JULIA A. OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com

Wild Earth Advocates

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825 

PHILIP L. GREGORY (pro hac vice)

pgregory@gregorylawgroup.com 

Gregory Law Group 

1250 Godetia Drive

Redwood City, CA 94062

Tel: (650) 278-2957 

ANDREA K. RODGERS (OR Bar 041029)

Andrearodgers42@gmail.com

Law Offices of Andrea K. Rodgers

3026 NW Esplanade

Seattle, WA 98117

Tel: (206) 696-2851

Attorneys for Plaintiffs 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KELSEY CASCADIA ROSE JULIANA; 

XIUHTEZCATL TONATIUH M., through his 

Guardian Tamara Roske-Martinez; et al.,

Plaintiffs,

v.

The UNITED STATES OF AMERICA; 

DONALD TRUMP, in his official capacity as 

President of the United States; et al., 

Defendants.

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

PLAINTIFFS’ RESPONSE IN 

OPPOSITION TO DEFENDANTS’ 

MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

Page

I. INTRODUCTION.........................................................................................................1

II. STANDARD OF REVIEW.......................................................................................... 2

III. ARGUMENT.................................................................................................................3

A. Plaintiffs Present Specific Material Facts Sufficient to Establish Their Article III 

Standing on Summary Judgment and Create a Triable Issue of Fact............................3 

1. Youth Plaintiffs Submit Sufficient Evidence of Their Concrete, 

Particularized, Actual Harms.............................................................................4

2. Plaintiffs Submit Sufficient Evidence Showing Their Injuries Are Fairly 

Traceable to Defendants’ Misconduct.............................................................11

1. Creating, controlling, perpetuating, and promoting a national fossil 

fuel-based energy system through planning and policies....................12

2. Fostering, perpetuating, and promoting a national fossil fuel-based 

energy system by leasing public lands for fossil fuel extraction and 

production............................................................................................13

3. Fostering, perpetuating, and promoting the emission of GHGs, and 

reducing carbon sequestration capacity, from land use activities by 

allowing the harvesting of timber and grazing on federal public lands.

.............................................................................................................15

4. Subsidizing and providing financial incentives and business support to 

fossil fuel energy producers and users in support of a national fossil 

fuel-based energy system.................................................................... 15

5. Conducting research and development in support of fossil fuel 

extraction and energy technologies. ....................................................15

6. Permitting, authorizing, and promoting the import and export of fossil 

fuels in support of a national fossil fuel-based energy system................

.............................................................................................................16

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7. Permitting the interstate infrastructure and transport of fossil fuels as 

part of a national fossil fuel-based energy system...............................16

8. Permitting the operations of fossil-fuel power plants and fossil fuel 

refineries, as part of a national fossil fuel-based energy system. ........17

9. Setting energy, economy, and efficiency standards for vehicles, 

appliances, and buildings that use energy from the national energy 

system in a manner that fosters, perpetuates, and promotes fossil 

energy. .................................................................................................17

10. Controlling and permitting all aviation travel and perpetuating the 

reliance thereof on fossil energy..........................................................18

11. Emitting GHGs through the use of fossil fuel energy in government 

buildings and activities. .......................................................................18

12. Utilizing discretionary authority to favor fossil fuels..........................18

3. Plaintiffs Submit Sufficient Evidence Showing Their Injuries Can be 

Redressed...............................................................................................................23

B. Plaintiffs’ Constitutional Claims Are Not Governed by the APA...............................28

1. This Court Has Already Determined That the Fifth Amendment Provides 

Plaintiffs’ Right of Action. ....................................................................................28

2. Supreme Court and Ninth Circuit Precedent Establish That the APA is Not the 

Sole Means of Review for Constitutional Challenges to Agency Conduct...........29

3. Limiting Plaintiffs’ Constitutional Claims to the Strictures of the APA Would 

Violate Their Right to Procedural Due Process.....................................................33

C. Plaintiffs’ Claims and Requested Relief Do Not Violate Separation of Powers 

Principles. ....................................................................................................................36

1. Courts Have the Authority and Obligation to Address Claims of Constitutional 

Infringements and Public Trust Violations..................................................................37

2. Plaintiffs Properly Request Declaratory and Injunctive Relief for Their Injuries. 40

D. Plaintiffs’ Claims Do Not Fail as a Matter of Law......................................................42

1. Material Facts are in Dispute Regarding Plaintiffs’ Fundamental Right to a 

Climate System Capable of Sustaining Human Life...................................................42

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2. Plaintiffs’ Proffer of Evidence of Material Facts Disputed by Defendants 

Demonstrates That the Federal Government Has Put Them in a Position of Danger in 

Violation of the Fifth Amendment. .............................................................................46

3. Plaintiffs Submit Evidence of Material Facts Disputed by Defendants Regarding 

Their Claim That The Public Trust Doctrine Applies to the Federal Government’s 

Management of Trust Resources. ................................................................................49

4. Plaintiffs’ Have Preserved Three Fifth Amendment Claims that are Not at Issue in 

Defendants’ Motion.....................................................................................................52

E. This Court Should Not Certify a Denial of Defendants’ Motion for Summary 

Judgment for Interlocutory Appeal..............................................................................54

IV. Conclusion...................................................................................................................55

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TABLE OF AUTHORITIES

CASES

AEP v. Connecticut, 564 U.S. 410 (2011)................................................................................27,50

Allen v. Wright, 468 U.S. 737 (1984).................................................................................37,39,41,

Amigos Bravos v. U.S. Bureau of Land Mgmt., 816 F. Supp. 2d 1118 (D.N.M. 2011) ..................5

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)................................................................3, 4

Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) ........................................32, 33

Armstrong v. Manzo, 380 U.S. 545 (1965)....................................................................................35

Atkins v. Virginia, 536 U.S. 304 (2002) ........................................................................................43

Baker v. Carr, 369 U.S. 186 (1962) ........................................................................................38,41

Bell v. Hood, 327 U.S. 678 (1946). ...............................................................................................32

Bennett v. Spear, 520 U.S. 154 (1997)....................................................................................20, 21

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)..........31

Bolling v. Sharp, 347 U.S. 497 (1954) .........................................................................................31

Bowsher v. Synar, 478 U.S. 714 (1986) ...................................................................................37,39

Brown v. Bd of Educ., 347 U.S. 483 (1954) ........................................................................24,38,43

Brown v. Bd. of Educ., 349 U.S. 294 (1955) ......................................................................38,39,41

Brown v. Plata, 563 U.S. 493 (2011) ...............................................................................22, 24, 26

Bush v. Lucas, 462 U.S. 367 (1983)..............................................................................................31

Carlson v. Green, 446 U.S. 14 (1980)...........................................................................................31

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)................................................................................2

Cent. Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002).....................................3

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Chehalem Physical Therapy, Inc. v. Coventry Health Care, Inc., No. 09-CV-320-HU, 2010 WL 

952273 (D. Or. 2010) ....................................................................................................................55

City of Oakland v. B.P, Order Granting Motion to Dismiss, No. 3:17-cv-06011-WHA (N.D. Cal. 

June 25, 2018) ...............................................................................................................................27

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).................................................................3, 10

Clinton v. Jones, 520 U.S. 681 (1997)...........................................................................................38

Conner v. U.S. Dep’t of Interior, 73 F. Supp. 2d 1215 (D. Nev. 1999) ........................................51

Cortez v. Skol, 776 F.3d 1046 (9th Cir. 2015).................................................................................2

Couch v. Telescope Inc., 611 F.3d 629 (9th Cir. 2010)...........................................................54, 55

Ctr. for Biological Diversity v. U.S. Dep’t of the Interior, 563 F.3d 466 (D.C. Cir. 2009)............5

Daimler Chrysler Corp. v. Cuno, 547 U.S. 353 (2006) ................................................................10

Davis v. Passman 442 U.S. 228 (1979)...................................................................................31, 33

Deshaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989) .....................................46

Eisenstadt v. Baird, 405 U.S. 438 (1972) .....................................................................................38

Florida v. Georgia, No. 220142, 2018 WL 3129786 (S. Ct. June 27, 2018) ...............................26

Franklin v. Massachusetts, 505 U.S. 788 (1992) ..........................................................................29

Furman v. Georgia, 408 U.S. 238 (1972) .....................................................................................43

Gill v. Whitford, 138 S. Ct. 1916 (2018) ................................................................................27, 28

Glasser v. United States, 315 U.S. 60 (1942)................................................................................38

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ................................................................................38

Griswold v. Connecticut, 381 U.S. 479 (1965) ............................................................................38

Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308 (1999) ....................41

Grutter v. Bollinger, 539 U.S. 306 (2003).....................................................................................43

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Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99 (1945) ........................................................................41

Hawaii v. Trump, 585 U.S. __ (2018) (slip op.)..............................................................................6

Hecht Co. v. Bowles, 321 U.S. 321 (1944)....................................................................................41

Hills v. Gautreuax, 425 U.S. 284 (1976).......................................................................................30

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) .....................................................................52

Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).............................................................49

In re Anchorage Nautical Tours, Inc., 145 B.R. 637 (B.A.P. 9th Cir. 1992) ...............................55

In re Steuart Transp. Co., 495 F. Supp. 38 (E.D. Va. 1980).........................................................51

In re United States, 884 F.3d 830 (9th Cir. 2018)...............................................................36,50,55

In re United States, No. 17-71692 (9th Cir. June 9, 2017) ...........................................................29

Jarita Mesa Livestock Grazing Ass’n v. U.S. Gen. Serv., 58 F. Supp. 3d 1191 (D.N.M. 2014) ..30

Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016).............................................. passim

Kennedy v. Silas Mason Co., 334 U.S. 249 (1948) .........................................................................4

Kleppe v. Sierra Club, 427 U.S. 390 (1976)..................................................................................55

La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986) .................................................................24

Laird v. Tatum, 408 U.S. 1 (1972).................................................................................................32

Larson v. Valente, 456 U.S. 228 (1982)........................................................................................23

Lawrence v. Texas, 539 U.S. 558 (2003).......................................................................................43

Lewis v. Casey, 518 U.S. 343 (1996).......................................................................................23, 28

Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) .........................39

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)............................................................ passim

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990)......................................................................32

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .....................................................................33

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Martin v. Waddell, 41 U.S. 367 (1842) .........................................................................................50

Massachusetts v. EPA, 549 U.S. 497 (2007).............................................................................3, 21

Matthews v. Eldridge, 424 U.S. 319 (1976)..................................................................................34

McDonald v. City of Chicago, IL, 561 U.S. 742 (2010) ...............................................................42

McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991) ........................................................33

Milliken v. Bradley, 433 U.S. 267 (1977) ................................................................................40,41

Mowat Const. Co. v. Dorena Hydro, LLC, No. 6:14-CV-00094-AA, 2015 WL 5665302, at *5 

(D. Or. Sept. 23, 2015) .................................................................................................................54

Navajo Nation v. U.S. Dept. of the Interior, 876 F.3d 1144 (9th Cir. 2017) ................................30

Nixon v. Fitzgerald, 457 U.S. 731 (1982) .....................................................................................41

Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004)...........................................................24, 32

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ..................................................................... passim

Occupy Eugene v. U.S. Gen. Serv. Admin., No. 6:12-CV-02286-MC, 2013 WL 6331013 (D. Or. 

Dec. 3, 2013) .................................................................................................................................31

Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846 (9th Cir. 2005)............................11

Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016) ....................................................................47,49

Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ..........................................42,54

Poe v. Ullman, 367 U.S. 497 (1961) .............................................................................................42

PPL Montana, LLC v. Montana, 565 U.S. 576 (2012)..................................................................49

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989) .............................30

Reynolds v. Sims, 377 U.S. 533 (1964) .........................................................................................28

Roper v. Simmons, 543 U.S. 551 (2005) .......................................................................................43

Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982) .............................................................................40

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San Luis Unit Food Producers v. United States, 709 F.3d 798 (9th Cir. 2013)............................32

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) .................................................................32

Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) .................................................................32

Sierra Club v. U.S. Def. Energy Support Ctr., No. 01:11-cv-41, 2011 WL 3321296 (E.D. Va. 

July 29, 2011) ..................................................................................................................................5

Simon v. E. Ky. Welfare Rights Org. 426 U.S. 26 (1976) .............................................................20

Swann v. Charlotte-Mecklenburg Bd. Of Educ., 402 U.S. 1 (1971)..............................................26

Taylor v. Louisiana, 419 U.S. 552 (1975).....................................................................................38

Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010)..........................................................................2

U.S. Rubber Co. v. Wright, 359 F.2d 784 (9th Cir. 1966) ............................................................55

United States v. Bd. of Cty. Comm’rs of Cty. of Otero, 843 F.3d 1208 (10th Cir. 2016)..............50

United States v. Beebe, 127 U.S. 338 (1888) ................................................................................52

United States v. Burlington N. R.R., 710 F. Supp. 1286 (D. Neb. 1989) ......................................51

United States v. California, 332 U.S. 19 (1947)............................................................................52

United States v. Causby, 328 U.S. 256 (1946) .............................................................................52

United States v. CB & I Constructors, Inc., 685 F.3d 827 (9th Cir. 2011) ...................................51

United States v. Oregon, 295 U.S. 1 (1935)..................................................................................52

United States v. Trinidad Coal & Coking Co., 137 U.S. 160 (1890) ...........................................52

United States v. U.S. Dist. Court for Dist. of Or., No. 17-71692 (9th Cir. Dec. 11, 2017)...........29

W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116 (9th Cir. 2009).....................................31

Wash. Envtl. Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013) ........................................... passim

Washington v. Glucksberg, 521 U.S. 702 (1997)..........................................................................42

Webster v. Doe, 486 U.S. 592 (1998)................................................................................29, 33, 34

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WildEarth Guardians v. Salazar, 880 F. Supp. 2d 77 (D.D.C. 2012).............................................5

Wilson v. Seiter, 501 U.S. 294 (1991) ...........................................................................................22

Ziglar v. Abassi, 137 S. Ct. 1843 (2017).................................................................................31, 32

CONSTITUTION

U.S. Const., art. III, § 2..................................................................................................................37

STATUTES

5 U.S.C. § 702 ...............................................................................................................................28

15 U.S.C. §§ 2901-04 ....................................................................................................................25

16 U.S.C. § 551 .............................................................................................................................25

16 U.S.C. § 576 .............................................................................................................................25

16 U.S.C §§ 1600-1611 .................................................................................................................25

28 U.S.C. § 1292(b).......................................................................................................................52

30 U.S.C §§ 181-287 .....................................................................................................................54

30 U.S.C §§ 351-359 .....................................................................................................................25

33 U.S.C. § 403 .............................................................................................................................25

33 U.S.C. § 1344 ...........................................................................................................................25

33 U.S.C. § 2706(b)(1)............................................................................................................ 25-26

33 U.S.C. § 2706(b)(2)..................................................................................................................51

42 U.S.C. § 4331(b)(1)..................................................................................................................51

42 U.S.C. §§ 6291-6296 ..........................................................................................................45, 51

42 U.S.C. § 7112 ...........................................................................................................................25

42 U.S.C. § 7321 ...........................................................................................................................25

42 U.S.C. §§ 7401-7431 ................................................................................................................25

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42 U.S.C. § 9607(f)(1)...................................................................................................................11

42 U.S.C. § 9607(f)(2)(A) .............................................................................................................45

43 U.S.C. § 1334 ...........................................................................................................................25

43 U.S.C. § 1337 ...........................................................................................................................25

43 U.S.C. §§ 1701-1784 ................................................................................................................25

49 U.S.C. § 32902 .........................................................................................................................25

49 U.S.C. § 40102(a)(46) ..............................................................................................................52

49 U.S.C. § 40103(a)(1) ................................................................................................................25

Clean Air Act § 4502.....................................................................................................................45

National Environmental Policy Act § 4502...................................................................................45

REGULATIONS

36 C.F.R. § 223(a) .........................................................................................................................15

36 C.F.R. § 261.6(a) ......................................................................................................................15

36 C.F.R. § 261.6(b)......................................................................................................................15

36 C.F.R. § 261.6(h)......................................................................................................................15

40 C.F.R. § 300.600(a) ..................................................................................................................51

40 C.F.R. § 300.600(b)..................................................................................................................51

RULES

Fed. R. Civ. P. 56(a)........................................................................................................................2

OTHER AUTHORITIES

Complaint of the United States of America, United States v. BP Exploration & Production, 

Inc., No 2:10CV04536, 2010 WL 5094310, at ¶ 66 (E.D. La. 2010) ...........................................52

Exec. Order No. 13337, 69 Fed. Reg. 25299.................................................................................26

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J. Inst. 2.1.1 (T. Sanders trans., 4th ed. 1867) ...............................................................................52

Oceans Commission: Hearing Before the S. Comm. on Commerce, Sci., & Transp., 108th Cong. 

(Sept. 21, 2004) (statement by Admiral James D. Watkins USN (Ret.), 

http://www.commerce.senate.gov/public/index.cfm/hearings?Id=51065a2d-0cd0-41c7-b916-

fbbb50cc9fec&Statement_id=4814F650-71F1-40A1-90E7-7F563C08D25A .............................51

Oral Arg. Recording at 5:41-5:53, United States v. U.S. Dist. Court for Dist. of Or., No. 17-

71692 (9th Cir. Dec. 11, 2017), 

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012816 ..............................55

Pub. L. No. 85-726, § 101(33), 72 Stat. 731, 740 (1958)..............................................................52

Review of the Standards of Performance for Greenhouse Gas Emissions From New, Modified, 

and Reconstructed Stationary Sources: Electric Generating Units, 82 Fed. Reg. 16,330 (April 4, 

2017)..............................................................................................................................................27

The Federalist No. 46 (James Madison)........................................................................................50

United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc No. 

