TODD KIM

Assistant Attorney General 

United States Department of Justice

Environment & Natural Resources Division 

GUILLERMO A. MONTERO

Assistant Section Chief

SEAN C. DUFFY (NY Bar No. 4103131) 

FRANK J. SINGER (CA Bar No. 227459) 

Trial Attorneys

Natural Resources Section

150 M Street NE 

Washington, DC 20002 

Tel: (202) 305-0445 

sean.c.duffy@usdoj.gov 

Attorneys for Defendants 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA, et al., 

Plaintiffs,

v. 

THE UNITED STATES OF AMERICA, et al., 

 

Defendants.

Case No. 6:15-cv-1517-AA

REPLY IN SUPPORT OF 

DEFENDANTS’ MOTION TO 

DISMISS SECOND AMENDED 

COMPLAINT AND MOTION TO 

CERTIFY (ECF No. 547)

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TABLE OF CONTENTS

Introduction..................................................................................................................................... 1

I. All of the Grounds Requiring Dismissal of the Second Amended Complaint 

are Properly Before the Court................................................................................. 1

II. Plaintiffs Lack Article III Standing to Obtain the Declaratory and Injunctive 

Relief they Seek in the Second Amended Complaint............................................. 6

III. Plaintiffs’ Action is Not a Case or Controversy Cognizable Under Article 

III........................................................................................................................... 10

IV. The Court Should Give No Weight to Plaintiffs’ Frivolous Misconduct 

Allegations............................................................................................................ 11

V. Plaintiffs Fail to Show Why the Issues Raised in the Motion to Dismiss 

Should not be Certified for Appeal....................................................................... 14

Conclusion .................................................................................................................................... 15

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TABLE OF AUTHORITIES

Page(s)

Cases

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

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

Arizona v. California,

460 U.S. 605 (1983).................................................................................................................... 2

Askins v. United States Dep’t of Homeland Sec.,

899 F.3d 1035 (9th Cir. 2018) ........................................................................................ 2, 3, 4, 5

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007).................................................................................................................... 8

Benedict v. Held,

No. 3:19-CV-01295-HZ, 2020 WL 10284985 (D. Or. Apr. 20, 2020) .................................... 13

Bonnichsen v. United States,

367 F.3d 864 (9th Cir. 2004) ................................................................................................ 5, 13

Clean Air Council v. United States,

362 F. Supp. 3d 237 (E.D. Pa. 2019).......................................................................................... 7

Ferdik v. Bonzelet,

963 F.2d 1258 (9th Cir. 1992) .................................................................................................... 3

Hall v. Norton,

266 F.3d 969 (9th Cir. 2001) .................................................................................................... 13

In re Maui Elec. Co.,

506 P.3d 192 (Haw. 2022)........................................................................................................ 14

Italian Colors Rest. v. Becerra,

878 F.3d 1165 (9th Cir. 2018) .................................................................................................... 9

Juliana v. United States,

947 F.3d 1159 (9th Cir. 2020) .................................................................. 2, 5, 6, 7, 8, 10, 12, 15

Juliana v. United States,

986 F.3d 1295 (9th Cir. 2021) .................................................................................................... 2

Libertarian Party of L.A. Cnty. v. Bowen,

709 F.3d 867 (9th Cir. 2013) ...................................................................................................... 9

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992).................................................................................................................... 7

M.S. v. Brown,

902 F.3d 1076 (9th Cir. 2018) .................................................................................................. 12

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Massachusetts v. EPA,

549 U.S. 497 (2007).................................................................................................................... 8

Moore v. Harper,

143 S. Ct. 2065 (2023).............................................................................................................. 10

Papasan v. Allain,

478 U.S. 265 (1986).................................................................................................................... 8

Porter v. Martinez,

68 F.4th 429 (9th Cir. 2023) ....................................................................................................... 9

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

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

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

350 P.3d 1221 (N.M. Ct. App. 2015) ....................................................................................... 14

Smith v. Noonan,

992 F.2d 987 (9th Cir. 1993) ...................................................................................................... 4

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998)...................................................................................................................... 2

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College,

143 S. Ct. 2141 (2023).............................................................................................................. 10

Thompson ex rel. Thorp Family Charitable Remainder Unitrust v. Federico,

324 F. Supp. 2d 1152 (D. Or. 2004) ......................................................................................... 13

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021)............................................................................................................ 9, 10

Vt. Agency of Nat. Res. v. United States ex rel. Stevens,

529 U.S. 765 (2000).................................................................................................................. 10

Statutes

28 U.S.C. § 1292(b).................................................................................................................. 1, 15

42 U.S.C. § 1983............................................................................................................................. 9

Rules

Fed. R. Civ. P. 54(b) ................................................................................................................... 3, 6

L.R. 7-1(a)(1)(A) .......................................................................................................................... 13

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Introduction

The Ninth Circuit held that Plaintiffs lack standing for both declaratory and injunctive 

relief. That holding should have ended this case. But Plaintiffs argue that they have standing to 

pursue the same declaratory relief. The Ninth Circuit has already rejected this argument, and the 

Court should dismiss the Second Amended Complaint on this basis. 

