

which has now been amended, finding that “the justiciability of [Plaintiffs’] claims presents 

substantial grounds for difference of opinion.” MTD at 33 (citing ECF No. 330-1). Even if there 

were a difference of opinion on this question based on the scope of the relief requested in the prior 

complaint, the Court should not use its discretion to further delay the resolution of that question 

on the merits, where a full trial record will make clear and very likely eliminate the difference of 

opinion that some judges might perceive exist pre-trial. The issue of redressability can always be 

appealed after final judgment. 

D. Interlocutory Appeal Would Not “Materially Advance the Ultimate 

Termination of the Litigation.”

The final requirement under § 1292(b) is that interlocutory appeal must “materially 

advance the ultimate termination of the litigation.” The opposite is true in this case—rather than 

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26

facilitating proceedings, Defendants’ request for interlocutory appeal is yet another stalling tactic 

meant to further delay a case that has been ongoing for almost eight years. Aside from the Second 

Amended Complaint addressing the issue identified by the Ninth Circuit, there has been no 

development in this case for the Court of Appeals to review. Each issue raised by Defendants 

requires presentation of evidence at trial for the “case [to develop] far enough to permit considered 

appellate disposition of the questions presented.” 16 Charles Alan Wright, Arthur R. Miller, & 

Edward H. Cooper, Federal Practice & Procedure § 3930 (3d. ed. 2012); see also id. at n.41 

(describing cases where questions of standing were insufficient grounds to allow interlocutory 

appeal). Where “the question presented should await further ripening,” the granting of an 

interlocutory appeal is premature and would only serve to delay proceedings. Molybdenum Corp. 

of Am. v. Kasey, 279 F.2d 216, 217 (9th Cir. 1960). Such is the case here. If Defendants remain 

concerned about “additional litigation that is protracted, expensive, and disruptive,” MTD at 34, 

Plaintiffs invite Defendants to cease their stream of endless procedural motions and support 

Plaintiffs’ efforts to swiftly bring this case to trial. Had Plaintiffs’ trial proceeded in 2018, this case 

would have been resolved on final judgment with all appeals completed by now.

E. Interlocutory Appeal Would Significantly Prejudice Plaintiffs.

There is no dispute that allowing “‘business as usual’ CO2 emissions” to continue will

cause Plaintiffs “dangerous and unacceptable economic, social, and environmental risks.” Defs.’ 

Answer to First Am. Compl. ¶ 150, ECF No. 98. This danger has continued to be recognized and 

publicly acknowledged by Defendants. See supra, Introduction. It follows that any attempt to 

further delay these proceedings would exacerbate Plaintiffs’ injuries and further delay resolution 

of their claims amidst an ever-worsening climate crisis. Interlocutory appeal will “serve only to 

squander the valuable time and resources of the judiciary and parties through piecemeal appellate 

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27

review of an undeveloped factual record, thereby lengthening and protracting this litigation.” Pls.’ 

Resp. in Opp’n to Defs.’ Mot. to Certify Order for Interloc. Appeal at 2, ECF No. 133. 

By this Motion to Dismiss, Defendants raise the same issues they have brought up time 

and time again while entirely failing to respond to any of this Court’s prior orders with no regard 

for the harm these delay tactics cause Plaintiffs, the cost they impose on the judicial system, and 

the disregard Defendants show for Rule 11. See supra, Part III. Since this case was first filed, 

Oregon alone has faced three of its ten hottest years on record, the worst air quality ever recorded 

in all of its metro areas, and one of the most destructive wildfire seasons the State has ever seen.20

In the country at large, the Climate Extremes Index reached four of its ten highest levels in the past 

seven years21 and millions of Americans have been exposed to dangerous air quality conditions 

due to climate change-induced wildfires.22 The urgency of the issues presented in this litigation

cannot be denied. Any further delay in the resolution of this case will produce even more 

irreversible harm to Plaintiffs. For these reasons, as well as the reasons stated in Pls.’ Resp. in 

Opp’n to Defs.’ Mot. to Certify Order for Interloc. Appeal, ECF No. 133, Plaintiffs request this 

Court exercise its broad discretion to deny any request for interlocutory appeal to facilitate this 

case’s prompt road to trial.