102-38, 1771 U.N.T.S. 107 ...........................................................................................................45

2 William Blackstone, Commentaries on the Laws of England 4 (1766) .....................................52

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I. INTRODUCTION

These young Plaintiffs seek the structural remedy necessary to protect them from Federal 

Defendants’ active historic and ongoing infringements of their Fifth Amendment substantive 

Due Process rights. The scope of the case is directly proportional to the systemic nature and 

magnitude of Defendants’ constitutionally violative conduct, persisting over decades, in 

controlling, perpetuating, and promoting a national fossil fuel-based energy system, despite longstanding knowledge of the resulting destruction to our nation and profound harm to future 

generations, including Plaintiffs. Had Defendants infringed Plaintiffs’ fundamental rights 

through a discrete and isolated action or group of actions, this would be a different case. 

Plaintiffs cannot be denied justice, their rights, or a remedy simply because Defendants’

infringement of these youth’s inalienable rights is of a profound and systemic nature. Defendants 

now find it inconvenient to wrestle with the breadth of factual issues presented in a constitutional 

concern of their own making. Notwithstanding the position of this Administration, it is axiomatic 

that the federal government must be held accountable under the Constitution for deliberate 

decisions that deprive Plaintiffs of life, liberty, or property and should be ordered to come into 

constitutional compliance when it wields its power and discretion to betray our children, entire 

generations, our Founders’ vision, and the underlying prerequisites of democracy itself. As the 

claims in this case are that significant, they must be fully vetted before this Court at trial based 

on a thorough evidentiary record. As a result, this Motion for Summary Judgment (ECF No. 207)

(“MSJ”) should be denied.

In an attempt to circumvent the dire facts and dark history of their conduct, Defendants 

seek summary judgment solely on the law and by ignoring the seventeen expert reports Plaintiffs 

have served in this litigation and the prior testimony of Plaintiffs. Defendants contend Plaintiffs 

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cannot establish Article III standing and seek adjudication on only three of Plaintiffs’ multiple 

Fifth Amendment claims. Plaintiffs oppose this MSJ, submitting declarations by the 21 Plaintiffs

and 18 experts, along with hundreds of government records that support Plaintiffs’ claims.

1 As 

the underlying facts are highly relevant to each issue presented by Defendants’ MSJ, and many 

material facts remain in dispute, this Court should have a full opportunity to hear from the 

experts and other witnesses so that its findings on the merits are fully informed. Summary 

judgment should be denied and this case should proceed to trial beginning October 29, 2018.2

II. STANDARD OF REVIEW 

Summary judgment may only be granted if “there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 

moving party has the burden of establishing the absence of a genuine issue of material fact. Id.; 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Only once the moving party shows the 

absence of genuine issues of material fact must the non-moving party go beyond the pleadings 

and identify facts showing a genuine issue for trial. Id. at 324. The court views the evidence, 

including all reasonable inferences, in favor of the non-moving party. Cortez v. Skol, 776 F.3d 

1046, 1050 (9th Cir. 2015). “An issue of material fact is genuine if there is sufficient evidence 

for a reasonable jury to return a verdict for the non-moving party.” Id. (quoting Thomas v. 

Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)). Material facts are those necessary to the proof or 

																																																						 1 Along with this Opposition, Plaintiffs are filing a Motion in Limine seeking judicial notice of a 

number of publicly available, government documents, many of which are referenced herein to 

2 Plaintiffs note that Defendants’ stated strategy is to force this Court to issue another order prior 

to trial so that they can file another “mandamus petition in the Ninth Circuit and seek an 

immediate stay” of this action without addressing the hard facts. Declaration of J. Olson in 

Support of Plaintiffs’ Response (“Olson Decl. MSJ”), ¶ 2, Ex. 1 at 1. This strategy parallels 

Defendants’ persistent refusal to participate in discovery. Their overarching theme: do whatever 

it takes to prevent this case from being heard at trial. That would be a travesty of justice.

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defense of a claim, determined by referring to substantive law. Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986). In deciding summary judgment, “[t]he evidence of the nonmovant is 

to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.

III. ARGUMENT

This partial MSJ should be denied because Defendants failed to satisfy their burden of 

establishing the absence of genuine issues of material fact and are not entitled to judgment as a 

matter of law.3 In addition, to highlight the inappropriateness of summary judgment, Plaintiffs 

oppose this MSJ by setting forth evidence showing genuine factual issues for trial regarding (1) 

standing, and (2) the merits of the subset of their claims that Defendants place at issue in their 

MSJ. Pursuant to Rule 56(e), these “specific facts” presented are taken as true for purposes of 

summary judgment. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

A. Plaintiffs Present Specific Material Facts Sufficient to Establish Their Article III 

Standing on Summary Judgment and Create a Triable Issue of Fact. 

To establish standing, only one plaintiff need show: (1) an injury in fact; (2) fairly 

traceable to Defendants’ conduct; and (3) likely to be redressed by a favorable decision. Id. at

560-61 (1992); Mass. v. EPA, 549 U.S. 497, 518 (2007). “[A]t the summary judgment stage the 

plaintiffs need not establish that they in fact have standing, but only that there is a genuine 

question of material fact as to the standing elements.” Cent. Delta Water Agency v. United 

States, 306 F.3d 938, 947 (9th Cir. 2002).4 Defendants’ Answer (ECF No. 98 (“Answer”)) to 

																																																						 3 Defendants do not move for summary judgment on all of Plaintiffs’ claims, as discussed in 

Section III(D)(4), infra. Defendants introduced facts, arguably, only on standing, offering paltry 

citations to the record. See MSJ at 9 (citing FAC at ¶¶ 171–78),11 (citing Decl. of Wanless, ECF 

No. 206-2 at ¶¶ 1–63), but ignoring all factual evidence proffered by Plaintiffs to date.

4 Defendants mistakenly invoke Clapper v. Amnesty Int’l USA to create a heightened barrier to 

standing. The rigor outlined in Clapper is used when “the Judiciary has been requested to review 

actions of the political branches in the fields of intelligence gathering and foreign affairs . . . .” 

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Plaintiffs do not request such review.

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Plaintiffs’ First Amended Complaint (ECF No. 7 (“FAC”)) shows many triable questions 

regarding standing.5 Defendants’ refusal to meaningfully engage in discovery aimed to resolve 

these factual disputes has impeded the full development of relevant facts necessary to evaluate 

Defendants’ actions. Compare Answer ¶ 27 (“Defendants deny the allegation in the third 

sentence that climate change is caused by [] Defendants.”) with ECF 217-1 p. 15 (Defendants 

filing protective order and refusing to answer RFA that “[o]ver the last decade, leases issued and 

administered by the Department of the Interior have resulted in the production of over 4.4 billion 

tons of coal from Federal lands.”) The Supreme Court has recognized that, “[w]hile we might be 

able, on the present record, to reach a conclusion that would decide the case, it might well be 

found later to be lacking in the thoroughness that should precede judgment of this importance 

and which it is the purpose of the judicial process to provide.” Kennedy v. Silas Mason Co., 334 

U.S. 249, 257 (1948); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, (1986).

While Plaintiffs herein introduce evidence sufficient to survive summary judgment, 

further discovery and trial are necessary for full development of the relevant facts regarding 

Plaintiffs’ injuries caused by Defendants’ misconduct and their redressability by this Court. 

1. Youth Plaintiffs Submit Sufficient Evidence of Their Concrete, 

Particularized, Actual Harms

																																																						 5 See Answer at ¶¶ 27-29, 31, 35, 37, 40-42, 46, 52, 54, 55, 64-67, 77, 80, 86, 88, 89 (Defendants 

deny they cause climate change in response to specific allegations of harm by Plaintiffs); ¶¶ 211, 

214, 215, 222, 229, 231, 233, 241, 247, 260 (Defendants claim vagueness or lack of information 

on scientific projections relevant to Plaintiffs’ injury-in-fact); ¶¶ 100, 101, 105, 106, 110, 112, 

115, 117, 119, 123, 127, 131, 146, 147, 149, 153, 159, 163, 169, 170-172, 179, 181-183, 185, 

186, 188 (Defendants deny information about specific Defendants relevant to causation and 

redressability); and ¶¶ 10, 129, 164, 208, 211, 212, 213, 258, 259, 276 (Defendants claim 

vagueness or lack of information on scientific and legal information relevant to redressability); 

see also ECF 217 (Defendants refusing to answer hundreds of requests for admissions of facts 

extracted from publicly available, government documents). This is a non-exhaustive list of 

disputed allegations, which demonstrates the breadth of issues still in dispute. Plaintiffs have 

asked, and Defendants have refused to stipulate to facts they denied in their Answer, or even to 

stipulate not to dispute the facts. Olson Decl. MSJ, ¶ 3.

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In the Declarations submitted herewith, Plaintiffs present specific facts showing the highly 

personalized ways in which they are concretely affected by Defendants’ actions. Coupled with 

Defendants’ denials in their Answer and their arguments in the MSJ, this evidence demonstrates

genuine issues of material fact regarding injury. In their Answer, Defendants dispute Plaintiffs’ 

particularized injuries and insist in their MSJ that Plaintiffs’ injuries are “generalized 

grievance[s]” involving “generalized phenomena on a global scale” and, thus, cannot be 

“concrete and particularized.”6 Answer at ¶¶ 16-90; MSJ at 7. Plaintiffs’ Declarations show the 

unique ways in which Plaintiffs’ concrete and actual injuries vary according to their particular 

locations, interests, and circumstances. See generally Declarations of all Plaintiffs filed herewith.

Some Plaintiffs have been and continue to be concretely injured by extreme weather 

events and flooding to their homes, which harm their personal security, economic security, and 

physical health. Jayden Decl., ¶¶ 2–26, 28–32, 39–42 (e.g. ¶ 11: “Yet the floodwaters kept 

pouring in, through doors, toilets, sinks, bathtubs, and even the roof.”); Journey Decl., ¶¶ 10, 13, 

																																																						 6 Defendants’ generalized grievance argument is equally mistaken on the law and has been 

rejected by this Court. Juliana v. U.S., 217 F.Supp.3d 1224, 1243-44 (D.Or. 2016); See also ECF 

No. 146 at 14. Pressing this Court to reverse itself on the law, Defendants turn to old, inapposite,

out-of-circuit cases where climate change harms were found insufficient for standing largely 

because the harm did not particularly touch the individual plaintiffs. That authority is not 

precedential or persuasive here. See Ctr. for Biological Diversity v. U.S. Dep’t of the Interior, 

563 F.3d 466, 478 (D.C. Cir. 2009) (alleging injuries to the Arctic environment generally); 

WildEarth Guardians v. Salazar, 880 F.Supp.2d 77, 85 (D.D.C. 2012) (no evidence of 

“demonstrable increase in risk” to plaintiffs’ interests from coal mining operations); Amigos 

Bravos v. U.S. Bureau of Land Mgmt., 816 F.Supp.2d 1118, 1128 (D.N.M. 2011) (plaintiffs’ 

declarations were not supported by experts); Sierra Club v. U.S. Def. Energy Support Ctr., No. 

01:11-cv-41, 2011 WL 3321296 at 1-3 (E.D. Va. July 29, 2011) (alleging generalized injuries 

not connected to the specific contract or plan). 

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15, 17, 21–27 (e.g. ¶ 21: “In 2012, Kaua‘i was flooded from weeks of rain. My family and I were 

displaced and evacuated to a Red Cross shelter. I could not go to school for the entire week.”).

7

Some Plaintiffs have been and continue to be concretely injured by extreme heat, drought 

conditions, beetle-killed forests, increased and more dangerous wildfire seasons, and decreased 

air quality, which harm their homes, economic livelihoods, personal security, physical health, 

water sources, and ability to recreate safely.

8 Alexander Decl., ¶¶ 12–21, 22–25, 27–31, 33–41,

48 (e.g. ¶ 38: “A massive column of smoke from the Stouts Creek fire was visible from my 

family’s farm. Seeing the columns of smoke caused significant emotional distress for my family 

and me and it made me fearful of losing my farm.”); Kelsey Decl., ¶¶ 3, 6–7, 9, 11–12, 15, 22 

(e.g. ¶ 15: “Smoke from . . . wildfires affected my ability to work, which made it more difficult 

to support myself during college and gain valuable work experience.”).

9

Some Plaintiffs have been and continue to be concretely injured by the lack of snow and 

ice, and the melting thereof, which impairs their recreational interests and their water sources. 

																																																						 7 See also Avery Decl., ¶ 20; Hazel Decl., ¶ 4; Isaac Decl., ¶¶ 2, 9, 19; Kelsey Decl., ¶ 16; Levi 

Decl., ¶¶ 12–16, 18; Nathaniel Decl., ¶ 2; Nicholas Decl., ¶ 14; Sophie Decl., ¶¶ 3–5, 12; Tia 

Decl., ¶ 9; Victoria Decl., ¶¶ 8–9, 11–12, 15; Xiuhtezcatl Decl., ¶ 16; Trenberth Decl., Ex. 1 at 

20-21; Pacheco Decl., Ex. 1 at 14-16, 30; Stiglitz Decl., Ex. 1 at 6-8, 15-17, 19-26; Wanless 

Decl., Ex. 1 at 18-20, 24-25; Frumkin Decl., Ex. 1 at 5, 11-15.

8 Climate induced drought and water scarcity forced Plaintiff Jaime to leave her home, separating 

her from her relatives. Jaime Decl. at ¶ 4; Hawaii v. Trump, 585 U.S. __ (2018) (slip op. at 25) 

(separation from relatives established injury in fact).

9 See also Aji Decl., ¶¶ 2–4, 7–8; Avery Decl., ¶¶ 10–15, 24–25; Hazel Decl., ¶ 12; Isaac Decl., 

¶¶ 2–7, 10; Jacob Decl., ¶¶ 4, 7–15, 17; Jaime Decl., ¶¶ 4, 8, 15–20, 23, 25–28, 33; Jayden Decl., 

¶¶ 33–36; Journey Decl., ¶ 7; Kiran Decl., ¶¶ 6–8; Miko Decl., ¶¶ 11–14; Nathaniel Decl., ¶ 4; 

Nicholas Decl., ¶¶ 2–10; Sahara Decl., ¶¶ 3, 6–7; Tia Decl., ¶ 6; Xiuhtezcatl Decl., ¶¶ 7–11, 15, 

18; Zealand Decl., ¶¶ 5–7, 9, 14–15, 18; Trenberth Decl., Ex. 1 at 20-22; Pacheco Decl., Ex. 1 at 

6-8, 11-17, 19-29; Frumkin Decl., Ex. 1 at 3-7, 11-15; Running Decl., Ex. 1 at 5-9, 12-18, 24-27, 

29; Stiglitz Decl., Ex. 1 at 6-8, 12-14, 17-18, 19-26; Olson Decl. Exs. 42, 56 (USDA recognizing 

“[c]limate change has led to fire seasons that are now on average 78 days longer than in 1970.”), 

381.

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Avery Decl., ¶¶ 18–19 (e.g. ¶ 19: “[My favorite] winter activities were not possible from 2013-

2015 due to lack of snow.”); Nicholas Decl., ¶¶ 15–16 (“It is a staggering sight for me to see 

mountains, which used to always have snow, now have no snow at all.”).

10

Some Plaintiffs have been and continue to be concretely injured by ocean warming and 

acidification and sea level rise, which harm their homes, health, economic livelihood, personal 

security, and places of recreation and spirituality. Levi Decl., ¶¶ 3, 7–10, 17 (e.g. ¶ 8: “I often 

swam in the Indian River Lagoon on the west side of the barrier island, but I can no longer swim 

there because of increasing flesh-eating bacteria, dead fish, and algae blooms.”); Dr. Wanless 

opines that “we are in the danger zone in southern Florida, and any delay in a judicial remedy for 

Plaintiff Levi poses clear and irreversible harm to his interests and his future,” due to the rising 

seas overtaking Levi’s barrier island home. Wanless Decl., Ex. 1 at 30, 24 (“His island is already 

facing sea level rise and increased inundation during storms. At 90 cm (3 feet) of sea level rise, 

Levi’s home will be in the sea.”).11

Some Plaintiffs are already suffering from injuries to their physical health from climate 

change. Alexander Decl., ¶ 48 (“When I am suffering from asthma and allergies, I have difficulty 

																																																						 10 See also Alexander Decl., ¶¶ 42, 46–47; Hazel Decl., ¶¶ 8–10; Isaac Decl., ¶¶ 11–12; Jacob 

Decl., ¶¶ 4, 18–19; Jaime Decl., ¶¶ 21–22, 24; Kelsey Decl., ¶¶ 6, 11; Kiran Decl., ¶¶ 1–2; 

Nathaniel Decl., ¶¶ 2, 5; Sahara Decl., ¶ 8; Tia Decl., ¶¶ 2, 4–5, 11–13; Xiuhtezcatl Decl., ¶¶ 7, 

12–13; Zealand Decl., ¶¶ 10–12, 16; Running Decl., Ex. 1 at 9-11, 21-23, 29; Rignot Decl., Ex. 1 

at 11-13, 18-19.