Even if the Court bypasses this fundamental defect, it should address the other threshold 

issues raised in the Motion to Dismiss. Plaintiffs contend that Defendants cannot ask this Court 

to reach those issues because of the Court’s prior rulings, but the Ninth Circuit reversed those 

rulings for lack of jurisdiction. Moreover, Plaintiffs have amended their complaint, and 

Defendants are entitled to challenge the adequacy of this Court’s jurisdiction and Plaintiffs’ 

claims with a motion to dismiss. By doing so, Defendants provide this Court with an opportunity 

to assess these issues, and to certify its orders for appeal pursuant to 28 U.S.C. § 1292(b). 

I. All of the Grounds Requiring Dismissal of the Second Amended Complaint are 

Properly Before the Court.

Plaintiffs erroneously contend that this Court’s prior rulings on Defendants’ first Motion 

to Dismiss, ECF No. 27, Motion for Judgment on the Pleadings, ECF No. 195, and Motion for 

Summary Judgment, ECF No. 207, “resolved all issues Defendants raise in their new Motion to 

Dismiss” other than redressability. Pls.’ Opp’n to Defs.’ Mot. to Dismiss Second Am. Compl. & 

Mot. to Certify (“Pls.’ Opp’n”) 6, ECF No. 549. They argue that Defendants should not be 

allowed to “relitigate” those issues here, and that any consideration of the pending Motion to 

Dismiss should instead be limited to arguments addressing new allegations and requests for relief 

in the Second Amended Complaint. Pls.’ Opp’n 5-9. Those arguments should be rejected 

because they misapprehend the Federal Rules of Civil Procedure, the law of the case doctrine, 

and the posture of this case. 

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Plaintiffs are wrong, most fundamentally, because they ignore the Ninth Circuit’s 

reversal of each of this Court’s orders denying Defendants’ earlier dispositive motions on 

jurisdictional grounds. See Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020) (“[W]e 

reverse the certified orders of the district court and remand this case to the district court with 

instructions to dismiss for lack of Article III standing.”), denying reh’g en banc, 986 F.3d 1295

(Mem.) (9th Cir. 2021). Because Plaintiffs lacked standing to pursue the claims in their first 

amended complaint, and because this Court accordingly lacked jurisdiction when it denied 

Defendants’ earlier dispositive motions, nothing in those earlier rulings can bar the arguments 

presented in the current Motion to Dismiss.1

Even if those earlier orders had not been reversed, Plaintiffs’ do not meet the 

requirements of the law of the case doctrine. The law of the case doctrine “posits that when a 

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

subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). But the 

doctrine applies: (1) “where an issue has been decided by a higher court[,]” Askins v. U.S. Dep’t 

of Homeland Sec., 899 F.3d 1035, 1042 (9th Cir. 2018); or (2) where an issue “has been 

previously decided and is binding on the parties—for example, where the district court has 

previously entered a final decree or judgment.” Id. The doctrine does not bar the district court 

1 Plaintiffs cite Am. Hotel Int’l Grp., Inc. v. OneBeacon Ins. Co., 374 F. App’x 71, 74 (2d Cir. 

2010), for the proposition that “the findings of a district court not expressly or implicitly 

addressed on appeal remain the law of the case.” But when a district court order is overruled on 

jurisdictional grounds, as occurred here, all the findings therein are at least “implicitly 

addressed” because the appellate court necessarily concludes that the district court lacked 

jurisdiction to render them. See id. (“[A] finding that has been vacated ceases to be the law of the 

case, and . . . this includes a finding not expressly addressed but necessarily rejected by an 

appellate court's reasoning.”). A contrary result would lead to the perverse result of insulating 

erroneous district court merits decisions that also suffer from jurisdictional flaws, because an 

appellate court is required to address jurisdictional issues first and dispose of cases on that basis 

alone where warranted. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). 

