No. 18-_____ 

 

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

 

In re UNITED STATES OF AMERICA, et al. 

UNITED STATES OF AMERICA, et al., Petitioners, 

v. 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, 

Respondent, 

and 

KELSEY CASCADIA ROSE JULIANA, et al., Real Parties in Interest.

 

On Petition for a Writ of Mandamus to the United States District Court 

for the District of Oregon (No. 6:15-cv-01517-AA) 

 

PETITION FOR A WRIT OF MANDAMUS AND 

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 

 

Counsel for Petitioners 

JEFFREY BOSSERT CLARK

Assistant Attorney General

JEFFREY H. WOOD 

ERIC GRANT 

Deputy Assistant Attorneys General 

ANDREW C. MERGEN 

SOMMER H. ENGELS 

ROBERT J. LUNDMAN 

Attorneys 

Environment and Natural Resources Division 

U.S. Department of Justice 

Post Office Box 7415 

Washington, D.C. 20044 

(202) 514-0943 

eric.grant@usdoj.gov 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 1 of 69
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CIRCUIT RULE 27-3 CERTIFICATE 

 Pursuant to Circuit Rule 27-3(a), I hereby certify that to avoid irreparable 

harm to Petitioners United States of America, et al. (the government), relief is needed 

in less than 21 days’ time. 

 1. Regarding Circuit Rule 27-3(a)(1), the government notified the Clerk 

earlier today of its intention to file this mandamus petition and emergency motion. 

The government so notified counsel for Real Parties in Interest (Plaintiffs) on 

Sunday, November 4, 2018. The just-finalized petition and motion are being served 

simultaneously with filing both via the district court’s CM/ECF system and via email to the below-stated addresses. 

 2. Regarding Circuit Rule 27-3(a)(3)(i), counsel are as follows: 

Counsel for the Government: 

Eric Grant 

(202) 514-0943 

eric.grant@usdoj.gov 

Andrew C. Mergen 

(202) 514-2813 

andy.mergen@usdoj.gov 

Sommer H. Engels 

(202) 353-7712 

sommer.engels@usdoj.gov 

Robert J. Lundman 

(202) 514-2946 

robert.lundman@usdoj.gov 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 2 of 69
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Environment and Natural Resources Division 

U.S. Department of Justice 

Post Office Box 7415 

Washington, D.C. 20044 

Counsel for Plaintiffs: 

Julia A. Olson 

(415) 786-4825 

JuliaAOlson@gmail.com 

Wild Earth Advocates 

1216 Lincoln Street 

Eugene, Oregon 97401 

Philip L. Gregory 

(650) 278-2957 

pgregory@gregorylawgroup.com 

Gregory Law Group 

1250 Godetia Drive 

Redwood City, California 94062 

Andrea K. Rodgers 

(206) 696-2851 

Andrearodgers42@gmail.com 

Law Offices of Andrea K. Rodgers 

3026 NW Esplanade 

Seattle, Washington 98117 

 3. Regarding Circuit Rule 27-3(a)(3)(ii), the facts showing the existence 

and nature of the claimed emergency are set forth in detail below in in the Statement 

of the Case (pp. 3-10) and in Part III of the Argument (pp. 35-37). In brief, the 

government respectfully requests emergency relief in this matter because it faces a 

trial that Plaintiffs seek to commence as early as “the latter part of the week of 

November 12” (i.e., next week) and that is estimated to last approximately 50 trial 

days, or 10 full weeks. 

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 4. Regarding Circuit Rule 27-3(a)(3)(iii), Plaintiffs’ counsel were notified 

of this mandamus petition and emergency motion via an e-mail sent on Sunday, 

November 4. Plaintiffs’ counsel are being served with the just-finalized petition and 

motion simultaneously with filing both via the district court’s CM/ECF system and 

via e-mail to the above-stated addresses. 

 5. Regarding Circuit Rule 27-3(a)(4), the government is seeking relief 

from the district court in a motion filed earlier today, Monday, November 5. 

s/ Eric Grant 

Eric Grant 

Counsel for Petitioners 

 

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TABLE OF CONTENTS 

CIRCUIT RULE 27-3 CERTIFICATE ...................................................................... i

TABLE OF AUTHORITIES .................................................................................... vi

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

STATEMENT OF JURISDICTION.......................................................................... 2

STATEMENT OF THE ISSUES............................................................................... 2

STATEMENT OF THE CASE .................................................................................. 3

ARGUMENT ........................................................................................................... 10

I. If the district court declines to certify its orders for interlocutory 

appeal under 28 U.S.C. § 1292(b), this Court should issue a writ 

of mandamus directing the district court to dismiss this action .................... 10

A. The government has a right to relief from the district court’s 

refusal to dismiss this fundamentally misguided action ..................... 13

1. The district court clearly and indisputably erred by 

exercising jurisdiction over the action ...................................... 13

a. Plaintiffs lack Article III standing .................................. 13

b. Federal courts may not entertain this action 

in any event ..................................................................... 18

2. The district court clearly and indisputably erred by 

allowing the claims to proceed outside the binding 

framework of the APA .............................................................. 20

3. The district court clearly and indisputably erred by 

allowing the claims to proceed on the merits ........................... 23

a. Substantive due process .................................................. 23

b. Public-trust doctrine ....................................................... 26

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B. The government has no other adequate means to attain 

relief from the district court’s refusal to terminate these 

fundamentally misguided and improper proceedings ........................ 27

C. Mandamus relief is appropriate under the circumstances ................... 31

II. Alternatively, if the district court declines to certify its orders for 

interlocutory appeal under 28 U.S.C. § 1292(b), this Court should 

issue a writ of mandamus directing the district court to do so ...................... 33

III. In any event, this Court should immediately grant a stay of proceedings in the district court pending consideration of this petition ............. 34

CONCLUSION ........................................................................................................ 38

STATEMENT OF RELATED CASES 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE 

 

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TABLE OF AUTHORITIES 

Cases 

Abelesz v. OTP Bank, 

692 F.3d 638 (7th Cir. 2012) ......................................................................... 32 

Alec L. ex rel. Loorz v. McCarthy, 

561 Fed. Appx. 7 (D.C. Cir.), 

cert. denied, 135 S. Ct. 774 (2014) ................................................................ 26 

American Electric Power v. Connecticut, 

564 U.S. 410 (2011)................................................................................. 16, 25 

Armstrong v. Exceptional Child Center, Inc., 

135 S. Ct. 1378 (2015) ............................................................................. 22-23 

Center for Biological Diversity v. U.S. Department of Interior, 

563 F.3d 466 (D.C. Cir. 2009) ....................................................................... 15 

Cheney v. U.S. District Court, 

542 U.S. 367 (2004).................................. 10, 12-13, 19, 27-28, 31-32, 34, 37 

Clapper v. Amnesty International USA, 

568 U.S. 398 (2013)....................................................................................... 14 

DaimlerChrysler Corp. v. Cuno, 

547 U.S. 332 (2006)........................................................................... 13, 19-20 

Drakes Bay Oyster Co. v. Jewell, 

747 F.3d 1073 (9th Cir. 2014) ....................................................................... 35 

Fernandez-Roque v. Smith, 

671 F.2d 426 (11th Cir. 1982) ....................................................................... 33 

Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, 

Inc., 527 U.S. 308 (1999) .............................................................................. 19 

Guaranty Trust Co. v. York, 

326 U.S. 99 (1945) ......................................................................................... 19 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 7 of 69
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Hilton v. Braunskill, 

481 U.S. 770 (1987)....................................................................................... 35 

In re Justices of Supreme Court of Puerto Rico, 

695 F.2d 17 (1st Cir. 1982) ...................................................................... 28, 32 

In re Kellogg Brown & Root, Inc., 

756 F.3d 754 (D.C. Cir. 2014), 

cert. denied, 135 S. Ct. 1163 (2015) ........................................................ 28, 32 

In re Roman Catholic Diocese of Albany, New York, Inc., 

745 F.3d 30 (2d Cir. 2014) ...................................................................... 31-32 

In re United States, 

884 F.3d 830 (9th Cir. 2018) ..................................................................... 5, 34 

In re United States, 

895 F.3d 1101 (9th Cir. 2018) ......................................................................... 6 

In re United States, 

No. 18-72776 (9th Cir. Nov. 2, 2018) ....................................................... 9, 38 

Lexmark International, Inc. v. Static Control Components, 

Inc., 572 U.S. 118 (2014) .............................................................................. 14 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992)................................................................................. 14-17 

Lujan v. National Wildlife Federation, 

497 U.S. 871 (1990)....................................................................................... 22 

Martin v. Franklin Capital Corp., 

546 U.S. 132 (2005)................................................................................. 33-34 

Missouri v. Jenkins, 

515 U.S. 70 (1995) ......................................................................................... 19 

National Audubon Society v. Superior Court, 

33 Cal. 3d 419, 

cert. denied, 464 U.S. 977 (1983).................................................................. 26 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 8 of 69
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Nken v. Holder, 

556 U.S. 418 (2009)....................................................................................... 35 

Norton v. Southern Utah Wilderness Alliance, 

542 U.S. 55 (2004) ......................................................................................... 22 

Obergefell v. Hodges, 

135 S. Ct. 2584 (2015) ................................................................................... 25 

Perez v. Mortgage Bankers Ass’n, 

135 S. Ct. 1199 (2015) ................................................................................... 29 

Plaut v. Spendthrift Farm, Inc., 

514 U.S. 211 (1995)....................................................................................... 18 

PPL Montana, LLC v. Montana, 

565 U.S. 576 (2012)....................................................................................... 26 

Roe v. Wade, 

410 U.S. 113 (1973)....................................................................................... 25 

Schlesinger v. Reservists Committee to Stop the War, 

418 U.S. 208 (1974)....................................................................................... 15 

Seminole Tribe of Florida v. Florida, 

517 U.S. 44 (1996) ......................................................................................... 23 

Simon v. Eastern Kentucky Welfare Rights Organization, 

426 U.S. 26 (1976) ......................................................................................... 17 

Tagg Bros. & Moorhead v. United States, 

280 U.S. 420 (1930)....................................................................................... 30 

Unemployment Compensation Commission v. Aragon, 

329 U.S. 143 (1946)....................................................................................... 30 

United States v. Burr, 

25 F. Cas. 30 (No. 14,692d) (C.C. Va. 1807) ................................................ 33 

United States v. Carlo Bianchi & Co., 

373 U.S. 709 (1963)....................................................................................... 30 

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Vermont Agency of Natural Resources v. United States 

ex rel. Stevens, 529 U.S. 765 (2000) ............................................................. 19 