11 See also Aji Decl., ¶¶ 5–6; Alexander Decl., ¶¶ 43–45; Avery Decl., ¶¶ 21–23; Hazel Decl., ¶¶ 

6–7; Jacob Decl., ¶¶ 20–23; Jayden Decl., ¶ 3; Journey Decl., ¶¶ 4–5, 7–20, 26; Kelsey Decl., ¶¶ 

4–5, 13–14; Kiran Decl., ¶¶ 3–4, 10–11, 12; Miko Decl., ¶¶ 3–6, 9, 15; Sahara Decl., ¶¶ 4–5; Tia 

Decl., ¶¶ 8–9; Victoria Decl., ¶¶ 5–7, 9–10; Zealand Decl., ¶ 13; Hoegh-Guldberg Decl., Ex. 1 at 

2-30; Hansen Decl., Ex. 1 at 39-41, Ex. 2-8, 26-34; Wanless Decl., Ex. 1 at 5-32; Rignot Decl., 

Ex. 1 at 1-11, 15-19; Pacheco Decl., Ex. 1 at 10-11, 30; Frumkin Decl., Ex. 1 at 11-15; Stiglitz 

Decl., Ex. 1 at 14, 18, 19-26.

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partaking in outdoor activities. This harms both my ability to work on the farm and my ability to 

recreate and enjoy the beautiful forests and rivers surrounding my home.”).

12

Some Plaintiffs have suffered direct health impacts and threats to personal security from 

fossil fuel activities, such as breathing in air filled with coal dust, Victoria Decl., ¶¶ 14–15, and 

threats to their water resources caused by fossil fuel pipeline projects. Alexander Decl., ¶ 9, 49–

58; Jacob Decl., ¶ 24–28 (proposed pipeline in water source a mile from home); see also Jayden 

Decl., ¶¶ 2–4, 25, 27, 36–37, 44–50 (air pollution and water quality; oil spills);; Kelsey Decl., ¶ 

22 (air pollution from fossil fuel facilities); Kiran Decl., ¶ 13 (oil trains); Xiuhtezcatl Decl., ¶ 17 

(fracking), ¶ 18 (oil fields); Pacheco Decl., Ex. 1 at 19-25.

Some Plaintiffs have been and continue to be concretely injured by impacts to wildlife, 

domesticated animals, and plants on which they depend for their food, livelihoods, and personal 

enjoyment. Nicholas Decl., ¶¶ 10–13, 17 (e.g. ¶ 17: “I am afraid that climate change is going to 

make it impossible to continue some of the traditions I have such as planting a garden, which has 

been an important part of my life.”); Jaime Decl., ¶¶ 4–6, 8–13, 16, 26, 32 (e.g. ¶ 5: “On the 

reservation we simply stopped farming. . . . nothing would grow.”; ¶ 8: “More and more wild 

animals are dying on the Reservation. . . . This is extremely disturbing to me because I care 

deeply about animals and their well-being.”).

13

																																																						 12 See also Aji Decl., ¶ 2; Avery Decl., ¶ 15; Hazel Decl., ¶¶ 4–5, 11; Isaac Decl., ¶¶ 3–6, 8, 1; 

Jaime Decl., ¶¶ 27–28; Jayden Decl., ¶¶ 19–21; Journey Decl., ¶¶ 1, 16, 18, 24; Kelsey Decl., ¶ 

10; Kiran Decl., ¶¶ 5–6, 9; Levi Decl., ¶ 13; Nathaniel Decl., ¶¶ 3–4; Nicholas Decl., ¶¶ 5, 9; 

Sahara Decl., ¶ 6; Sophie Decl., ¶ 9; Tia Decl., ¶ 6; Victoria Decl., ¶ 13; Xiuhtezcatl Decl., ¶¶ 14, 

17; Zealand Decl., ¶¶ 8–9, 18; Pacheco Decl., Ex. 1; Frumkin Decl., Ex. 1.

13 See also Aji Decl., ¶¶ 5–6; Alexander Decl., ¶¶ 10–35, 44–45; Avery Decl., ¶¶ 5–6, 12, 16–17, 

21–23, 25; Hazel Decl., ¶ 7; Isaac Decl., ¶ 2; Jacob Decl., ¶¶ 1–2, 5, 13–17, 20–23, 26, 29; 

Jayden Decl., ¶¶ 24, 27, 35; Journey Decl., ¶¶ 7, 10, 13, 15–16, 19–20; Kelsey Decl., ¶¶ 4–5, 7–

8, 12–13, 16, 18; Kiran Decl., ¶¶ 3–4, 10; Levi Decl., ¶¶ 8–9, 12; Nathaniel Decl., ¶¶ 6–8;

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Some Plaintiffs have sustained and increasingly are sustaining particularized and concrete 

injuries to their spiritual, cultural, and/or indigenous practices and values. Miko Decl., ¶¶ 4, 6–7, 

9 (“Without the land, there is no culture [for my people].”); Jaime Decl., ¶¶ 4, 12–14, 33 (e.g. ¶ 

14: “Because we can no longer harvest these sacred objects, my people are losing our dignity and 

our way of life.”); Xiuhtezcatl Decl., ¶¶ 6–8 (e.g. ¶ 6: “Protecting the forests, lakes, river, oceans, 

and wildlife from harm due to climate change is critical to my spiritual and cultural practices and 

identity. . . . Because I believe that I am a descendant of the land, climate change impacts that 

harm the land also harm me in a very personal way.”).

14

Each Plaintiff is suffering concrete emotional and mental health injuries to varying 

individualized degrees, which experts predict will become more severe as climate change 

worsens, in the absence of strong government action to stop imperiling their lives and 

meaningfully combatting the dangers of climate change. Victoria Decl., ¶¶ 8–10, 16–18, 19 (e.g. 

¶ 18: “I would be a healthier person if I did not have to worry about how climate change is 

negatively affecting my life.”); Jayden Decl., ¶¶ 10, 30, 32, 35, 37–42, 51 (e.g. ¶ 42: “The stress 

of living in an area that continually floods and is actively drilled in for more fossil fuels that I 

know will lead to more climate change is taking its toll on me. It affects my mental state and 

causes me anxiety.”); Nicholas Decl., ¶¶ 4, 7, 17 (e.g. ¶ 4: “Seeing all of the beautiful land 

surrounding my home destroyed made me feel depressed. I thought about how it will take 

																																																																																																																																																																														

Sophie Decl., ¶ 8; Sahara Decl., ¶ 4; Tia Decl., ¶ 13; Zealand Decl., ¶¶ 13, 17; Hoegh-Guldberg 

Decl., Ex. 1 at 11-28; Running Decl., Ex. 1 at 11, 19-21.

14 See also Isaac Decl., ¶¶ 11, 14–16; Jacob Decl., ¶¶ 3–5, 13; Journey Decl., ¶¶ 1–2; Kelsey 

Decl., ¶¶ 3, 7–8, 18; Kiran Decl., ¶ 12; Nathaniel Decl., ¶¶ 1, 9; Nicholas Decl., ¶ 1; Tia Decl., ¶ 

2; Victoria Decl., ¶¶ 6–7, 17, 19.

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hundreds of years for the forest to recover, if ever, and felt hopeless.”).

15 Not only have Plaintiffs

presented evidence of their actual, concrete and particularized injuries, they also present 

evidence through expert declarations and government documents of their current and imminently 

threatened future injuries. Plaintiffs are not required “to demonstrate that it is literally certain that 

the harms they identify will come about . . . . [S]tanding [has been found] based on a ‘substantial 

risk’ that the harm will occur . . . .” Clapper, 568 U.S. at 414 n.5. Plaintiffs’ experts starkly 

present reliable evidence that more injuries will undoubtedly befall Plaintiffs because the dangers

from CO2 and other greenhouse gases (collectively “GHGs”) are already locked in. Rignot Decl., 

Ex. 1 at 1 (“Thus between irreversible melting of portions of Greenland’s and Antarctica’s ice 

sheets, humanity has already committed itself to a 3-6 m rise in sea level.”). Plaintiffs also 

present reliable evidence of the imminent and substantial risk of injury that projected increasing 

GHG levels and temperatures will cause Plaintiffs if a remedy is not granted here. Hansen Decl., 

Exh. 1 at 1. Contrary to Defendants’ position, there is no Article III requirement that each claim 

of injury be connected “to a discrete and specifically identified agency action or failure to act” in 

violation of federal law. MSJ at 8;

16 See Sections III(A)(2), III(B) infra. There are 

unquestionably genuine issues of material fact on injury that preclude summary judgment here.

																																																						 15 See also Alexander Decl., ¶¶ 38, 48; Hazel Decl., ¶¶ 3, 12; Isaac Decl., ¶¶ 3, 6, 10, 13, 17, 19–

21; Jacob Decl., ¶ 29; Jaime Decl., ¶¶ 4, 20, 26–27, 29–33; Journey Decl., ¶¶ 10, 19, 25, 27–28; 

Kelsey Decl., ¶¶ 11, 16, 18–19, 22, 24; Levi Decl., ¶¶ 5–6, 11, 15, 19–20; Miko Decl., ¶¶ 5–8, 

11, 13–14; Nathaniel Decl., ¶¶ 1, 6, 9; Sahara Decl., ¶¶ 7, 9; Sophie Decl., ¶¶ 6, 10–12; Tia 

Decl., ¶¶ 14–15; Xiuhtezcatl Decl., ¶¶ 3, 5, 13, 15, 18–21; Zealand Decl., ¶¶ 12–15, 17–19; Van 

Susteren Decl., Ex. 1 at 1-24, Exhibit C; Pacheco Decl., Ex. 1 at 26-31; Frumkin Decl., Ex. 1 at 

10-15.

16 Daimler Chrysler Corp. v. Cuno is inapposite. 547 U.S. 353 (2006). There, where the 

claimants showed injury with respect to their municipal taxes, such injury did not entitle them to 

seek relief as to the state taxes, for which they lacked standing. Id. at 353. In contrast, as 

demonstrated in Section III(A)(2), Plaintiffs’ injuries are directly connected to the aggregate acts 

comprising the systemic nature of Defendants’ challenged conduct.

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2. Plaintiffs Submit Sufficient Evidence Showing Their Injuries Are Fairly 

Traceable to Defendants’ Misconduct.

Taking Plaintiffs’ evidentiary submissions as true, Plaintiffs have presented specific facts

that, coupled with Defendants’ denials and arguments, demonstrate genuine issues of material 

fact regarding whether Plaintiffs’ injuries are causally linked or “fairly traceable” to Defendants’ 

misconduct, and not the result of absent third parties. Lujan, 504 U.S. at 560-61; Bellon, 732 

F.3d at 1146. At the summary judgment stage, the causal connection between plaintiffs’ injuries 

and defendants’ conduct “cannot be too speculative or rely on conjecture about the behavior of 

other parties, but need not be so airtight at this stage of litigation as to demonstrate that the 

plaintiffs would succeed on the merits.” Ocean Advocates, 402 F.3d at 860. Plaintiffs’ injuries 

are fairly traceable to Defendants, even if other parties or factors have also contributed to the 

harm. Ocean Advocates, 402 F.3d at 860. Defendants concede that standing is not precluded by 

indirect harm to Plaintiffs. MSJ at 9.

In the FAC, Plaintiffs alleged with significant specificity particular categories of 

Defendants’ systemic affirmative actions, distinct failures to use delegated authority, and specific 

examples of the same, delineated by each Defendant, comprising Defendants’ systemic conduct 

which has caused and is causing Plaintiffs’ injuries. See Juliana, 217 F.Supp.3d 1224 at 1246 

(“[P]laintiffs’ causation allegations are not vague.”). For instance, the FAC describes discrete 

categories of government policies, practices, and actions, showing how each Defendant permits, 

licenses, leases, authorizes, and/or incentivizes the extraction, development, processing, 

combustion, and transportation of fossil fuels, which cause Plaintiffs’ injuries. FAC ¶¶ 5, 7, 11, 

97, 99, 112, 115, 117, 119, 123, 125, 129-130, 151, 171, 179-181, 183, 186-187. In addition, 

Plaintiffs provided particular examples of actions, with numeric quantification by category, for 

particular Defendants. FAC at ¶¶ 160, 161, 164-70, 171-78, 180-84. After delineating specific 

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actions within each category, Plaintiffs allege that, through each of these categories, “Defendants 

authorize the combustion of all fossil fuels in the U.S.” and that historically, the United States is 

responsible for emitting 25% of the worlds cumulative CO2 emissions,” thereby establishing 

Defendants’ causal contribution to Plaintiffs’ injuries. FAC at ¶¶ 151, 185. Defendants admit the 

latter in their Answer. ¶ 151 (“[F]rom 1850 to 2012, CO2 emissions from sources within the 

United States (including from land use) comprised more than 25% of cumulative global CO2

emissions.”). However, Defendants dispute that they have caused Plaintiffs’ injuries.

Supporting their allegations, Plaintiffs have adduced facts showing their injuries are 

directly attributable to Defendants’ creation, operation, perpetuation, and promotion of a national 

fossil fuel-based energy system that has resulted in dangerous and increasing levels of emissions 

and concentrations of GHGs.

17 Lujan, 504 U.S. at 562; See Speth Decl., ¶¶ 8-87; Jacobson Decl., 

Ex. 1 at 20-21; Erickson Decl., Ex. 1 at 3-20; Hansen Decl., Ex. 1 at 3-6, 15-16, 19-20, 24, 26-

27, 34, 38-39, 41-43, 45-49; Van Susteren Decl., Ex. 1 at 15-18.

Specifically, Plaintiffs present evidence that Defendants cause GHG emissions and 

therefore climate change through their affirmative conduct of:

1. Creating, controlling, perpetuating, and promoting a national fossil fuel-based energy 

system through planning and policies. Speth Decl., ¶¶ 4-16, 26, 29, 30, 36-37, 39-41, 44, 50-

52, 57-60, 62-63, 66-68, 73, 75-87; Hansen Decl., Ex. 1 at 3-6, 15-16, 19-20, 24, 26-27, 34, 38-

39, 41-43, 45-49; See e.g. Olson Decl., Exs. 94 (National Research Council reporting that a 

major focus of DOE has been to increase oil and gas production and to expand the resource base 

in keeping with national energy strategies); 95 (DOE stating in 2014 that “developing 

																																																						 17 Defendants have had most of the expert reports since Summer 2017 and have had all but one 

of the expert reports since April 2018. In their MSJ, Defendants completely ignore all this 

evidence and failed to inform this Court of the existence of and statements within these expert 

reports.

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unconventional domestic oil and gas resources plays an important role in our Nation’s energy 

future.”); 100 (Defendant Secretary of Energy Rick Perry stating, “[T]he idea that there’s 

somehow or another this just beautiful, total free market in the power generation business? It’s 

nonsense. I mean, reality is that government affects it every day. I mean, we set regulations, we 

set rules, and those are out there.”); 101; 105; 106; 117 (DOS’ Bureau of Energy Resources 

“promotes an ‘all of the above’ energy strategy focusing on secure, stable, diversified, and 

modern global energy systems.”); 121; 132 (DOT recognizing the U.S.’ “historic approach to 

transportation and land use has created an energy-intensive system dependent on carbon-base 

fuels and automobiles.”); 201 (Deputy Secretary of the Interior David Bernhardt stating on 

January 31, 2018: “Oil and gas lease sales on public land directly support domestic energy 

production and the President’s energy dominance and job growth priorities for America.”); 228 

(President Trump stating that under his Executive Order to Create Energy Independence: “We 

will unlock job-producing natural gas, oil, and shale energy. We will produce American coal to 

power American industry. We will transport American energy through American pipelines, made 

with American steel.”). 

2. Fostering, perpetuating, and promoting a national fossil fuel-based energy system by 

leasing public lands for fossil fuel extraction and production. Erickson Decl., Ex. 1 at 12-13, 

16-20; Olson Decl., Exs. 73 (more than 5 million acres of National Forest lands are leased for 

oil, gas, coal, and phosphate development); 74 (in 2010, 16.7 million barrels of oil and 194 

million cubic feet of natural gas were produced from 3200 wells on federal lands managed by 

USDA); 75 (National Forest lands provide 25% of US coal production); 76 (the Forest Service 

has authorized almost 20,000 active oil and gas wells on National Forest land); (196 (as of Fiscal 

Year 2014, DOI administered 310 coal leases encompassing over 475,692 acres in ten states on 

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Federal public lands, which authorize the extraction of an estimated 7.75 billion tons of 

recoverable coal); id. (over the last decade, leases issued and administered by DOI have 

authorized the production of over 4.4 billion tons of coal from federal public land); 197 (more 

than 40% of all coal produced in the U.S. is authorized by DOI to be extracted from Federal 

public lands); 198 (between 80-90% of the coal produced in the U.S. on Federal public lands is 

used for energy generation within the U.S.); 205 (of the 700 million acres of the federal 

government’s subsurface mineral estate managed by DOI, about 570 million acres are available 

for coal leasing); 207 (In 2016, 27,207,018 acres of onshore Federal lands were under oil and gas 

lease, with 12,771,829 acres in production); 208; 209; 210; 212 (in Fiscal Year 2015, fossil fuel 

energy produced on Federal lands managed by DOI included 782 million barrels of crude oil, 

five trillion cubic feet of natural gas, and 421 million tons of coal); 213; 214; 215 (as of January 

2016, DOI administered more than 5000 active oil and gas leases on nearly 27 million Outer 

Continental Shelf acres); id. (In FY 2015, DOI authorized the extraction of more than 550 

million barrels of oil, accounting for 16% of U.S, oil production); 216 (from 2005-2017, DOI 

authorized the production of 6,322,257,723 barrels of oil and 24,995,060,976 MCF of natural gas 

from the Outer Continental Shelf); 217-226 (summarizing oil and natural gas DOI authorized to 

be extracted from public lands from 1947-2016); 382 (“This executive order starts the process of 

opening offshore areas to job-creating energy exploration. It reverses the previous 

Administration’s Arctic leasing ban.”); 229-232; 254 (in 2000, oil and gas was produced on 

about 8% of National Wildlife Refuge System lands managed by DOI); 255 (As of November 

2016, there were over 5000 oil and gas wells on National Wildlife Refuge System lands managed 

by DOI); 256 (between 2009-2015, DOI allowed oil and gas producers on Federal lands to vent, 

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flare, and/or leak approximately 462 BCF of natural gas); 257; 258 (until 2010, not a single 

commercial solar energy project on federal lands). 