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from passing on issues where, as here, the district court did not enter a final judgment. Id. at 

1042-43. Rather, the district court retains its usual pre-judgment authority to reconsider rulings 

(especially those rendered without jurisdiction), as Federal Rule 54(b) makes express. 

The doctrine, moreover, is particularly inapplicable when a plaintiff elects to file an 

amended complaint, as occurred here. See id. at 1043. This is because, “[o]nce the plaintiff elects 

to file an amended complaint, the new complaint is the only operative complaint before the 

district court.” Id. The original pleading, by contrast, “no longer performs any function and is 

treated thereafter as non-existent.” Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 

1992)). Against this backdrop, the Ninth Circuit in Askins explained that the task of a district 

court reviewing an amended complaint is to determine whether that amended complaint entitles 

the plaintiff to judgment on its own merit, not to reconsider its analysis of the original complaint. 

While a district court may ultimately “decide the second motion to dismiss in the same way it 

decided the first,” the law of the case doctrine does not require it to do so. Id. at 1043. Rather, 

“permitting the filing of an amended complaint requires a new determination.” Id.; accord San 

Diego Cnty. Credit Union v. Citizens Equity First Credit Union, 360 F. Supp. 3d 1039, 1046 

(S.D. Cal. 2019) (“[B]ecause Plaintiff filed [an amended complaint], the law of the case doctrine 

does not apply.”).

Askins, in sum, makes clear that the law of the case doctrine does not bar Defendants’ 

arguments concerning Plaintiffs’ lack of redressability, the absence of any Article III case or 

controversy, the substantive flaws in Plaintiffs’ constitutional and “federal public trust” claims, 

and the dispositive effect of the Ninth Circuit’s mandate.

2 Despite citing the Askins decision in 

2 Defendants do not contest that their arguments concerning injury in fact, causation, and 

justiciability under the Administrative Procedure Act (“APA”) are constrained by the Ninth 

Circuit’s prior holdings. As indicated in their Motion to Dismiss, Defendants preserve these 

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their brief, Plaintiffs fail to acknowledge any of the legal principles explained there that bar 

applicability of the law of the case doctrine here. Instead, Plaintiffs narrowly refer to—and 

mischaracterize—the portion of Askins where the court describes a defendants’ options under 

Rule 12(b) following the filing of an amended complaint. They read that part of Askins to say 

that a defendant “moving to dismiss an amended complaint may only ask the Court ‘to determine 

that the plaintiff’s amended complaint did not cure the deficiencies of the initial complaint.’” 

Pls.’ Opp’n 5 (emphasis added) (quoting Askins, 899 F.3d at 1043).3 And—because the Ninth 

Circuit’s order and mandate in this case turned on redressability—they argue that redressability 

“is the only element of the Second Amended Complaint” that Defendants can challenge in their 

Motion to Dismiss.” Id. at 6-7 (citing Askins, 899 F.3d at 1043).

This Court should reject Plaintiffs’ reading of Askins because nothing in that case 

suggests that Rule 12(b) motion practice is limited to exploring whether the Second Amended 

Complaint cured deficiencies in the earlier complaint. To the contrary, the point made in Askins

was precisely that an amended complaint must stand or fall on its own merit, rather than by 

assessing how it fares against challenges made to an earlier pleading. Askins, 899 F.3d at 1043. 

And even assuming Plaintiffs’ interpretation of Askins had any merit, Plaintiffs’ attempt to limit 

the scope of the Motion to Dismiss would still fail because a lack of redressability was far from 

the only deficiency in the first amended complaint. As Defendants have explained, the first 

amended complaint did not present a justiciable case or controversy within the meaning of 

issues for potential higher court review. See Defs.’ Mot. to Dismiss Second Am. Compl. & Mot. 

to Certify (“MTD”) 12 n.6, 32, ECF No. 547.

3 The Ninth Circuit used the word “may,” which “is permissive, not mandatory.” Smith v. 

Noonan, 992 F.2d 987, 989 (9th Cir. 1993). In their brief, Plaintiffs replace that permissive 

language with “may only”—mandatory language that is neither expressly used, nor implied, by 

the language from Askins that Plaintiffs rely upon. Pls.’ Opp’n 5.

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Article III, see MTD 17-19, and failed to present any claim upon which relief could be granted 

because each of the constitutional and “federal public trust” claims alleged therein fails as a 

matter of law, see id. at 19-31. Because no court with jurisdiction has yet addressed the merit of 

Defendants’ argument concerning those many deficiencies, Plaintiffs have no basis for limiting 

the scope of Defendants’ Motion to Dismiss even under their interpretation of Askins.

