PLAINTIFFS’ MEMORANDUM IN RESPONSE TO FEDERAL OBJECTIONS

JULIA A. OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com

WILD EARTH ADVOCATES

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825 

DANIEL M. GALPERN (OR Bar 061950)

dan.galpern@gmail.com

LAW OFFICES OF DANIEL M. GALPERN

1641 Oak Street

Eugene, OR 97401

Tel: (541) 968-7164

Attorneys for Plaintiffs

JOSEPH W. COTCHETT 

jcotchett@cpmlegal.com

PHILIP L. GREGORY (pro hac vice) 

pgregory@cpmlegal.com

PAUL N. MCCLOSKEY 

pmccloskey@cpmlegal.com

COTCHETT, PITRE & McCARTHY, LLP

San Francisco Airport Office Center

840 Malcolm Road

Burlingame, CA 94010

Tel: (650) 697-6000

Fax: (650) 697-0577

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA;

XIUHTEZCATL TONATIUH M., through 

his Guardian Tamara Roske-Martinez; et al.

Plaintiffs,

v.

The UNITED STATES OF AMERICA; 

BARACK OBAMA, in his official capacity as 

President of the United States; et al., 

Federal Defendants.

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

PLAINTIFFS’ MEMORANDUM IN 

RESPONSE TO FEDERAL OBJECTIONS

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PLAINTIFFS’ MEMORANDUM IN RESPONSE TO FEDERAL OBJECTIONS i

TABLE OF CONTENTS

Page

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

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

I. JUDGE COFFIN PROPERLY FOUND PLAINTIFFS ASSERTED COGNIZABLE 

SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION CLAIMS UNDER 

THE FIFTH AMENDMENT............................................................................ 2

A. The Appropriate Standard for the Danger-Creation Exception 

to DeShaney is “Deliberate Indifference,” Which is a Subset of 

the “Shocks the Conscience” Standard....................................... 4

B. The Heart of the Implicit Right to Liberty Is the Ability to 

Survive ........................................................................................... 7

C. EPA Has the Power and Duty to Limit CO2 Emissions, But It 

Has Exercised Its Power in a Manner that Infringes on the 

Fundamental Rights of Plaintiffs............................................... 10

D. Judge Coffin Properly Found Plaintiffs Asserted a Cognizable 

Claim under the Public Trust Doctrine through the Fifth 

Amendment Due Process Clause ............................................... 15

II. JUDGE COFFIN PROPERLY FOUND PLAINTIFFS ALLEGED FACTS 

ESTABLISHING THEIR INDIVIDUALIZED STANDING TO BRING SUIT....... 24

A. Plaintiffs Have Alleged Concrete and Individualized Injuries to 

Fundamental Rights ................................................................... 24

B. Plaintiffs Must Be Able to Bring their Claim Today Before the 

Harm is Irreparable and “Locked In”...................................... 26

C. Plaintiffs Injuries Are Redressable ........................................... 28

CONCLUSION ............................................................................................................... 29

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TABLE OF AUTHORITIES

Page(s)

CASES

AEP v. Connecticut, 

131 S. Ct. 2527 (2011).................................................................................................... 2

Ala. Legislative Black Caucus v. Alabama, 

575 U.S. ___ (2015)...................................................................................................... 27

Alabama v. Texas, 

347 U.S. 272 (1954).......................................................................................... 20, 21, 22

Babbitt v. United Farm Workers Nat’l Union, 

442 U.S. 289 (1979)...................................................................................................... 26

Bolling v. Sharpe, 

347 U.S. 497 (1954)...................................................................................................... 16

Bowsher v. Synar, 

478 U.S. 714 (1986)...................................................................................................... 24

Brown v. Board of Education, 

347 U.S. 483 (1954)........................................................................................................ 7

Brown v. Plata, 

131 S. Ct 1910 (2011)............................................................................................. 27, 28

Brown v. Plata, 

563 U.S. 493 at ¶ 192(a) – (q) (N.D. Cal. Aug. 2001).................................................. 28

Camfield v. United States, 

167 U.S. 518 (1897)................................................................................................ 17, 19

Cnty. of Sacramento v. Lewis, 

523 U.S. 833 (1998).................................................................................................... 4, 5

Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 

538 F.3d 1172 (9th Cir. 2008) ...................................................................................... 11

Davis v. Passman, 

442 U.S. 228 (1979)...................................................................................................... 11

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Page(s)

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

489 U.S. 189 (1989).......................................................................................... 3, 4, 5, 27

Foster v. Wash. Dep’t of Ecology,

No. 14-2-25295-1 (Wash. King Cnty. Super. Ct. Nov. 11, 2015)............................ 1, 23

Gasper v. Louisiana Stadium & Exposition District, 

418 F. Supp. 716, 720-21 (E.D. La. 1976), aff’d 577 F.2d 897 (5th Cir. 1978)....... 9, 10

Geer v. Connecticut, 

161 U.S. 519 (1896)...................................................................................................... 23

Glossip v. Gross, 

576 U.S. __, slip op. 9-10 (2015).................................................................................. 27

Hagedorn v. Union Carbide Corporation, 

363 F. Supp. 1061 (N.D. W.Va. 1973)......................................................................... 10

Hurtado v. California, 

110 U.S. 516 (1884)...................................................................................................... 18

Idaho v. Coeur d’Alene Tribe of Idaho, 

521 U.S. 261 (1997)................................................................................................ 16, 23

Illinois Central Railroad Co. v. Illinois,

146 U.S. 387 (1892)................................................................................................ 21, 22

Ingraham v. Wright, 

430 U.S. 651 (1977)........................................................................................................ 6

Kennedy v. City of Ridgefield, 

439 F.3d 1055 (9th Cir. 2006) ........................................................................................ 6

Kleppe v. New Mexico, 

426 U.S. 529 (1976).......................................................................................... 19, 20, 22

Light v. United States, 

220 U.S. 523 (1911)...................................................................................................... 17

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992)...................................................................................................... 26

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Page(s)

Massachusetts v. EPA, 

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

National Sea Clammers Association v. City of New York,

616 F.2d 1222 (3d. Cir. 1980) .................................................................................... 8, 9

Obergefell v. Hodges, 

576 U.S. __ (2015).......................................................................................................... 7

Pinkney v. Ohio Environmental Protection Agency, 

375 F. Supp. 305 (N.D. Ohio 1974)................................................................................ 9

Planned Parenthood v. Casey, 

505 U.S. 833 (1992)........................................................................................................ 8

Pollard v. Hagan, 

44 U.S. 212 (1845)........................................................................................................ 16

Porter v. Osborn, 

546 F.3d 1131 (9th Cir. 2008) .................................................................................... 4, 5

PPL Montana v. Montana,

132 S. Ct. 1215 (2012).................................................................................................. 15

Raich v. Gonzales, 

500 F.3d 850 (9th Cir. 2007) .......................................................................................... 7

Reno v. Flores, 

507 U.S. 292 (1993)...................................................................................................... 13

Roe v. Wade, 

410 U.S. 113 (1973)........................................................................................................ 7

S.F. Chapter of A. Philip Randolph Institute v. EPA, 

No. C 07-04936 CRB, 2008 WL 859985 (N.D. Cal. Mar. 28, 2008)............................. 9

Shively v. Bowlby, 

152 U.S. 1 (1894).......................................................................................................... 16

Sierra Club v. Penfold, 

857 F.2d 1307 (9th Cir. 1988) ...................................................................................... 15

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Page(s)

Skinner v. Oklahoma, 

316 U.S. 535 (1942)...................................................................................................... 27

Swann v. Charlotte-Mecklenburn Bd. of Educ., 

401 U.S. 1 (1971).......................................................................................................... 28

Tanner v. Armco Steel Corporation, 

340 F. Supp. 532 (S.D. Tex. 1972)............................................................................... 10

United States v. Beebe, 

127 U.S. 338 (1888)...................................................................................................... 17

United States v. California, 

332 U.S. 19 (1889)............................................................................................ 17, 19, 20

United States v. Causby, 

328 U.S. 256 (1946)...................................................................................................... 17

United States v. Midwest Oil Co., 

236 U.S. 459 (1915)...................................................................................................... 20

United States v. Ruby, 

588 F.2d 697 (9th Cir. 1978) ........................................................................................ 22

United States v. Trinidad Coal & Coking Co., 

137 U.S. 160 (1890)...................................................................................................... 17

Utah Div. of State Lands v. United States, 

482 U.S. 193 (1987)...................................................................................................... 16