Warth v. Seldin, 

422 U.S. 490 (1975)....................................................................................... 16 

Washington Environmental Council v. Bellon, 

732 F.3d 1131 (9th Cir. 2013) ................................................................. 16, 18 

Washington v. Glucksberg, 

521 U.S. 702 (1997)....................................................................................... 24 

Webster v. Doe, 

486 U.S. 592 (1988)....................................................................................... 21 

Western Radio Services Co. v. U.S. Forest Service, 

578 F.3d 1116 (9th Cir. 2009), 

cert. denied, 559 U.S. 1106 (2010) ............................................................... 21 

Wilkie v. Robbins, 

551 U.S. 537 (2007)....................................................................................... 21 

Wong Yang Sung v. McGrath, 

339 U.S. 33 (1950) ......................................................................................... 29 

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Constitution, Statutes, and Court Rules 

United States Constitution 

 art. I, § 1 ......................................................................................................... 31 

 art. II, § 1, cl. 1 ............................................................................................... 31 

 art. III, § 1 ...................................................................................................... 18 

Administrative Procedure Act 

 5 U.S.C. § 702 .......................................................................................... 20-21 

 5 U.S.C. § 706 ................................................................................................ 21 

28 U.S.C. § 1291 ...................................................................................................... 27 

28 U.S.C. § 1292 ......................................................... 1-2, 6, 8, 10-11, 27, 33-34, 38 

Clean Air Act, 42 U.S.C. § 7607 ............................................................................. 30 

All Writs Act, 28 U.S.C. § 1651 .......................................................................... 2, 34 

Fed. R. App. P. 21 ...................................................................................................... 2 

9th Cir. General Order 6.8a ...................................................................................... 34 

Other Authority 

16 Charles Alan Wright et al., Federal Practice and Procedure 

(3d ed. 2005 & Supp. 2018) 

 § 3932 ............................................................................................................ 28 

 § 3933.1 ......................................................................................................... 32 

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INTRODUCTION 

 After nearly 19 months of proceedings in this Court and in the Supreme Court 

— encompassing four mandamus petitions and two stay applications — the Supreme 

Court’s November 2, 2018 order points to the appropriate roadmap for this action. 

That order makes clear that it is proper for Petitioners United States of America, et 

al. (the government) to seek a writ of mandamus from this Court directing dismissal 

of Plaintiffs’ action, and the government accordingly files this petition. The order 

also makes clear that the government has satisfied the standard for certification of 

district court orders for interlocutory appeal under 28 U.S.C. § 1292(b). Therefore, 

the government is simultaneously moving the district court reconsider its decision 

declining to certify its orders denying the government’s dispositive motions and to 

stay all proceedings pending resolution of that motion and this petition. 

 If the district court grants certification and stays all proceedings, as the 

Supreme Court has signaled that it should, it will obviate the need for this Court’s 

intervention by way of mandamus. If, however, the district court declines to grant 

certification (despite the Supreme Court’s clear guidance to the contrary), this Court 

would need to intervene to provide the pretrial appellate review contemplated by the 

Supreme Court. The government accordingly submits this petition asking this Court 

— in the event that the district court does not grant the government’s request for 

certification and a stay — either (1) to grant a writ of mandamus ordering dismissal 

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of the action or (2) to grant a writ of mandamus directing the district court to certify 

its decisions on the government’s dispositive motions for interlocutory appeal under 

§ 1292(b); and, in any event, (3) to stay litigation in the district court pending 

resolution of this petition. 

 To be clear, the government hopes that this Court’s intervention through 

extraordinary relief will not be necessary. The government is doing everything in 

its power to persuade the district court to follow the Supreme Court’s guidance and 

to certify its decisions for interlocutory appeal. But if the district court declines to 

do so, this Court should intervene to provide the relief that the Supreme Court has 

expressly stated “may be available in” this Court — and that is plainly warranted 

given the fundamental defects in Plaintiffs’ action. ECF No. 416, at 2. 

STATEMENT OF JURISDICTION 

 This Court has authority to issue the requested relief pursuant to the All Writs 

Act, 28 U.S.C. § 1651(a), and Rule 21 of the Federal Rules of Appellate Procedure. 

STATEMENT OF THE ISSUES 

 1. Whether this Court should issue a writ of mandamus directing the 

district court to dismiss this action. 

 2. Whether, in the alternative, this Court should issue a writ of mandamus 

directing the district court to certify its denials of the government’s dispositive 

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

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 3. Whether, in any event, this Court should immediately grant a stay of 

proceedings in the district court pending consideration of this petition. 

STATEMENT OF THE CASE 

 Plaintiffs are a group of minor children and an organization representing them. 

They brought this action in August 2015 against President Obama (for whom 

President Trump was later substituted), the Executive Office of the President, three 

sub-components within that office, and eight Cabinet departments and agencies for 

allegedly violating their rights under the Constitution and a purported federal public 

trust which, they asserted, conferred on them a substantive right to certain climate 

conditions. See generally ECF No. 7 (operative complaint). Among other relief, 

Plaintiffs asked the district court to order the President and other officials and 

agencies named as defendants to “prepare and implement an enforceable national 

remedial plan to phase out fossil fuel emissions and draw down excess atmospheric 

CO2.” Id. at 94. 

 The government moved to dismiss Plaintiffs’ claims on several grounds, 

including lack of standing, failure to state a cognizable constitutional claim, and 

failure to state a claim on a public trust theory. ECF No. 27. In November 2016, 

the district court denied that motion, ECF No. 83, and it later declined to certify its 

order for interlocutory appeal, ECF No. 172 (June 8, 2017). The court ruled that 

Plaintiffs had established Article III standing by alleging that they had been harmed 

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by the effects of climate change through increased droughts, wildfires, and flooding; 

and that the government’s regulation of (and failure to further regulate) fossil fuels 

had caused Plaintiffs’ injuries. The court further determined that it could redress 

those injuries by “order[ing] Defendants to cease their permitting, authorizing, and 

subsidizing of fossil fuels and, instead, move to swiftly phase out CO2 emissions, as 

well as take such other action necessary to ensure that atmospheric CO2 is no more 

concentrated than 350 ppm by 2100, including to develop a national plan to restore 

Earth’s energy balance, and implement that national plan so as to stabilize the 

climate system.” ECF No. 83, at 28 (quoting complaint); see generally id. at 18-28. 

 On the merits, the district court held that Plaintiffs had stated a claim under 

the Fifth Amendment’s Due Process Clause and a federal public trust doctrine. Id. 

at 28-51. The court found in the Fifth Amendment’s protection against the 

deprivation of “life, liberty, or property, without due process of law,” a previously 

unrecognized fundamental right to a “climate system capable of sustaining human 

life,” and the court determined that Plaintiffs had adequately alleged infringement 

of that fundamental right. ECF No. 83, at 32. The court also held that Plaintiffs had 

adequately stated a claim under a federal public trust doctrine, which it held imposes 

a judicially enforceable prohibition on the federal government against “depriving a 

future legislature of the natural resources necessary to provide for the well-being and 

survival of its citizens.” Id. at 37 (quoting amicus brief in support of Plaintiffs). 

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Plaintiffs’ claims under this public trust rationale, the court concluded, are also 

“properly categorized as substantive due process claims.” Id. at 51. 

 The government petitioned this Court for a writ of mandamus to halt these 

deeply flawed proceedings. This Court stayed the litigation for seven-and-a-half 

months but ultimately denied the petition without prejudice. In re United States, 884 

F.3d 830, 838 (9th Cir. 2018). Specifically, the Court “decline[d] to exercise [its] 

discretion to grant mandamus relief at [that] stage of the litigation.” Id. at 838. The 

Court explained, however, that “[c]laims and remedies often are vastly narrowed as 

litigation proceeds,” and that it had “no reason to assume this case will be any 

different.” Id. The Court observed that the government could continue to “raise and 

litigate any legal objections [it may] have,” id. at 837, and the Court added that the 

government remains free to “seek[] mandamus in the future,” id. at 838. 

 Consistent with this Court’s opinion, the government moved for judgment on 

the pleadings, ECF No. 195, arguing that Plaintiffs’ claims should be dismissed in 

their entirety, and for summary judgment, ECF No. 207, arguing that the district 

court should enter judgment in favor of the government on all of Plaintiffs’ claims. 

The government also moved for a protective order precluding all discovery. ECF 

No. 196. On June 29, 2018, the district court denied the government’s motion for a 

protective order. ECF No. 300. On July 18, 2018, the district court held argument 

on the dispositive motions and took them under advisement. 

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 While the two dispositive motions were still pending and after the district 

court had denied the government’s motion for a protective order barring discovery, 

the government sought relief from both this Court and the Supreme Court. ECF 

No. 308-1; ECF No. 321-1. Both courts denied the requested relief without 

prejudice. This Court determined that “[a]bsent a specific discovery order, 

mandamus relief remains premature.” In re United States, 895 F.3d 1101, 1105 (9th 

Cir. 2018). The Supreme Court denied the government’s application “without 

prejudice” because it was “premature.” ECF No. 330-1. The Court also stated that 

the “breadth of [Plaintiffs’] claims is striking, however, and the justiciability of those 

claims presents substantial grounds for difference of opinion.” Id. It instructed the 

district court to “take these concerns into account in assessing the burdens of 

discovery and trial, as well as the desirability of a prompt ruling on the Government’s 

pending dispositive motions.” Id. The Supreme Court clearly referenced the 

standard for certification in 28 U.S.C. § 1292(b), which provides (emphasis added): 

When a district judge, in making in a civil action an order not otherwise 

appealable under this section, shall be of the opinion that such order 

involves a controlling question of law as to which there is substantial 

ground for difference of opinion and that an immediate appeal from the 

order may materially advance the ultimate termination of the litigation, 

he shall so state in writing in such order. 