3. Fostering, perpetuating, and promoting the emission of GHGs, and reducing carbon 

sequestration capacity, from land use activities by allowing the harvesting of timber and 

grazing on federal public lands. 36 C.F.R. § 261.6(a), (b), (h) (person may not harvest timber 

from federal lands without USDA authorization); 36 C.F.R. 223(a) (livestock grazing federal 

lands must be authorized by a permit); Olson Decl. Ex. 42; 45 (USDA authorized the harvest of 

525,484,148 MBF of timber from federal land in FY 1905-2016); 42; 46; 50-55; 52; 70 

(livestock grazing is permitted on over 95 million acres of National Forest lands in 29 states); 

212; 233 (DOI manages and administers nearly 18,000 livestock grazing permits and leases on 

21,000 allotments over 155 million acres of federal public lands); 234-252.

4. Subsidizing and providing financial incentives and business support to fossil fuel energy 

producers and users in support of a national fossil fuel-based energy system. Stiglitz Decl., 

Ex. 1 at 7, 12, 15-16; Erickson Decl., Ex. 1 at 13-16; Olson Decl., Exs. 367 (Commerce

developed report “to provide market intelligence to U.S. companies” about where “U.S. 

government resources can make the biggest impact in support of increased U.S. (oil and gas) 

equipment exports.”), 303 (Army Corps of Engineers recommended changes to nationwide 

permits related to domestic energy production to “reduce burdens on domestic energy 

producers.”), 83; 136 (U.S. gasoline tax is far lower than in other countries).

5. Conducting research and development in support of fossil fuel extraction and energy 

technologies. Olson Decl., Exs. 97-98 (DOE manages a methane hydrates program to facilitate 

methane production); 99 (in 2014, DOE, DOI, and EPA issued a strategy for coordinating “high 

priority research” to develop unconventional oil and gas); 264-266 (DOI funding and studying 

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the potential for recovering natural gas hydrates on the Alaskan North Slope); 94 (DOE 

expended nearly $1.5 billion on oil and gas production research from 1978 through 2000, 1/3 of 

which was to demonstrate shale oil technology at commercial scale).

6. Permitting, authorizing, and promoting the import and export of fossil fuels in support 

of a national fossil fuel-based energy system. Olson Decl., Exs. 96 (DOE reporting that when 

Congress lifted the ban on crude oil exports in December 2015, the result was “the rapid rise of 

crude oil exports thereafter.”); 117 (DOS “leads the promotion of U.S. liquid natural gas (LNG) 

exports globally.”); 118; 119 (DOS Deputy Assistant Secretary Sandra Oudkirk saying, “the 

United States is a brand new LNG exporter. First exports happened in 2016. First permitting 

began in 2014.”); id. (“The United States is now the largest gas producer in the world. 

Admittedly, most of that gas is consumed in the United States.”); 120; 189 (no offshore liquefied 

natural gas or oil import and export facility can legally operated without a license from DOT’s 

MARAD); 190; 361 (millions of barrels of crude oil authorized to be exported from the U.S. 

between 1990-2017); 363 (U.S. crude oil exports have risen from 10 million barrels in 2007 to 

over 24 million barrels in 2012, virtually all of which were destined for Canada); id. (In 2012, 

DOC authorized the import of 3.1 billion barrels of crude oil); 364 (millions of barrels of 

finished petroleum products DOC authorized to be exported from 1990-2017).

7. Permitting the interstate infrastructure and transport of fossil fuels as part of a national 

fossil fuel-based energy system. Olson Decl., Exs. 168 (DOT develops and enforces regulations 

for the operation of the U.S.’ 2.6 million mile pipeline transportation system for fossil fuels); 170 

(no pipeline to transport fossil fuels can begin operation until certified as safe by DOT); 171 

(DOT stating: “The nation’s more than 2.6 million miles of [pipelines] safely deliver trillions of 

cubic feet of natural gas and hundreds of billions of ton/miles of liquid petroleum products each 

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year.”); 172 (there are approximately 318,710 miles of natural gas transmission and gathering 

pipelines in the U.S.); id. (there are approximately 2,233, 208 miles of total distribution main and 

estimated service for gas distribution systems in the U.S.); 175 (billions of cubic feet of natural 

gas delivered by the U.S. natural gas pipeline transportation network from 2000-2017); 181 

(thousands of barrels of crude oil transported by DOT-regulated rail from 2012-2017); 183 (in 

2015, 64.9% of domestic coal shipments were transported by DOT-regulated rail in the U.S.); 

384 (requiring FERC approval for interstate transport of fossil fuel); 385 (requiring DOT 

approval for transporting hazardous material like fossil fuels).

8. Permitting the operations of fossil-fuel power plants and fossil fuel refineries, as part of 

a national fossil fuel-based energy system. Olson Decl., Ex. 383 (requiring permits).

9. Setting energy, economy, and efficiency standards for vehicles, appliances, and buildings 

that use energy from the national energy system in a manner that fosters, perpetuates, and 

promotes fossil energy. Olson Decl., Exs. 92 (DOE sets energy conservations standards for 

more than 60 categories of appliances and equipment, which covers about 90% of home energy 

use); 93; 143 (DOT did not change fuel efficiency standards for passenger cars for twenty years 

between model year 1990-2010); 151 (passenger cars and light trucks cannot be sold in the U.S. 

unless in compliance with fuel economy standards set by DOT); 152 (The U.S. has historically 

had one of the lowest fuel efficiency standards among developed nations); id. (DOT 

acknowledging that when fuel efficiency standards are raised, automakers respond by creating 

more fuel-efficient vehicles “which improves our nation’s energy security and saves consumers 

money at the pump, while also reducing greenhouse gas emissions.”); 156 (fuel economy set by 

DOT for long wheelbase light-duty vehicles was 17.4 mpg in 1993 and 17.4 mpg in 2016); 166 

(DOT withdrew proposed rule to require manufacturers to rate replacement tires based on fuel 

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efficiency performance, which would have saved about 1 to 2 billion gallons of fuel per year); 

184 (GAO finding that the development and adoption of low-emissions technologies in aviation 

is dependent in part on “any government policies that price aircraft emissions.”).

10. Controlling and permitting all aviation travel and perpetuating the reliance thereof on 

fossil energy. Olson Decl., Ex. 188 (“Anyone who wants to fly an aircraft – manned or 

unmanned – in U.S. airspace needs some level of approval from the FAA.”).

11. Emitting GHGs through the use of fossil fuel energy in government buildings and 

activities. Olson Decl., Ex. 77 (80.5% of USDA electricity usage from non-renewable sources); 

89, 90 (U.S.’ Strategic Petroleum Reserve is the world’s largest supply of emergency crude oil, 

with a design capacity of 713.5 million barrels of oil); 136 (in 2016, federal government has 

1,340,000 cars and 1,810,000 trucks in its fleet); id. (In 2015, federal fleet consumed 310,416 

thousand gallons of gasoline); id. (In 2015, the federal fleet consumed 66,736 thousand gallons 

of diesel); 91 (detailing the millions of barrels of oil released from the Strategic Petroleum 

Reserve); 217 (DOD uses enough electricity to power 2.6 million average American homes); id.

(DOD’s daily oil use is over 12,000,000 gallons); 272-273 (detailing DOD’s energy use); 274 (in 

FY 2014, DOD fleet vehicles consumed just over 72 million gallons of gasoline equivalent).

12. Utilizing discretionary authority to favor fossil fuels. Olson Decl. Exs. 215 (In 2011, DOI 

approved 1381 of the 1413 requests (97.7%) received from private entities to extend deepwater 

Gulf and Alaskan offshore oil leases after the Deepwater Horizon oil spill).

Plaintiffs adduce evidence that Defendants had numerous opportunities to transition the 

national energy system off fossil fuels and control GHG pollution with technological and 

economic feasibility and, despite such authority, have not done so. Speth Decl., passim; 

Jacobson Decl., Ex. 1 at 20-21; Olson Decl., Exs. 76; 105; 106; 342. Finally, Plaintiffs show the 

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present Defendants are going to great lengths to further exacerbate climate danger and Plaintiffs’ 

injuries, even though they have been on notice of Plaintiffs’ injuries as stated in their FAC since 

the day President Trump took office. Speth Decl., ¶¶ 77-80; Olson Decl. Exs. 87 (U.S. coal 

exports have increased by nearly 60% in the first months of the Trump Administration), 108 

(Secretary Perry: “[n]o source of energy is off limits if it can be developed affordably, cleanly 

[and] bring about greater energy security in the United States.”), 110-113, 121, 122-123 (issuing 

new presidential permits for pipelines), 201, 202 (DOI official stating on January 4, 2018: “By 

proposing to open up nearly the entire [Outer Continental Shelf] for potential oil and gas 

exploration, the United States can advance the goal of moving from aspiring for energy 

independence to attaining energy dominance.”), 206; 228 (“My administration is putting an end 

to the war on coal.”), 228a; 229-232; See also ECF No. 208 n. 3 (non-exclusive list of President 

Trump’s actions causing and contributing to climate change).18

Plaintiffs’ evidence shows that any “indirect harm” resulting from the GHG emissions of 

third parties is directly attributable to Defendants’ policies and actions authorizing third parties 

to engage in emission-causing activities, and indeed setting up an entire nation’s energy system 

intentionally entrenched in fossil fuels. 

Defendants’ reliance on Simon v. E. Ky. Welfare Rights Org. is misplaced for several 

reasons. First, the Simon plaintiffs only challenged the effect of a single revenue ruling by the 

IRS on nonprofit hospitals’ services to indigents. 426 U.S. 26, 28 (1976). Here, Plaintiffs 

challenge Defendants’ systemic affirmative actions and distinct failures to use delegated 

authorities, which have caused and are causing Plaintiffs’ injuries. See FAC ¶¶ 172-77. Second, 

																																																						 18 See also Brad Plumer, Trump Orders a Lifeline for Struggling Coal and Nuclear Plants, New 

York Times (June 1, 2018) https://www.nytimes.com/2018/06/01/climate/trump-coal-nuclearpower.html. 

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the Simon plaintiffs failed to demonstrate a “substantial likelihood that victory” against the IRS

would remedy the behavior of the independent hospitals. Id. at 45. Here, Plaintiffs provide

evidence demonstrating Defendants’ substantial control over the composition of the national 

energy system and GHG emissions in the U.S., showing that relief does not depend on 

speculative third-party behavior. See Section III(A)(3), infra. Defendants can and do exercise 

control over the national energy system and third-party behavior and are the only parties that can 

transition that system away from fossil fuels quickly enough to remedy Plaintiffs’ injuries.

Hansen Decl., Exs. 1 at 44-49; see, e.g., Olson Decl., Exs. 121 (DOS recognizing “the United 

States has a competitive edge in all segments of the energy sector.”); 159 (DOT recognizing that 

new fuel efficiency standards “can achieve significant reductions in carbon emissions from 

transportation by decreasing the amount of carbon consumed per mile of travel.”; 258 (DOI has 

considered that a fixed, global carbon budget may require purposefully limiting U.S. oil 

production); 259 (DOI identifying sites on public land suitable for renewable energy 

development). Defendants also influence and control third party land managers and can 

incentivize behavior needed to reduce and sequester GHG emissions. Olson Decl., Exs. 64; 78. 

Finally, Defendants’ speculation about third-party behavior is erroneous. Bennett v. Spear

rejected a similar argument about causation, noting the government:

wrongly equates injury “fairly traceable” to the defendant with injury as to which 

the defendant’s actions are the very last step in the chain of causation. While, as 

we have said, it does not suffice if the injury complained of is “th[e] result [of] 

the independent action of some third party not before the court,” . . . that does not 

exclude injury produced by determinative or coercive effect upon the action of 

someone else.

520 U.S. 154, 168–69 (1997) (internal citations omitted). Here, Plaintiffs’ injuries are fairly 

traceable to Defendants’ conduct because that conduct has a “determinative or coercive effect” 

on our entire energy system, including the actions of third party producers and consumers of 

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fossil fuels in the U.S. For example, even though Defendants’ authorization of leasing on public 

lands for fossil fuel development are not the final steps in the causal chain leading to Plaintiffs’ 

injuries, the decision to lease has a “determinative” impact on the available supply and economic 

viability of fossil fuels in relation to alternative energy sources. Olson Decl., Ex. 295 (major 

fossil fuel companies stating that federal government decisions “have expanded fossil fuel 

production and use . . . .”).

The causal chain here is nothing like the “series of links strung together by conclusory,

generalized statements of ‘contribution’” from individual private emission sources that the 

Bellon court found insufficient. 732 F.3d at 1142-43; compare Mass. v. EPA, 549 U.S. at 524. In 

contrast, Defendants’ own documents show that their systemic acts in authorizing, permitting,

and incentivizing fossil fuel production, consumption, transportation, and combustion have

caused atmospheric GHGs to increase to levels causing Plaintiffs harm. See Section III(A)(2), 

supra. Defendants admit that “from 1850 to 2012, CO2 emissions from sources within the United 

States (including from land use) comprised more than 25 percent of cumulative global CO2

emissions.” Answer at ¶ 151. Plaintiffs have adduced evidence to show the vast majority of these 

emissions have been and continue to be authorized by Defendants. See Section III(A)(2), supra.

In Bellon, the plaintiffs argued that the state’s failure to regulate emissions from five nonparties contributed to their climate harms, but expert evidence in the record indicated the effect 

of those emissions on global climate change was “scientifically indiscernible.” 732 F.3d. at 

1142–43. Here, Plaintiffs adduced specific facts showing the affirmative, systemic aggregate acts 

of Defendants, not their failure to regulate private sources, materially caused and continues to 

exacerbate climate change. See generally Declarations of Speth, Erickson, Frumkin, Hansen, 

Hoegh-Guldberg, Jacobson, Pacheco, Rignot, Robertson, Running, Stiglitz, Trenberth, Van 

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Susteren, Wanless, and Williams (expert opinions validating Plaintiffs’ ongoing concrete injuries 

being caused by Defendants). Plaintiffs have presented sufficient evidence demonstrating a 

material issue as to whether Defendants’ conduct is a material cause of Plaintiffs’ injuries.

Defendants’ contention that aggregated actions making up a systemic pattern of conduct 

cannot establish causation is directly contrary to Supreme Court precedent. In Brown v. Plata, 

the Supreme Court determined the collective policies and actions of California’s state prison 

officials resulted in a “systemic” violation of prisoners’ constitutional rights. 563 U.S. at 551. 

The Court recognized causation based upon aggregate, systemic acts like those at issue here:

Because plaintiffs do not base their case on deficiencies in care provided on any 

one occasion, this Court has no occasion to consider whether these instances of 

delay–or any other particular deficiency in medical care complained of by the 

plaintiffs–would violate the Constitution...if considered in isolation. Plaintiffs 

rely on systemwide deficiencies in the provision of medical and mental health 

care that, taken as a whole, subject sick and mentally ill prisoners in California to 

“substantial risk of serious harm . . . .”

Id. at 500 n.3. Similarly, in Wilson v. Seiter, discrete elements, which might not in themselves 

establish causation of a constitutional violation, established causation in the aggregate. 501 U.S. 

294, 304 (1991). As in Plata and Wilson, Defendants’ acts in causing and contributing to fossil 

fuel emissions, viewed in isolation, might not violate the Constitution. However, taken “in 

combination” and on a “systemwide” basis, this conduct has a “mutually enforcing effect” in 

violation of Plaintiffs’ rights. Plata, 563 U.S. at 500 n.3; Wilson, 501 U.S. at 304.

Defendants cite only two cases in their ongoing attempt to invent a new “particular 

causation” requirement in the Article III standing analysis. Contrary to Defendants’ implication, 

MSJ at 11, the Court in Lewis v. Casey merely reiterated the uncontroversial principle that a 

plaintiff “who has been subject to injurious conduct of one kind” does not have standing to 

challenge unrelated harms “to which he has not been subject.” 518 U.S. 343, 358 n.6 (1996). 