Utility Air Regulatory Group v. EPA, 

134 S. Ct. 2427 (2014).................................................................................................. 11

Wang v. Reno, 

81 F.3d 808 (9th Cir. 1996) .................................................................................. 4, 5, 13

Washington v. Glucksberg, 

521 U.S. 702 (1997)........................................................................................................ 8

WildEarth Guardians v. EPA, 

751 F.3d 649 (D.C. Cir. 2014)...................................................................................... 12

Zivotofsky v. Clinton, 

132 S. Ct. 1421 (2012).................................................................................................. 22

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Page(s)

Zook v. EPA, 

611 F. App’x 725 (D.C. Cir. 2015)............................................................................... 12

Zubik v. Burnwell, 

578 U.S. ___, slip op. 3-4 (2016).................................................................................. 29

STATUTES/RULES

28 U.S.C. 

§ 636 ............................................................................................................................... 2

§ 1331 ............................................................................................................................. 4

42 U.S.C. 

§ 1983 ............................................................................................................................. 4

§ 7408 ......................................................................................................... 10, 11, 12, 13

§ 7409 ..................................................................................................................... 10, 13

§ 7410 ........................................................................................................................... 13

§ 7521 ........................................................................................................................... 12

Fed. R. Civ. P. 72................................................................................................................ 2

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Page(s)

OTHER AUTHORITIES

EPA, Policy Options for Stabilizing Global Climate (1990)............................................ 28

Gerald Torres & Nathan Bellinger, The Public Trust: The Law’s DNA, 4 Wake Forest J.L. 

& Pol’y 281, 288-97 (2014).......................................................................................... 22

J. Inst. 2.1.1 (T. Sanders trans., 4th ed. 1867); 2 William Blackstone, Commentaries on 

the Laws of England 4 (1766)....................................................................................... 23

Mary Christina Wood, Nature’s Trust: Environmental Law for a New Ecological Age, 

133-36 (2014) ............................................................................................................... 22

Mary Turnispseed, et al., The Silver Anniversary of the United States’ Exclusive 

Economic Zone: Twenty-Five Years of Ocean Use and Abuse, and the Possibility of a 

Blue Water Public Trust Doctrine, 36 Ecology L.Q. 1, 45 (2009)............................... 16

Michael C. Blumm & Lynn S. Schaffer, The Federal Public Trust Doctrine: 

Misinterpreting Justice Kennedy and Illinois Central Railroad, 45 Envtl. L. 399, 406-

07 (2015)....................................................................................................................... 16

State of Or. Dept. of Envtl. Quality, Dept. of Energy and Dept. of Transp., Oregon’s 

Greenhouse Gas Emissions Through 2010: In-Boundary, Consumption-Based and 

Expanded Transportation Sector Inventories (2013) ................................................... 29

U.S. Const. art. IV, § 3...................................................................................................... 18

Zygmunt J.B. Plater et al., Environmental Law and Policy: Nature, Law, and Society 

1103 (3rd ed. 2004)........................................................................................................ 16

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PLAINTIFFS’ MEMORANDUM IN RESPONSE TO FEDERAL 

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INTRODUCTION

This Court should adopt the Findings and Recommendations (“F&Rs”) of 

Magistrate Judge Coffin and deny in full the Motions to Dismiss brought by the Federal 

Defendants and the Intervenor Defendants. Magistrate Judge Coffin rightly recommends 

allowing all of Plaintiffs’ claims for relief to proceed and denying in full Defendants’ 

Motions to Dismiss. As Judge Hollis Hill in Washington State recently ruled from the 

bench, climate change “is an urgent situation. This is not a situation that these children 

can wait on.”1 Indeed, the First Amended Complaint addresses a dire and entirely 

unrelieved threat to Plaintiffs. Magistrate Judge Coffin accurately describes the instant 

case as one seeking “relief from government action and inaction that allegedly results in 

carbon pollution of the atmosphere, climate destabilization, and ocean acidification,” and 

that, in turn, “threatens catastrophic consequences which have already begun and will 

progressively worsen in the near future.” F&R 1. 

Plaintiffs alleged that the Obama administration and prior administrations, with 

deliberate indifference and reckless disregard, knowingly acted in the aggregate to 

promote and ensure an energy system dominated by fossil fuels, ensuring emissions of 

greenhouse gases at far-higher rates than what is safe for these Plaintiffs – in violation of 

their fundamental rights. Taken as true at this stage of the case, the allegations in the First 

Amended Complaint establish Plaintiffs’ individual standing and violations of Plaintiffs’ 

constitutional and public trust rights. 

Magistrate Judge Coffin correctly treated this case differently from the public 

nuisance claims in AEP v. Connecticut, 131 S. Ct. 2527 (2011), or statutory claims under 

 1

 Foster v. Wash. Dep’t. of Ecology, No. 14-2-25295-1 SEA, Transcript at 20 (Wash. 

King Cnty. Super. Ct., Hearing of Apr. 29, 2016) (attached hereto as Exhibit 1).

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the Clean Air Act. The First Amended Complaint does not allege a public nuisance claim 

or a Clean Air Act violation. It is a constitutional case brought pursuant to the Fifth and 

Ninth Amendments of the U.S. Constitution. Thus, this Court’s role is integral and not 

limited by standards for public nuisance claims or Clean Air Act claims on judicial 

review. 

In their objections, Defendants offer no new substantive arguments that have not 

already been briefed and argued before Magistrate Judge Coffin. Their Objections are 

filled with rhetoric that ignores the allegations of the First Amended Complaint. Plaintiffs 

will not respond in kind; rather, Plaintiffs’ Response to the Objections incorporates 

Plaintiffs’ briefs in opposition to Defendants’ Motions to Dismiss and Plaintiffs’ oral 

argument, while supplementing with discrete responses.

STANDARD OF REVIEW

All parties agree that this Court must review de novo the portions of the 

Magistrate Judge’s findings and recommendations with which any party objects. 28 

U.S.C. § 636(b) (1); Fed. R. Civ. P. 72 (b) (3); McDonnell Douglas Corp. v. Commodore 

Bus. Machs. Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). 

ARGUMENT

I. JUDGE COFFIN PROPERLY FOUND PLAINTIFFS ASSERTED COGNIZABLE 

SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION CLAIMS UNDER THE 

FIFTH AMENDMENT 

Judge Coffin’s F&Rs affirm the following claims under the Fifth Amendment:

1. Fifth Amendment Substantive Due Process-Danger Creation Claim: 

This Claim seeks to protect Plaintiffs’ fundamental liberty interest in 

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personal security under the DeShaney v. Winnebago Cnty. Dep’t of Soc. 

Servs., 489 U.S. 189 (1989), exception. (FAC Claim One, ¶¶ 277-289);

2. Fifth Amendment Substantive Due Process Violation for Government 

Acts Infringing on Plaintiffs’ Enumerated Rights of Life, Liberties, 

and Property: This Claim includes Plaintiffs’ rights to life and property 

and already recognized implicit liberties such as Plaintiffs’ rights to move 

freely, to family, and to personal security. (FAC Claim One, ¶¶ 277-289); 

3. Fifth Amendment Substantive Due Process Violation for Government 

Acts Infringing on Unenumerated and Unalienable Rights Reserved 

by the Ninth Amendment: This Claim includes the implicit right to a 

stable climate system, atmosphere, and oceans which are free from 

dangerous levels of anthropogenic carbon dioxide. (FAC Claims One and 

Three, ¶¶ 277-289, 302-306);

4. Fifth Amendment Substantive Due Process and Equal Protection 

Violation for Government Acts that Discriminate Against Plaintiffs as 

a Class with Respect to the Exercise of their Fundamental Rights:2

(FAC Claim Two, ¶¶ 290-301); and

5. Public Trust Doctrine and Fifth Amendment Substantive Due Process 

Violation for Government Acts that Substantially Impair and/or 

 2

 Judge Coffin recommends this Court need not address whether future generations or 

minor children are entitled to suspect classification because the case raises issues of 

fundamental rights and, thus, discrimination against a class, suspect or not, with respect 

to the exercise of their fundamental rights raises issues of substantive due process and is 

owed strict scrutiny. F&R 15, n. 8. However, should this Court not address suspect 

classification, Plaintiffs’ Second Claim for Relief should not be dismissed because the 

Fifth Amendment claim survives with or without an identifiable suspect class.

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Alienate Public Trust Resources of Plaintiff Beneficiaries, Including 

Future Generations, within the Federal Public Domain: (FAC Claims 

One and Four, ¶¶ 277-289, 307-310).