 Despite the Supreme Court’s expectation of a “prompt ruling” on the 

government’s dispositive motions, ECF No. 330-1, the district court issued no ruling 

on those motions for more than two months after the Supreme Court’s order, which 

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itself came more than two months after the motions were filed. With the trial date 

of October 29, 2018 just weeks away, the government on October 5 filed another 

stay request in the district court. The government informed the court that it planned 

to file a petition for a writ of mandamus (or, in the alternative, a petition for a writ 

of certiorari) in the Supreme Court, and it asked the district court to stay discovery 

and trial pending the Supreme Court’s resolution of that petition. ECF No. 361. The 

court ultimately denied the request. ECF No. 374. On October 15 — roughly five 

months after the government’s dispositive motions were filed and only two weeks 

before the start of the scheduled trial — the court issued an opinion largely denying 

the motions and declining to certify its ruling for interlocutory appeal. ECF No. 369. 

 The district court granted two narrow aspects of the government’s motions. 

First, the court dismissed the President from the action, but only “without prejudice” 

and while warning that it “is not possible to know how developments to the record 

in the course of the litigation may change the analysis,” such that the court could 

“not conclude with certainty that President Trump will never become essential to 

affording complete relief.” Id. at 18-19. Second, the court granted summary 

judgment to the government on Plaintiffs’ “freestanding claim under the Ninth 

Amendment,” which the court held “not viable as a matter of law.” Id. at 56. 

 The district court otherwise denied the government’s motions. The court 

rejected the government’s argument that Plaintiffs were required to assert only 

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challenges to specific agency actions under the APA, concluding that the “APA does 

not govern” claims seeking equitable relief for alleged constitutional violations 

based on “aggregate action by multiple agencies.” Id. at 25. The court also rejected 

the government’s argument that Plaintiffs had failed to establish standing at the 

summary-judgment stage, largely by reiterating its analysis from the motion-todismiss stage. Id. at 29-45. The court likewise reiterated its earlier holdings on the 

government’s other central arguments. Id. at 25-27, 45-48, 54-55. The court 

addressed Plaintiffs’ equal protection claim for the first time, allowing the claim to 

proceed because it “would be aided by further development of the factual record.” 

Id. at 59. 

 The district court again declined to certify its order for interlocutory appeal 

under 28 U.S.C. § 1292(b), which authorizes certification where (among other 

requirements) an “order involves a controlling question of law as to which there is 

substantial ground for difference of opinion.” See ECF No. 369, at 59-61. The court 

did not address the Supreme Court’s express statement that “the justiciability of 

[Plaintiffs’] claims presents substantial grounds for difference of opinion.” ECF 

No. 330-1. 

 With less than two weeks remaining before the scheduled 10-week trial, the 

government again sought relief from both this Court and the Supreme Court. ECF 

No. 390; ECF No. 391. On October 19, the Chief Justice ordered that “discovery 

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and trial in the [district court] are stayed pending . . . further order of the undersigned 

or of the Court.” ECF No. 399. Consequently, the district court vacated “all trial 

dates and associated deadlines.” ECF No. 404. In light of those developments, this 

Court on Friday, November 2 denied as moot the government’s emergency motion 

for a stay of the trial. In re United States, No. 18-72776, ECF No. 5, at 2. 

 Later that same day, the Supreme Court again denied the government’s 

application for relief “without prejudice,” this time on the ground that “adequate 

relief may be available in the United States Court of Appeals for the Ninth Circuit.” 

ECF No. 416, at 2. The Supreme Court explained: 

 Although the Ninth Circuit has twice denied the Government’s 

request for mandamus relief, it did so without prejudice. And the 

court’s basis for denying relief rested, in large part, on the early stage 

of the litigation, the likelihood that plaintiffs’ claims would narrow as 

the case progressed, and the possibility of attaining relief through 

ordinary dispositive motions. Those reasons are, to a large extent, no 

longer pertinent. The 50-day trial was scheduled to begin on 

October 29, 2018, and is being held in abeyance only because of the 

current administrative stay. 

Id. at 3. The Supreme Court also vacated the Chief Justice’s October 19 order 

temporarily staying discovery and trial in the district court. Id. 

 Still later that same day, Plaintiffs asked the district court for “an immediate 

status conference in order to set a date for the Pre-Trial Conference and the 

commencement of trial.” ECF No. 405. Plaintiffs also made ten pretrial motionrelated filings. ECF Nos. 406-415. As stated in a letter sent to the government on 

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November 3, Plaintiffs “will request that the Court hold the Pre-Trial Conference on 

November 8 or 9,” and that trial commence as early as “the latter part of the week 

of November 12.” Exhibit 2, at 3 (filed concurrently herewith). 

 Earlier today, the government filed a motion asking the district court to 

reconsider its denials of the government’s requests to certify the court’s orders for 

interlocutory appeal under 28 U.S.C. § 1292(b), and an accompanying request for a 

stay pending consideration of that motion and this petition. ECF Nos. 418-419. 

ARGUMENT 

I. If the district court declines to certify its orders for interlocutory 

appeal under 28 U.S.C. § 1292(b), this Court should issue a writ 

of mandamus directing the district court to dismiss this action. 

 A writ of mandamus is warranted when a party establishes that (1) the “right 

to issuance of the writ is clear and indisputable”; (2) the party has “no other adequate 

means to attain the relief” sought; and (3) “the writ is appropriate under the 

circumstances.” Cheney v. U.S. District Court, 542 U.S. 367, 380-81 (2004) 

(internal quotation marks omitted). Mandamus is reserved for “exceptional 

circumstances amounting to a judicial usurpation of power,” and to “confine” a 

lower court “to a lawful exercise of its prescribed jurisdiction.” Id. at 380 (same); 

accord ECF No. 416, at 1. 

 Those are the circumstances of this case. Plaintiffs’ position amounts to the 

remarkable assertion that permitting or encouraging the combustion of fossil fuels 

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violates the Due Process Clause of the Constitution and that a single district court in 

an action brought by a handful of Plaintiffs may decree the end of the carbon-based 

features of the United States’ energy system, without regard to the statutory and 

regulatory framework that Congress enacted for the responsible agencies to address 

such issues with broad public input. Months ago, the Supreme Court flagged the 

“striking” breadth of those claims and the “substantial” doubts about their 

justiciability, reciting the standard for interlocutory certification and thereby 

indicating that appellate review is warranted before trial. ECF No. 330-1. Days ago, 

the Supreme Court further stated that “the ‘striking’ breadth of plaintiffs’ claims 

‘presents substantial grounds for difference of opinion,’ ” this time expressly citing 

28 U.S.C. § 1292(b). ECF No. 416, at 2. 

 In light of the Supreme Court’s clear guidance, the government has sought 

reconsideration of the district court decision not to certify its orders denying the 

government’s dispositive motions for interlocutory appeal under § 1292(b). The 

government is hopeful that the district court will grant that request, which would 

obviate the need for this Court to act on this petition. But if the district court again 

declines to certify its orders for interlocutory appeal (despite the Supreme Court’s 

clear guidance that it should), mandamus from this Court will be warranted to ensure 

the pretrial appellate review contemplated by the Supreme Court. 

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 The factors for mandamus are readily satisfied. Given the manifest absence 

of Article III jurisdiction and the egregious defects in Plaintiffs’ claims, the 

government has established a “clear and indisputable” right to relief. Cheney, 542 

U.S. at 381. The government has “no other adequate means” to “attain the relief” it 

seeks before an unjustified trial that would “threaten the separation of powers.” Id.

at 380-81. And issuance of “the writ is appropriate under the circumstances.” Id. at 

381. Indeed, as the Supreme Court noted in its November 2 order, the “traditional 

use of the writ . . . has been to confine” a lower court “to a lawful exercise of its 

prescribed jurisdiction.” ECF No. 416, at 1 (quoting Cheney, 542 U.S. at 380). 

Mandamus is especially appropriate here, because it is the only way “to prevent a 

lower court from interfering with a coequal branch’s ability to discharge its 

constitutional responsibilities.” Cheney, 542 U.S. at 382. 

 The government recognizes that this Court has already denied mandamus 

petitions in this case several times. But as the Supreme Court explained, this Court’s 

earlier “basis for denying relief rested, in large part, on the early stage of the 

litigation, the likelihood that plaintiffs’ claims would narrow as the case progressed, 

and the possibility of attaining relief through ordinary dispositive motions.” ECF 

No. 416, at 3. The Supreme Court expressly stated that “[t]hose reasons are, to a 

large extent, no longer pertinent,” and that “adequate relief” for the government 

accordingly “may be available” in this Court. Id. at 2-3. In light of the Supreme 

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13 

Court’s order, the government respectfully requests that this Court consider this 

renewed request and grant the requested relief. 

A. The government has a right to relief from the district court’s 

refusal to dismiss this fundamentally misguided action. 

 The government’s right to the dismissal of this action is clear and indisputable. 

Plaintiffs’ implausible and far-reaching claims are procedurally and substantially 

defective in at least three independent ways. 

1. The district court clearly and indisputably erred by 

exercising jurisdiction over the action. 

 Most fundamentally, the district court lacks jurisdiction over Plaintiffs’ 

claims. The Supreme Court has reiterated that “no principle is more fundamental to 

the judiciary’s proper role in our system of government than the constitutional 

limitation of federal-court jurisdiction to actual cases or controversies.” 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks 

omitted). Enforcing this limitation accords with the “traditional use of the writ,” i.e., 

to “confine” a lower court “to a lawful exercise of its prescribed jurisdiction.” ECF 

No. 416, at 1 (quoting Cheney, 542 U.S. at 380). Plaintiffs’ action fails to qualify as 

a case or controversy within the meaning of Article III for at least two reasons. 

a. Plaintiffs lack Article III standing. 

 To demonstrate standing, Plaintiffs must prove that (1) they “have suffered an 

injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete 

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14 

and particularized,” and “(b) actual or imminent, not conjectural or hypothetical”; 

(2) the injury is “fairly . . . trace[able] to the challenged action of the defendant, and 

not . . . th[e] result [of] the independent action of some third party not before the 

court”; and (3) it is “likely, as opposed to merely speculative, that the injury will be 

redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-61 (1992) (citations and internal quotation marks omitted; brackets in original). 

The purpose of these standing requirements is “to prevent the judicial process from 

being used to usurp the powers of the political branches.” Clapper v. Amnesty 

International USA, 568 U.S. 398, 408 (2013). “In keeping with [that] purpose,” a 

court’s inquiry must be “especially rigorous when reaching the merits of the dispute 

would force [it] to decide whether an action taken by one of the other two branches 

of the Federal Government was unconstitutional.” Id. (internal quotation marks 

omitted). All three standing requirements must be satisfied to invoke a court’s 

jurisdiction. Defenders of Wildlife, 504 U.S. at 560-61. Plaintiffs here cannot satisfy 

any of the three standing requirements. 