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This principle is irrelevant here, where Plaintiffs are subject to GHG emissions resulting from 

each of Defendants’ actions and omissions that, taken together, accumulate in the atmosphere 

and the oceans, thereby causing climate change, ocean acidification, and Plaintiffs’ injuries. 

Because of the spatial character (i.e., dispersal throughout the atmosphere) and long-lived nature 

(i.e., persisting for hundreds of years) of GHG emissions, Plaintiffs are subject to the harms from 

all of Defendants’ decisions allowing those accumulated emissions, obviating the need for

Plaintiffs to specifically demonstrate connectivity to each of the myriad individual sources of 

emissions attributable to Defendants. Hansen Decl., Ex. 1 at 14-15; Hoegh-Guldberg Decl., Ex. 1 

at 2-30. Plaintiffs’ evidence demonstrates genuine issues of material fact as to whether 

Defendants are a fairly traceable cause of Plaintiffs’ injuries.

3. Plaintiffs Submit Sufficient Evidence Showing Their Injuries Can Be Redressed.

The redressability element of standing does not require certainty but “only a substantial 

likelihood that the injury will be redressed by a favorable judicial decision.” Bellon, 732 F.3d at 

1146; see Lujan, 504 U.S. at 560–61. For standing, Plaintiffs need not establish that a favorable 

decision will redress every injury. See Larson v. Valente, 456 U.S. 228, 244 n.15 (1982). 

Plaintiffs presented facts demonstrate material issues of fact precluding summary 

judgment as to whether, if Defendants are so ordered, they can prepare and implement a remedial

plan to decarbonize the U.S. energy system and protect carbon sinks, thereby substantially 

reducing GHG emissions, drawing down Defendants’ contribution to excess CO2 in the 

atmosphere, and redressing Plaintiffs’ injuries. See Speth Decl.; Williams Decl., Ex. 1, Jacobson

Decl., Ex. 1, Robertson Decl., Ex. 1; Stiglitz Decl., Ex. 1; Hansen Decl., Ex. 1 at 25-38, 44-49.

The requested reductions in U.S. emissions with improved carbon sequestration efforts will, at 

minimum, slow the rising temperatures and carbon accumulation in Earth’s sinks, and put the 

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U.S. on a pathway to return atmospheric CO2 concentrations to levels that avoid dangerous 

anthropogenic climate change, all of which will reduce and minimize projected injuries to 

Plaintiffs, children as a class, and future generations. These expert declarations provide the basis 

for a remedy that could “move the needle on the complex phenomenon of global climate 

change,” MSJ at 12, creating a dispute of fact; Answer ¶ 129 (Denying that “Defendant’s retain 

authority to limit or to deny...extraction, production, transportation, and utilization of fossil 

fuels, and otherwise to limit or prohibit their emissions”).

Defendants’ reliance on Norton v. Southern Utah Wilderness Alliance for the proposition 

that the Court may only compel ministerial action is misplaced. Norton alleged violations of 

statutory law through the Administrative Procedure Act (“APA”). 542 U.S. 55, 57–58 (2004). As 

Plaintiffs and this Court have oft-repeated, this is not an APA case. See Section III(B), infra. 

Defendants’ invocation of Louisiana Public Service Commission v. FCC, 476 U.S. 355 (1986), is 

similarly unavailing because Plaintiffs are not seeking remedial action beyond Defendants’

existing authority or requiring Congressional enactments. MSJ at 12. Rather, Plaintiffs seek 

relief that is frequently granted by and firmly within the competence of the federal judiciary: a 

declaration that Plaintiffs’ constitutional rights have been violated and an order for the 

government to bring its conduct into constitutional compliance through a plan of Defendants’

own devising. See, e.g., Brown v. Bd of Educ., 347 U.S. 483 (1954); Plata, 563 U.S. 493. Much 

of the same authority Defendants used to create and promote a national fossil fuel energy system 

can be employed to undo that system and create a clean, decarbonized energy system. 

Additional to their broad authority to control pollution and protect public trust resources, 

Defendants have authority to design and implement components of a comprehensive remedial 

plan to transition the energy system to one that protects Plaintiffs’ fundamental rights. See, e.g., 

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42 U.S.C. § 7321 (Presidential authority and obligation to develop and propose to Congress a 

National Energy Policy Plan every two years); 50 U.S.C. § 4502 (Presidential authority under the 

Defense Production Act to “prepare for and respond” to “natural or man-caused disasters . . . .”); 

42 U.S.C. § 7112 (DOE authority to coordinate and administer federal energy policy and 

programs to promote the general welfare and public interest); 42 U.S.C. §§ 6291-6296 (DOE 

also can set efficiency standards for “consumer products” other than automobiles); 42 U.S.C. §§ 

7401-7431 (EPA can redress air pollution (including from CO2) from stationary and mobile 

sources through a variety of mechanisms authorized by the Clean Air Act); 42 U.S.C. § 7408 

(establishing air quality criteria); 42 U.S.C. § 7409 (defining National Ambient Air Quality 

Standards); 49 U.S.C. § 32902 (DOT can prescribe average fuel economy standards for new 

model years of automobiles); 43 U.S.C. §§ 1334, 1337; 30 U.S.C §§ 181-287; 30 U.S.C §§ 351-

359 (DOI can discontinue leasing of federal property for the extraction of fossil fuels); 43 U.S.C. 

§§ 1701-84 (DOI can adopt management practices that increase carbon sequestration and 

storage); 16 U.S.C §§ 1600-1611 (USDA can ensure that GHG emissions from land use practices 

are reduced and carbon sequestration and storage is enhanced); 16 U.S.C. §§ 551, 576 (USDA 

has authority to protect national forests from destruction and to reforest those forests); 15 U.S.C. 

§ 2901-04 (Commerce can broadly coordinate interagency assessments of the impacts of climate 

change and development of appropriate recommendations for action); 33 U.S.C. § 403; 33 

U.S.C. § 1344 (DOD can deny permits necessary for the transport of coal, oil, and natural gas);

Exec. Order No. 13,337, 69 Fed. Reg. 25,299 (DOS has authority to deny permits for the 

“construction, connection, operation, or maintenance, at the borders of the United States, of 

facilities for the exportation or importation...” of fossil fuels). In addition, the President may 

issue Executive Orders directing agencies to act. 

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Further, courts retain broad authority “to fashion practical remedies when faced with 

complex and intractable constitutional violations.” Plata, 363 U.S. at 526. “Once a right and a 

violation have been shown, the scope of a district court’s equitable powers to remedy past 

wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. 

Charlotte-Mecklenburg Bd. Of Educ., 402 U.S. 1, 15 (1971); see also Florida v. Georgia, No. 

220142, 2018 WL 3129786 at 15 (S. Ct. June 27, 2018) (in addressing redressability of an injury 

in a state-to-state water apportionment dispute, the Supreme Court made clear that redressability 

need not be proven with clear and convincing evidence as a threshold matter, and that the court 

can use flexibility and approximation in remedying the injury). Plaintiffs’ request for further 

relief also allows this Court to fashion an equitable remedy consistent with the role of the 

judiciary. Plaintiffs do not seek for the Court to specify the step-by-step plan for Defendants to 

remedy their unconstitutional behavior. As in Plata, this Court can set the constitutional floor 

necessary for preserving Plaintiffs’ rights––the minimum safe level of atmospheric CO2

concentrations and the timeframe in which that level must be achieved––and leave to Defendants 

the specifics of developing and implementing a compliant plan using their existing statutory 

authorities. 563 U.S. at 533; Juliana, 217 F. Supp. 3d at 1241-42; ECF No. 146 at 8.

Defendants’ argument that Plaintiffs’ proposed remedy would collide with the Clean Air 

Act (“CAA”) misstates Plaintiffs’ desired relief and attempts to revive the political question and 

displacement arguments already rejected by this Court. See, e.g., Juliana, 217 F.Supp.3d at 

1235-42, 1259-60. Also, Defendants’ reliance on AEP v. Connecticut for standing is misguided 

because the Supreme Court did not address standing or redressability; instead relief was

foreclosed because the federal common law nuisance claims at issue had been displaced by the 

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CAA.

19 564 U.S. 410, 424 (2011). Finally, even assuming the EPA regulations cited by 

Defendants could adequately redress Plaintiffs’ injuries (they cannot),

20 several of the rules cited 

are either stayed or in the process of being repealed by Defendants, mooting the argument.

21

In sum, Defendants’ arguments that this Court lacks the authority to craft a remedy to

redress Plaintiffs’ injuries are unpersuasive. The Supreme Court recently reaffirmed that 

remedies should be linked to the actions that produced the injury, and where a wholesale 

structural remedy is necessary to redress a constitutional injury, a court may so order it. Gill v. 

Whitford, 138 S. Ct. 1916, 1930 (2018) (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)). The 

Court explained: “The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were 

‘statewide in nature’ rests on a failure to distinguish injury from remedy. In those 

malapportionment cases, the only way to vindicate an individual plaintiff ’s right to an equally 

																																																						 19 Plaintiffs’ requested relief is consistent with City of Oakland v. B.P., an otherwise inapposite 

non-constitutional public nuisance case seeking monetary damages, wherein Judge Alsup 

clarified that “federal courts have authority to fashion...remedies for claims based on global 

warming” but “must also defer to the other co-equal branches of government when the 

problem...deserves a solution best addressed by those branches.” Order Granting Motion to 

Dismiss, No. 3:17-cv-06011-WHA (N.D. Cal. June 25, 2018) Doc. No. 283 at 16, Olson Decl.

MSJ, ¶ 4, Ex. 2. This is precisely the relief Plaintiffs request here. Plaintiffs ask the Court to 

assess the constitutionality of Defendants’ systemic conduct, declare that conduct violates 

Plaintiffs’ fundamental rights, and order Defendants to come into constitutional compliance 

while appropriately deferring to Defendants’ judgment as to the best way to develop and 

implement a plan of their own devising.

20 Defendants’ disingenuous insistence that they are “responding to many of the concerns 

asserted by Plaintiffs,” MSJ at 13, is belied, for example, by their averment that “the Clean 

Power Plan is not intended to ‘preserve a habitable climate system.’” Answer ¶ 127, and the 

conduct of this Administration in exacerbating the climate crisis. Olson Decl. Ex. 368 (Secretary 

of Commerce Wilbur Ross stating: “Our oil and gas sector has already seen tremendous growth 

due to [the Trum[] Administration’s deregulatory agenda, with more than 56 million feet drilled 

in the second quarter, up more than 38 percent since the fourth quarter of 2016.”). 21 See Review of the Standards of Performance for Greenhouse Gas Emissions From New, 

Modified, and Reconstructed Stationary Sources: Electric Generating Units, 82 Fed. Reg. 16,330 

(April 4, 2017) (“The Executive Order specifically directs EPA to review and, if appropriate, 

initiate reconsideration proceedings to suspend, revise or rescind the New Source Rule.”).

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weighted vote was through a wholesale ‘restructuring of the geographical distribution of seats in 

a state legislature.’” Gill, 138 S. Ct. at 1930 (quoting Reynolds v. Sims, 377 U.S. 533, 561 

(1964)). Justice Kagan, in her concurrence, also explained that an appropriate remedy will 

depend upon what it takes “to cure all the packing and cracking,” which caused the constitutional 

infringement. Gill, 138 S. Ct. at 1937 (Kagan, J., concurring).

22 Here, this Court should allow 

Plaintiffs to develop a full record on the structural remedial pathways that would vindicate their

inalienable rights and redress their constitutional injuries from the climate “packing and 

cracking” perpetrated by Defendants. Plaintiffs have adduced evidence sufficient to create 

material disputes of fact as to their standing. This MSJ should be denied and this matter ordered 

to trial beginning October 29, 2018.

B. Plaintiffs’ Constitutional Claims Are Not Governed by the APA

1. This Court Has Already Determined That the Fifth Amendment Provides 

Plaintiffs’ Right of Action.

Equally unavailing is Defendants’ argument that the APA “provides the sole mechanism” 

for Plaintiffs’ challenge to the constitutionality of agency conduct. MSJ at 18.23 This Court, 

affirmed by the Ninth Circuit under the “no clear error” standard, already rejected those 

arguments and held “it is the Fifth Amendment that provides the right of action” for Plaintiffs’ 

																																																						 22 “But with enough plaintiffs joined together—attacking all the packed and cracked districts in a 

statewide gerrymander—those obligatory revisions could amount to a wholesale restructuring of 

the State’s districting plan. The Court recognizes as much. It states that a proper remedy in a vote 

dilution case ‘does not necessarily require restructuring all of the State’s legislative districts.’ 

Ibid. (emphasis added). Not necessarily—but possibly. It all depends on how much redistricting 

is needed to cure all the packing and cracking that the mapmakers have done.” Id.

23 The APA unquestionably does not apply to or limit Plaintiffs’ constitutional claims against the 

President. 5 U.S.C. § 702 (limiting APA’s applicability to claims against “agency action”).

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claims. Juliana, 217 F.Supp.3d at 1261.24 Judge Coffin confirmed disposition of this issue and 

there is no need for the Court to revisit it. 25 ECF No. 212 at 2.

2. Supreme Court and Ninth Circuit Precedent Establish That the APA is Not 

the Sole Means of Review for Constitutional Challenges to Agency Conduct

Even if this Court had not already decided the issue, Defendants’ argument is foreclosed 

by clear precedent. The Supreme Court has ruled on several occasions that constitutional claims 

are not subject to the APA and may be brought independently. In Franklin, a case “rais[ing] 

claims under both the APA and the Constitution,” the Court reached the merits of the 

constitutional claims against the Secretary of Commerce separately from its analysis of the APA 

claims, which the Court found were not viable for lack of “final agency action.” 505 U.S. at 796–

801, 803–06.26 Similarly, in Webster v. Doe, the Supreme Court held a constitutional claim 

against an agency official was judicially reviewable even though not viable as an APA claim. 

486 U.S. 592, 601, 603–05 (1998). Likewise, in Hills v. Gautreuax, a non-APA Fifth 

Amendment case, the Court approved a structural remedy similar to the relief requested here. 

																																																						 24 See ECF No. 208 at 5-14 (Excerpting and explaining the numerous instances in which the 

Parties have addressed Defendants’ argument and this Court’s and the Ninth Circuit’s resolution 

of the same); ECF No. 195 at 10-22. In their recent application to the Supreme Court for an 

extension of time, Defendants conceded they argued this APA issue to the Ninth Circuit. ECF 

No. 211-1 at ¶ 3 (“The government petitioned the Ninth Circuit for a writ of mandamus ordering 

dismissal, contending that the district court’s order contravened fundamental limitations on 

judicial review imposed by . . . the Administrative Procedure Act.”).

25 In their Writ Petition, Defendants presented substantially similar arguments to those on page 

18, footnote 7 of the MSJ regarding Plaintiffs’ challenge to Section 201 of the Energy Policy Act 

and DOE Order No. 3041, which was mandatorily issued thereunder. See Pet. for Writ of 

Mandamus, 4 n.1, In re United States, No. 17-71692 (9th Cir. June 9, 2017), Dkt. No. 1. As 

Plaintiffs showed in answering Defendants’ Petition, ECF 241-1 at 13–18, Plaintiffs’ challenge is 

properly before this Court. If Section 201 of the Energy Policy Act is unconstitutional, all orders 

issued under it, including still operational DOE/FE Order No. 3041, are also unconstitutional. 

Rather than restate those arguments here, they are incorporated by reference. 26 As Defendants concede, the Court in Franklin found that “the President’s actions may still be 

reviewed for constitutionality” outside of the APA. ECF No. 231 at 3.

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425 U.S. 284, 205 (“The order would have the same effect...as a discretionary decision by HUD 

to use its statutory powers to provide the respondents with alternatives to the racially segregated 

Chicago public housing system created by...HUD.”)27

Ninth Circuit precedent is also dispositive on this issue. Presbyterian Church (U.S.A.) v. 

U.S. makes clear that “§ 702 [of the APA] waives sovereign immunity not only for suits brought 

under § 702 itself, but for constitutional claims brought under the general federal question 

jurisdiction statute, 28 U.S.C. § 1331.” 870 F.2d 518, 525 n.9 (9th Cir. 1989). The Ninth Circuit 

recently confirmed that constitutional challenges to agency conduct need not be brought under 

the APA in Navajo Nation v. Dept. of the Interior: “Claims not grounded in the APA, like . . . 

constitutional claims . . . ‘do[ ] not depend on the cause of action found in the first sentence of § 

702’ and thus § 704’s limitation [to ‘final agency action’] does not apply to them.” 876 F.3d 

1144, 1170 (9th Cir. 2017) (citations omitted). The Ninth Circuit would have had no need to 

distinguish between Section 704 claims and other constitutional claims not brought pursuant to 

Section 704 if Congress had foreclosed such claims. 