20 See Sixth Oregon Climate Assessment, Oregon Climate Change Research Institute (Erica

Fleishman ed., 2023); John T. Abatzoglou et al., Compound Extremes Drive the Western Oregon 

Wildfires of September 2020, 48 Geophysical Rsch. Letters e2021GL092520, 7 (2021) (“The 

extent of burned areas . . . during the 2020 Labor Day fires has no contemporary local analog.”).

21 Nat’l Centers for Env’t Info., U.S. Climate Extremes Index (CEI), 

https://www.ncei.noaa.gov/access/monitoring/cei/graph/us/01-12/cei (last visited July 6, 2023).

22 Brendan O’Brien, Canadian wildfire smoke spreads, 100 million Americans under air-quality 

alerts, Reuters (June 29, 2023), https://www.reuters.com/world/us/smoke-canadian-wildfiressettles-over-us-midwest-east-2023-06-29/.

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28

CONCLUSION

For the foregoing reasons, this Court should deny Defendants’ Motion to Dismiss Second 

Amended Complaint and Motion to Certify and set a date to promptly commence trial.

DATED this 6th day of July, 2023.

/s/ Philip L. Gregory

PHILIP L. GREGORY (pro hac vice)

pgregory@gregorylawgroup.com 

Gregory Law Group 

1250 Godetia Drive

Redwood City, CA 94062

Tel: (650) 278-2957

JULIA A. OLSON (OR Bar 062230)

julia@ourchildrenstrust.org

Our Children’s Trust

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825

ANDREA K. RODGERS (OR Bar 041029)

andrea@ourchildrenstrust.org

Our Children’s Trust

3026 NW Esplanade

Seattle, WA 98117

Tel: (206) 696-2851

Attorneys for Plaintiffs

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 36 of 45
Appendix A

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 37 of 45
1

Juliana v. United States

ISSUES RAISED IN SECOND MOTION TO DISMISS

THAT WERE PREVIOUSLY BRIEFED AND DECIDED

Issue Raised in 

Motion to Dismiss

Prior Briefing on 

the Issue Raised

Decision by a Court

on the Issue Raised

Rule of Mandate

Requires Dismissal

Second MTD 10-11

Mot. for Leave to 

File Second Am. 

Compl.: 

Doc. 468 at 7-10

Doc. 469 at 2-6 

Juliana v. United States, No. 6:15-CV-01517-

AA, 2023 WL 3750334, at *5 (D. Or. June 1, 

2023) (“Here, this Court does not take lightly 

its responsibility under the rule of mandate. 

Rather, it considers plaintiffs’ new factual 

allegations under the Declaratory Judgment 

Act, and amended request for relief in light of 

intervening recent precedent, to be a new issue 

that, while discussed, was not decided by the 

Ninth Circuit in the interlocutory appeal. Nor 

did the mandate expressly state that plaintiffs 

could not amend to replead their case—

particularly where the opinion found a narrow 

deficiency with plaintiffs’ pleadings on 

redressability. This Court therefore does not 

interpret the Ninth Circuit’s instructions as 

mandating it “to shut the courthouse doors” on 

plaintiffs’ case where they present newly 

amended allegations. San Francisco Herring 

Ass’n, 946 F.3d at 574.”)