Federal Defendants are incorrect that a constitutional claim may only be brought 

pursuant to 42 U.S.C. § 1983 or another statute like the Administrative Procedures Act 

(“APA”). Fed. Obj. 15. In fact, the DeShaney exception and other due process and equal 

protection cases were brought pursuant to the Fifth Amendment and 28 U.S.C. § 1331, 

without invoking 42 U.S.C. § 1983. See Wang v. Reno, 81 F.3d 808, 818 (9th Cir. 1996)

(Fifth Amendment DeShaney exception claim against U.S. officials). 

A. The Appropriate Standard for the Danger-Creation Exception to 

DeShaney is “Deliberate Indifference,” Which is a Subset of the 

“Shocks the Conscience” Standard

The F&Rs reference the “shocks the conscience” standard discussed in Porter v. 

Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008), which has been applied as a standard for 

evaluating substantive due process violations. F&R 15; Cnty. of Sacramento v. Lewis, 

523 U.S. 833, 846-52 (1998). In Lewis, the Supreme Court affirmed the overarching 

standard for culpability in a substantive due process case as behavior that “shocks the 

conscience.” Id. In evaluating allegations concerning such behavior, the Supreme Court 

explained: what shocks the conscience in one context may not do so in another; whether 

behavior shocks the conscience is a fact-specific inquiry; and proving “deliberate 

indifference” can meet the standard, but not in the fact specific context of the high-speed 

auto chase presented in the case. Id. (finding no Fourteenth Amendment violation when 

motorcyclist was injured by police officer after fleeing officer in a high-speed chase). 

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The Ninth Circuit has affirmed that “deliberate indifference” is merely a subset of 

the “shocks the conscience” standard. Porter, 546 F.3d at 1137 (reviewed police conduct 

in a highly escalated roadside investigation under the “purpose to harm” test rather than 

“deliberate indifference,” given the finding that the officer did not have an opportunity 

for the kind of deliberation that would be required for deliberate indifference to meet the 

“shocks the conscience” standard). In a long line of cases, however, the Ninth Circuit has 

consistently applied the “deliberate indifference” test where plaintiffs bring claims under 

the danger-creation exception to DeShaney, and has found no similar concerns as 

expressed by Lewis or Porter that “deliberate indifference” would be an inappropriate test 

in this context. See Pls’ Opp’n Fed. MTD at 5-9 (Dkt. # 41). Where, as here, the federal 

government knowingly acts over decades to create an extremely dangerous situation, the 

federal defendants’ deliberate indifference to that danger patently shocks the conscience. 

These Plaintiffs are not being harmed by heat-of-the-moment decisions but, as alleged, by 

a long, slow, and deliberate burn.

Contrary to Federal Defendants assertions, Fed. Obj. 17-18, Plaintiffs have 

unequivocally pled claims against the federal government that meet the deliberate 

indifference test. See Wang, 81 F.3d 808. Dr. Hansen’s declaration, attached to the FAC, 

provides expert affirmation that there is an unusually serious risk of harm, threatening the 

very fabric of civilization, of an inhospitable world, including sea level rise on the order 

of 5-9 meters. FAC, Hansen Dec., ¶ 42. Despite the fact that Defendants have had actual 

knowledge of that elevated risk, FAC ¶¶ 131-150, Defendants failed to take obvious steps 

to avert the mounting risks their own actions substantially caused. FAC ¶¶ 146, 149, 153. 

The constitutional and fiduciary obligation is not to do something under the Clean Air 

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Act, as Defendants assert, but to do enough to avert the risks and harms that Defendants 

have imposed on Plaintiffs. 

In Kennedy v. City of Ridgefield, 439 F.3d 1055, 1064 (9th Cir. 2006), a 

constitutional violation occurred where the state knew of the violent tendencies of the 

perpetrator, the state promised to give advance notice to the victim, and the state 

enhanced a dangerous situation by failing to do so. Here, Federal Defendants (and their 

predecessors) have known since at least 1965 that atmospheric carbon dioxide (“CO2”) 

buildup endangered Plaintiffs and the planet; Federal Defendants even made a 

commitment (at least by 1992 in the United Nations Framework Convention on Climate 

Change) to protect present and future generations from dangerous anthropogenic 

interference with the climate system. Yet, as alleged in the FAC, Federal Defendants 

have continued to impose that risk by their affirmative acts aimed to ensure that fossil 

fuels would be increasingly exploited, and burned, even while associated CO2 emissions 

were largely unconstrained. That imposition occurred despite the federal Defendants’ 

knowledge that “the most effective way to reduce carbon dioxide (CO2) emissions is to 

reduce fossil fuel consumption.”3

Unlike the defendants in Ingraham v. Wright, 430 U.S. 651, 673 (1977)

(addressing corporal punishment of students in school), here Federal Defendants do not 

argue they are justified by history or current circumstances in infringing on Plaintiffs’ 

fundamental rights to personal security. The position advanced by Federal Defendants is 

they can do whatever they want no matter how badly it harms these Plaintiffs or threatens 

 3

 EPA, Overview of Greenhouse Gases, available at 

https://www3.epa.gov/climatechange/ghgemissions/gases/co2.html (accessed May 13, 

2016).

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their survival because: (1) climate change is a global problem; and (2) the Clean Air Act 

renders the U.S. Constitution irrelevant and precludes judicial review of constitutional 

violations related to catastrophic climate change. The FAC alleges, however, that the 

emissions Federal Defendants have substantially caused and continue to permit are 

increasingly diminishing the capacity of human and natural systems to support Plaintiffs’ 

personal security and survival. FAC ¶¶ 5-11, 96-97. Thus, for the reasons stated in 

Plaintiffs’ Opposition Briefs and in the F&Rs, Federal Defendants’ Motion to Dismiss 

should be denied. 

B. The Heart of the Implicit Right to Liberty Is the Ability to Survive

Federal Defendants continue to ignore the enumerated and recognized 

fundamental rights detailed in the FAC, as discussed above. They also misstate the 

implied liberty right Plaintiffs’ assert, characterizing it as “being free from climate 

change” or CO2 emissions. The right asserted in the FAC is the implied right to a stable 

climate system, atmosphere, and oceans, which are free from dangerous levels of 

anthropogenic CO2 caused by these Defendants. Fed. Obj. 15; F&R 15.

Based on the Ninth Circuit’s decision in Raich v. Gonzales, the question to be 

answered is: what is the centerpiece of the unenumerated fundamental right asserted? 

Raich v. Gonzales, 500 F.3d 850, 864 (9th Cir. 2007) (finding marijuana was the 

centerpiece of the claimed right to make life-shaping medical decisions and preserve her 

integrity). In Obergefell v. Hodges, 576 U.S. __ (2015), the centerpiece of the right was 

the equal opportunity to marry. In Brown v. Board of Education, 347 U.S. 483 (1954), it 

was the right to equal education free from racial discrimination. In the Supreme Court’s 

decisions in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 

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U.S. 833 (1992), it was the right to choose to have children and pregnancy. In the instant 

case, the centerpiece is the right to personal security in a viable climate system that 

supports human life and liberties, a survival resource of which all of our ancestors have 

benefited. Thus, as alleged in the FAC, actions and omissions by Federal Defendants 

endanger the centerpiece of the fundamental rights asserted by Plaintiffs. After examining 

our Nation’s history, legal traditions, and practices, this Court’s inquiry must consider 

whether liberty and justice would exist if the right at issue here is sacrificed. Washington 

v. Glucksberg, 521 U.S. 702, 721 (1997). No Defendant suggests that liberty and justice 

would be protected if the climate system and essential natural systems, including oceans, 

are for all human intent and purpose functionally destroyed. In fact, Defendants do not 

even address the Glucksberg inquiries, and neither do the cases they cite. Fed. Obj. 16.

Not one of the cases cited by Defendants that asserted a right to a healthful 

environment are precedential, all but one coming from district courts and none from the 

Ninth Circuit Court of Appeals. Furthermore, none of the cases is compelling because the 

courts did not perform the constitutional analysis to evaluate an implied right. These 

cases also are distinguishable because the rights and harms alleged here are completely 

different, especially in that the injuries alleged here are far more severe in nature and 

degree. 

In National Sea Clammers Association v. City of New York, the court conclusorily 

stated, “there is no constitutional right to a pollution-free environment.” National Sea 

Clammers Association v. City of New York, 616 F.2d 1222, 1224 (3d. Cir. 1980). 