First, as to injury, Plaintiffs fail to satisfy the standing requirement because 

they assert “generalized grievance[s],” id. at 575, not the invasion of a “legally 

protected” interest that is “concrete and particularized,” id. at 560; accord, e.g., 

Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125, 

127 n.3 (2014). This Court has made clear that “standing to sue may not be 

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15 

predicated upon an interest . . . which is held in common by all members of the 

public, because of the necessarily abstract nature of the injury all citizens share.” 

Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220 (1974). 

 Plaintiffs’ asserted injuries are quintessential generalized grievances rather 

than challenges to the invasion of a distinct, legally protected interest. The asserted 

injuries arise from a diffuse, global phenomenon that affects every other person in 

their communities, in the United States, and throughout the world. Those injuries 

are “not focused any more on these [Plaintiffs] than [they are] on the remainder of 

the world’s population,” and so they are “too generalized to establish standing.” 

Center for Biological Diversity v. U.S. Department of Interior, 563 F.3d 466, 478 

(D.C. Cir. 2009). 

Second, even if Plaintiffs adequately alleged judicially cognizable injuries, 

they cannot establish that those injuries were caused by the broad, undifferentiated 

aggregation of the largely unspecified government actions that they challenge, much 

less the particular and specifically identified actions that must be the focus of judicial 

review. Defenders of Wildlife, 504 U.S. at 560. Plaintiffs principally complain of 

the government’s regulation (or lack thereof) of private parties not before the district 

court. Among their widely scattered objections, for example, Plaintiffs claim that 

the United States subsidizes the fossil-fuel industry. ECF No. 7, ¶¶ 171-178 

(operative complaint). But when a plaintiff’s alleged harms may have been caused 

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16 

directly by the conduct of parties other than the defendants (and only indirectly by 

the defendants), it is “substantially more difficult to meet the minimum requirement” 

of Article III: “to establish that, in fact, the asserted injury was the consequence of 

the defendants’ actions, or that prospective relief will remove the harm.” Warth v. 

Seldin, 422 U.S. 490, 504-05 (1975); accord Defenders of Wildlife, 504 U.S. at 562. 

 Showing causation is especially difficult given the complex interaction of 

greenhouse gases in the global atmosphere. As the Supreme Court has explained, 

“emissions in New Jersey may contribute no more to flooding in New York than 

emissions in China.” American Electric Power Co. v. Connecticut, 564 U.S. 410, 

422 (2011). But even Plaintiffs’ broad challenge does not suggest that the 

government can control “emissions in China.” Id. The types of regulatory decisions 

referenced by Plaintiffs and the district court — such as permitting livestock grazing 

and setting “energy and efficiency standards,” ECF No. 369, at 39 — are remarkably 

attenuated from the specific injuries alleged, such as “the magnitude of rainfall and 

the extent of flooding” near one Plaintiff’s home or “the pattern of drought that led” 

another Plaintiff to relocate, id. at 41. In short, there is no “causal nexus” between 

the amorphously described decisions challenged by Plaintiffs and the specific harms 

alleged. See Washington Environmental Council v. Bellon, 732 F.3d 1131, 1143 (9th 

Cir. 2013) (finding no causation in similar case). To the contrary, there is “a natural 

disjunction between Plaintiffs’ localized injuries and the greenhouse effect.” Id.

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Third, even if Plaintiffs could somehow establish cognizable injury-in-fact 

and causation, they could not establish that their asserted injuries likely could be 

redressed by an order of a federal court. Defenders of Wildlife, 504 U.S. at 560. 

Plaintiffs have not even begun to articulate a remedy within a federal court’s 

authority to award that could move the needle on the complex phenomenon of global 

climate change, much less likely redress their alleged injuries. See, e.g., Simon v. 

Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40-46 (1976) (holding 

that plaintiffs challenging tax subsidies for hospitals serving indigent patients lacked 

standing where they could only speculate whether a change in policy would “result 

in [the plaintiffs] receiving the hospital services they desire”). 

 The district court has repeatedly assumed that it has the authority to order the 

government to “prepare and implement an enforceable national remedial plan to 

phase out fossil fuel emissions and draw down excess atmospheric CO2.” ECF 

No. 83, at 12-13, 26-27 (quoting ECF No. 7, at 94). In its most recent order, the 

court recites some of the “actions” that the government could take to redress 

Plaintiffs’ asserted injuries. These include drastic measures like phasing out all 

greenhouse gas emissions “within several decades” or converting the Nation’s entire 

electricity generation infrastructure to “100 percent clean, renewable wind, water, 

and sunlight” sources. ECF No. 369, at 43-44 (internal quotation marks and brackets 

omitted). 

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 But neither Plaintiffs nor the court has cited any legal authority that would 

permit such an unprecedented usurpation of legislative and executive authority by 

an Article III court, essentially placing a single district court in Oregon — acting at 

the behest of a few individuals having one particular perspective on the complex 

issues involved — in charge of directing American energy and environmental policy. 

Nor have Plaintiffs or the district court grappled with the fact that reducing the 

carbon emissions arguably within the control of the government would likely still 

fail to redress their injuries because — as this Court has recognized — greenhouse 

gas emissions are a “global occurrence” that arise mostly outside the United States, 

thereby making it all the more speculative and uncertain that even Plaintiffs’ 

unprecedented remedy would actually redress their asserted injuries. Bellon, 732 

F.3d at 1147 (finding no redressability in similar case). 

b. Federal courts may not entertain this action 

in any event. 

 Quite aside from these fatal flaws with respect to standing, this action simply 

is not one that a federal court may entertain consistent with the Constitution. The 

“judicial Power of the United States,” U.S. Const. art. III, § 1, is “one to render 

dispositive judgments” in “cases and controversies” as defined by Article III. Plaut 

v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995) (internal quotation marks 

omitted). That power can “come into play only in matters that were the traditional 

concern of the courts at Westminster” — “cases and controversies of the sort 

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traditionally amenable to, and resolved by, the judicial process.” Vermont Agency 

of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000) 

(same). Thus, if “a dispute is not a proper case or controversy, the courts have no 

business deciding it.” DaimlerChrysler Corp., 547 U.S. at 341. 

 Plaintiffs’ action is not a case or controversy cognizable under Article III. 

Plaintiffs ask the district court to review and assess the entirety of Congress’s and 

the Executive Branch’s programs and regulatory decisions relating to climate change 

and then to pass upon the comprehensive constitutionality of all of those policies, 

programs, and inaction in the aggregate. See, e.g., ECF No. 7, ¶¶ 277-310. No 

federal court has ever purported to invoke the “judicial Power” to perform such a 

sweeping policy review — and for good reason: the Constitution commits to 

Congress the power to enact comprehensive government-wide measures of the sort 

sought by Plaintiffs. And it commits to the President the power to oversee the 

Executive Branch in its administration of existing law and to draw on its expertise 

and formulate policy proposals for changing that law. Such functions are not the 

province of Article III courts. The district court’s contrary assertion constitutes a 

“judicial usurpation of power.” Cheney, 542 U.S. at 380. 

 Plaintiffs appeal to the district court’s equitable powers as justifying the 

review they seek in this case. But a federal court’s equitable powers are “subject to 

restrictions: the suit must be within the traditional scope of equity as historically 

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evolved in the English Court of Chancery.” Guaranty Trust Co. v. York, 326 U.S. 

99, 105 (1945). The relief requested by Plaintiffs is plainly not of the sort 

“traditionally accorded by courts of equity.” Grupo Mexicano de Desarrollo, S.A. 

v. Alliance Bond Fund, Inc., 527 U.S. 308, 319 (1999). “There simply are certain 

things that courts, in order to remain courts, cannot and should not do.” Missouri v. 

Jenkins, 515 U.S. 70, 132 (1995) (Thomas, J., concurring). One of those things is 

“running Executive Branch agencies.” Id. at 133. The same is surely true of running 

all of them. At bottom, this dispute over American energy and environmental policy 

“is not a proper case or controversy” or a proper suit in equity, and so “the courts 

have no business deciding it.” DaimlerChrysler Corp., 547 U.S. at 341. 

2. The district court clearly and indisputably erred by 

allowing the claims to proceed outside the binding 

framework of the APA. 

 Plaintiffs’ action is misconceived for another reason. Under the APA, a 

judicial challenge to an agency’s regulatory measures must be targeted at 

specifically identified agency actions or alleged failures to act, and review must be 

based on the administrative record for those actions and in accordance with special 

statutory provisions for judicial review. The APA provides that a “person suffering 

legal wrong because of agency action, or adversely affected or aggrieved by agency 

action within the meaning of a relevant statute, is entitled to judicial review thereof.” 

5 U.S.C. § 702. The APA authorizes a reviewing court to “hold unlawful and set 

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aside agency action” that is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law” or “contrary to constitutional right, power, 

privilege, or immunity,” id. § 706(2)(A)-(B), and to “compel agency action 

unlawfully withheld or unreasonably delayed,” id. § 706(1). 

 The APA thus provides a “comprehensive remedial scheme” for a “person 

‘adversely affected . . . ’ by agency action” or alleged failure to act with respect to 

regulatory requirements and standards, permitting, and other administrative 

measures. Western Radio Services Co. v. U.S. Forest Service, 578 F.3d 1116, 1122-

23 (9th Cir. 2009) (citation omitted), cert. denied, 559 U.S. 1106 (2010); see also 

Wilkie v. Robbins, 551 U.S. 537, 551-54 (2007) (describing the APA as the remedial 

scheme for vindicating complaints against “unfavorable agency actions”); Webster 

v. Doe, 486 U.S. 592, 607 n.* (1988) (Scalia, J., dissenting) (explaining that the APA 

“is an umbrella statute governing judicial review of all federal agency action,” and 

that “if review is not available under the APA it is not available at all”). 

 Plaintiffs allege that a vast number of (mostly unspecified) “agency action[s]” 

and inactions spanning the last several decades are, in the words of the APA, 

“contrary to constitutional right.” 5 U.S.C. §§ 702, 706(2)(B). As currently 

formulated, however, Plaintiffs’ claims may not proceed under the APA, because 

the APA allows challenges only to “circumscribed, discrete” final agency action, not 

the “broad programmatic attack” on agency policies asserted by Plaintiffs here. 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 32 of 69
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Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 62, 64 (2004) (SUWA); 

accord Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990). Plaintiffs 

expressly cast their claims as a challenge to the “affirmative aggregate actions” of 

the defendant agencies, ECF No. 7, ¶ 5 — the antithesis of a challenge to specifically 

identified and “discrete agency action” as permitted by Congress under the APA. 