4

Turning finally to Plaintiffs’ contentions regarding redressability and the rule of mandate, 

Plaintiffs’ arguments can be summarized as contending that both issues were already decided in 

the context of this Court’s resolution of Plaintiffs’ motion for leave to file the Second Amended 

Complaint. Defendants do not dispute that the Court’s order and opinion granting leave to file 

the Second Amended Complaint addressed both of those issues and resolved them adversely to 

Defendants. But Defendants respectfully submit that the Court’s analysis was incorrect and 

contrary to the Ninth Circuit’s conclusions and reasoning for the reasons described in the Motion 

to Dismiss, MTD 7-8, 10-16, and below. And because this Court has not yet issued a final 

judgment, it may revisit the reasoning in its decision to “correct any errors or 

misunderstandings” therein. Askins, 899 F.3d at 1042-43 (explaining that, unlike under the law 

of the case doctrine, a district court prior to entering final judgment is free to correct any errors 

4 Plaintiffs purport in Appendix A to identify issues raised in the pending Motion to Dismiss that 

have been previously “briefed, argued, and decided.” Pls.’ Opp’n 6. But as explained above, they 

cannot rely on any of this Court’s prior rulings relating to the first amended complaint because 

the Ninth Circuit held that this Court lacked jurisdiction over that complaint. And they cannot 

rely on the Ninth Circuit’s decision as to anything other than injury in fact, causation, and 

justiciability under the APA, because the Ninth Circuit ruled in favor of Defendants on 

redressability, declined to address Defendants separate “case or controversy” argument, and 

declined to opine on the merit of Plaintiffs’ constitutional claims. See Juliana, 947 F.3d at 1169-

1170 (declining to decide whether the alleged constitutional right exists, and instead assuming its 

existence for purpose of the redressability analysis); see also Bonnichsen v. United States, 367 

F.3d 864, 873 (9th Cir. 2004) (“In deciding whether a plaintiff’s injury is redressable, courts 

assume that plaintiff’s claim has legal merit.”).

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or misunderstandings in an earlier order without having to show “clear error, changed law, new 

evidence, changed circumstances, or manifest injustice”); Fed. R. Civ. P. 54(b).

In sum, each of the arguments presented in Defendants’ Motion to Dismiss is properly 

before the Court; none is barred by the law of the case doctrine or by Plaintiffs’ interpretation of 

Askins. 

II. Plaintiffs Lack Article III Standing to Obtain the Declaratory and Injunctive Relief 

they Seek in the Second Amended Complaint.

Recognizing that “a plaintiff must demonstrate standing separately for each form of relief 

sought,” the Ninth Circuit in Juliana separately examined Plaintiffs’ requests for declaratory and 

injunctive relief and determined as to each whether it was both “(1) substantially likely to redress 

[Plaintiffs’] injuries; and (2) within the district court’s power to award.” 947 F.3d at 1170 

(cleaned up). As Defendants explained in the Motion to Dismiss, the Ninth Circuit concluded 

with respect to the requested injunctive relief that Plaintiffs failed at least the second prong of the 

redressability test, if not both prongs. MTD 5 (citing Juliana, 947 F.3d at 1171). As to the first 

prong, it expressed skepticism that even the exceptionally broad injunction Plaintiffs 

envisioned—whereby the Court would direct the government to phase out fossil fuel emissions 

and draw down excessive atmospheric CO2—was substantially likely to redress Plaintiffs’ 

injuries. Juliana, 947 F.3d at 1170-71. As to the second prong, it explained that any such 

injunction would be beyond the power of an Article III court. Id. at 1171-72.

Perhaps in reaction to the Ninth Circuit’s order, Plaintiffs no longer rely on injunctive 

relief to satisfy the “constitutional minimum for redressability” at the pleading stage. Pls.’ Opp’n 

13. They instead describe the potential availability of an injunction as an “issue for the merits” 

“that goes to the scope of the remedy.” Id. Plaintiffs’ wait-and-see approach is incorrect as a 

matter of law because Plaintiffs bear the burden of establishing each element of standing “in the 

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same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the 

manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. 

of Wildlife, 504 U.S. 555, 561 (1992). And as a practical matter, Plaintiffs’ new tack means 

Plaintiffs’ Second Amended Complaint can survive dismissal only if Plaintiffs can demonstrate 

at this stage that their claims would be adequately addressed solely by a declaratory judgment. 