However, that case was decided at summary judgment, the plaintiff’s harm was economic 

in nature, and Plaintiffs here do not claim a right to a “pollution-free environment.” Id. at 

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1238 (claiming constitutional violations from discharged sewage and toxic waste into the 

Atlantic Ocean causing harm to fishing resource and plaintiffs’ employment; combined 

with statutory claims). 

In S.F. Chapter of A. Philip Randolph Institute v. EPA, plaintiffs inappropriately 

pled a claim against EPA under the Fourteenth Amendment, instead of the Fifth, and 

claimed a right to a clean environment for the benefit of plaintiffs’ localized property 

interest. S.F. Chapter of A. Philip Randolph Institute v. EPA, No. C 07-04936 CRB, 2008 

WL 859985, at *6-7 (N.D. Cal. Mar. 28, 2008) (finding the liberty interest protected by 

the Fourteenth Amendment “does not include the maintenance of transient levels of the 

quality of neighborhood life”). The district court’s cursory finding that there is no right to 

be free from climate pollution from two power plants is not persuasive given the 

opinion’s lack of analysis and the complaint’s failure to properly plead the claim. 

In Pinkney v. Ohio Environmental Protection Agency, the plaintiffs tried to enjoin 

construction of a mall, claiming it would attract polluting cars, overburden sewers, and 

decrease property values. Pinkney v. Ohio Environmental Protection Agency, 375 F. 

Supp. 305, 310 (N.D. Ohio 1974). Based on these allegations, the district court rejected 

their claimed constitutional right “to be free of unreasonable contamination of their air, 

water supply and other fundamental life sources.” Id.

In Gasper v. Louisiana Stadium & Exposition District, the plaintiffs challenged 

smoking inside the Louisiana Stadium, claiming a “right to be free from hazardous 

smoke.” Gasper v. Louisiana Stadium & Exposition District, 418 F. Supp. 716, 720-21

(E.D. La. 1976), aff’d 577 F.2d 897 (5th Cir. 1978). The district court held there was no 

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fundamental right to be free from cigarette smoke and that such a right would “mock the 

lofty purposes” of the constitutional amendments. Id.

In Hagedorn v. Union Carbide Corporation, the plaintiffs sued Union Carbide 

and state officials for “fouling the air in that community,” and “mar[ring] their property, 

thereby causing additional cleaning, maintenance and repair.” Hagedorn v. Union 

Carbide Corporation, 363 F. Supp. 1061, 1062, 1064-65 (N.D. W.Va. 1973). The court 

concluded “plaintiffs have not stated facts which would under the present state of the law 

constitute a violation of their constitutional rights,” but did not foreclose a claim in the 

future with different facts or as the law evolves. Id. at 1064.

In Tanner v. Armco Steel Corporation, the plaintiffs sued private petroleum 

refineries for creating air pollution and sought damages, alleging violations of the Fifth, 

Ninth, and Fourteenth Amendments. Tanner v. Armco Steel Corporation, 340 F. Supp. 

532, 537 (S.D. Tex. 1972). The court dismissed the Fifth Amendment claim because 

there were no federal defendants and ultimately found that the Ninth and Fourteenth 

Amendments did not give rise to a damages claim for the right to a healthy environment. 

Id.

C. EPA Has the Power and Duty to Limit CO2 Emissions, But It Has 

Exercised Its Power in a Manner that Infringes on the Fundamental 

Rights of Plaintiffs

Judge Coffin recognized that Congress, through the Clean Air Act, delegated 

authority to EPA to limit CO2 emissions. F&R 10 (citing 42 U.S.C. § 7409); see also 42 

U.S.C. § 7408. As the executive agency given federal power to regulate CO2, the Court 

can review EPA’s exercise of its authority, through both actions and omissions, in light of 

Plaintiffs’ fundamental constitutional rights asserted here, just as courts can review the 

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actions of any federal officer or agency acting under color of law for alleged 

constitutional violations. Davis v. Passman, 442 U.S. 228, 241 (1979) (holding that 

plaintiff had a right of action to pursue her Fifth Amendment due process and equal 

protection claims against a federal officer and stating: “the judiciary is clearly discernible 

as the primary means through which these [constitutional] rights may be enforced”). 

Here, the FAC alleges that EPA, and its Administrator, among other Federal Defendants, 

are infringing on Plaintiffs’ fundamental rights by authorizing dangerous amounts of CO2

pollution and by exercising deliberate judgment not to cap or adequately reduce the total 

amount of national CO2 pollution. FAC ¶¶ 3, 125-130.4 

For example, since 1970, EPA Administrators, including Defendant Gina 

McCarthy and her predecessors, have been required to set caps on the total amount of 

certain criteria pollutants permissible in the air.5 42 U.S.C. § 7408; Utility Air Regulatory 

Group v. EPA, 134 S. Ct. 2427, 2435 (2014) (“UARG”) (“Title I charges EPA with 

formulating national ambient air quality standards (NAAQS) for air pollutants. §§ 7408-

7409.”). The national pollution caps are established using the best available scientific 

information to determine the effects of different levels of pollution on human health and 

welfare. 42 U.S.C. § 7408(a)(2). The standard by which the Administrator “shall” revise 

 4

 In Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., the court held 

that “[b]y allowing particular fuel economy levels, which NHTSA argues translate 

directly into particular tailpipe emissions, NHTSA’s regulations are the proximate cause 

of those emissions just as EPA Clean Air Act rules permitting particular smokestack 

emissions are the proximate cause of those air pollutants . . . .” Ctr. for Biological 

Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1215-17 (9th Cir. 

2008).

5

 These national pollution caps are known as NAAQS. EPA Administrators have thus 

far capped the level of allowable ozone, particulate matter, carbon monoxide, nitrogen 

oxides, sulfur dioxide, and lead. UARG, 134 S. Ct. at 2435.

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the criteria pollutant list, and add CO2, is whether emissions of the air pollutant in the 

Administrator’s judgment “cause or contribute to air pollution which may reasonably be 

anticipated to endanger public health or welfare.” 42 U.S.C. § 7408(a)(1)(A); see Zook v. 

EPA, 611 F. App’x 725, 726 (D.C. Cir. 2015) (“Section 108 conditions the 

Administrator’s obligation to list an air pollutant on a finding that ‘emissions of [the 

pollutant], in [her] judgment, cause or contribute to air pollution which may reasonably 

be anticipated to endanger public health or welfare.’”)

6

. That is the same prerequisite for 

establishing pollutant emission standards for new motor vehicles under Title II of the Act. 

42 U.S.C. § 7521(a)(1) (“ . . . which in [the Administrator’s] judgment cause, or 

contribute to, air pollution which may reasonably be anticipated to endanger public health 

or welfare”); Massachusetts v. EPA, 549 U.S. 497, 528 (2007). 

In 2009, as directed by the Supreme Court, EPA made the requisite endangerment 

finding that the pollutant carbon dioxide, and other greenhouse gases, endanger public 

health and welfare. Endangerment & Cause or Contribute Findings for Greenhouse Gases 

Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,518 (Dec. 15, 2009). 

Notwithstanding a 2009 petition asking the Administrator to designate CO2 as a criteria 

 6

 Federal Defendants cite Zook v. EPA for the proposition that scientific evidence of 

endangerment from a given air pollutant alone does not create a duty to regulate, but the 

facts of that case are inapposite. In Zook, there was no endangerment finding as to 

ammonia or hydrogen, the pollutants at issue. Id. at 726. In the instant case, the 

Administrator has already made an endangerment finding for CO2 and greenhouse gases 

and yet still continues to allow dangerous levels of these pollutants to be emitted. In at 

least one case, EPA has stated that EPA’s decisions not to regulate are based on 

Congress’s decisions not to adequately fund EPA. WildEarth Guardians v. EPA, 751 

F.3d 649, 652-53 (D.C. Cir. 2014). 

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pollutant and set a national pollution cap for CO2 at no greater than 350 ppm, as well as 

caps for six other greenhouse gases, EPA has not acted on that petition.7

Even if the Clean Air Act could be read not to require the regulation of CO2 and 

other greenhouse gases as pollutants, as Defendants suggest, there is no dispute that the 

Clean Air Act grants the Administrator and EPA the authority to regulate. The Fifth 

Amendment to the Constitution protects Plaintiffs’ rights to life, liberty, and property 

against the unlawful exercise of the Administrator’s judgment, which causes 

infringement of Plaintiffs’ fundamental rights. U.S. Const. amend. V; Reno v. Flores, 507 

U.S. 292, 302 (1993) (The Fifth Amendment’s guarantee of due process includes “a 

substantive component, which forbids the government to infringe certain ‘fundamental’ 

liberty interests at all, no matter what process is provided, unless the infringement is 

narrowly tailored to serve a compelling state interest.” (emphasis in original)); Wang v. 