No Case or

Controversy under

Article III (English

Court of Chancery)

Second MTD 17-19

Motion for Summary 

Judgment (“MSJ”): 

Doc. 207 at 21-22

Doc. 255 at 41 

Doc. 315 at 28

Appeal (18-36082): 

DktEntry 16 at 24-27 

DktEntry 37 at 29-32 

DktEntry 100 at 15-

17

Motion for Judgment 

on the Pleadings 

(“MJP”):

Doc. 195 at 22-25

Juliana v. United States, 339 F. Supp. 3d 1062, 

1085 (D. Or. 2018) (“The Court remains 

mindful, however, that it is ‘emphatically the 

province and duty of the judicial department to 

say what the law is.’”); id. at 1085-86 (“Courts 

have an obligation not to overstep the bounds 

of their jurisdiction, but they have an equally 

important duty to fulfill their role as a check 

on any unconstitutional actions of the other 

branches of government.”)

Appendix A

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 38 of 45
2

Oral Argument

Transcripts:

District Court

Doc. 67 at 6:1-5

Doc. 82 at 24:10-

29:24

Doc. 329 at 10:18-23, 

19:9-15, 20:5-15, 

76:4-24

Ninth Circuit

June 4. 2019 at 4:14-

25, 21:12-23:6

No Constitutional

Right to a Stable

Climate System

Second MTD 19-21

First Motion to

Dismiss (“First 

MTD”): 

Doc. 27-1 at 20-22 

Doc. 57 at 11

MSJ: 

Doc. 207 at 25 

Doc. 255 at 42-46 

Doc. 315 at 29 

Appeal (18-36082): 

DktEntry 16 at 35-38 

DktEntry 37 at 40-50 

DktEntry 100 at 23-

25

MJP:

Doc. 195 at 6-7

Oral Argument

Transcripts:

District Court

Doc. 67 at 20:14-18, 

21:17-19

Doc. 82 at 9:25-10:5

Doc. 392 at 23:7-11, 

32:17-24

Juliana v. United States, 217 F. Supp. 3d 1224, 

1250 (2016) (“Exercising my ‘reasoned 

judgment,’ . . . I have no doubt that the right to 

a climate system capable of sustaining human 

life is fundamental to a free and ordered 

society.”); id. (“where a complaint alleges 

governmental action is affirmatively and 

substantially damaging the climate system in a 

way that will cause human deaths, shorten 

human lifespans, result in widespread damage 

to property, threaten human food sources, and 

dramatically alter the planet’s ecosystem, it 

states a claim for a due process violation.”)

Juliana v. United States, 339 F. Supp. 3d 1062, 

1097-98 (D. Or. 2018) (“The Court addressed 

these arguments in the previous order, and 

nothing in the current briefing persuades the 

Court to change its previous rationale.”); id. at 

1098 (“As such, the Court finds no reason to 

re-examine the previous ruling on the 

existence of this due process right. Moreover, 

further factual development of the record will 

help this Court and other reviewing courts 

better reach a final conclusion as to plaintiffs’ 

claims under this theory.”)

Juliana v. United States, 947 F.3d 1159, 1169-

70 (9th Cir. 2020) (“Reasonable jurists can 

disagree about whether the asserted 

constitutional right exists. . . . In analyzing 

Appendix A

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 39 of 45
3

Ninth Circuit

June 4, 2019 at 

52:12-57:22, 63:1-

65:10, 66:18-21

redressability, however, we assume its 

existence.”)

Failure to Allege

Cognizable StateCreated Danger

Claim

Second MTD 21-24

First MTD: 

Doc. 41 at 5-9 

Doc. 57 at 13-14 

MSJ: 

Doc. 207 at 26-27 

Doc. 255 at 46-49 

Doc. 315 at 32-36 

Appeal (18-36082): 

DktEntry 16 at 38-42 

DktEntry 37 at 50-54 

DktEntry 100 at 25-

28 

Oral Argument

Transcripts:

District Court

Doc. 67 at 22:21-24:3

Doc. 82 at 10:11-

12:10, 27:1-28:7

Doc. 329 at 36:21-

37:9

Ninth Circuit

June 4, 2019 at 65:8-

10, 66:21-67:3

Juliana v. United States, 217 F. Supp. 3d 1224, 

1252 (2016) (“Accepting the allegations of the 

complaint as true, plaintiffs have adequately 

alleged a danger creation claim.”); id. 