Plaintiffs cannot carry that burden, most fundamentally, because the Ninth Circuit has 

already determined that the declaration Plaintiffs seek in the Second Amended Complaint, i.e., 

that the government is violating the Constitution, “is not substantially likely to mitigate the 

plaintiffs’ asserted concrete injuries,” and “is unlikely by itself to remediate their alleged injuries 

absent further court action.” Juliana, 947 F.3d at 1170; see also Clean Air Council v. United 

States, 362 F. Supp. 3d 237, 246, 249 (E.D. Pa. 2019) (addressing similar claims and finding that 

“[declaratory] relief will not redress the injuries Plaintiffs have already suffered”). And while 

Plaintiffs insist that the “behavior-shifting quality” of a declaratory judgment would redress their 

claims by causing Defendant to change their energy policies and practices, see Pls.’ Opp’n 10-

11, Defendants have already explained that the argument fails because, as the Ninth Circuit 

noted, even an injunction directing Defendants “to cease permitting, authorizing, and subsidizing 

fossil fuel use” would not, “according to [Plaintiffs’] own experts’ opinions, suffice to stop 

catastrophic climate change or even ameliorate their injuries.” Juliana, 947 F.3d at 1170 

(emphasis added). Plaintiffs’ insistence that a declaratory judgment (and any reductions in GHG 

emissions that might follow such an order) would sufficiently redress their alleged injury, Pls.’ 

Opp’n 12, is thus foreclosed by the law of the case and the law of the circuit.5

5 Plaintiffs contend that they have cured the redressability flaw identified by the Ninth Circuit 

because they now allege that a declaration of rights would, in fact, redress their asserted climatebased injuries. See, e.g., Second Am. Compl. ¶¶ 12, 14, 19A; ECF No. 542; Pls.’ Opp’n 13-15. 

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Again ignoring the Ninth Circuit’s decision, Plaintiffs attempt to invoke Massachusetts v. 

EPA, 549 U.S. 497 (2007), for the proposition that their claims could be redressed by an order 

that has the effect of merely slowing or reducing global GHG emissions. Citing Massachusetts, 

they urge that “the redressability prong of the standing analysis does not require that the remedy

resolve the entire problem giving rise to Plaintiffs’ injuries. Mitigating the harm caused is 

sufficient.” Pls.’ Opp’n 12. But the Ninth Circuit explicitly held that merely slowing or reducing 

GHG emissions would not redress Plaintiffs’ claims in this case. As the Ninth Circuit explained, 

the relaxed standard articulated in Massachusetts—whereby a plaintiff State was allowed to 

assert claims without meeting all the normal standards for redressability—is not available to 

Plaintiffs—who are not a State—because they do not assert a procedural rights claim. Juliana, 

947 F.3d at 1171. That too is law of the case and the law of the circuit.

Plaintiffs also cannot carry their burden under the second prong of the redressability test 

because the declaratory judgment they seek is not within this Court’s power to award. As 

Defendants have explained, MTD 14-15, Plaintiffs seek an unbounded declaration that would 

functionally declare unspecified laws, regulations, and policies unconstitutional. And their 

ultimate goal in seeking a declaratory judgment is still to obtain broad judicial assessment and 

oversight of the Executive Branch. The Court cannot award such relief, regardless of whether it 

is labeled declaratory or injunctive. Plaintiffs provided no meaningful response to this argument 

beyond block quoting portions of this Court’s order granting leave to amend. Pls.’ Opp’n 9-10. 

But such bare legal conclusions fail to state a plausible claim for relief. Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). And on a motion to dismiss, courts “are not bound to accept 

as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 

(1986).

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Plaintiffs next invoke a bevy of recent Ninth Circuit and Supreme Court decisions that 

they contend abrogate the effect of the Ninth Circuit’s binding decision in this case. But none of 

those more recent decisions support Plaintiffs’ contention that their climate injuries would be 

redressed by a declaratory judgment. For example, Plaintiffs cite Porter v. Martinez, 68 F.4th 

429 (9th Cir. 2023), a First Amendment challenge to a criminal statute prohibiting the use of car 

horns in certain circumstances, for the proposition that Article III redressability “depend[s] on 

the relief that federal courts are capable of granting.” Pls.’ Opp’n 11-12 (alteration and emphasis 

in original) (citation omitted) (quoting Porter, 68 F.4th at 438). But “First Amendment 

challenges present unique standing considerations because of the chilling effect of sweeping 

restrictions on speech.” Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1171 (9th Cir. 2018) 

(cleaned up). “Where a plaintiff has refrained from engaging in expressive activity for fear of 

prosecution under the challenged statute, such self-censorship is a constitutionally sufficient 

injury as long as it is based on an actual and well-founded fear that the challenged statute will be 

enforced.” Libertarian Party of L.A Cnty. v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013) (citation 

omitted). In those circumstances, a plaintiff can establish redressability to challenge the statute 

on First Amendment grounds because the “district court could declare [the statute] 

unconstitutional and unenforceable in its entirety, thereby redressing [plaintiffs’] alleged injury.” 