Reno, 81 F.3d 808, 818 (9th Cir. 1996) (finding violation of liberty rights under Fifth 

Amendment). Congress cannot, and has not, by ordinary legislation amended out of the 

Constitution the preservation of fundamental rights simply by creating an agency and 

granting it the power, and broad discretion, to regulate CO2 as a pollutant. While 

Plaintiffs agree that Defendants EPA and Administrator McCarthy must comply with the 

 

7

 On December 2, 2009, 350.org and the Center for Biological Diversity submitted the 

petition pursuant to the Clean Air Act, which requires EPA to respond within “a 

reasonable time.” 42 U.S.C. §§ 7408-7410; 

http://www.biologicaldiversity.org/programs/climate_law_institute/global_warming_litig

ation/clean_air_act/pdfs/Petition_GHG_pollution_cap_12-2-2009.pdf. Seven years later, 

EPA has not responded to the petition. Instead, the Administrators have exercised their 

judgment and authority by not adding CO2 to the criteria pollutant list, even though the 

endangerment finding for motor vehicle emissions would apply equally to the criteria 

pollutant standard for NAAQS. See Fed. Obj. 12, n. 14 (“But CO2 has not been listed and 

EPA has not issued air quality criteria for CO2.”).

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Clean Air Act, they must also abide by the U.S. Constitution in the exercise of their 

executive power. Thus, EPA’s knowing failure to control CO2 emissions as a dangerous 

pollutant is subject to this Court’s constitutional review, as are the actions and omissions 

of the other Federal Defendants with power and authority over fossil fuels and sources of 

greenhouse gas pollution. See F&R 14. None of the Clean Air Act cases cited by 

Defendants addresses anything more than EPA’s compliance with specific statutory 

provisions and, thus, are not instructive on the role of EPA and the Administrator in 

violating Plaintiffs’ fundamental rights. Fed. Obj. 10-12. 

This Court need not wade into Federal Defendants’ new displacement arguments 

under AEP because Plaintiffs do not ask this Court to set limits on greenhouse gas 

emissions for “any particular greenhouse gas-producing sector.”8 Fed. Obj. 11. Plaintiffs 

agree with Defendants that sector by sector limits should be set by EPA. However, EPA 

must act consistent with protecting Plaintiffs from the danger Defendants have 

substantially created and remediating the violations of their constitutional rights. What 

EPA, and the other Federal Defendants, cannot continue to do is to exercise their 

discretion under the Clean Air Act and other statutes in such a way as to violate 

Plaintiffs’ fundamental rights, including to continue to permit, authorize, lease, and 

subsidize new and ongoing fossil fuel operations that are driving the climate system 

towards calamitous points of no return. 

While Judge Coffin focused on Defendants EPA and Administrator McCarthy in 

recommending denial of the Motions to Dismiss, the FAC outlines ways in which Federal 

 8

 Federal Defendants did not raise displacement in their Motion to Dismiss. However, 

Plaintiffs thoroughly briefed the issue in their Opposition to Defendant Intervenors’ 

Motion to Dismiss at 3-9 (Dkt. # 56). 

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Defendants’ aggregate actions, not just the acts and omission of EPA, are substantially 

impairing public trust assets and infringing Fifth Amendment rights. For instance, the 

Department of Interior, through its agencies, is responsible for leasing public lands for 

fossil fuel extraction, an act over which EPA has no statutory authority. FAC ¶¶ 109-112, 

164-170, 174 (subsidies over which EPA has no control), 179-184 (EPA has no role in 

the approvals for transporting fossil fuels). In looking at the link between federal control 

and harm, including monetary control, the Ninth Circuit looks “to the nature of the 

federal funds used and the extent of federal involvement,” a factual inquiry for the merits 

of this case. Sierra Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir. 1988).

D. Judge Coffin Properly Found Plaintiffs Asserted a Cognizable Claim 

under the Public Trust Doctrine through the Fifth Amendment Due 

Process Clause

Defendants have not reevaluated their dogged misreading of PPL Montana v. 

Montana, 132 S. Ct. 1215 (2012), in light of the F&Rs, and continue to mischaracterize 

the Public Trust Doctrine.9

The citizens of the original thirteen states reserved public trust resources for 

themselves and their sovereign states by virtue of the Tenth Amendment and granted the 

federal government trustee responsibility over other national territories, much of which 

was later turned over to new states. See Michael C. Blumm & Lynn S. Schaffer, The 

Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central 

 9

 Defendants continually mischaracterize the Public Trust Doctrine as an arcane, littleused law. They are wrong. The continued prominence of the Public Trust Doctrine in 

American law is illustrated by the fact that, since 1970, the Public Trust Doctrine has 

appeared in more than 700 state court cases, more than 145 federal court cases, and more 

than 2700 scholarly works. Lynn S. Schaffer, Pulled From Thin Air: The 

(Mis)Application of Statutory Displacement to a Public Trust Claim in Alec L. v. 

Jackson, 19 Lewis & Clark L. Rev. 169, 174, n. 14 (2015). 

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Railroad, 45 Envtl. L. 399, 406-07 (2015); Pollard v. Hagan, 44 U.S. 212, 230 (1845)

(Upon federation, “[t]he shores of navigable waters, and the soils under them, were not 

granted by the Constitution to the United States, but were reserved to the states 

respectively.”); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 283 (1997) (the 

federal government “held navigable waters in acquired territory for the ultimate benefit of 

future States”); Shively v. Bowlby, 152 U.S. 1, 57 (1894). It would run counter to the 

system of federalism to secure public trust resource protection at the state level, but allow 

the national sovereign to control the vast federal public domain completely free of the 

Public Trust Doctrine. In fact, the Supreme Court in Bolling v. Sharpe rejects this idea, 

stating: “it would be unthinkable that the same constitution would impose a lesser duty on 

the Federal Government” than the states. Bolling v. Sharpe, 347 U.S. 497, 500 (1954)

(regarding whether rights in the Fifth and Fourteenth Amendments applied equally to 

both sets of sovereigns); see Zygmunt J.B. Plater et al., Environmental Law and Policy: 

Nature, Law, and Society 1103 (3rd ed. 2004) (“Since [t]he federal government is a 

creature of the states by delegation through the Act of Union and the federal Constitution 

. . . the federal government is therefore exercising delegated powers . . . [and] cannot 

have greater rights and fewer limitations than the entities that created it.”).10

For public trust resources still within the federal domain, like federal public lands, 

the airshed, territorial waters, navigable waters, and migratory wildlife, the federal 

government also remains a sovereign trustee. See United States v. Beebe, 127 U.S. 338, 

 10 See Utah Div. of State Lands v. United States, 482 U.S. 193, 196 (1987) (explaining 

the trustee obligation inherited by the original States from the English Crown was 

quintessentially national in character, not a state-based doctrine); see Mary Turnispseed, 

et al., The Silver Anniversary of the United States’ Exclusive Economic Zone: TwentyFive Years of Ocean Use and Abuse, and the Possibility of a Blue Water Public Trust 

Doctrine, 36 Ecology L.Q. 1, 45 (2009).

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342 (1888) (“The public domain is held by the government as part of its trust. The 

government is charged with the duty, and clothed with the power, to protect it . . . 

common to all the people as the beneficiaries of the trust.”); Camfield v. United States, 

167 U.S. 518, 524 (1897) (“[I]t would be recreant to its duties as trustee for the people of 

the United States to permit any individual or private corporation to monopolize them for 

private gain.”); United States v. California, 332 U.S. 19, 33 (1889) (finding sovereign 

dominion over the territorial waters lies with the federal government as trustee); United 

States v. Causby, 328 U.S. 256, 260, 266 (1946) (holding airspace is part of the federal 

public domain).

The question here is not whether Federal Defendants are trustees of natural public 

resources. Many courts, including the Supreme Court, have said as much. Beebe, 127 

U.S. at 342; Light v. United States, 220 U.S. 523, 537 (1911); United States v. Trinidad 

Coal & Coking Co., 137 U.S. 160, 170 (1890) (finding public lands are “held in trust for 

all the people”). The question is which resources are in the federal domain and whether 

Federal Defendants are meeting their fiduciary obligation as trustee over those resources. 

Those are questions for the merits, not a Motion to Dismiss, where the FAC alleges 

substantial impairment of trust resources within the federal public domain. Thus, for 

purposes of reviewing the F&Rs, this Court’s inquiry can stop here.