(“Plaintiffs have alleged that defendants played 

a significant role in creating the current 

climate crisis, that defendants acted with full 

knowledge of the consequences of their 

actions, and that defendants have failed to 

correct or mitigate the harms they helped 

create in deliberate indifference to the injuries 

caused by climate change.”)

Juliana v. United States, 339 F. Supp. 3d 1062, 

1101 (2018) (“At this stage of the proceedings, 

plaintiffs have introduced sufficient evidence 

and experts’ opinions to demonstrate a 

question of material fact as to federal 

defendants’ knowledge, actions, and alleged 

deliberate indifference.”)

No Federal Public

Trust Doctrine

Second MTD 24-26

First MTD: 

Doc. 27-1 at 28-29

Doc. 41 at 19-27

Doc. 57 at 20-23 

MSJ: 

Doc. 207 at 27-29

Doc. 255 at 49-52

Doc. 315 at 36-38 

Juliana v. United States, 217 F. Supp. 3d 1224, 

1259 (2016) (“The federal government, like 

the states, holds public assets—at a minimum, 

the territorial seas—in trust for the people. 

Plaintiffs’ federal public trust claims are 

cognizable in federal court.”); id. at 1260 (“I 

conclude plaintiffs’ public trust rights both 

predated the Constitution and are secured by 

it.”)

Juliana v. United States, 339 F. Supp. 3d 1062, 

1101-02 (D. Or. 2018) (“[T]he November 2016 

Order extensively covered this legal argument, 

Appendix A

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 40 of 45
4

Appeal (18-36082): 

DktEntry 16 at 48-52

DktEntry 37 at 54-56

DktEntry 100 at 29-

30 

Oral Argument

Transcripts:

District Court

Doc. 67 at 6:6-11:11,

43:18-48:14

Doc. 82 at 17:20-

18:18, 25:2-26:19,

33:5-36:17

Ninth Circuit

June 4, 2019 at 67:4-

8

and the Court finds no need to revisit its 

analysis based on the nearly identical 

arguments in this motion. See Juliana, 217 

F.Supp.3d at 1252-1261. The Court does not 

find that its previous order, holding that the 

public trust doctrine is deeply rooted in our 

nation’s history and that plaintiffs’ claims are

viable was clearly erroneous.”)

Climate

System/Atmosphere

Not Subject to the

Public Trust

Second MTD 27-28

First MTD: 

Doc. 41 at 27-29

Doc. 57 at 21

MSJ: 

Doc. 207 at 27

Doc. 255 at 50, 52

Doc. 315 at 36-38 

Appeal (18-36082): 

DktEntry 16 at 54-57

DktEntry 37 at 59-60

DktEntry 100 at 32-

33

Oral Argument

Transcripts:

District Court

Doc. 67 at 11:12-12:7

Doc. 82 at 18:19-19:5

Juliana v. United States, 217 F. Supp. 3d 1224, 

1255 (2016) (“I conclude that it is not 

necessary at this stage to determine whether 

the atmosphere is a public trust asset because 

plaintiffs have alleged violations of the public 

trust doctrine in connection with the territorial 

sea.”)

No Equal Protection

Claim

Second MTD 29-31

First MTD: 

Doc. 27-1 at 23-26

Doc. 41 at 9-19

Doc. 57 at 14-19

Juliana v. United States, 947 F.3d 1159, 1165

n.3 (9th Cir. 2020) (“The court found that age 

is not a suspect class, but allowed the equal 

protection claim to proceed on a fundamental 

rights theory.”)