Porter, 68 F.4th at 438 (emphasis removed). That analysis is specific to First Amendment rights; 

Plaintiffs point to no case that has relaxed standing requirements based on chilling effect outside 

of that specific context.

Plaintiffs next invoke Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021), another First 

Amendment case, in which plaintiffs sought nominal damages under 42 U.S.C. § 1983 but not a 

declaratory judgment. Defendants have already explained that nothing in Uzuegbunam suggests 

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the Supreme Court intended to overrule its long-standing precedent on standing relating to 

declaratory judgments. MTD 16. In response, Plaintiffs contend that it was the “behavior-shifting 

quality of the remedy that persuaded the Court to declare nominal damages sufficient to confer 

Article III standing.” Pls. Opp’n 10. This is wrong. The underlying behavior that the Plaintiffs 

challenged in Uzuegbunam had already changed before the Supreme Court decided the case. 

Uzuegbunam, 141 S. Ct. at 797 (“the college officials . . . decided to get rid of the challenged 

policies.”). In any event, whatever behavior-shifting effect a declaratory judgment may have 

here, it would still fail to redress Plaintiffs’ claims for the same reason even an injunction forcing 

Defendants “to cease permitting, authorizing, and subsidizing fossil fuel use” would fail to 

redress their claims. Juliana, 947 F.3d at 1170.

Finally, Plaintiffs invoke cases that have no bearing at all on redressability and 

declaratory relief. See Students for Fair Admissions, Inc. v. President and Fellows of Harvard 

College, 143 S. Ct. 2141, 2157-59 (2023) (discussing organizational standing, not redressability 

based on declaratory judgments); Moore v. Harper, 143 S. Ct. 2065, 2079-81 (2023) (discussing 

judicial review of legislative acts, not redressability based on declaratory judgments). Because 

they are irrelevant, they offer no basis for deviating from the Ninth Circuit’s conclusion that a 

declaratory judgment would not redress Plaintiffs’ claims.

III. Plaintiffs’ Action is Not a Case or Controversy Cognizable Under Article III.

As noted in Defendants opening brief, MTD 17-19, the Second Amended Complaint 

should be dismissed because it does not present a “case[] and controvers[y] of the sort 

traditionally amenable to, and resolved by, the judicial process” Vt. Agency of Nat. Res. v. United 

States ex rel. Stevens, 529 U.S. 765, 774 (2000) (cleaned up). It instead asks the Court to review 

and rule on the constitutionality of all of Congress’s and the Executive Branch’s programs and 

decisions relating to climate change in the aggregate. Second Am. Compl. ¶¶ 277-310. 

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Plaintiffs offer no serious response other than to revisit their standing arguments—they 

contend that this Court can now issue the requested remedy because they no longer seek an 

injunction imposing a remedial climate plan, and they conclude that there is no longer any basis 

for dismissing the Second Amended Complaint “for lack of standing.” Pls.’ Opp’n 16. But 

Plaintiffs fail to engage with the point that the case or controversy requirement prevents Article 

III courts from undertaking the sweeping policy review that Plaintiffs seek here—a function that 

is instead entrusted to the political branches. See MTD 17-18. Instead, Plaintiffs point to cases in 

state courts and in the “courts of other democracies across the world,” arguing that if those courts 

can consider questions regarding climate change, then surely the “federal judiciary is at least as 

competent” to address their sweeping claims here. Pls.’ Opp’n 16 (citing Order on Defs.’ Mot. to 

Dismiss at 25-26, Held v. Montana, No. CDV-2020-307 (Mont. 1st Jud. Dist. Ct. May 23, 2023);

Order Denying Defs.’ Mot. to Dismiss at 10-11, Navahine F. v. Hawai’i Dep’t of Transp., No. 