Defendants’ statement that “the Supremacy Clause does not confer a cause of action” is 

entirely irrelevant. MSJ at 16. Irrespective of whether any other constitutional provision creates a

right of action, it is well established that Plaintiffs may rest their claims “directly on the Due 

Process Clause of the Fifth Amendment.” Davis v. Passman, 442 U.S. 228, 243–44 (1979); see 

																																																						 27 Defendants’ reliance on Jarita Mesa Livestock Grazing Ass’n v. U.S. Gen. Serv., 58 F. Supp. 

3d 1191 (D.N.M. 2014) is misplaced. Besides being a non-binding out-of-circuit district court 

opinion, Jarita relied solely, and erroneously, on Justice Scalia’s dissent in Webster for its 

conclusion. Id. at 1237. Further, Jarita is factually distinguishable in that plaintiffs challenged 

singular agency actions and brought an APA challenge to the same final agency action 

challenged as unconstitutional. Jarita did not, as here, involve aggregate, systemic, and 

unconstitutional conduct of multiple federal agencies and individual officials, a challenge not 

suited to the narrow strictures of the APA. 

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also Bolling v. Sharp, 347 U.S. 497 (1954) (remanding for grant of equitable relief in school 

desegregation case resting directly on the Fifth Amendment).

While correctly noting the distinction between constitutional claims seeking equitable 

relief and cases28 where courts have considered extending a claim in damages for constitutional 

violations, Defendants misunderstand the reason the Supreme Court developed the distinction in 

the first place. MSJ at 15–16. In Davis and its progeny, the Supreme Court explained the 

distinction between equitable and monetary relief is of primary importance to the availability of a 

claim for violation of fundamental constitutional rights. The Davis Court recognized a private 

right of action for damages under the Fifth Amendment. 442 U.S. 228. In doing so, the Court 

first asked whether the Fifth Amendment provides a right of action, irrespective of the remedy 

sought, concluding a party may “rest[] her claim directly on the Due Process Clause . . . .” Id. at 

243–44. Only then did the Court “consider whether a damages remedy is an appropriate form of 

relief.” Id. at 244. The Court’s subsequent jurisprudence on this issue focuses entirely on 

whether damages are available, absent statutory authorization, as a remedy for constitutional 

violations. See, e.g., Carlson v. Green, 446 U.S. 14 (1980); Bush v. Lucas, 462 U.S. 367 (1983). 

Courts need not conduct a comparable inquiry into the availability of a cause of action 

seeking equitable relief for fundamental rights violations because it is a central precept of 

constitutional law that such actions are and always have been available:

[I]t is established practice for this Court to sustain the jurisdiction of federal 

courts to issue injunctions to protect rights safeguarded by the Constitution . . . . 

Moreover, where federally protected rights have been invaded, it has been the rule 

																																																						 28 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); 

Davis v. Passman (1979), 442 U.S. 228; Carlson v. Green, 446 U.S. 14 (1980); Ziglar v. Abassi, 

137 S. Ct. 1843 (2017); Occupy Eugene v. U.S. Gen. Serv. Admin., No. 6:12-CV-02286-MC, 

2013 WL 6331013 (D. Or. Dec. 3, 2013); W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 

1116 (9th Cir. 2009).

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from the beginning that courts will be alert to adjust their remedies so as to grant 

the necessary relief.

Bell v. Hood, 327 U.S. 678 (1946). Contrary to Defendants’ position, the right of every citizen to 

injunctive relief from ongoing and prospective “official conduct prohibited” by the Constitution 

does not “depend on a decision by” the legislature “to afford him a remedy. Such a position 

would be incompatible with the presumed availability of federal equitable relief . . . .” Bivens, 

403 U.S. at 400 (Harlan, J., concurring). The Court confirmed this reasoning in Ziglar v. Abbasi,

where plaintiffs sought damages against “high executive officers,” challenging “large-scale 

policy decisions” as violative of their Fifth Amendment substantive due process rights. 137 S.

Ct. 1843, 1851–52, 1862 (2017). In response, the Court stated “[t]o address these kinds of [largescale] policy decisions, detainees may seek injunctive relief.” Id. at 1862; see also Laird v. 

Tatum, 408 U.S. 1, 14 (1972) (where there is “actual present or immediately threatened injury 

resulting from unlawful government action,” systemwide relief may be appropriate).

Defendants’ reliance on inapposite cases concerning the power of Congress to limit the 

authority of courts to redress violations of statutorily created rights29 and cases concerning the 

limitations on actions brought under the APA30 is wholly misplaced. As this Court 

acknowledged, Plaintiffs’ challenge “rests directly on the Due Process Clause of the Fifth 

Amendment,” Juliana, 217 F.Supp.3d at 1261 (citation omitted), and “it is the Fifth Amendment 

that provides the right of action.” Id. Defendants’ argument that the APA provides the sole 

																																																						 29 Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015); Seminole Tribe of Fla. v. 

Florida, 517 U.S. 44 (1996). 30 Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 

871 (1990); San Luis Unit Food Producers v. United States, 709 F.3d 798 (9th Cir. 2013); Sierra 

Club v. Peterson, 228 F.3d 559 (5th Cir. 2000). Defendants’ reliance on these cases is further 

misplaced as each challenged the violation of statutory law through the APA.

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means to challenge the constitutionality of agency conduct has been rejected by this Court, is 

contrary to established Ninth Circuit and Supreme Court precedent, and lacks merit.

3. Limiting Plaintiffs’ Constitutional Claims to the Strictures of the APA Would 

Violate Their Right to Procedural Due Process

Limiting Plaintiffs to the strictures of the APA would violate Plaintiffs’ procedural due 

process right to meaningful review of their constitutional claims. McNary v. Haitian Refugee 

Ctr., Inc., 498 U.S. 479, 496 (1991) (limited judicial review procedures established by statute did 

not apply where they would foreclose “meaningful judicial review” of challenge to agency’s 

pattern of unconstitutional conduct). As observed in Marbury v. Madison, “[t]he very essence of 

civil liberty certainly consists in the right of every individual to claim the protection of the laws, 

whenever he receives an injury.” 5 (U.S. 1 Cranch) 137, 163 (1803). Courts “presume 

constitutional rights are to be enforced through the courts.” Davis, 442 U.S. at 242. This 

presumption is rebutted only by a “textually demonstrable constitutional commitment of [an] 

issue to a coordinate political department.” Id. (citation omitted). Indeed, as stated in Armstrong 

v. Exceptional Child Center, constitutional rights are “congressionally unalterable.” 135 S. Ct. at 

1383. Even assuming arguendo Congress could alter the judiciary’s authority over constitutional 

rights, “where Congress intends to preclude judicial review of constitutional claims, its intent to 

do so must be clear.” Webster, 486 U.S. at 603. This heightened showing “is required in part to 

avoid the ‘serious constitutional questions’ that would arise if a federal statute were construed to 

deny any judicial forum for a colorable constitutional claim.” Id. (citations omitted).31

																																																						 31 The Webster majority clearly rejected Justice Scalia’s reasoning in his dissent, which 

Defendants resurrect here, and allowed the plaintiff’s constitutional claims (not his separate APA 

claims) to proceed to discovery. 486 U.S. 592.

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Here, the APA contains no clear statement of intent to “preclude review of constitutional 

claims.” Id. Even if the APA did contain such a statement, it would raise serious questions as to 

the constitutionality of such a restriction. As Defendants’ systemic actions threaten these young 

Plaintiffs’ constitutional rights, precluding Plaintiffs’ claims by or limiting them through the 

strictures of the APA would violate their procedural due process right to “meaningful judicial 

review.” McNary, 498 U.S. at 496; Webster, 486 U.S. 592, 599-605 (APA’s limitations do not 

apply where they would preclude review of a constitutional claim). 

Determining whether procedural limitations, like those governing review of agency 

conduct in the APA, effectuate a violation of due process, requires consideration of three factors:

First, the private interest that will be affected by the official action; second, the 

risk of erroneous deprivation of such interest through the procedures used, and the 

probable value, if any of additional or substitute procedural safeguards; and 

finally, the Government’s interest, including the function involved and the fiscal 

and administrative burdens that the additional or substitute procedural 

requirements would entail.

Matthews v. Eldridge, 424 U.S. 319, 335 (1976). Each of these factors favors Plaintiffs.

First, the private interest at stake is unquestionably of the highest constitutional 

importance because, as this Court has determined, “Plaintiffs have adequately alleged 

infringement” of their fundamental constitutional rights. Juliana, 217 F. Supp. 3d at 1250. 

Second, there is an absolute risk of erroneous deprivation of Plaintiffs’ fundamental 

rights if Plaintiffs must plead their claims under and subject to the strictures of the APA. 

Defendants argue that Plaintiffs must individually challenge “thousands of discrete agency 

actions” rather than Defendants’ systemic conduct. MSJ at 16 (citations omitted); see ECF No. 

195 at 16-22. Any law that required Plaintiffs to individually challenge each of the “thousands” 

of agency actions which have contributed to Plaintiffs’ injuries, including those dating from 

before these youth were born, would be a herculean, if not impossible, task, and would avoid 

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presenting the true case and controversy of Defendant’s affirmative and unconstitutional 

systemic conduct, which is the cause of Plaintiffs’ injuries. FAC ¶ 129 (“The vastness of our 

nation’s fossil fuel enterprise renders it infeasible for Plaintiffs to challenge every instance of 

Defendants’ violations, and, even if feasible, challenging each of Defendants’ actions would 

overwhelm the Court.”); see McNary, 498 U.S. at 496 (Limiting review of agency’s pattern of 

unconstitutional violations to administrative records would preclude meaningful review); see

Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (Procedural safeguards must be offered “at a 

meaningful time and in a meaningful manner.”). It is not isolated individual agency action that 

has caused Plaintiffs’ systemic injuries. As the Supreme Court just ruled in Gill v. Whitford, a 

remedy should be tied to the government action that caused the injury, not more expansive, nor 

less. 138 S. Ct. 1916, 1930 (2018). While the APA may not permit challenges to “broad 

programmatic” or systemic agency action (see Norton, 542 U.S. at 64), such challenges can 

undoubtedly proceed directly under the Fifth Amendment. See, e.g. Ziglar, 137 S. Ct. at 1862; 

McNary, 498 U.S. 479. To hold otherwise would subject Plaintiffs to more than a mere risk of 

erroneous deprivation of their rights, it would render such deprivation inevitable.

Third, the government’s interest in administrative efficiency favors litigating Plaintiffs’ 

claims as a single systemic challenge rather than a myriad of challenges to a vast multitude of 

individual agency actions, which would undoubtedly prove costly, inefficient, and unduly 

burdensome for all parties involved, as well as the courts. 

Thus, every Eldridge factor strongly favors proceeding with Plaintiffs’ claims as pleaded 

in order to avoid a procedural due process violation. It is unimaginable in our divided system of 

government that the systemic, catastrophic constitutional violations at issue here could be placed 

beyond the Court’s basic power and duty to safeguard individual fundamental rights. Even if 

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Defendants were not completely wrong on the law, there would be genuine issues of material 

fact in dispute as to whether limiting Plaintiffs’ claims to the strictures of the APA would violate 

their substantive and procedural due process rights. In their Answer, Defendants dispute that the 

systemic nature of their conduct has caused and is causing the profound harms underlying 

Plaintiffs’ claims.32 Plaintiffs submit evidence demonstrating genuine issues of material fact as to 

standing (Section III(A), supra) and the merits of their constitutional claims (Section III(D), 

infra). Because limiting Plaintiffs’ claims to the APA would render inevitable a deprivation of 

their fundamental rights, as explained supra, this evidence also demonstrates genuine issues of 

disputed material fact as to whether so limiting Plaintiffs’ claims would result in a violation of 

their substantive and procedural constitutional rights. In addition to Defendants’ APA arguments 

being wholly without merit, summary judgment on this issue could easily be denied for the 

further reason of the existence of genuine issues of material fact.

C. Plaintiffs’ Claims and Requested Relief Do Not Violate Separation of Powers 

Principles.

Defendants recycle their separation of powers argument, which is rooted in their 

fundamental mischaracterization of Plaintiffs’ requested relief and advances a dangerously 

narrow construction of the Due Process Clause. This Court has already analyzed and found 

Plaintiffs’ claims fall within those “cases” or “controversies” amenable to judicial resolution, and 

the Ninth Circuit found no clear error with that analysis. Juliana, 217 F. Supp. 3d at 1235-42; In 

re United States, 884 F.3d 830 (9th Cir. 2018). Here, Plaintiffs’ again address the argument 

showing disputed issues of material fact pertinent to any separation of powers consideration on 

the merits. Whether “governmental action is affirmatively and substantially damaging the 

climate system” is eminently suitable for judicial resolution without implicating separation of 

																																																						 32 See n.5, supra. 

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powers concerns. Juliana, 217 F. Supp. 3d at 1250; Bowsher v. Synar, 478 U.S. 714, 721 (1986); 

Marbury, 5 U.S. (1 Cranch) at 163. The judiciary has consistently served as a bastion of 

protection from systemic infringements of constitutional rights and can craft a remedy consonant

with separation of powers after a thorough examination of Plaintiffs’ claims, injuries, and 

evidence at trial. The stakes of the climate crisis effectively leave the judiciary as Plaintiffs’ “last 

resort” and exercise of judicial jurisdiction is a “necessity.” Allen, 468 U.S. at 752. 

1. Courts have the authority and obligation to address claims of constitutional 

infringements and public trust violations.

This Court has the authority and obligation to address Plaintiffs’ claims of constitutional 

infringements and public trust violations. U.S. Const., art. III, § 2 (“The judicial power shall 

extend to all cases, in law and equity, arising under the Constitution . . . .”); Obergefell v. 

Hodges, 135 S. Ct. 2584, 2598 (2015) (“The identification and protection of fundamental rights 

is an enduring part of the judicial duty to interpret the Constitution.”). Defendants make much of 

the unprecedented nature of Plaintiffs’ claims, yet these claims simply mirror the unprecedented 

magnitude of harm from Defendants’ misconduct. As the Supreme Court recently explained, our 

Constitution was built to adapt to evolving notions of liberty:

The nature of injustice is that we may not always see it in our own times. The generations 

that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to 

know the extent of freedom in all of its dimensions, and so they entrusted to future 

generations a charter protecting the right of all persons to enjoy liberty as we learn its 

meaning. 

Obergefell, 135 S. Ct. at 2598. 

That Plaintiffs allege pervasive and systemic harms only reinforces the vital role of the 

judiciary here. Defendants misconstrue the Due Process Clause as inapt for resolving matters 

“affecting every person in the country.” MSJ at 22. To the contrary, the Due Process Clause has 

consistently been moved our nation towards evolving notions of justice and liberty for everyone. 

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See, e.g., Baker v. Carr, 369 U.S. 186 (1962) (preservation of democratic process by addressing 

malapportionment); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (racial discrimination in 

elections); Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483 (1954) 

(desegregation); Obergefell, 135 S. Ct. at 2608 (the right of same-sex couples to “exercise the 

fundamental right to marry in all States.”); Glasser v. U.S., 315 U.S. 60 (1942); Taylor v. 

Louisiana, 419 U.S. 552 (1975) (remedying systematic exclusion of women from jury service); 

Griswold v. Connecticut, 381 U.S. 479 (1965) (limits on contraception conflict with fundamental 

rights of married people); Eisenstadt v. Baird, 405 U.S. 438, 443 (1972) (extending right of 

privacy to contraception for non-married people). Federal courts routinely address systemic 

harms and are equipped to do so when the infringements emanate systemically from another 

branch of government––that is how our tripartite system is intended to function. Brown v. Plata, 

563 U.S. 493 (2011) (challenge to systemic conditions across state prison system); Brown v. Bd. 

of Educ., 349 U.S. 294 (1955) (systemic racial injustice in school systems).

Our carefully constructed system of checks and balances was designed to protect 

individuals from “the unlawful exercise of governmental power” by the other branches of 

government. Obergefell, 135 S. Ct. at 2605 (internal quotation marks and citation omitted).

When the legislative or executive branches violate individual rights, courts have a duty to 

provide redress even if doing so “affects issues of the utmost importance and sensitivity.” 

Obergefell, 135 S. Ct. at 2605; Brown, 349 U.S. 298 (“All provisions of federal, state, or local 

law requiring or permitting such discrimination must yield to [the principle that racial 

discrimination in public education is unconstitutional].”). Consequently, “[a]n individual can 

invoke a right to constitutional protection when he or she is harmed, even if . . . the legislature 

refuses to act” on that issue. Obergefell, 135 S. Ct. at 2605; see also Clinton, 520 U.S. at 682 

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(“[T]he Judiciary may severely burden the Executive Branch by reviewing the legality of the 

President’s official conduct.”). To deprive Plaintiffs of their day in court would be to skew the 

balance of power towards a legislature and executive that have not only refused to act, but that 

have systemically and affirmatively infringed Plaintiffs’ constitutional and public trust rights. 

The longevity and magnitude of Defendants’ harms alongside separation of powers 

principles not only allow, but demand this case be heard. See Allen, 468 U.S. at 760, abrogated 

on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 

(2014) (the judiciary must monitor “wisdom and soundness of Executive action” in the event of 

“actual present or immediately threatened injury resulting from unlawful government action”) 

(citation and internal quotation marks omitted). “The declared purpose of separating and dividing 

the powers of government, of course, was to diffuse power, the better to secure liberty” not to 

better protect the executive and legislature when they wield power to infringe inalienable rights.