Having failed to persuade Judge Coffin of their misreading of PPL Montana, 

Federal Defendants raise a new argument: the Property Clause compels a finding of no 

federal public trust obligation. Fed. Obj. 23. However, the Property Clause does not 

nullify the Public Trust Doctrine or citizens’ fundamental rights as beneficiaries under the 

Fifth Amendment due process clause. U.S. Const. art. IV, § 3, cl. 2. Indeed, Federal 

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Defendants cannot simultaneously be trustees over federal public property, as numerous 

Supreme Court cases hold, and have no obligations or limits on their authority preventing 

them from irreversibly damaging vital public resources. 

Federal Defendants parrot language used in a few Supreme Court cases, without 

providing any context for those decisions or the Supreme Court’s dicta, and infer that 

Congress has “plenary power concerning the use, management, and disposal of federal 

property,” without any limitation, even if it means that citizens’ lives are endangered and 

survival resources in the national public domain irreparably damaged. Fed. Obj. 23. 

Defendants’ inference defies logic and the foundational principles of our democracy, and 

runs counter to an honest reading of a long line of Supreme Court cases, including those 

discussed above. Federal Defendants forget that the Constitution, including the Property 

Clause, and the lens through which it should be viewed, is for the protection of individual 

liberties. See, e.g., Hurtado v. California, 110 U.S. 516, 531-32 (1884) (“In this country 

written constitutions were deemed essential to protect the rights and liberties of the 

people against the encroachments of power delegated to their governments, and the 

provisions of Magna Charta were incorporated into Bills of Rights. They were limitations 

upon all the powers of government, legislative as well as executive and judicial.”). The 

Constitution limits the role of the Federal Defendants and was not created for the benefit 

of the Federal Defendants.

In each of the cases Defendants’ cite, Fed. Obj. 23, the Supreme Court considered 

the delegated power of Congress over the territories and property granted it by the states 

through Article IV vis-à-vis the states’ ongoing interests in resources touching state and 

federal interests. These Property Clause cases are about the constitutionally-embedded 

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tension of state and federal rights within our federalist system of government. These 

cases were not about the rights of the public and citizen beneficiaries, or even individual 

liberties, being threatened by acts of the federal power. For instance, in Kleppe v. New 

Mexico, the Supreme Court’s recitation of Congressional power over public lands as 

being “without limitation” refers to limitations placed on Congressional power by the

states, where federal public lands lie within particular states. Kleppe v. New Mexico, 426 

U.S. 529, 539-40 (1976) (noting that the bounds of federal power had not been 

definitively resolved). Kleppe does not stand for the proposition Federal Defendants 

suggest, which is Congress has unlimited plenary power to damage federal public lands. 

The Supreme Court said Congress had “complete power” over public lands “to regulate 

and protect the wildlife living there,” not to destroy it. Id. at 541; see Camfield, 167 U.S. 

at 524 (affirming the power of the U.S. to protect federal property as a proprietor for the 

public interest, to prevent private corporate monopolies for private gain, and to fulfill its 

trustee duty to the people). 

United States v. California is also a case about which sovereign, state or federal, 

retains sovereign authority to protect the territorial waters of the nation, not whether 

either sovereign can allow substantial impairment of that resource free of its public trust 

obligation. 332 U.S. at 19, 27-36. The Supreme Court’s reasoning for awarding the 

resource to the federal public domain is laden with sovereign fiduciary responsibility:

The ocean, even its three-mile belt, is thus of vital consequence to the 

nation in its desire to engage in commerce and to live in peace with the 

world; it also becomes of crucial importance should it ever again become 

impossible to preserve that peace. And as peace and world commerce are 

the paramount responsibilities of the nation, rather than an individual state, 

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so, if wars come, they must be fought by the nation. The state is not 

equipped in our constitutional system with the powers or the facilities for 

exercising the responsibilities which would be concomitant with the 

dominion which it seeks.

Id. at 35-36 (citations omitted); see also United States v. Midwest Oil Co., 236 U.S. 459, 

471 (1915) (finding the President can reserve from sale parcels of land for public uses as 

the exigencies of the public service require, even though the Constitution grants Congress 

the delegated power over federal property, not the President).

Federal Defendants would have this Court adopt the “without limitation” 

language from Kleppe and Alabama v. Texas, 347 U.S. 272 (1954), entirely out of 

context and apply the result to a situation not previously confronted. Those cases referred 

to the ability of Congress to protect public lands and, in some instances, transfer public 

lands to states or to lease them; they do not hold that Congress may irretrievably damage 

or destroy public lands or the public’s essential interest in public resources. None of the 

Property Clause cases confronted Fifth Amendment violations of fundamental rights and 

claims that essential resources within the federal Public Trust were being damaged. None 

of the decisions contemplated the catastrophic result in the instant case of undoing the 

Public Trust obligation of Federal Defendants over crucial public resources. In short, the 

limits of Congressional discretion under the Property Clause have not yet been tested. As

the Supreme Court said in Illinois Central Railroad Co., v. Illinois, “we cannot, it is true, 

cite any authority where a grant of this kind has been held invalid, for we believe that no 

instance exists where the harbor of a great city and its commerce have been allowed to 

pass into the control of any private corporation.” Illinois Central Railroad Co. v. Illinois,

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146 U.S. 387, 455 (1892). Justices Douglas and Black, in their dissents from the per 

curiam opinion of Alabama v. Texas, articulate the outer limits of the Property Clause 

that have never been tested. 347 U.S. 272, 280-81 (1954) (Black, J., dissenting); id. at 

281-83 (Douglas, J., dissenting). The Supreme Court’s per curiam in Alabama simply did 

not consider the questions posed (and flatly rejected) by the dissenters – whether the U.S. 

could transfer the Pacific Ocean and the Columbia River out of the public domain. Id.

Thus we are dealing here with incidents of national sovereignty. The 

marginal sea is not an oil well; it is more than a mass of water; it is a 

protective belt for the entire Nation over which the United States must 

exercise exclusive and paramount authority. The authority over it can no 

more be abdicated than any of the other great powers of the Federal 

Government. It is to be exercised for the benefit of the whole. 

Id. at 282. So too, here, “more than property rights [is] involved.” Id. at 281.

Could Congress cede the great Columbia River or the mighty Mississippi 

to a State or a power company? I should think not. For they are arteries of 

commerce that attach to the national sovereignty and remain there until 

and unless the Constitution is changed. What is true of a great river would 

seem to be even more obviously true of the marginal sea. For it is not only 

an artery of commerce among the States but the vast buffer standing 

between us and the world. It therefore would seem that unless we are to 

change our form of government, that domain must by its very nature 

attach to the National Government and the authority over it remain 

nondelegable.

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Id. at 282. The fundamental and unalienable rights of these Plaintiffs under the Fifth 

Amendment are at issue here, distinguishing this case from both Alabama v. Texas and 

Kleppe v. New Mexico.

The Property Clause is nothing more nor less than what the original thirteen states 

intended: a delegation of enumerated power to the federal government to deal with 

property of a federal character, including the territories entrusted to later-admitted states. 

Without that power, Congress would not have been able to act and manage federal 

property, leaving that role to the states. Because the Public Trust is part of the 

sovereignty of government itself, and predates the Constitution, the Public Trust is 

imposed on any delegation of power to the federal government over public resources. See 

United States v. Ruby, 588 F.2d 697, 705 (9th Cir. 1978) (noting federal government is a 

constitutional trustee on behalf of the people); Mary Christina Wood, Nature’s Trust: 

Environmental Law for a New Ecological Age, 133-36 (2014); Gerald Torres & Nathan 

Bellinger, The Public Trust: The Law’s DNA, 4 Wake Forest J.L. & Pol’y 281, 288-97 

(2014).

Federal Defendants cannot police themselves with respect to their fiduciary 

obligation because, in the words of the Supreme Court, it “would place every harbor in 

the country at the mercy of a majority of the legislature.” Ill. Cent. R.R. 146 U.S. at 455; 

see also Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012) (political branches cannot 

police constitutionality of their own conduct). It is important to note that in 1892 the 

threat to these harbors and coastal cities was not the complete and irreversible inundation 

of sea level rise; rather, the threat was a far lesser and reversible evil, but found to be a 

Public Trust violation nonetheless. As the Catholic Amici write, degradation to the 

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atmospheric trust “poses a threat to human society of a magnitude unimaginable in the 

day when Justice Field invoked the doctrine to protect Chicago Harbor.” Brief for Global 

Catholic Climate Movement & Leadership Council of Women Religious as Amici Curiae 

Supporting Plaintiffs, Juliana v. United States at 16, No.: 6:15-cv-01517-TC (D. Or. Jan. 