1CCV-22-631 (JPC) (Haw. 1st Cir. Ct. Apr. 6, 2023); Mathur v. Ontario, 2020 ONSC 6918, 

para. 125-140). But the U.S. Constitution did not create state courts or foreign courts or define 

the scope of their jurisdiction. Nor do Plaintiffs suggest that the separation of powers principles 

through which the Constitution defines the respective roles of each branch of the federal 

government govern the state and foreign cases they rely upon. Because the referenced courts are 

not subject to the case of controversy requirement in Article III, none of the referenced cases 

change the fact that Plaintiffs have failed to allege a justiciable case or controversy in this Court. 

IV. The Court Should Give No Weight to Plaintiffs’ Frivolous Misconduct Allegations.

While largely declining to engage the substance of Defendants’ arguments, Plaintiffs 

curiously devote over five pages of their brief to arguments accusing Defendants of misconduct. 

Pls.’ Opp’n 17-22. The arguments are frivolous, and Defendants reserve the right to address 

them if and when properly presented to this Court. For the moment, however, the arguments are 

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premature because Plaintiffs do not purport to seek sanctions under Rule 11. See id. at 18 n.18. 

Defendants therefore respond only to those arguments that bear on the substance of the pending 

Motion to Dismiss. 

The first such argument is Plaintiffs’ contention that the Motion to Dismiss ignores this 

Court’s Order granting leave to amend and the Ninth Circuit’s decision reversing this Court’s 

prior dispositive orders. But that contention fails as to this Court’s Order because Defendants 

have explicitly and appropriately acknowledged the Order and explained their disagreements 

with it in the Motion to Dismiss, including by explaining why its holdings are incompatible with 

the Ninth Circuit’s decision mandating dismissal of the case. MTD 7-8; see also Defs.’ Mot. to 

Certify Order for Interlocutory Appeal 5-7, ECF No. 551 (further explaining Defendants’ 

disagreement with the Court’s Order granting leave to amend).

Plaintiffs’ contention also fails as to the Ninth Circuit’s decision because the Motion to 

Dismiss is fully consistent with that decision. Most significantly, the Ninth Circuit found that 

Plaintiffs’ claims were not redressable, and it did so based on reasoning that applies with equal 

force to Plaintiffs’ Second Amended Complaint. As to the merits, Plaintiffs incorrectly contend 

that the Ninth Circuit recognized the asserted constitutional right to a stable climate system. In 

support of this claim, Plaintiffs cite language in the Ninth Circuit’s opinion stating that “[i]n 

analyzing redressability, however, we assume [the] existence” of the constitutional right that 

Plaintiffs seek to establish. See Pls.’ Opp’n Appendix A 2-3 (citing Juliana, 947 F.3d at 1169-

70). Far from affirming this Court’s merits determinations, however, the Ninth Circuit clearly 

declined to express any view on the merits, and instead took the customary approach of assuming 

a claim has merit when deciding whether the alleged injury is redressable. See M.S. v. Brown, 

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902 F.3d 1076, 1083 (9th Cir. 2018); Bonnichsen v. United States, 367 F.3d 864, 873 (9th Cir. 

2004); Hall v. Norton, 266 F.3d 969, 976-77 (9th Cir. 2001).

Plaintiffs next erroneously contend that Defendants did not meet the local rule obligation 

to confer prior to filing the second Motion to Dismiss. Pls.’ Opp’n 19-21; L.R. 7-1(a)(1)(A). In 

fact, the parties conferred telephonically for more than 20 minutes on the Motion to Dismiss, 

during which Defendants discussed each of the claims in the Motion and Plaintiffs indicated that 

they would oppose the Motion. Insofar as Plaintiffs take the position that Defendants’ counsel 

were not competent to confer on the Motion, they are incorrect. The purpose of the conferral 

requirement “is to encourage parties to resolve amicably disputes when possible, preserving 

judicial resources for those matters that require the court’s intervention.” Thompson ex rel. Thorp 

Family Charitable Remainder Unitrust v. Federico, 324 F. Supp. 2d 1152, 1172 (D. Or. 2004).

Contrary to Plaintiffs’ apparent belief, the Rule “does not require Defendants to . . . engage in 

something akin to settlement negotiations or mediation at Plaintiff’s behest.” Benedict v. Held, 

No. 3:19-CV-01295-HZ, 2020 WL 10284985, at *1 (D. Or. Apr. 20, 2020). Thus, the conferral 

requirement was satisfied once the parties determined that the issues presented in the Motion to 

Dismiss could not be resolved without assistance of the Court; the rules do not require the parties 

to resolve disagreements concerning the import of Supreme Court and Ninth Circuit precedent or 

this Court’s prior orders.