Bowsher v. Synar, 478 U.S. 714, 721 (1986). For at least four decades, Defendants have 

knowingly administered a dangerous fossil fuel-based system that presents an “actual present or 

immediately threatened injury,” Allen, 468 U.S. at 760, upon which Plaintiffs’ claims are 

founded. See Section III(A)(1), (2) supra. Separation of powers principles are properly invoked 

here, not as a reason to disregard Plaintiffs’ claims, but rather as the reason to consider them.

Defendants’ tactic to suggest Plaintiffs pursue piecemeal action has previously been 

rejected for addressing systemic constitutional harms. The Obergefell court, for example, 

declined to permit “slower, case-by-case determination[s]” of the rights of same-sex couples 

because doing so would permit ongoing violations of fundamental rights. 135 S. Ct. at 2606; 

Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 249, 299 (1955) (holding courts of equity can 

eliminate obstacles to desegregation in a systemic manner to abide the constitutional principles).

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2. Plaintiffs properly request declaratory and injunctive relief for their injuries. 

Defendants’ perpetual mischaracterization of Plaintiffs’ claims and requests for relief 

does not warrant summary judgment. See, e.g., ECF No. 27-1 at 17–18 (describing the remedy as 

“transform[ing] the district court into a super-regulator setting national climate policy”); ECF 

No. 74 at 33 (“Such an order would place the judiciary in the position of a de facto

superagency . . . and it would raise profound separation of powers problems”); Plaintiffs have not 

requested, and this Court need not order, specific regulatory action by Defendants. FAC, Prayer 

for Relief. Rather, Plaintiffs seek to have their rights vindicated through declaratory and 

injunctive relief, a well-worn pathway for rectifying constitutional violations. See Juliana, 217 F.

Supp. 3d at 1241.

This Court has the judicial powers and expertise to delineate the scope of Plaintiffs’ 

rights, examine the extent of Defendants’ violations, and fashion relief based on those findings. 

See Milliken v. Bradley, 433 U.S. 267, 280 (1977) (“[T]he nature of the . . . remedy is to be 

determined by the nature and scope of the constitutional violation.”). Summary judgment is 

inappropriate on separation of powers grounds where this Court has not yet determined the scope 

of Defendants’ violations or Plaintiffs’ injuries. Baker, 369 U.S. at 198 (“Beyond noting that we 

have no cause at this stage to doubt the District Court will be able to fashion relief if violations 

of constitutional rights are found, it is improper now to consider what remedy would be most 

appropriate if appellants prevail at trial.”); see also Ruiz v. Estelle, 679 F.2d 1115, 1155 (5th Cir. 

1982) (“Injunctive relief need not be confined to an order to cease an illegal practice. Once a 

constitutional violation has been proved, the court may, if necessary, exert its equitable power to 

prevent repetition of the violation, not only by the force of the contempt sanction but also by 

commanding measures that safeguard against recurrence.”). This case should continue with 

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discovery to allow the “discriminating inquiry into the precise facts and posture of the particular 

case” necessary before dismissal case on separation of powers grounds. Baker, 369 U.S. at 199.

Nor are the inherent factual and scientific complexities of this case grounds for summary 

judgment. Plaintiffs do not ask this Court to make “energy and environmental policy,” MSJ at 

20, but to weigh the relevant facts and evidence on climate change and Plaintiffs’ injuries and set 

constitutional standards. See ECF 146 at 9. Nor is political tension surrounding climate change 

grounds for summary judgment; “federal courts regularly adjudicate claims that arise in 

connection with politically charged issues.” Juliana, 217 F.Supp.3d at 1236; See also Brown, 

349 U.S. at 299 (“School authorities have the primary responsibility for elucidating, assessing, 

and solving these problems; courts will have to consider whether the action of school authorities 

constitutes good faith implementation of the governing constitutional principles.”). Defendants 

cite no convincing reason why this Court cannot take a similar approach here. 

Finally, Defendants make the untenable argument that this Court cannot grant relief 

because such relief is not within traditional notions of equity. MSJ at 21. Judicial review of the 

political branches has been a historic stalwart of separation of powers principles. Nixon v. 

Fitzgerald, 457 U.S. 731, 761 (1982). Equity is an inherently flexible power. Hecht Co. v. 

Bowles, 321 U.S. 321, 329 (1944). The authorities Defendants cite ostensibly refuting this

interpretation are inapposite to the systemic constitutional harms alleged here. Guar. Tr. Co. of 

N.Y. v. York, 326 U.S. 99 (1945) (examining equity principles applied to federal courts’ ability to 

enforce non-federal rights); Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 

U.S. 308 (1999) (relying on principles of private debtor-creditor law). Plaintiffs’ claims should 

proceed to trial and, after considering all the evidence to determine the “nature and scope of the 

constitutional violation,” this Court can construct an proper remedy. Milliken, 433 U.S. at 280.

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D. Plaintiffs’ Claims Do Not Fail as a Matter of Law

Defendants move for partial summary judgment on only three of Plaintiffs’ Fifth 

Amendment substantive due process claims. Defendants argue again that there is no implied 

Fifth Amendment right to a climate system capable of sustaining human life and that the public 

trust doctrine does not apply here. They repeat their contention that the state-created danger 

doctrine of the Fifth Amendment only applies when a governmental body takes control over a 

particular individual’s person. MSJ at 24-28. This Court already rejected these legal arguments 

and need not decide them again as a matter of law without a fully developed factual record. 

Juliana, 217 F. Supp. 3d at 1250. All of Plaintiffs’ claims require an empirical scientific and 

historical analysis. ECF 146 at 11 (“plaintiffs’ substantive due process claim presents a mixed 

question of law and fact that mandates an opportunity to develop the record.”). Defendants have 

not, however, moved for summary judgment on three of Plaintiffs’ Fifth Amendment claims; 

therefore, the merits of these claims are not at issue in Defendants’ MSJ nor Plaintiffs’ Response. 

1. Material Facts are in Dispute Regarding Plaintiffs’ Fundamental Right to a 

Climate System Capable of Sustaining Human Life.

The Supreme Court has intentionally availed itself to review and recognize new 

fundamental rights. “The identification and protection of fundamental rights is an enduring part 

of the judicial duty to interpret the Constitution [and] ‘has not been reduced to any formula.’”

Obergefell, 135 S. Ct. at 2598 (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961)). In deciding 

whether to recognize a newly asserted fundamental right, the Supreme Court has asked “whether 

that right is fundamental to the Nation’s scheme of ordered liberty . . . or . . . whether it is 

‘deeply rooted in this Nation’s history and tradition.’” McDonald v. City of Chicago, IL, 561 

U.S. 742, 744 (2010) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). A full 

fundamental rights analysis involves an empirical inquiry. See Perry v. Schwarzenegger, 704 

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F.Supp.2d 921 (N.D. Cal. 2010) (holding bench trial). Here, both historical and scientific factual 

evidence are material to this analysis, which should be fully developed at trial so that the 

appellate courts have a full record to consider with findings of fact and conclusions of law.33

The right, already recognized by this Court, “to a climate system capable of sustaining 

human life” is both fundamental to ordered liberty and deeply rooted in our history and traditions 

as a nation. Juliana, 217 F.Supp.3d at 1250. As this Court held, “roots” of the right are found in 

the penumbras of the Bill of Rights and the various amendments. Id. Often, a newly recognized 

unenumerated fundamental right is a “right underlying and supporting other vital liberties.” Id.

A full merits decision of this newly recognized right and its contours involves an 

empirical analysis. Thus, Plaintiffs proffer material facts and opinion in the expert report of 

historian Andrea Wulf describing the deep roots of this fundamental right in the Nation’s history 

and traditions. Wulf Decl., Ex. 1. Wulf explains that the natural environment was a critical

underlying principle of liberty on which Jefferson, Washington, Madison, and Adams founded 

the Nation. The Founders were rooted in the principle Alexander von Humboldt34 best described 

as: “Nature is the domain of liberty.” Id. at 3. Humboldt wrote that “nature’s balance was created 

by diversity, which might in turn be taken as a blueprint for political and moral truth.” Id. The 

Founders echoed Humboldt’s teachings in their own writings and speeches. Id. Washington said 

that the proper management of the lands would contribute more to the welfare of the states than 

																																																						 33 Important fundamental rights cases were all decided on appeal of merits decisions: Brown v. 

Bd. of Ed., 347 U.S. 483, 486 n.1 (1954) (four district court records); Plata, 563 U.S. at 499-500 

(two district courts), Obergefell, 135 S.Ct. 2584 (three final decisions for plaintiffs and one 

preliminary injunction), Grutter v. Bollinger, 539 U.S. 306 (2003), Lawrence v. Texas, 539 U.S. 

558 (2003), Furman v. Georgia, 408 U.S. 238 (1972); Atkins v. Virginia,536 U.S. 304 (2002); 

Roper v. Simmons, 543 U.S. 551 (2005).

34 The Founders spent time with and were greatly influenced by the German explorer and 

scientist Alexander von Humboldt. Id. at 2. They read his books, kept their own climate journals, 

worried about the state of the natural environment, and were, at their core, farmers who 

understood the importance of protecting nature for future generations of Americans. Id.

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anything else and they linked national “happiness, dignity and independence” to the quality of 

the lands. Id. at 3-4. Wulf opines that “it was America’s nature, soil and plants that provided a 

transcendent feeling of nationhood. Nature was inextricably linked to guarding liberty.” Id. at 4. 

James Madison’s speech of 1818, after ending his Presidency, was especially prophetic

and “emblematic of how deeply rooted the importance of nature in balance was to the founders 

and to the young nation:” 

Madison was the first American politician to write that ‘the atmosphere is the 

breath of life. Deprived of it, they all equally perish,’ referencing animals, man 

and plants. He spoke of the balanced composition of the atmosphere and the give 

and take of animals and plants, which allowed the atmosphere the aptitude to 

function so as to support life and the health of beings, according to nature’s laws. 

The threat to nature in 1818 was largely from deforestation, the degradation of 

soils and the agricultural practices that Humboldt spoke of––threats to what 

Madison called the ‘symmetry of nature.’ 

Id.

Defendants contend that, “unlike the right recognized in Obergefell, the right to a 

climate-system capable of sustaining human life has no relationship to ‘certain personal choice 

central to individual dignity and autonomy,’” thereby creating a dispute of empirical historical 

and scientific fact that should be resolved at trial. MSJ at 25. Expert Wulf disagrees. Wulf Decl., 

Ex. 1 at 4, 7-8 (President Roosevelt explaining: “The function of our Government is to insure to 

all its citizens, now and hereafter, their rights to life, liberty and the pursuit of happiness. If we of 

this generation destroy the resources from which our children would otherwise derive their 

livelihood, we reduce the capacity of our land to support a population, and so either degrade the 

standard of living or deprive the coming generations of their right to life on this continent.”). 

Plaintiffs and their experts make clear that the dangers of climate destabilization do in 

fact, as President Roosevelt predicted, threaten personal choice central to individual dignity and 

autonomy. Jaime Decl., ¶¶ 4, 12–14, 26–27 (drought and lack of water forced her from her home 

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on the Navajo Nation reservation, eliminated her ability to harvest important traditional plants 

and medicines, and extreme heat forces her to stay inside all day when she would rather be active 

outdoors); Nicholas Decl., ¶ 7 (“Colorado is my home and where I want to spend the rest of my 

life. It is my dream to live in the foothills of the Rocky Mountains but I am now too scared to 

move there because of the threat of wildfires.”); Running Decl., Ex. 1 at 5-9, 12-18, 24-27, 29; 

Trenberth Decl., Ex. 1 at 21; Van Susteren Decl., Exhibit C to Ex. 1 (filed pursuant to protective 

order). Thus, like the historical roots of the fundamental right to marry, the same can be said for 

the climate. Obergefell, 135 S. Ct. at 2594; Hansen Decl., Ex. 1 at 44-49; Wulf Decl., Ex. 1.

Defendants incorrectly contend that the Court’s recognition of a fundamental right to a 

climate system capable of sustaining human life “wrests fundamental policy issues” from the 

Legislative branch. MSJ at 34. This argument ignores Supreme Court precedent that the 

declaration and protection of fundamental rights is the duty of the judicial branch. Obergefell, 

135 S. Ct. at 2598. Defendants’ theory that a fundamental rights analysis should be rejected 

when the right would require a change to large government policies and systems would have 

been the downfall of cases on desegregation, prison reform, same-sex marriage, or the right of 

women to serve on juries and have access to contraception, among other rights. See supra C.1. In 

contrast to those cases, the United States already has a clear policy of protecting the climate 

system by ratifying the United Nations Framework Convention on Climate Change and in our 

nation’s conservation legislation, and thus the Court’s recognition of this fundamental right is not 

inconsistent with policy decisions that have already been made.

35

																																																						 35 See, e.g., UNFCCC, adopted May 9, 1992, 1771 U.N.T.S. 107, S. Treaty Doc. No. 102-38

(1992); Clean Air Act § 101, 42 U.S.C. § 7401; National Environmental Policy Act § 101, 42 

U.S.C. § 4331(b)(1) (“[I]t is the responsibility of the Federal Government to . . . fulfill the 

responsibilities of each generation as trustee of the environment for succeeding generations.”).

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Defendants cite no compelling authority or evidence to support their dispute with the 

Court’s finding that “a stable climate system is quite literally the foundation ‘of society, without 

which there would be neither civilization nor progress.’” Juliana, 217 F.Supp.3d at 1250. Wulf 

explains that there is ample support for this in the historic record: 

The ‘breath of life’ that the atmosphere, forests, soils, waters (the climate system) 

was to the agrarian society in which the founding fathers lived was also 

foundational to the liberties they staked out for their new nation. There may be no 

other implicit liberty right more rooted in the history and traditions of the United 

States than the right to a climate that sustains life the life that humans have 

enjoyed for generations and that is now catastrophically threatened.

Wulf Decl., Ex. 1 at 4. Defendants raised a disputed fact as to this claim by denying the historical 

and scientific facts and empirical evidence demonstrating the unenumerated right recognized by 

this Court has deep roots in our nation’s history and is implicit, as demonstrated by hard 

scientific evidence, in the concept of ordered liberty. That is both a factual and legal inquiry that 

courts must engage, one best suited for the merits at trial.

2. Plaintiffs’ Proffer of Evidence of Material Facts Disputed by Defendants

Demonstrates That the Federal Government Has Put Them in a Position of 

Danger in Violation of the Fifth Amendment.

This Court has recognized Plaintiffs’ allegations that their injuries stem from Defendants’ 

affirmative actions and deliberate indifference to the dangers of climate change constitute a valid 

State-created danger claim under the Due Process Clause. Juliana, 217 F.Supp.3d at 1251-1252.

Defendants suggest that proving a State-created danger claim requires “a clear and present 

danger of imminent physical harm to a specific plaintiff with whom the government had a 

distinct relationship, an overt government act that proximately caused the dangerous situation, 

deliberate indifference by the government to the particular plaintiff’s safety, and subsequent 

physical harm or loss of life.” MSJ at 27. But Defendants cite no authority for so construing the 

principles articulated in Deshaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 and its 

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progeny. Rather, as this Court stated, “A plaintiff asserting a danger-creation due process claim 

must show (1) the government’s acts created the danger to the plaintiff; (2) the government knew

its acts caused that danger; and (3) the government with deliberate indifference failed to act to 

prevent the alleged harm.” Juliana, 217 F.Supp.3d at 1252 (emphasis in original).

Although a State-created danger claim “imposes rigorous proof requirements,” Id., 

Plaintiffs proffer ample evidence to make a triable issue of material fact for each limb of the test 

articulated by this Court. With respect to the first limb, Plaintiffs proffer material facts for each 

link in the causal chain establishing that Defendants at minimum placed Plaintiffs “in a worse 

position than that in which [they] would have been had the state not acted at all.” Pauluk, 836 

F.3d at 1125 (internal quotation marks and citations omitted). Plaintiffs submit evidence that the 

U.S. is responsible for a substantial percentage of current and historical CO2 emissions, and that 

Defendants’ aggregate actions—including but not limited to fossil fuel subsidies and leasing of 

federal land to fossil fuel exploration—perpetuate a fossil fuel energy system and result in 

greater CO2 emissions than would occur in the absence of Defendants’ aggregate actions. See 

Hansen Decl., Ex. 1 at 26; Erickson Decl., Ex. 1 at 4-20; See Section III(A)(2), supra. Plaintiffs 

proffer evidence that these excess GHGs cause and enhance myriad dangers to Plaintiffs. See

Section III(A)(1). Plaintiffs present evidence that they are personally suffering harm from these 

dangers. Id.

Defendants argue the harm suffered under the State-created danger exception must be 

“physical harm.” MSJ at 36. There is no reasoned basis and Defendants cite no authority for the 

proposition that psychological harms are excluded from a State-created danger claim. Although 

Plaintiffs proffer disputed material facts of physical harm, and thus do not need to solely rely on 

psychological harm, Plaintiffs’ evidence of psychological harm from Defendants’ actions is 

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staggering, and in many respects equivalent to the proffered evidence of physical harm. As 

summarized in the expert opinion of Dr. Lise Van Susteren,

[T]hese youth Plaintiffs, and many other children, are already experiencing acute and 

chronic mental health impacts as a result of climate change and its impacts. These mental 

health impacts are exacerbated because climate change is a direct result of actions taken 

by the federal defendants, who are supposed to be protecting the Plaintiffs and future 

generations. Some of the Plaintiffs are in a state of despair, others are angry and have 

feelings of hopelessness. They are extremely worried about their futures and the world 

that they will grow up in. Without immediate action by the federal defendants to address 

climate change, it is my expert opinion that these Plaintiffs will continue to suffer acute 

and chronic mental health impacts and that their suffering will worsen. These conclusions 

are consistent with what I have seen in my practice and the literature.” 