SUWA, 542 U.S. at 64. 

 Plaintiffs do not argue that their claims are proper under the APA. Rather, 

they argue that their claims need not comply with the APA because the Constitution 

itself provides a right of action. ECF No. 7, ¶ 13. But the Supreme Court has never 

suggested that the Constitution itself provides an across-the-board right of action for 

all constitutional claims. To the contrary, the Court recently concluded that the 

Supremacy Clause does not “confer a right of action,” a decision that conflicts with 

the inherent cause of action for constitutional claims envisioned by Plaintiffs. 

Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378, 1384 (2015). 

 The district court likewise failed to grapple with Armstrong. ECF No. 369, at 

19-25. Armstrong recognized that federal courts have equitable authority in some 

circumstances “to enjoin unlawful executive action.” 135 S. Ct. at 1385. But it 

emphasized that equitable power is “subject to express and implied statutory 

limitations.” Id. Thus, “[w]here Congress has created a remedial scheme for the

enforcement of a particular federal right,” courts “have, in suits against federal 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 33 of 69
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officers, refused to supplement that scheme with one created by the judiciary.” 

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 74 (1996). Here, even if the 

equitable authority of an Article III court could otherwise ever extend to an action 

remotely resembling the one pursued by Plaintiffs here, the APA provides “express 

. . . statutory limitations” that “foreclose,” Armstrong, 135 S. Ct. at 1385 (internal 

quotation marks omitted), Plaintiffs’ asserted constitutional claims against the broad 

and largely unspecified “aggregate actions” of the federal government as a whole, 

ECF No. 7, ¶ 129. 

3. The district court clearly and indisputably erred by 

allowing the claims to proceed on the merits. 

 Finally, even if the district court could reach the merits of Plaintiffs’ 

constitutional theories, it should not have allowed their claims to move forward, let 

alone to a ten-week trial. In declining to dismiss the case, the court concluded that 

Plaintiffs had stated two constitutional claims based on substantive due process: 

(1) a judicially enforceable fundamental right to “a climate system capable of 

sustaining human life,” and (2) a federal public-trust doctrine to the same effect. 

ECF No. 369, at 48, 55. Both claims are baseless. 

a. Substantive due process 

 As the Supreme Court has twice recognized, Plaintiffs’ substantive due 

process claims are “striking” in breadth. ECF No. 330-1; ECF No. 416, at 2. The 

Supreme Court has repeatedly instructed courts considering novel due process 

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claims to “exercise the utmost care whenever . . . asked to break new ground in this 

field, lest the liberty protected by the Due Process Clause be subtly transformed” 

into judicial policy preferences. Washington v. Glucksberg, 521 U.S. 702, 720 

(1997) (internal quotation marks omitted). More specifically, the Supreme Court 

has “regularly observed that the Due Process Clause specially protects those 

fundamental rights and liberties which are, objectively, deeply rooted in this 

Nation’s history and tradition.” Id. at 720-21 (same). The district court’s 

recognition here of a sweeping and “unenumerated fundamental right” to “a climate 

system capable of sustaining human life,” ECF No. 83, at 31-32, squarely contradicts 

that directive. Such a right is entirely without basis in this Court’s precedent or in 

the Nation’s history and tradition. 

 The district court’s recognition of a constitutional right to particular climate 

conditions, moreover, would wrest fundamental policy issues of energy 

development and environmental regulation affecting everyone in the country from 

“the arena of public debate and legislative action,” and thrust them into the 

supervision of the federal courts. Glucksberg, 521 U.S. at 720. Indeed, the district 

court’s decision here would vest a single district court — acting at the behest of 21 

minors, a person purporting to act on behalf of future generations, and a single 

environmental organization advocating one particular perspective — with authority 

to oversee some of the most complex and high-stakes policy problems in 

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government. To understate considerably, Congress or an “expert agency is surely 

better equipped to do the job than individual district judges.” American Electric 

Power, 564 U.S. at 428. 

 Remarkably, the district court rooted its recognition of a fundamental due 

process right to “a climate system capable of sustaining human life,” ECF No. 83, at 

32, in the Supreme Court’s recognition of a fundamental right to same-sex marriage 

in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). There is no relationship, however, 

between a distinctly personal and circumscribed right to same-sex marriage and the 

alleged right to a climate system capable of sustaining human life that apparently 

would run indiscriminately to every individual in the United States. The right 

recognized by the district court has no relationship to any right as “fundamental as a 

matter of history and tradition” as the right to marry recognized in Obergefell. Id.

at 2602. Nor was Obergefell’s recognition of that narrow right an invitation to 

abandon the cautious approach to recognizing new fundamental rights that is 

demanded by the Court’s prior decisions. The district court’s reliance on Roe v. 

Wade, 410 U.S. 113 (1973), and a decision by the Supreme Court of the Philippines 

provides no further support. See ECF No. 83, at 31-32. To the contrary, the court’s 

invocation of such far-afield precedents underscores that the right it purported to 

recognize has no legal basis. 

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b. Public-trust doctrine 

 Plaintiffs’ novel public-trust claim fares no better. The roots of a public-trust 

doctrine “trace to Roman civil law and its principles can be found in the English 

common law on public navigation and fishing rights over tidal lands and in the state 

laws of this country.” PPL Montana, LLC v. Montana, 565 U.S. 576, 603 (2012). 

Where it applies, such a rationale generally is that “the sovereign owns all of its 

navigable waterways and the lands lying beneath them as trustee of a public trust for 

the benefit of the people.” National Audubon Society v. Superior Court, 33 Cal. 3d 

419, 434 (internal quotation marks omitted), cert. denied, 464 U.S. 977 (1983). 

 Plaintiffs attempt to invoke a federal public-trust doctrine to impose judicially 

enforceable, extra-statutory obligations on the government’s regulation of the fossilfuel industry and the alleged effects on the atmosphere. They fail, however, to 

identify a single decision applying public-trust notions in this sweeping and novel 

manner. Even if such a doctrine could ever dictate a sovereign’s regulation of private 

parties, Plaintiffs’ claim would be unavailing because a public-trust doctrine is 

purely a matter of state law and pertains only to a state’s functions. See PPL 

Montana, 565 U.S. at 603 (“[T]he public trust doctrine remains a matter of state 

law.”). Indeed, the D.C. Circuit concluded that a similar public-trust claim against 

federal officials was so insubstantial that it could not even provide a basis for federal 

jurisdiction. See Alec L. ex rel. Loorz v. McCarthy, 561 Fed. Appx. 7, 8 (per curiam), 

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cert. denied, 135 S. Ct. 774 (2014). As the D.C. Circuit explained, the Supreme 

Court has “categorically rejected any federal constitutional foundation for [the 

public trust] doctrine, without qualification or reservation.” Id.

B. The government has no other adequate means to attain 

relief from the district court’s refusal to terminate these 

fundamentally misguided and improper proceedings. 

 Mandamus is warranted to correct the district court’s egregious errors because 

the government has “no other adequate means” to obtain relief from the district 

court’s refusal to dismiss this litigation or to prevent the impending trial. Cheney, 

542 U.S. at 380. The denial of a motion to dismiss is not among the “final decisions 

of the district courts” reviewable by a court of appeals under 28 U.S.C. § 1291. The 

district court has repeatedly rejected the government’s requests to certify its 

decisions for interlocutory appeal. ECF No. 172; ECF No. 369, at 59-61. Indeed, 

the court refused to certify its decision for interlocutory appeal even after the 

Supreme Court expressly recognized the “substantial grounds for difference of 

opinion” about the justiciability of the claims, ECF No. 330-1 — a statement directly 

tracking the text of the statute authorizing certification for interlocutory appeal, 28 

U.S.C. § 1292(b), but that the court did not even mention in its order denying the 

government’s dispositive motions. In its most recent order, moreover, the Supreme 

Court underscored the fact that the district court “declined to certify its orders for 

interlocutory review under 28 U.S.C. § 1292(b).” ECF No. 416, at 2. 

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 To be sure, the government might be able to raise some of the arguments 

asserted here after a 10-week liability-phase trial, after a finding that the federal 

government is liable for the harms of climate change, and after further proceedings 

to impose an unprecedented invasive remedy. But an appellate reversal at that point 

would hardly provide an “adequate means” of obtaining relief from the usurpation 

of power by the district court and from the resulting proceedings that themselves 

violate the separation of powers. Cheney, 542 U.S. at 380 (emphasis added); see 

also, e.g., In re Kellogg Brown & Root, Inc., 756 F.3d 754, 761 (D.C. Cir. 2014) 

(granting mandamus where appeal after final judgment would not provide an 

“adequate” means of obtaining relief), cert. denied, 135 S. Ct. 1163 (2015); In re 

Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 20-25 (1st Cir. 1982) (same); 

16 Charles Alan Wright et al., Federal Practice and Procedure § 3932 (3d ed. 2005 

& Supp. 2018) (citing similar cases). 

 The government, moreover, is not a private litigant seeking to evade the 

normal process of appellate review. The Executive Branch agencies and officials 

sued by Plaintiffs will “suffer a special institutional harm by being forced to remain” 

in this suit through a trial, finding of liability, and entry of a remedy. In re Justices, 

695 F.2d at 20. As the Supreme Court explained in Cheney, “mandamus standards 

are broad enough to allow a court of appeals to prevent a lower court from interfering 

with a coequal branch’s ability to discharge its constitutional responsibilities.” 542 

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U.S. at 382; see also id. (recognizing the “paramount necessity of protecting the 

Executive Branch from vexatious litigation that might distract it from the energetic 

performance of its constitutional duties”). Here, requiring the government to 

participate in the fundamentally misguided trial envisioned by the district court 

would constitute a “judicial usurpation of power” warranting mandamus for at least 

two additional reasons. Id. at 380. 