1, 2016).

The federal public domain unequivocally includes the oceans and the air and 

atmosphere as these are domains that transcend state borders. The Public Trust res has 

always included air according to Justinian and Blackstone, who list the air resource 

before water. 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, 

notwithstanding the general introduction and continuance of property, must still 

unavoidably remain in common . . . Such (among others) are the elements of light, air, 

and water . . . .”). The Supreme Court relies on Justinian and Blackstone in interpreting 

the scope of the Public Trust Doctrine. Geer v. Connecticut, 161 U.S. 519, 523, 526-28 

(1896); Idaho v. Coeur d'Alene Tribe of Idaho, 521 US 261, 284 (1997). Defendants are 

also wrong that no court has found public trust protection for the atmosphere. Indeed 

Washington Judge Hollis Hill eloquently wrote last year in a state constitutional public 

trust case: “The navigable waters and the atmosphere are intertwined and to argue a 

separation of the two, or to argue that GHG emissions do not affect navigable waters in 

nonsensical.” Foster v. Wash. Dep’t of Ecology, No. 14-2-25295-1, slip op at 8 (Wash. 

King Cnty. Super. Ct. Nov. 11, 2015); see also Foster v. Wash. Dep’t of Ecology, No. 14-

2-25295-1 SEA, Transcript at 20 (Wash. King Cnty. Super. Ct., Hearing of Apr. 29, 

2016) (attached hereto as Exhibit 1). 

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For all of these reasons, and those submitted previously to Judge Coffin, 

Plaintiffs’ Public Trust Doctrine claim against the Federal Defendants should be heard.

II. JUDGE COFFIN PROPERLY FOUND PLAINTIFFS ALLEGED FACTS ESTABLISHING 

THEIR INDIVIDUALIZED STANDING TO BRING SUIT

Federal Defendants appear concerned that Plaintiffs seek, by their claims, to usurp 

the powers of the political branches and, thus, assert Plaintiffs should be subject to a 

rigorous standing inquiry. Fed. Obj. 27. However, as the Supreme Court has repeatedly 

said, the purpose of separation of powers is to better secure liberty, not protect the 

political branches for their own power. Bowsher v. Synar, 478 U.S. 714, 721 (1986). 

Judge Coffin correctly finds Plaintiffs meet each of the three prongs of standing and no 

more rigorous test is justified or supported by any precedent.

A. Plaintiffs Have Alleged Concrete and Individualized Injuries to 

Fundamental Rights

In addition to the allegations noted in the F&Rs, Plaintiffs alleged other individual 

and not generalized injuries. For instance, several Plaintiffs’ property interests are being 

harmed. The family property of Sahara V. on the Oregon coast is imminently threatened 

with sea level rise. FAC ¶ 45; Sahara V. Dec, ¶ 3; Hansen Supp. Dec. Ex. 3, Graphics 6 

(a) & (b) (sea level rise in Yachats, Oregon). Levi D’s property interests in Indialantic, 

Florida are currently being harmed by rising seas, which are threatening his community, 

destroying his beaches, and decreasing the property value of his home. FAC ¶ 82, 84. If 

unabated, Levi will suffer a complete deprivation of his constitutionally protected 

property interests due to the submersion of his home by rising sea levels. FAC ¶¶ 84; 

Levi D. Dec. ¶¶ 1-4; Ex. 3 to Hansen Supp. Dec., Graphics 5 (a) & (b) (sea level rise in 

Melbourne Beach, nearby to Indialantic, Florida).

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The FAC also alleges Plaintiffs’ property interests will be infringed by the 

increasing severity and frequency of extreme weather events. Xiuhtezcatl M. Dec. ¶¶ 10, 

11 (climate-exacerbated extreme rain and flooding have already caused property damage 

and increased frequency and severity of wildfires remain a threat). Jayden F., who lives 

in southern Louisiana, is experiencing more severe and frequent hurricanes, storm surges, 

and flooding, which threatens her home. FAC ¶ 87; Hansen Supp. Dec. Ex. 3, Graphics 

3(a) & (b) (sea level rise in coastal Louisiana). 

The liberty interests of Plaintiffs in choosing where to live and their freedom of 

movement, which are central to individual dignity and autonomy, are also being harmed 

and threatened with irreversible harm. FAC, ¶ 66, Jaime B. Dec., ¶ 3 (displaced from 

Navajo Reservation and ancestral home from climate change and drought conditions); 

FAC ¶¶ 49, 88.

The FAC alleges Plaintiffs’ personal security interests are being threatened much 

in the same way as their right to life. Zealand, Jaime, and Xiuhtezcatl have all had to flee 

for safety or evacuate homes from wildfires or flooding, which are more severe and 

frequent with climate change. FAC ¶¶ 36, 67, 70. Alex, Sahara, and Nathaniel suffer 

from asthma; their ailments worsen with increasing wildfires and levels of pollen, making 

it harder for them to breathe, conditions that will only worsen with time. FAC ¶¶ 28, 46, 

75. Extreme weather events have already and will increasingly harm Sophie, Victoria, 

and Jayden. FAC ¶¶ 63, 72, 87. 

The FAC alleges at ¶¶ 97, 241 the very survival of Plaintiffs, indeed their right to 

life, is being threatened by the aggregate actions of Federal Defendants by permitting, 

authorizing, subsidizing, and supporting fossil fuel exploitation, production, and 

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consumption. If the emissions from Federal Defendants’ actions continue unabated, 

feedback loops would be triggered and critical tipping points would be past, thus causing 

irreversible changes to our climate system making it no longer conducive to the survival 

of Plaintiffs and future generations. Supported by science, the FAC alleges that, by the 

end of this century, when many of these children would still be living, the Earth’s climate 

system will no longer be conducive to their survival. FAC ¶¶ 5-11, 96-97. 

Contrary to Defendants’ spin, these individualized injuries are either already 

occurring or are being locked-in such that the future injury is “certainly impending.” 

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (an injury that is 

“certainly impending” is adequate); see also Lujan v. Defenders of Wildlife, 504 U.S. 

555, 564, n. 2 (1992) (same). Defendants baldly ignore the science of climate change as 

alleged in the FAC, which means that future harms, even those many decades in the 

future, have been and are being locked in right now, and thus, can only be remedied 

today.

B. Plaintiffs Must Be Able to Bring their Claim Today Before the Harm 

is Irreparable and “Locked In”

Federal Defendants suggest that a substantive due process claim for government 

endangerment of Plaintiffs should be brought only after Plaintiffs are severely injured or 

dead. Fed. Obj. 18. Nothing in the Constitution or substantive due process jurisprudence 

requires such an unjust result. Plaintiffs’ FAC alleges Federal Defendants have 

knowingly and willfully put Plaintiffs in a dangerous situation and continue to enhance 

that danger – threatening Plaintiffs’ personal security, survival, implicit liberties, and 

property interests. Thus, the infringement of fundamental rights is happening now. The 

present and imminent harms alleged are but the early stages of climate-related injuries to 

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the personal security and other fundamental rights of Plaintiffs. FAC ¶¶ 136, 213-255. 

Federal Defendants must be compelled, now, to cease their ongoing exacerbation of the 

situation and to act to reverse the damage they have already inflicted, through the climate 

system, upon Plaintiffs. Nothing in the Constitution precludes the Court from acting until 

the full measure of the catastrophe is realized. It is critical that this Court act before it is 

too late. 

What makes this case uniquely positioned for a meaningful remedy is the 

thorough scientific evidence supporting the FAC and showing the causal link to the 

irreversible full deprivation of Plaintiffs’ rights. Unlike many of the plaintiffs in the 

DeShaney line of cases, the uncontested science supports Plaintiffs’ claims that this Court 

must act so that the deprivation of Plaintiff’s fundamental rights may be averted.11 As Dr. 

MacCracken says in ¶ 12 of his Expert Declaration: “What’s the use of having developed 

a science well enough to make predictions, if in the end, all we’re willing to do is stand 

around and wait for them to come true?”

The constitutional violation presented here to this Court is akin to that which the 

Supreme Court discussed in Brown v. Plata, comparing conditions causing constitutional 

 11 See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (enjoining forced sterilization to 

protect the future fundamental liberty rights of marriage and procreation); Ala. 