Appendix A

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 41 of 45
5

MSJ:

Doc. 207 at 24 n.8

Doc. 255 at 53

Doc. 315 at 39 n.11

Appeal (18-36082): 

DktEntry 16 at 43-47

DktEntry 37 at 6-7

Oral Argument

Transcripts: 

District Court

Doc. 67 at 24:4-10, 

25:10-21, 26:3-29:20, 

39:18-43:17.

Doc. 82 at 28:8-21

Doc. 329 at 35:23-

36:2

Juliana v. United States, 339 F. Supp. 3d 1062, 

1103-04 (D. Or. 2018) (“However, the 

rejection of plaintiffs’ proposed suspect class 

does not fully resolve their equal protection 

claim. As explained above, strict scrutiny is 

also triggered by alleged infringement of a 

fundamental right. Wright, 665 F.3d at 1141. 

Plaintiffs’ equal protection claim rests on 

alleged interference with their right to a 

climate system capable of sustaining human 

life—a right the Court has already held to be 

fundamental. Juliana, 217 F. Supp. 3d at 1249-

50; . . . . Plaintiffs’ equal protection and due 

process claims both involve violation of a 

fundamental right and, as such, must be 

evaluated through the lens of strict scrutiny, 

which would be aided by further development 

of the factual record.”)

Action Must Have

Been Brought Under

the Administrative

Procedure Act

(“APA”)

Second MTD 32

MSJ:

Doc. 207 at 1, 16-19

Doc. 255 at 29-36

Doc. 315 at 21-23

Appeal (18-36082):

DktEntry 16 at 27-35

DktEntry 37 at 33-37

DktEntry 100 at 18-

23

MJP:

Doc. 195 at 11-22

Oral Argument

Transcripts:

District Court

Doc. 67 at 17:18-22

Doc. 329 at 16:1-10, 

17:11-18:4

Ninth Circuit

June 4, 2019 at 54:1-

9, 58:7-18

Juliana v. United States, 947 F.3d 1159, 1167 

(9th Cir. 2020) (“The government . . . first 

argues that those claims must proceed, if at all, 

under the APA. We reject that argument . . . . 

Because the APA only allows challenges to 

discrete agency decisions . . . the plaintiffs 

cannot effectively pursue their constitutional 

claims—whatever their merits—under that 

statute.”)

Appendix A

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 42 of 45
Appendix B

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 43 of 45
1

July 3, 2023

Re: Juliana v. United States; Defendants’ Lack of Compliance with L.R. 7-1(a)

Sean and Frank,

By this letter, we are putting Defendants on notice and raising a standing objection to your 

violations of Fed. R. Civ. P. 7 and L.R. 7-1(a), due to the non-compliant “meet and confer” phone 

calls we have with you. It is our opinion that Defendants are in violation of the Local Rules by not 

bringing to meet and confer sessions the parties or the attorneys within DOJ who have the power 

to, in fact, confer in accordance with the Rules. Local Rule 7-1(a) provides:

1) Except for motions for temporary restraining orders, the first paragraph of every motion 

must certify that:

A. In compliance with this Rule, the parties made a good faith effort through personal 

or telephone conferences to resolve the dispute and have been unable to do so; or

B. The opposing party willfully refused to confer; or

C. The moving party or opposing party is a prisoner not represented by counsel.

2) When conferring about a dispositive motion, the parties must discuss each claim, defense, 

or issue that is the subject of the proposed motion.

3) The Court may deny any motion that fails to meet this certification requirement.

4) A party filing a motion should state “UNOPPOSED” in the caption if the other parties to 

the action do not oppose the motion.

L.R. 7-1(a) (emphasis added).