First, subjecting the government to trial on Plaintiffs’ claims would violate 

the APA’s reticulated scheme for agencies to make factual assessments and policy 

determinations through rulemaking with broad public participation and through 

agency adjudication, not though civil litigation directly in Article III courts. The 

APA sets forth a “comprehensive regulation of procedures” for agency 

decisionmaking. Wong Yang Sung v. McGrath, 339 U.S. 33, 36 (1950). “Time and 

again,” the Supreme Court has explained that the APA establishes the exclusive 

procedural requirements for agency decisionmaking, and courts are not free to alter 

those requirements. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1207 (2015). 

To require agencies to take official positions on factual assessments and questions 

of policy concerning the climate through the civil litigation process — and then, if 

liability is found, to participate in further judicial proceedings to impose on them an 

“enforceable national remedial plan to phase out fossil fuel emissions and draw 

down excess atmospheric CO2,” ECF No. 83, at 12-13, 26-27 (quoting ECF No. 7, 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 40 of 69
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at 94) — would impermissibly conflict with the procedures prescribed by the APA 

and deprive other interested parties and the public of the opportunity mandated by 

Congress or agency procedures to provide input.*

Second, subjecting the government to trial on Plaintiffs’ claims would violate 

the Constitution’s separation of powers. Even before the enactment of the APA, the 

Supreme Court recognized that permitting an agency’s “findings to be attacked or 

supported in court by new evidence would substitute the court for the administrative 

tribunal,” Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 444 (1930), a step 

that would improperly allow the court to “usurp[] the agency’s function,” 

Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 155 (1946). 

Moreover, “in cases where Congress has simply provided for review, without setting 

forth the standards to be used or the procedures to be followed,” the Supreme Court 

has made clear that “consideration is to be confined to the administrative record and 

that no de novo proceeding may be held.” United States v. Carlo Bianchi & Co., 

373 U.S. 709, 715 (1963). 

 Limiting judicial review of actions taken within the scope of the agency’s 

authority as conferred by Congress in its organic statute in this manner reflects 

 

*

 For example, this action clearly implicates Congress’s policy decisions in the Clean 

Air Act. Section 307 of that Act, 42 U.S.C. § 7607, contains a procedural scheme 

bearing on air quality-related rulemaking and adjudication that is even more highly 

reticulated than the APA default. 

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fundamental separation-of-powers principles. By seeking to leverage the civil 

litigation process to direct federal agencies’ decisions outside the congressionally 

prescribed statutory frameworks that govern the official actions of the numerous 

agencies and officials that Plaintiffs have sued, Plaintiffs would run roughshod over 

those principles. Plaintiffs’ proposed approach violates the vesting of the 

“legislative Power[]” in Congress to the extent it would require agencies to 

transgress the substantive and procedural constraints imposed on them by statute. 

U.S. Const. art. I, § 1. To the extent Plaintiffs seek a judicial decree directly 

requiring the government to develop and implement broad policies across the 

Executive Branch, they seek to violate the Constitution’s vesting of “executive 

Power . . . in a President of the United States.” Id. art. II, § 1, cl. 1. Granting 

mandamus relief is the only “adequate means” of preventing such intrusions. 

Cheney, 542 U.S. at 380. 

C. Mandamus relief is appropriate under the circumstances. 

 Finally, and for the reasons discussed above, mandamus relief is “appropriate 

under the circumstances.” Cheney, 542 U.S. at 381. As noted, mandamus was 

traditionally used “to confine [an inferior court] to a lawful exercise of its prescribed 

jurisdiction,” and granting mandamus to dismiss this case based on the manifest 

absence of Article III jurisdiction and of any cognizable constitutional rights on the 

merits would be consistent with that use. Id. at 380; see also, e.g., In re Roman 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 42 of 69
32 

Catholic Diocese of Albany, New York, Inc., 745 F.3d 30, 35-36 (2d Cir. 2014) (per 

curiam) (issuing writ of mandamus based on district court’s failure to grant motion 

to dismiss for lack of jurisdiction); Abelesz v. OTP Bank, 692 F.3d 638, 651-52 (7th 

Cir. 2012) (same); In re Justices, 695 F.2d at 25 (same); Wright, supra, § 3933.1 

(discussing other examples). 

 Mandamus is particularly appropriate here because dismissing the case is the 

only way “to prevent a lower court from interfering with a coequal branch’s ability 

to discharge its constitutional responsibilities.” Cheney, 542 U.S. at 382. As noted, 

the Supreme Court has indicated that appellate review before trial is appropriate by 

reciting language from the statute authorizing certification for interlocutory appeal 

and by expressly citing that statute. ECF No. 330-1; ECF No. 416, at 2. But the 

district court has declined to follow the Supreme Court’s direction, leaving an 

extraordinary writ as the only means for appellate review before much of the 

Executive Branch is subjected to a trial on baseless claims that the district court has 

no authority to remedy. The “novelty of the District Court’s” ruling, “combined 

with its potentially broad and destabilizing effects,” underscores that granting such 

a writ is “appropriate under the circumstances.” In re Kellogg Brown & Root, 756 

F.3d at 763 (quoting Cheney, 542 U.S. at 381). 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 43 of 69
33 

II. Alternatively, if the district court declines to certify its orders for 

interlocutory appeal under 28 U.S.C. § 1292(b), this Court should 

issue a writ of mandamus directing the district court to do so.

 If the district court declines to certify its denials of the government’s 

dispositive motions for interlocutory appeal under 28 U.S.C. § 1292(b), and if this 

Court does not issue a writ of mandamus directing the district court to dismiss this 

action, this Court should at least issue a writ directing the district court to certify its 

decisions for interlocutory appeal under § 1292(b) — as the Supreme Court has now 

made unmistakably clear that the district court should do. See ECF No. 416, at 2. 

 To be sure, certification for interlocutory appeal under § 1292(b) is an exercise 

of discretion for the district court. But as the Supreme Court has made clear, “a 

motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; 

and its judgment is to be guided by sound legal principles.” Martin v. Franklin 

Capital Corp., 546 U.S. 132, 139 (2005) (Roberts, C.J.) (quoting United States v. 

Burr, 25 F. Cas. 30, 35 (No. 14,692d) (C.C. Va. 1807) (Marshall, C.J.)). As the 

Supreme Court explained, “limiting discretion according to legal standards helps 

promote the basic principle of justice that like cases should be decided alike.” Id.; 

cf. Fernandez-Roque v. Smith, 671 F.2d 426, 431 (11th Cir. 1982) (“[T]his case 

presents the truly ‘rare’ situation in which it is appropriate for this court to require 

certification of a controlling issue of national significance.”). 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 44 of 69
34 

 The Supreme Court has left little room for doubt that the district court’s orders 

denying the government’s dispositive motions meet the “legal standards” for 

certification under 28 U.S.C. § 1292(b). Martin, 546 U.S. at 139. As this Court has 

recognized in this very case, mandamus is available in “exceptional circumstances 

amounting to . . . a clear abuse of discretion.” In re United States, 884 F.3d at 834 

(quoting Cheney, 542 U.S. at 380). The district court’s refusal to certify for 

interlocutory appeal such an extraordinary decision as the district court’s here, after 

the Supreme Court has expressly indicated that the standard for certification is 

satisfied, would surely qualify as a “clear abuse of discretion” and an “exceptional” 

circumstance warranting mandamus. Id.

III. In any event, this Court should immediately grant a stay of 

proceedings in the district court pending consideration of this

petition. 

 Finally, the government requests a stay of district court proceedings while this 

Court and, if necessary, the Supreme Court consider the government’s pending 

request for mandamus relief. See All Writs Act, 28 U.S.C. § 1651(a) (authorizing 

courts to issue “all writs necessary or appropriate in aid of their respective 

jurisdictions and agreeable to the usages and principles of law”); cf. 9th Cir. General 

Order 6.8a (motions panel “may also issue a stay or injunction pending further 

consideration of the application”). 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 45 of 69
35 

 Whether to issue a stay is “an exercise of judicial discretion . . . to be guided 

by sound legal principles,” Nken v. Holder, 556 U.S. 418, 433-34 (2009) (internal 

quotation marks omitted), based on the following four factors: (1) the applicant’s 

likely success on the merits; (2) irreparable injury to the applicant absent a stay; 

(3) substantial injury to the other parties; and (4) the public interest. Id. at 434 (citing 

Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The first two factors are “the most 

critical.” Id. The balance of equities and consideration of the public interest merge 

when the government is a party. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 

1092 (9th Cir. 2014). 

 Parts I and II above demonstrate that the government has a strong likelihood 

of obtaining some form of mandamus relief from either this Court or from the 

Supreme Court. Indeed, the Supreme Court has expressly stated that “adequate relief 

may be available in” this Court, and, by denying the government’s mandamus 

petition without prejudice, ECF No. 416, at 2-3, the Supreme Court has left open 

the possibility that it would grant mandamus in response to a future request by the 

government. 

 Sections I.B and I.C in particular (pp. 27-32) show that, absent a stay, the 

government will suffer irreparable injury. Specifically, the government will be 

forced to proceed with a 10-week liability trial that is fundamentally inconsistent 

with Article III and the separation of powers under the Constitution, as well as with 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 46 of 69
36 

procedures Congress has prescribed in agencies’ organic statutes and the APA for 

agencies to consider factual and legal issues concerning major policy and for the 

courts to review their determinations. Trial would force the government to address 

climate-change policy not in APA rulemakings and other agency actions authorized 

by statute, but rather in a single trial court in Oregon. These injuries caused by the 

trial itself could not be remedied on appeal. 

 The more tangible costs of these proceedings should also not be ignored. As 

of October 18, when the government filed its mandamus petition in the Supreme 

Court, the Department of Justice alone had already devoted more than 13,000 

attorney and paralegal hours and spent millions of taxpayer dollars in expert fees, 

travel expenses, and other non-attorney fees defending against Plaintiffs’ baseless 

claims. Exhibit 1, ¶¶ 2-3 (filed concurrently herewith). If the liability phase of trial 

proceeds as scheduled, the parties are expected to present up to 72 witnesses — 43 

lay witnesses and 29 expert witnesses. Id., ¶ 5. Expert testimony would be expected 

on a diverse range of topics — including the impacts of climate change on ocean 

chemistry, sea level, glaciers, terrestrial ecosystems, and human physical and 

emotional health, as well as the technical and economic feasibility of transitioning 

to renewable sources of energy and sequestering carbon from the atmosphere, to 

name just a few examples — described in more than 1100 pages worth of expert 

reports. Id. Plaintiffs’ exhibit list includes documents dating back to the 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 47 of 69
37 

Washington Administration. To conduct a trial of this staggering complexity, even 

under conservative estimates, attorneys and paralegals of the Department’s 

Environmental and Natural Resources Division are likely to commit an additional 

7300 hours and additional millions of taxpayer dollars between now and February 

2019 to proceedings that should never occur. Id., ¶¶ 6-7. 