Legislative Black Caucus v. Alabama, 575 U.S. ___ (2015) (reviewing Alabama’s 

redistricting as racial gerrymandering in violation of Fourteenth Amendment and Voting 

Rights Act of 1965 alleging negative impacts on equal representation of minorities; 

plaintiffs sought to protect their rights to vote in future elections); Glossip v. Gross, 576 

U.S. __, slip op. 9-10 (2015) (lower court held 3-day evidentiary hearing, considered 

expert testimony, and reviewed numerous exhibits in an Eighth Amendment drug 

cocktail, death penalty case, to evaluate whether execution drugs constituted cruel and 

unusual punishment to prisoners, prior to execution). The FAC alleges, and the scientific 

evidence will show, Plaintiffs’ lives, liberties, and properties are threatened by cocktail of 

greenhouse gas pollutants, legally-sanctioned by Federal Defendants, that will drastically 

impair the exercise of Plaintiffs’ fundamental rights in the immediate future. 

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infringements to “a spider web, in which the tension of the various strands is determined 

by the relationship among its parts.” Brown v. Plata, 131 S. Ct 1910, 1937 (2011). The 

Supreme Court acknowledged the “interdependence of the conditions producing the 

violation,” which included overcrowding and said, “[o]nly a multifaceted approach aimed 

at many causes, including overcrowding, will yield a solution.” Id. The Supreme Court 

then affirmed the federal courts’ authority “to fashion practical remedies when 

confronted with complex and intractable constitutional violations.” Id. In Brown v. Plata, 

as here, plaintiffs described the conditions that produced the constitutional violation, but 

did not list every one of the many decisions and factors that played a role. See First 

Amended Complaint Class Action, Brown v. Plata, 563 U.S. 493 at ¶ 192(a) – (q) (N.D. 

Cal. Aug. 2001).

C. Plaintiffs Injuries Are Redressable

Federal Defendants are wrong that Plaintiffs injuries are not redressable because 

the requested relief is unworkable. Fed. Obj. 33. For example, while Federal Defendants 

balk at the idea of preparing a national plan to phase out fossil fuel emissions, courtordered plans are a standard remedy. See, e.g., Brown v. Plata, 563 U.S. 493 (2011); 

Swann v. Charlotte-Mecklenburn Bd. of Educ., 401 U.S. 1 (1971). Furthermore, the 

Federal Government already prepared a plan similar to the one requested by Plaintiffs 26 

years ago, though it was never implemented, thus requiring the preparation and 

implementation of a new plan. FAC ¶ 3 citing EPA, Policy Options for Stabilizing Global 

Climate (1990). There is nothing about consumption-based CO2 emission inventories that 

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is unworkable either, given that the State of Oregon performs them.12 Federal Defendants 

are also wrong to say that granting Plaintiffs requested relied would require the Court to 

“override existing statutes.” Fed. Obj. 33. Judge Coffin was correct in concluding that 

Plaintiffs requested relief is within the authority of the Federal Defendants. F&R 14. 

Courts have the ability and discretion to fashion remedies consistent with the role of the 

judiciary. See e.g. Zubik v. Burnwell, 578 U.S. ___, slip op. 3-4 (2016) (noting the gravity 

of the issues regarding constitutional rights of religious exercise and women’s rights to 

equal health coverage, including contraceptives, and remanding to Courts of Appeals for 

parties to develop a remedy that addresses the rights at issue). 

CONCLUSION

These 21 youth Plaintiffs filed their First Amended Complaint, seeking an order 

from this Court to prevent Federal Defendants from continuing to violate the Constitution 

and the Public Trust Doctrine by knowingly putting Plaintiffs and their vital natural 

systems at catastrophic risk from greenhouse gas pollution and climate destabilization. At 

its core, this case is about Plaintiffs’ survival and whether Federal Defendants can 

continue to endanger it. 

Based on the clear allegations in the First Amended Complaint, this Court should 

affirm the denial of these Motions to Dismiss. In objecting to Magistrate Judge Coffin’s 

Findings and Recommendations, Defendants largely ignore the actual allegations in the 

 12 See, e.g., State of Or. Dept. of Envtl. Quality, Dept. of Energy and Dept. of 

Transp., Oregon’s Greenhouse Gas Emissions Through 2010: In-Boundary, 

Consumption-Based and Expanded Transportation Sector Inventories (2013), available 

at http://www.oregon.gov/deq/AQ/Documents/OregonGHGinventory07_17_13FINAL.p

df.

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First Amended Complaint and simultaneously present no evidence to contradict any of 

Plaintiffs’ allegations of fact.

The Constitution is clear: Federal Defendants cannot deprive Plaintiffs of their 

fundamental rights under the Fifth Amendment to life, liberties, and property. The 

allegations of Federal Defendants’ aggregate actions at issue in this case must be judged 

against those constitutional rights. Defendants mischaracterize Plaintiffs’ case as seeking 

to be free from all CO2 emissions. That is not Plaintiffs’ claim. They claim the right to be 

free from government acts that threaten their personal security, their lives, their liberties 

and their property. The First Amended Complaint makes clear allegations of affirmative, 

official, and effective endangerment of Plaintiffs by Federal Defendants. The First 

Amended Complaint alleges these defendants have and continue to inflict substantial 

harm to Plaintiffs’ fundamental rights, requiring Plaintiffs to invoke this Court’s legal 

protection because their personal security has been directly impacted and their rights as 

citizen beneficiaries to vital public trust resources within the federal domain damaged.

In contrast to these well-pled and uncontroverted allegations, the Defendants 

respond with broad strokes:

• Plaintiffs have no fundamental rights at stake, no rights to life, personal 

security, liberties, or property.

• There is no right to a stable climate system, healthy atmosphere, and 

oceans free from dangerous levels of human-caused CO2 pollution created 

and caused by Federal Defendants.

• Federal Defendants have no constitutional obligation to protect any of our 

essential natural resources, including our atmosphere and our oceans.

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• The States must protect public trust resources, but Federal Defendants are 

exempt from such a trust obligation.

• The power of the political branches to destroy the climate system, oceans, 

and atmosphere is plenary and cannot be reviewed by this Court.

• The political power of the executive and legislature is more important 

than the constitutional rights of the youth and future generations.

• There are no checks and balances when it comes to climate change. The 

political branches police themselves and make all of the decisions 

regardless of their knowing role in creating and causing the “apocalyptic 

effect” of their decisions.

• Climate change will harm everyone and therefore no one can sue the 

federal government because the vastness of the harm somehow eliminates 

the case and controversy.

• When addressing climate change, it does not matter that the effects these 

Plaintiffs will experience are substantially worse than the effects on 

earlier generations.

• If one of these Plaintiffs died or was severely injured by state action in 

causing or enhancing climate change, only then might their 

representatives have a claim this Court could hear.

• Even though Federal Defendants contend only the Clean Air Act matters 

when it comes to stopping climate change, they say the Clean Air Act 

does not require the regulation of CO2.

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• Finally, Federal Defendants claim that a national climate plan, based on 

science, is an extraordinarily unworkable remedy, even though such a 

national climate plan is both necessary and achievable, as demonstrated to 

Congress in 1989 and produced by the EPA in 1990, based on 350 ppm.

These arguments should be rejected. While this case presents a unique, systemic 

problem, Plaintiffs only ask this Court to do what courts have done throughout our 

nation’s history: issue declaratory relief, and order an accounting and a plan to remedy 

constitutional violations. There is no more time to waste. We deal here with the rights of 

these children to be secure and the government’s significant role in destroying that 

security. Plaintiffs have the right to prove Federal Defendants’ role in harming them has 

been knowing and deliberate. When they do, this Court will find inflicting such a harm is 

unconstitutional and a violation of the Public Trust Doctrine. The remedies requested will 

preserve Plaintiffs’ rights to life, liberty, and property and secure our nation for our 

Posterity. 

Magistrate Judge Coffin is correct: These Motions to Dismiss must be denied.

Respectfully submitted this 16th day of May, 2016, 

s/ Julia A. Olson 

JULIA OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com 

WILD EARTH ADVOCATES 

1216 Lincoln St. 

Eugene, OR 97401 

Tel: (415) 786-4825 

PHILIP L. GREGORY (pro hac vice) 

pgregory@cpmlegal.com 

COTCHETT, PITRE & McCARTHY, LLP 

San Francisco Airport Office Center 

840 Malcolm Road 

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Burlingame, CA 94010 

Tel: (650) 697-6000 

Fax: (650) 697-0577 

DANIEL M. GALPERN (OR Bar 061950) 

dan.galpern@gmail.com 

LAW OFFICES OF DANIEL M. GALPERN 

1641 Oak Street 

Eugene, OR 97401 Tel: (541) 968-7164 

Attorneys for Plaintiffs 

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