Finally, Plaintiffs accuse Defendants of misstating the law by contending that no court 

has held the climate system or atmosphere is protected by a public trust doctrine. Pls.’ Opp’n 21-

22. In so stating, however, Defendants referred to a common law public trust doctrine akin to the 

claim that Plaintiffs assert against the United States. While Plaintiffs identify state court 

decisions in Hawai’i and New Mexico that have recognized a public trust right under their 

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respective state constitutions and state statutes, see In re Maui Elec. Co., 506 P.3d 192, 202 n.15 

(Haw. 2022); Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221, 1225 (N.M. Ct. 

App. 2015), neither case recognizes a common law public trust doctrine. And those state court 

decisions are immaterial in any event because Plaintiffs do not purport to assert a claim under 

either state’s constitution or statutes.

V. Plaintiffs Fail to Show Why the Issues Raised in the Motion to Dismiss Should not 

be Certified for Appeal.

The Motion to Dismiss raises at least seven controlling questions of law, which relate to 

justiciability and to the novel claims in this case. MTD 32-33. Defendants have explained that a 

decision in their favor on those issues is controlling because it would dispose of this entire case. 

Rather than confront those arguments, Plaintiffs respond only that “this Court has already ruled 

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

grounds for dismissal.” Pls.’ Opp’n 24. But whether this Court may disagree with Defendants on 

those issues has no bearing on whether an order denying the Motion to Dismiss presents a 

controlling question of law. Plaintiffs also have no response to the fact that this Court and the 

Ninth Circuit previously confirmed the controlling nature of many of the same issues in their 

earlier certification orders concerning Defendants’ first Motion to Dismiss, Motion for Judgment 

on the Pleadings, and Motion for Summary Judgment.

With the exception of redressability, Plaintiffs likewise fail to address whether any of the 

issues in the Motion to Dismiss presents substantial ground for difference of opinion. Pls.’ Opp’n 

25. And with respect to redressability, Plaintiffs simply contend that no substantial ground for 

difference of opinion exists because the Supreme Court’s decision in Uzuegbunam purportedly 

resolves any doubt that a declaratory judgment from this Court would provide adequate redress. 

Id. But, as explained above and in the Motion to Dismiss, MTD 16, nothing in Uzuegbunam

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remotely suggests the Supreme Court intended—in the context of a decision concerning nominal 

damages—to overrule long-standing precedent on standing relating to declaratory relief. To the 

extent this Court finds that the Supreme Court so intended, that too would present a substantial 

ground for difference of opinion. 

Finally, Plaintiffs urge that Defendants’ request for interlocutory appeal is but a “stalling 

tactic” in a case that has lasted years, and they contend on that basis that it would not materially 

advance the ultimate termination of the litigation. This factor under 28 U.S.C. § 1292(b) is not 

retrospective, however, but prospective. Plaintiffs do not contest that, and as Defendants have 

explained, certification would avoid additional litigation and a potentially lengthy and 

unnecessary trial. MTD 34. Moreover, even if Plaintiffs’ attempt to ascribe blame for past delay 

were relevant, Plaintiffs ignore that Defendants prevailed in their first appeal, and that 

Defendants once again advance arguments that both this Court and the Ninth Circuit previously 

concluded satisfied the standard for interlocutory appeal. And while Plaintiffs complain that 

ligation “has been ongoing for eight years,” they fail to acknowledge that the Ninth Circuit 

remanded the case with instructions to dismiss in January 2020, three-and-a-half years ago. 

Juliana, 947 F.3d at 1175. Any delay in these proceedings since that time has been due to 

Plaintiffs’ continued efforts to avoid the dismissal the Ninth Circuit ordered. 

Conclusion 

Plaintiffs’ claims should be dismissed with prejudice in their entirety for lack of Article 

III jurisdiction under Rule 12(b)(1). Alternatively, Plaintiffs’ claims should be dismissed with 

prejudice in their entirety for failure to state a claim under Rule 12(b)(6). If the Court declines to 

dismiss any of the claims, Defendants respectfully request that the Court certify its order denying 

this Motion to Dismiss.

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Dated: July 20, 2023 TODD KIM

Assistant Attorney General 

GUILLERMO A. MONTERO

Assistant Section Chief

/s/ Sean C. Duffy 

SEAN C. DUFFY (NY Bar No. 4103131) 

FRANK J. SINGER (CA Bar No. 227459) 

Trial Attorneys

Natural Resources Section

150 M Street NE 

Washington, DC 20002 

Tel: (202) 305-0445 

Fax: (202) 305-0506 

sean.c.duffy@usdoj.gov 

Attorneys for Defendants

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