 The government, of course, recognizes the need to devote resources to defend 

against plausible claims and, in the ordinary course, it does not seek extraordinary 

relief from this Court simply because it disagrees with a district court’s resolution of 

a dispositive motion. But the claims in this case are extraordinary, and the district 

court’s errors are numerous and profound. The costs that those errors would impose 

on the government, if the trial is permitted to proceed, would unavoidably “distract 

[the Department] from the energetic performance of its constitutional duties” in a 

manner that warrants this Court’s intervention. Cheney, 542 U.S. at 382. 

 By contrast, Plaintiffs can make no credible claim that a relatively brief stay 

to decide the government’s petition will cause them irreparable harm. Because 

Plaintiffs’ alleged injuries stem from the cumulative effects of CO2 emissions from 

every source in the world over decades, whatever additions to the global atmosphere 

that may somehow be attributed to the defendant agencies over the time it takes to 

resolve the government’s pending petition are plainly de minimis in context and not 

a source of irreparable harm. 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 48 of 69
38 

 This Court rightly granted a stay of district court proceedings in order to 

consider the government’s first mandamus petition in this case. In re United States, 

No. 17-71692, ECF No. 7 (July 25, 2017). And the Chief Justice granted an 

administrative stay for the Supreme Court to consider the government’s most recent 

mandamus petition. Because the Nken factors strongly favor a stay — and because 

the Supreme Court plainly contemplated that this Court would address the 

government’s request for “adequate relief” before trial, ECF No. 416, at 2 — a stay 

is appropriate here. 

CONCLUSION 

 For the foregoing reasons, the Court should issue a writ of mandamus 

directing the district court to dismiss this action or, alternatively, to certify its denials 

of the government’s dispositive motions for interlocutory appeal pursuant to 28 

U.S.C. § 1292(b). Moreover, the Court should immediately grant an administrative 

stay of proceedings in the district court pending consideration of this petition. 

 Dated: November 5, 2018. 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 49 of 69
39 

Counsel for Petitioners 

Respectfully submitted, 

s/ Eric Grant 

JEFFREY BOSSERT CLARK 

Assistant Attorney General

JEFFREY H. WOOD 

ERIC GRANT 

Deputy Assistant Attorneys General 

ANDREW C. MERGEN 

SOMMER H. ENGELS 

ROBERT J. LUNDMAN 

Attorneys 

Environment and Natural Resources Division 

U.S. Department of Justice 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 50 of 69
STATEMENT OF RELATED CASES 

There are three related cases within the meaning of Circuit Rule 28-2.6, 

namely, the government’s prior petitions for writs of mandamus: In re United States, 

884 F.3d 830 (9th Cir. 2018) (No. 17-71692); In re United States, 895 F.3d 1102 

(9th Cir. 2018) (No. 18-71928); and In re United States (denied as moot Nov. 2, 

2018) (No. 18-72776). 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 51 of 69
Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f), 

 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 

Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief.

I certify that (check appropriate option):

This brief complies with the length limits permitted by Ninth Circuit Rule 28.1-1. 

The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 

32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1. 

The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 

32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b). 

The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 

32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a 

single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a 

longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P. 

32(a)(5) and (6).

This brief complies with the longer length limit authorized by court order dated 

The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is 

words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2

(a) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32

(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2

(c)(2) or (3) and is words or pages, excluding the portions exempted by Fed. R. 

App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and 

(6).

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4. 

The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 

32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or 

Unrepresented Litigant

("s/" plus typed name is acceptable for electronically-filed documents)

Date

(Rev.12/1/16)

18-_____

9,256

s/ Eric Grant Nov 5, 2018

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 52 of 69
CERTIFICATE OF SERVICE 

 I hereby certify that I electronically filed the foregoing with the Clerk of the 

Court for the United States Court of Appeals for the Ninth Circuit by using the 

appellate CM/ECF system on November 5, 2018. 

 I further certify that on this date, a notice of filing of the foregoing (including 

a complete copy of the foregoing) will be filed in the district court in the underlying 

matter, and service in compliance with Federal Rule of Appellate Procedure 21(a)(1) 

will be accomplished through the district court’s CM/ECF system. All counsel in 

this case are participants in that system. In addition, a courtesy copy of the foregoing 

has been provided via e-mail to the following counsel for Plaintiffs: 

Julia A. Olson 

JuliaAOlson@gmail.com 

Wild Earth Advocates 

1216 Lincoln Street 

Eugene, Oregon 97401 

Philip L. Gregory 

pgregory@gregorylawgroup.com 

Gregory Law Group 

1250 Godetia Drive 

Redwood City, California 94062 

Daniel M. Galpern 

Dan.Galpern@gmail.com 

Law Offices of Daniel M. Galpern 

1641 Oak Street 

Eugene, Oregon 97401 

 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 53 of 69
Andrea K. Rodgers 

Andrearodgers42@gmail.com 

Law Offices of Andrea K. Rodgers 

3026 NW Esplanade 

Seattle, Washington 98117 

s/ Eric Grant 

Eric Grant 

Counsel for Petitioners 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 54 of 69
No. 18-_____ 

 

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

 

In re UNITED STATES OF AMERICA, et al. 

UNITED STATES OF AMERICA, et al., Petitioners, 

v. 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, 

Respondent, 

and 

KELSEY CASCADIA ROSE JULIANA, et al., Real Parties in Interest.

 

On Petition for a Writ of Mandamus to the United States District Court 

for the District of Oregon (No. 6:15-cv-01517-AA) 

 

EXHIBITS TO PETITION FOR A WRIT OF MANDAMUS AND 

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 

 

Counsel for Petitioners 

JEFFREY BOSSERT CLARK

Assistant Attorney General

JEFFREY H. WOOD 

ERIC GRANT 

Deputy Assistant Attorneys General 

ANDREW C. MERGEN 

SOMMER H. ENGELS 

ROBERT J. LUNDMAN 

Attorneys 

Environment and Natural Resources Division 

U.S. Department of Justice 

Post Office Box 7415 

Washington, D.C. 20044 

(202) 514-0943 

eric.grant@usdoj.gov 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 55 of 69
EXHIBITS 

1. Declaration of Guillermo A. Montero, filed in In re United States, No. 18A410 

(U.S. Oct. 18, 2018). 

2. Letter from Plaintiffs’ counsel to government’s counsel (Nov. 3, 2018).

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 56 of 69
Exhibit 1 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 57 of 69
IN THE SUPREME COURT OF THE UNITED STATES

No. 18AIN RE UNITED STATES OF AMERICA, ET AL.

DECLARATION OF GUILLERMO A. MONTERO

IN SUPPORT OF APPLICATION FOR A STAY PENDING

DISPOSITION OF A PETITION FOR A WRIT OF MANDAMUS TO THE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

AND ANY FURTHER PROCEEDINGS IN THIS COURT

AND REQUEST FOR AN ADMINISTRATIVE STAY

I, Guillermo A. Montero, do declare and if called upon would

testify as follows:

1. I am an assistant chief in the Environment and Natural

Resources Division ("ENRD") of the United States Department of

Justice, where I have worked since 2004. In that capacity, I

supervise the attorneys of record for Defendants in the district

court proceedings of the above-captioned action. I have personal

knowledge of the statements made herein, as informed by my review

of district court filings, information in the ENRD case management

system, and information compiled from the ENRD Office of the

Comptroller, Expert Witness Unit, and Office of Litigation

Support.

2. As of October 17, 2018, ENRD has devoted over 13,000

attorney and paralegal hours defending this case.

3a

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 58 of 69
2

3. As of October 17, 2018, ENRD has expended $2,134,141.09

on expert witness invoice payments; $13,333.57 on invoice payments

for depositions and transcripts; and $121,611.61 on employee

travel expenses.

4. The liability phase of trial in this case will begin on

October 29, 2018, and is expected to last approximately 50 calendar

days over the course of several months. The district court has

scheduled the first two weeks of this phase of trial for October

29 through November 9, 2018.

5. The parties have indicated that they will call 29 expert

witnesses during this phase of trial, and as many as 43 lay

witnesses, for a total of 72 potential witnesses. The expert

witnesses will testify to a broad range of topics, including the

impacts of climate change on ocean chemistry, sea level, glaciers,

terrestrial ecosystems, and human physical and emotional health,

as well as the technical and economic feasibility of transitioning

to renewable sources of energy and sequestering carbon from the

atmosphere. That proposed testimony is described in 1,156 pages

of expert reports and approximately 130 hours of depositions

completed as of October 12.

6. Between now and the end of the liability phase of trial,

I estimate that ENRD will expend another $5.2 million in expert

witness fees, in addition to the following sundry expenses:

$198,986.65 for travel-related expenses from October 2018 through

4a

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 59 of 69
3

February 2019; $40,000 in transcript, copying, and shipping costs;

and $9,600 for a conference room at trial.

7. Primary responsibilities for handling this phase of

trial have been assigned to five attorneys and three paralegals.

I estimate that each attorney will expend anywhere from 60 to 80

hours per week on this case for the ten weeks I expect trial to be

in session, and anywhere from 30 to 40 hours per week on this case

when trial is not in session, viz., the weeks of Nov. 12-16, Nov.

19-23, Dec. 17-21, Dec. 24-28, and Dec. 31-Jan. 4. I also estimate

that each attorney will work between 10 and 12 hours per day

between now and the start of this phase of trial on October 29.

Similarly, I estimate that the three paralegals assigned to this

trial will expend a combined total of 220 hours per week on this

case for the ten weeks I expect trial to be in session, and a

combined total of 100 hours per week on this case while trial is

not in session. I also estimate that those three paralegals will

work a combined 24 hours per day on this case between now and the

start of this phase of trial on October 29. Based on the lowest

number in each range, and if trial proceeds as expected, I

conservatively estimate that ENRD attorneys and paralegals will

expend at least 7, 300 hours on the liability phase of trial between

now and February, 2019.

8. Attached as Exhibit A is a true and correct copy of

Plaintiffs' Witness List, which Plaintiffs filed with the district

court on October 15, 2018.