First, Defendants are in violation of L.R. 7-1(a)(1)(A) because there is no “good faith effort . . . to 

resolve the dispute” when no one on Defendants’ side of the call has the ability to even attempt to 

“resolve the dispute,” much less make a good faith effort. You have repeatedly stated throughout 

the course of this litigation that the decisions and instructions on how you litigate this case and 

what motions you file are coming from “upper management.” Sometimes you have specifically 

represented that the decisions are coming from the Solicitor General’s Office or the Attorney 

General’s Office. When we have asked to have a substantive discussion, you have not been willing 

to engage in discussion and respond with, “we do not make the decisions.” You have stated, “we 

are the messengers.” Each time we attempt to confer, you punt to “upper management” and make 

it clear you have no authority to confer for the purpose the Rule indicates. Further, you have not 

made these members of “upper management” available when we have asked to speak with them. 

As a result, there is no meaningful meet and confer when we are conferring with the messengers 

who have no authority to make a different decision or alter a motion. That nullifies the purpose of 

the Rule and is an utter waste of our time and resources.

Second, L.R. 7-1(a)(2) requires the parties discuss “each claim, defense, or issue that is the subject 

of the proposed motion.” You did not discuss each of Plaintiffs’ claims and Defendants’ defenses 

when we met and conferred on June 22, 2023 regarding Defendants’ Motion to Dismiss Plaintiffs’ 

Second Amended Complaint. Again, you would have had no authority to make a good faith effort 

to resolve any of those defenses even if you had walked through each one, which you did not do. 

Appendix B

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 44 of 45
2

Doing so might have avoided a motion that ignores the law of the case, is contrary to President 

Biden’s Executive Orders, is contrary to Supreme Court and Ninth Circuit precedent, and reargues 

issues decided many times over by the courts.

Third, with respect to Defendants’latest motion to dismiss, you misrepresented Plaintiffs’ position 

and your compliance with the Local Rule. In Defendants’ Motion to Dismiss Plaintiffs’ Second 

Amended Complaint, you inaccurately represented to the Court:

In compliance with Local Rule 7-1, on June 22, 2023, the Parties conferred telephonically 

to resolve the dispute that informs this motion to dismiss and the request to certify any 

order denying the motion to dismiss for interlocutory appeal. Plaintiffs indicated that they 

oppose both the motion to dismiss and the request to certify for interlocutory appeal. (Doc. 

547 at 2).

We wrote to you on June 22, 2023, prior to your filing the motion, requesting that Defendants

include the following language as Plaintiffs’ position on your motion:

Plaintiffs oppose both the Motion to Dismiss and request to certify for interlocutory appeal 

because, as Defendants acknowledged during the meet and confer, the issues being raised 

have already been briefed and decided multiple times by both the District Court and the 

9

th Circuit Court of Appeals. It is also Plaintiffs’ position that counsel of record lack 

authority to substantively confer on the motion since the decision to file the motion had 

already been made by the Solicitor General’s Office, and/or the Attorney General’s Office, 

thereby denying plaintiffs an opportunity to confer with those attorneys who have the 

capability to explain and/or modify the government’s position.

You responded by email stating that you would not include our position in your motion and thereby 

misrepresented Plaintiffs’ position by crafting your own description of our position.

It was an inaccurate statement to assert that Defendants complied with Local Rule 7-1(a) and 

conferred on Defendants’motion. As we stated during the phone call on June 22 and in our followup email to you, there was no “meet and confer” pursuant to the Local Rule. There was a phone 

call where you told us you had no decision-making authority to resolve the dispute, where you did 

not discuss each claim and defense, and where you made clear you were messengers with no 

authority to meaningfully comply with the Local Rule. The call was a sham as you had no authority 

to make “a good faith effort through personal or telephone conferences to resolve the dispute.”

L.R. 7-1(a).

As you know, the Court may deny any motion where Defendants have not complied with this Local 

Rule. The next time there is a motion or petition to confer on, we expect someone with decisionmaking authority to be on the call so that we can meaningfully discuss both Defendants’ position 

and Plaintiffs’ position in full compliance with Local Rule 7-1(a). 

Sincerely,

Julia Olson

Andrea Rodgers

Phil Gregory

Appendix B

Case 6:15-cv-01517-AA Document 549 Filed 07/06/23 Page 45 of 45