Van Susteren Decl., Ex. 1 at 23. As one example of the gravity of Plaintiffs’ psychological 

harms, Plaintiff Levi D. describes having recurring nightmares about climate change damage to 

his home. Levi Decl. at ¶5. 

With respect to the second limb of the State-created danger test, Plaintiffs, through the 

expert declaration of James Gustave “Gus” Speth, proffer decades of material facts of 

Defendants’ knowledge that its actions caused dangers to Plaintiffs: 

[I]t is my expert opinion that the U.S. government, including Federal Defendants and the 

highest levels of the Executive Branch and Congress, knew by the late 1970s, with 

enough certainty to act, that the ongoing reliance on fossil fuels posed a serious threat to 

earth’s climate system, the nation, and future generations. It is also my opinion that 

Federal Defendants were well informed and advised about alternative energy pathways 

for the nation that were within their authority to pursue, which would have minimized or 

avoided the increasing threat of climate change caused by greenhouse gas emissions and 

met the energy and security needs of the nation. 

Speth Decl. ¶ 8. Speth’s opinion is supported not only by his years of service within the Carter 

Administration and decades of public service outside the U.S. government, but also by his expert 

historical analysis of an extensive record of government documents. 

With respect to the third limb of the State-created danger test, the Speth declaration also 

proffers material facts of Defendants’ deliberate indifference: 

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The Federal Defendants’ actions managing the national energy system from each 

administration after Carter is, in my view, the greatest dereliction of civic responsibility 

in the history of the Republic. And it is worse today than ever. This shocking historical 

conduct, government malfeasance on a grand scale, summarized below, has left current 

and future generations enormously vulnerable to substantial danger. 

Speth Decl. ¶ 11 (emphasis added). Speth explains how, “year by year, and administration by 

administration, Federal Defendants knowingly pursued and enacted national fossil fuel-based 

energy policies and planning that would increase climate change-inducing greenhouse gas 

emissions” despite full and ever-growing knowledge of the grave consequences of these actions. 

Id. at ¶ 8. Plaintiffs submit evidence establishing that Defendants’ culpable state transcends 

“gross negligence” and falls within the conscience-shocking realm of deliberate indifference. 

Pauluk, 836 F.3d at 1125 (quotation marks omitted). To hold otherwise would set an impossibly 

high factual threshold for culpability and insulate “the greatest dereliction of civic responsibility 

in the history of the Republic” from constitutional scrutiny. Plaintiffs have identified material 

facts going to each limb of the State-created danger test and have demonstrated that there are

genuine issues for trial with respect to this claim. This Court should deny summary judgment.

3. Plaintiffs Submit Evidence of Material Facts Disputed by Defendants 

Regarding Their Claim That The Public Trust Doctrine Applies to the 

Federal Government’s Management of Trust Resources.

This Court has previously determined the Public Trust Doctrine “is deeply rooted in our 

nation’s history and indeed predates it,” and provides Plaintiffs a cause of action under the Fifth 

Amendment Substantive Due Process Clause. Id. at 1274-1276. This Court provided a wellreasoned analysis in rejecting Defendants’ arguments that: (1) PPL Montana, LLC v. Montana, 

565 U.S. 576 (2012), precludes a federal Public Trust Doctrine claim; (2) Illinois Central 

Railroad v. Illinois, 146 U.S. 387 (1892), was only a statement of law relevant to State 

sovereigns and not the Federal sovereign; (3) the Property Clause entrusts Congress exclusively 

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with unlimited power over public lands without limitation;36 and (4) under AEP v. Connecticut, 

564 U.S. (2011), the Clean Air Act displaces any Public Trust Doctrine claim. Juliana, 217 F. 

Supp. 3d at 1272-1276. Under the clear error standard, the Ninth Circuit upheld this Court’s 

order. In re United States, 884 F.3d 830 (2018).

Defendants’ argument that the Public Trust Doctrine does not apply to Defendants’ 

management of the atmosphere presents mixed questions of law and disputed material facts and 

fails on summary judgment. Resting strictly on the identical legal arguments Defendants made in 

their Motion to Dismiss and Petition for Writ of Mandamus, Defendants do not make any legal 

or factual arguments as to why the atmosphere is not a public trust resource subject to protection, 

even though they raise it in the MSJ. It should be rejected for that reason alone.

Moreover, the contours of the federal Public Trust Doctrine, and whether the atmosphere 

or climate system is part of the federal trust res is a mixed question of law and fact. The Doctrine 

is deeply rooted in United States history and tradition. See Wulf Decl., Ex. 1 at 2 (Founders saw 

“nature as the foundation of the nation.”); Smith Decl., Ex. 1 at 6-18; The Federalist No. 46 

(James Madison) (“The federal and State governments are in fact but different agents and 

trustees of the people”); Martin v. Waddell, 41 U.S. 367, 413 (1842). The Founders saw the 

atmosphere and the climate as integral to their liberties. See Wulf Decl., Ex. 1 at 21-22.

																																																						 36 Defendants cite one new case, United States v. Bd. of Cty. Comm’rs of Cty. of Otero, which

stands for the proposition that, due to the Supremacy Clause, the federal government’s power to 

protect federal lands under the Property Clause preempts contradictory state or local laws. 843 

F.3d 1208, 1213 (10th Cir. 2016), cert. denied, 138 S. Ct. 84 (2017). Neither Otero nor Kleppe 

stand for the proposition that the federal government has no federal public trust obligation to 

protect public trust resources or that the federal government cannot be constrained by federal law 

in how it manages federal property. In fact, County of Otero expressly left open the question of 

whether the Forest Service could be held liable under federal common law. Id. at 1215.

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Further evidence exists in public laws, which do not form the origination of the federal 

Public Trust Doctrine, but affirm the Doctrine applies, and its contours. 42 U.S.C. § 4331(b)(1)

(declaring government has “continuing responsibility” to “use all practicable means” so as to 

“fulfill the responsibilities of each generation as trustee of the environment for succeeding 

generations.”); 42 U.S.C. § 9607(f)(1) (directing Defendants to act as trustees of all natural 

resources under their management and control); see also 33 U.S.C. § 2706 (b)(1)&(2) (Oil 

Pollution Act); 40 C.F.R. § 300.600(b) (designating Departments of Agriculture, Commerce, 

Defense, Energy, and Interior ); 40 C.F.R. § 300.600(a) (defining natural resources to “mean[] 

air, . . . , and other such resources . . . , held in trust by” Defendants); 42 U.S.C. § 9607(f)(2)(A).

According to the U.S. Commission on Ocean Policy, “the U.S. government holds ocean 

and coastal resources in the public trust—a special responsibility that necessitates balancing 

different uses of those resources for the continued benefit of all Americans.”37 See also Olson 

Decl. Ex. 371 (“NOAA recognizes it has the duty to protect public trust resources such as fish 

and shellfish, and that climate change threatens those resources.”).

Defendants also have taken the position before federal courts that they are trustees over 

natural resources and have rights and obligations under the Public Trust Doctrine. See, e.g., U.S. 

v. CB & I Constructors, Inc., 685 F.3d 827 (9th Cir. 2011); Conner v. U.S. Dep’t of Interior, 73 

F.Supp.2d 1215, 1219 (D. Nev. 1999); U.S. v. Burlington N. R.R., 710 F.Supp. 1286 (D. Neb. 

1989); In Re Steuart Transp. Co., 495 F.Supp. 38 (E.D. Va. 1980). In a case against British 

Petroleum over their oil spill, the United States claimed damages for “[n]atural resources under 

																																																						 37 U.S. Senate Committee on Commerce, Science, & Transportation: Hearing on Oceans 

Commission (Sept. 21, 2004) (statement by Admiral James D. Watkins USN (Ret.), 

http://www.commerce.senate.gov/public/index.cfm/hearings?Id=51065a2d-0cd0-41c7-b916-

fbbb50cc9fec&Statement_id=4814F650-71F1-40A1-90E7-7F563C08D25A

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the trusteeship of the United States.” Compl., United States v. BP Exploration & Production, 

Inc., No 2:10CV04536, 2010 WL 5094310, ¶ 66 (E.D. La. 2010).

Defendants remain sovereign trustees for public trust resources still within the federal 

public domain, which transcends state borders and includes the air and atmosphere, the oceans, 

migratory wildlife, and federal public lands. See J. Inst. 2.1.1 (T. Sanders trans., 4th ed. 1867); 2 

William Blackstone, Commentaries on the Laws of England 4 (1766) (“[T]here are some few 

things which . . . must still unavoidably remain in common . . . Such (among others) are the 

elements of light, air, and water . . . .”); United States v. Beebe, 127 U.S. 338, 342 (1888); United 

States v. California, 332 U.S. 19, 33 (1889); United States v. Causby, 328 U.S. 256, 260, 266 

(1946) (holding airspace is part of the federal public domain); United States v. Trinidad Coal & 

Coking Co., 137 U.S. 160, 170 (1890) (finding public lands are “held in trust for all the people”); 

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 283-84 (1997); U.S. v. Oregon, 295 U.S. 1, 14 

(1935); 49 U.S.C. § 40103(a)(1) (“[t]he United States Government has exclusive sovereignty of 

airspace of the United States.”); see 1958 Air Commerce and Safety Act, Pub. L. No. 85-726, § 

101(33), 72 Stat. 731, 740 (1958).

This Court may properly decide which natural resources, such as the atmosphere, are 

subject to state sovereignty, federal sovereignty, or dual sovereignty, after a full factual record is 

developed, including consideration of expert testimony. See Wulf Decl., Ex. 1.

4. Plaintiffs’ Have Preserved Three Fifth Amendment Claims that are Not at 

Issue in Defendants’ Motion 

Defendants have not sought summary judgment on the Fifth Amendment Substantive 

Due Process claim for government infringement of Plaintiffs’ enumerated rights of life and 

property and already recognized implicit liberties. This Claim includes Plaintiffs’ implied 

recognized rights to move freely, to family, and to personal security. FAC Claim One, ¶¶ 277-89.

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Defendants did not move on the Fifth Amendment Substantive Due Process and Equal Protection 

Claim for systemic government discrimination against Plaintiffs with respect to the exercise of 

their fundamental rights. FAC Claim Two, ¶¶ 290-93, 298-301. Finally, summary judgment is 

not sought on the Fifth Amendment Substantive Due Process Equal Protection Claim for 

government discrimination against Plaintiffs as a class of children, who should have suspect or 

quasi-suspect classification and some heightened level of constitutional protection against 

discrimination. FAC Claim Two, ¶¶ 290-91,294-301. Plaintiffs have put forth significant expert 

testimony regarding this claim not yet addressed by the Court. See, e.g., Smith Decl., Ex. 1; 

Pacheco Decl., Ex. 1; Ackerman Decl., Ex. 1; Stiglitz Decl., Ex. 1; Hansen Decl., Ex. 1. 

Importantly, even were no fundamental right at stake, rational basis review would not apply if 

children are afforded a suspect or quasi-suspect classification, a combined factual and legal issue 

that the court has not ruled on and which should be fully developed at trial.

Plaintiffs have likewise not abandoned the argument that their Equal Protection Claim 

would survive rational basis even if children are not a protected class and even if there were no 

fundamental right at stake. Although the Court indicated that “defendants’ affirmative actions 

would survive rational basis review,” it premised this statement, at least partially, on its belief 

that satisfaction of the rational basis test “appears undisputed by plaintiffs.” Juliana, 217 F.

Supp. 3d at 1249. However, Plaintiffs have always disputed and continue to dispute that 

Defendants’ actions can survive rational basis review, which Plaintiffs should have the 

opportunity to prove through expert testimony and Defendants’ admissions,. ECF No. 159 at 18-

19; Stiglitz Decl., Ex. 1 at 27, 40, 80, 47 (“No rational calculus”); Speth Decl., ¶¶ 8-16; Jacobson 

Decl., Ex. 1 at 20-21; Answer ¶¶ 7, 278-306; Olson Decl. Ex. 47; 105 (DOE stating “[a]s part of 

prudent risk management, our responsibility to future generations is to eliminate most of our 

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carbon emissions and transition to a sustainable energy future.”); 275 (climate change is likely to 

pose “wide-ranging” national security challenges); 290 (DOD stating: “Climate change will 

affect the Department of Defense’s ability to defend the Nation and poses immediate risks to 

U.S. national security.”). Whether Plaintiffs could survive rational basis review is a factual 

inquiry for trial. See Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010) (applying all 

three levels of scrutiny to facts at trial). Plaintiffs preserved each of these claims and will proffer 

evidence to prove them at trial. Nor did Defendants move on these claims in their MSJ. 

E. This Court Should Not Certify a Denial of Defendants’ Motion for Summary 

Judgment for Interlocutory Appeal.

Contrary to Defendants’ mischaracterization, the Ninth Circuit did not invite or 

“contemplat[e] future certification,” for interlocutory appeal, MSJ at 39, but only stated that, as 

in any case, “defendants retain the option of asking the district court to certify orders for 

interlocutory appeal of later rulings.” In re United States, 884 F.3d at 838. Under 28 U.S.C. §

1292(b), an otherwise non-final order may be subject to interlocutory appeal only if the district 

court certifies, in writing that: (1) the order involves a “controlling issue of law”; (2) for which 

there is a “substantial ground for difference of opinion”; and (3) “an immediate appeal from the 

order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).

The party seeking interlocutory appeal bears the burden of establishing that all three criteria are 

met. Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). Yet, “even when all three 

statutory criteria are satisfied, district court judges have unfettered discretion to deny 

certification.” Mowat Const. Co. v. Dorena Hydro, LLC, No. 6:14-CV-00094-AA, 2015 WL 

5665302, at *5 (D. Or. Sept. 23, 2015) (Aiken, C.J.) (quotations and citation omitted). Congress 

“carefully confined the availability” of review under section 1292(b) to exceedingly rare 

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circumstances to prevent debilitating effects of piecemeal appeals. Id. at 471, 474; U.S. Rubber 

Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). 

Defendants’ fails to satisfy their burden and seek certification for the same issues for 

which they sought interlocutory appeal after denial of their Motion to Dismiss. See ECF No. 172; 

see also Pl’s Resp. to Def’s Obj’s re: Mot. to Certify for Interlocutory Appeal, ECF No. 159.38 

Defendants cannot satisfy the standard on any issue in their MSJ. Each of the issues in 

the MSJ implicates a genuine issue of material fact. See Chehalem Physical Therapy, Inc. v. 

Coventry Health Care, Inc., No. 09-CV-320-HU, 2010 WL 952273, at *3 (D. Or. 2010). In turn, 

appellate review is aided by a developed record and full consideration of issues by the trial 

courts. In re United States, 884 F.3d at 837.

There are also no substantial grounds for differences of opinion on these issues just 

because this Court is the first to rule on them. Couch, 611 F.3d at 633. Further, no issue 

presented in the MSJ, excepting standing,39 is dispositive as to Plaintiffs’ entire complaint so as 

to “materially advance the ultimate termination of the litigation.” Thus, denial of this MSJ is not

appropriate for interlocutory appeal on any grounds. See ECF No. 172 at 4; ECF No. 146 at 14.

IV. CONCLUSION

Plaintiffs respectfully request Defendants’ partial MSJ be deferred or denied until a full 

factual record can be prepared to resolve genuine disputes as to issues of material facts. 

																																																						 38 Contrary to Defendants’ misleading parenthetical, MSJ at 30, Judge Berzon’s complete 

statement regarding interlocutory appeal was as follows: “So really what this is is an objection to 

the fact that [the Court] didn’t certify it – the interlocutory appeal. And maybe many judges 

would have but she didn’t and that’s the system and that’s the way it’s set up.” See Oral Arg. 

Recording at 5:41-5:53, United States v. U.S. Dist. Court for Dist. of Or., No. 17-71692 (9th Cir. 

Dec. 11, 2017), https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012816. 39 Standing does not satisfy the other criteria for interlocutory appeal. See In re Anchorage 

Nautical Tours, Inc., 145 B.R. 637, 641 (B.A.P. 9th Cir. 1992) (mixed question of fact and law)

Case 6:15-cv-01517-AA Document 255 Filed 06/28/18 Page 67 of 68
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

56

DATED this June 28, 2018. Respectfully submitted,

_____/s/ Julia A. Olson____________

JULIA A. OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com

WILD EARTH ADVOCATES

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825

_____/s/ Philip L. Gregory_________

PHILIP L. GREGORY (pro hac vice)

pgregory@gregorylawgroup.com 

Gregory Law Group 

1250 Godetia Drive

Redwood City, CA 94062

Tel: (650) 278-2957

_____/s/ Andrea K. Rodgers________

ANDREA K. RODGERS (OR Bar 

041029)

Andrearodgers42@gmail.com

Law Offices of Andrea K. Rodgers

3026 NW Esplanade

Seattle, WA 98117

Tel: (206) 696-2851

Attorneys for Plaintiffs

Case 6:15-cv-01517-AA Document 255 Filed 06/28/18 Page 68 of 68