5a

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 60 of 69
4

9. Attached as Exhibit B is a true and correct copy of

Defendants' Witness List, which Defendants filed with the district

court on October 15, 2018.

10. Attached as Exhibit C is a true and correct copy of the

Exhibit List Plaintiffs served on Defendants on October 12, 2018,

with column-widths modified solely for purposes of facilitating

printing.

11. Attached as Exhibit D is a true and correct copy of the

Exhibit List Defendants served on Plaintiffs on October 12, 2018,

with column-widths modified solely for purposes of facilitating

printing.

I declare that the foregoing is true and correct. Executed

on this 17th day of October, 2018.

GUILLERMO A., ONTERO

6a

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 61 of 69
Exhibit 2 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 62 of 69
GREGORY LAW GROUP

1250 Godetia Drive

Redwood City, CA 94062-4163

pgregory@gregorylawgroup.com

November 3, 2018

VIA EMAIL

Sean C. Duffy

Frank Singer

Marissa Piropato

Clare Boronow

Erika Norman

U.S. DEPARTMENT OF JUSTICE

ENVIRONMENT & NATURAL RESOURCES DIVISION 

601 D Street NW

Washington, DC 20004

sean.c.duffy@usdoj.gov

frank.singer@usdoj.gov

Marissa.piropato@usdoj.gov 

clare.boronow@usdoj.gov

Erika.Norman@usdoj.gov

Re: Juliana v. United States, 6:15-cv-01517-AA, Pretrial Issues on which Counsel 

Should Meet and Confer

Dear Sean, Frank, Marissa, Clare, and Erika,

In light of the Supreme Court order dated November 2, 2018, Plaintiffs would like to set 

up a meet and confer session to commence an immediate trial. To that end, we are available to 

meet and confer any time on the following issues on Monday, November 5:

PLAINTIFFS’ EXHIBIT LIST

• Plaintiffs’ Exhibit List was filed with the Court on October 19. On November 2, Plaintiffs

sent Defendants via overnight mail a USB stick containing all of Plaintiffs’ exhibits 

identified with exhibit number and Bates stamped number. That USB stick will arrive 

before 10:30 a.m. on Monday, November 5. Plaintiffs are continuing to refine our Exhibit 

List and will inform you of any changes to the Exhibit List as soon as possible.

• Plaintiffs also have filed their opposition to Defendants’ Motion to Strike Plaintiffs’ 

Exhibits.

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 63 of 69
November 3, 2018

Page 2 of 5

DEFENDANTS’ EXHIBIT LIST

• Defendants’ Exhibit List was filed with the Court on October 19.

• Plaintiffs filed objections to Defendants’ Exhibit List on October 19.

• Plaintiffs have reviewed Defendants’ FRE 1006 Summary and have found numerous 

inaccuracies. Plaintiffs hereby request Defendants withdraw their FRE 1006 Summary.

• Plaintiffs have reviewed the Congressional Hearing Reports included on Defendants’ 

Exhibit List and have numerous objections regarding these Reports.

• Plaintiffs will be filing supplemental objections to Defendants’ Exhibit List.

• Plaintiffs remain willing to meet and confer on these issues. 

MOTIONS IN LIMINE

Plaintiffs’ Motions in Limine re. Judicial Notice

• Plaintiffs filed their Motion for Reconsideration with respect to the documents that the 

Court did not judicially notice.

• Plaintiffs remain willing to meet and confer on this issue. 

Defendants’ Threatened Motion to Strike Plaintiffs’ Fact Witnesses 

• On November 2, Plaintiffs responded via letter that Defendants have no grounds to strike 

Plaintiffs’ eight fact witnesses.

• Plaintiffs remain willing to meet and confer on this issue. 

Defendants’ Motion to Strike Plaintiffs’ Pretrial Order

• Plaintiffs filed their response in opposition.

• Plaintiffs remain willing to meet and confer on this issue. 

Defendants’ Motions in Limine re: Experts

• Catherine Smith

o Plaintiffs will file their response in opposition on or before November 5.

o Plaintiffs will meet and confer on this issue in light of the points raised in 

Plaintiffs’ response.

• Akilah Jefferson 

o Plaintiffs have filed their response in opposition.

o Plaintiffs remain willing to meet and confer on this issue in light of the points 

raised in Plaintiffs’ response.

• Unidentified portions of scientific expert testimony of six experts 

o Plaintiffs have filed their response in opposition.

o Plaintiffs remain willing to meet and confer on this issue in light of the points 

raised in Plaintiffs’ response.

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 64 of 69
November 3, 2018

Page 3 of 5

Defendants’ Motion for Judicial Notice of Congressional Hearing Reports

• Plaintiffs filed their response not opposing the authenticity of the documents but

preserving their objections to Defendants’ Exhibit List.

• Plaintiffs remain willing to meet and confer on this issue in light of the points raised in 

Plaintiffs’ response.

DISCOVERY

Depositions

• Plaintiffs propose taking the depositions of the following witnesses during the week of 

November 12:

o Dr. Akilah Jefferson in San Diego;

o Dr. Karrie Walters in Eugene;

o Dr. Jeffrey Sugar in Los Angeles;

o The author of the Speth Rebuttal Report; and

o Those Plaintiffs not previously deposed who will testify at trial in Eugene.

Gus Speth Rebuttal Report

• Plaintiffs propose a new deadline for service of this rebuttal report as November 9, 2018.

The prior deadline was October 26, one week after the temporary stay was put in place.

• Plaintiffs propose taking the deposition of this witness during the week of November 12.

Plaintiffs’ Supplemental Responses to Defendants’ Interrogatories

• Plaintiffs will serve supplemental responses to Defendants’ interrogatories.

Plaintiffs’ Motion to Compel Interrogatory Responses

• Plaintiffs will file a renewed request for expedited consideration of this motion.

TRIAL

Trial Scheduling

• Plaintiffs will request that the Court hold the Pre-Trial Conference on November 8 or 9.

• Plaintiffs will request that trial commence either on November 19 or during the latter part 

of the week of November 12 if the Court’s schedule allows, first with opening statements 

and witnesses.

• Plaintiffs believe opening statements should be limited to two hours per side.

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 65 of 69
November 3, 2018

Page 4 of 5

Designation of Eakin & Kuperberg Deposition Transcripts 

• Plaintiffs request that Defendants stipulate to the use of designated deposition testimony 

from these two witnesses.

Agenda for Pretrial Conference

• Plaintiffs believe the parties should agree on a proposed agenda for the Pre-Trial 

Conference.

• Plaintiffs’ proposed agenda is as follows:

o Administrative matters

▪ Trial Dates

▪ Hours per day: 8:30-4:30 p.m.

▪ Break out rooms

▪ Time limits per side for the presentation of evidence

o Opening statement: 2 hours per side.

o Order of witnesses

▪ Notice 48 hours in advance

▪ All witnesses are allowed in the courtroom

o Handling of experts

▪ We will ask the Court to have reviewed an expert’s report before that 

expert takes the witness stand. 

▪ We will suggest a limited direct examination of an expert witness based on 

the court’s review of his or her report.

▪ Voir dire of an expert.

▪ We will ask the Court to consider taking experts out of order such that

Plaintiffs may put on their rebuttal experts during Plaintiffs’ case-in-chief.

▪ We will ask the Court to address confidential proceedings re. testimony 

about Plaintiffs.

o Handling of exhibits

▪ Hard copies/binders: the parties should reach a date for completion of the 

physical marking and numbering of all papers and objects that are 

expected to be introduced as exhibits.

• Bates number

• Exhibit sticker

• Submission to court

o Objections

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 66 of 69
November 3, 2018

Page 5 of 5

• Objections not so disclosed (other than objections under Federal 

Rules of Evidence 402 and 403) shall be deemed waived unless 

excused by the court for good cause shown. See Fed. R. Civ. P. 

26(a)(3).

o Does not apply to demonstratives

o Effect of failure to list an exhibit or to disclose such exhibit 

to opposing counsel will result, except upon a showing of 

good cause, in the non-admissibility of the exhibit into 

evidence at the trial.

o Plaintiffs will raise with the Court that Defendants failed to 

make their exhibits available for inspection prior to the due 

date for submission of objections.

o For each listed exhibit, counsel shall determine whether 

they will stipulate to admissibility for all purposes or at 

least waive foundation for the opposing party's exhibits. 

o Depositions

• Designations by the offering party of those portions of any 

depositions which will be presented at trial.

• The other party shall then designate additional portions of any 

deposition appearing on the offering party's list.

• A party who objects to admissibility of deposition testimony to be 

offered shall file a list of objections that party intends to preserve.

• Counsel shall then confer prior to commencement of the trial to 

edit the depositions.

o Use of other discovery materials

Plaintiffs are willing to consider other matters that Defendants wish to raise. We look 

forward to scheduling a meet and confer on November 5.

Regards,

/s/

Philip L. Gregory

cc: Julia A. Olson 

Andrea Rodgers

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 67 of 69
CERTIFICATE OF SERVICE 

 I hereby certify that I electronically filed the foregoing with the Clerk of the 

Court for the United States Court of Appeals for the Ninth Circuit by using the 

appellate CM/ECF system on November 5, 2018. 

I further certify that on this date, a notice of filing of the foregoing (including 

a complete copy of the foregoing) will be filed in the district court in the underlying 

matter, and service in compliance with Federal Rule of Appellate Procedure 21(a)(1) 

will be accomplished through the district court’s CM/ECF system. All counsel in 

this case are participants in that system. In addition, a courtesy copy of the foregoing 

has been provided via e-mail to the following counsel for Plaintiffs: 

Julia A. Olson 

JuliaAOlson@gmail.com 

Wild Earth Advocates 

1216 Lincoln Street 

Eugene, Oregon 97401 

Philip L. Gregory 

pgregory@gregorylawgroup.com 

Gregory Law Group 

1250 Godetia Drive 

Redwood City, California 94062 

Daniel M. Galpern 

Dan.Galpern@gmail.com 

Law Offices of Daniel M. Galpern 

1641 Oak Street 

Eugene, Oregon 97401 

 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 68 of 69
Andrea K. Rodgers 

Andrearodgers42@gmail.com 

Law Offices of Andrea K. Rodgers 

3026 NW Esplanade 

Seattle, Washington 98117 

s/ Eric Grant 

Eric Grant 

Counsel for Petitioners 

Case 6:15-cv-01517-AA Document 420-1 Filed 11/05/18 Page 69 of 69