Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

Interlocutory Appeal

i

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

2495 Hilyard Street, Suite A

Eugene, OR 97405

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

KELSEY CASCADIA ROSE JULIANA; 

XIUHTEZCATL TONATIUH M., through 

his Guardian Tamara Roske-Martinez; et al.

Plaintiffs,

v.

The UNITED STATES OF AMERICA; 

DONALD TRUMP, in his official capacity as 

President of the United States; et al.,

Federal Defendants.

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

PLAINTIFFS’ RESPONSE IN OPPOSITION 

TO FEDERAL DEFENDANTS’ MOTION 

TO CERTIFY OREDER FOR 

INTERLOCUTORY APPEAL

Request for Oral Argument

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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TABLE OF CONTENTS

Page

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

ARGUMENT................................................................................................................................. 2

I. The November 10 Order Does Not Present Any Controlling 

Question of Law .................................................................................................... 4

A. Plaintiffs’ Standing is Not a Controlling Question of Law ................... 5

B. The Right to a Climate System Capable of Sustaining Human Life is 

Not a Controlling Question of Law For Purposes of This Motion 

Because it is Not the Only Constitutional Right at Issue....................... 7

C. The Federal Public Trust Doctrine Is Not a Controlling Question of 

Law............................................................................................................. 8

II. There Are No Substantial Grounds for Differences of Opinion....................... 9

A. There are No Substantial Grounds for Disagreement that Plaintiffs 

Adequately Pleaded Standing ................................................................ 10

1. Plaintiffs Adequately Pleaded Injury In Fact .......................... 11

2. Plaintiffs Have Adequately Pleaded Causation........................ 13

3. Plaintiffs Have Adequately Pleaded Redressability................. 17

B. No Substantial Grounds for Disagreement on Plaintiffs’ Due 

Process Rights.......................................................................................... 19

C. There are No Substantial Grounds for Disagreement as to the 

Public Trust............................................................................................. 22

III. Appeal Would Not Materially Advance Ultimate Termination of the 

Litigation.............................................................................................................. 25

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

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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TABLE OF AUTHORITIES

Page(s)

CASES

Alec L. ex. rel Loorz v. Jackson, 

863 F.Supp.2d 11 (D.D.C.2012)............................................................................................... 22

Alec L. ex. rel Loorz v. McCarthy, 

561 F. App’x 7 (D.C. Cir. 2014)......................................................................................... 22, 23

Allen v. Wright, 

468 U.S. 737 (1984)...................................................................................................... 11, 16, 17

Am. Elec. Power Co. v. Conn., 

564 U.S. 410 (2010).................................................................................................. 9, 14, 23, 24

Ashmore v. Northeast Petroleum Div. of Cargill, Inc., 

855 F.Supp. 438 (D. Me. 1994).................................................................................................. 4

Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007).................................................................................................................. 16

Bowsher v. Synar, 

478 U.S. 714 (1986).................................................................................................................. 11

Cal. Dep’t of Water Resources v. Powerex Corp., 

533 F.3d 1087 (9th Cir. 2008) .................................................................................................... 3

Camacho v. P.R. Ports Auth., 

369 F.3d 570 (1st Cir. 2004)................................................................................................... 3, 9

Cf. Brown v. Plata, 

563 U.S. 493 (2011).................................................................................................................. 15

Chehalem Physical Therapy, Inc. v. Coventry Health Care, Inc., 

No. 09-CV-320-HU, 

2010 WL 952273 (D. Or. March 10, 2010)................................................................................ 5

City of Burbank v. General Elec. Co., 

329 F.2d 825 (9th Cir. 1964) ...................................................................................................... 5

Clinton v. Jones, 

520 U.S. 681 (1997).................................................................................................................. 19

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Conn. v. Am Elec. Power Co., 

582 F.3d 309 (2d Cir. 2009) ............................................................................................... 14, 15

Coopers & Lybrand v. Livesay, 

437 U.S. 463 (1978)................................................................................................................ 3, 7

Couch v. Telescope Inc., 

611 F.3d 629 (9th Cir. 2010) ............................................................................................. passim

Ctr. for Biological Diversity v. FPL Grp., 

83 Cal.Rptr.3d 588 (Cal. Ct. App. 2008).................................................................................. 18

DaimlerChrysler Corp. v. Cuno, 

547 U.S. 353 (2006)............................................................................................................ 14, 15

De Shaney v. Winnebago Cty. Dep’t of Soc. Servs., 

489 U.S. 189 (1989).................................................................................................................. 21

Dept. of Economic Dev. V. Arthur Anderson & Co., 

683 F.Supp. 1463 (S.D.N.Y. 1988) ............................................................................................ 6

Edwards v. First Am. Corp., 

610 F.3d 514 (9th Cir. 2010) ...................................................................................................... 6

Exec. Software N. Am., Inc. v. United States Dist. Ct. for the Cent. Dist. Of Cal., 

24 F.3d 1545 (9th Cir. 1994) ...................................................................................................... 2

Fed. Election Comm’n v. Akins, 

524 U.S. 11 (1998).................................................................................................................... 12

Hypotherm, Inc. v. Am. Torch Tip Co., 

No 05-373, 2008 WL 1767062 (D.N.H. Apr. 15, 2008) .......................................................... 28

Ill. Cent. R. Co. v. State of Ill., 

146 U.S. 387 (1892)............................................................................................................ 24, 25

In re Cement Antitrust Litigation, 

673 F.2d 1020 (9th Cir. 1982), aff’d 459 U.S. 1190 (1983)............................................. 4, 7, 26

In re Magic Marker Securities Litig., 

472 F.Supp. 436 (E.D. Pa. 1979)................................................................................................ 4

Keystone Tobacco Co. v. U.S. Tobacco Co., 

217 F.R.D. 235 (D.D.C. 2003).................................................................................................... 5

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Kuehner v. Dickinson & Co., 

84 F.3d 316 (9th Cir. 1996) ........................................................................................................ 3

Lawson v. FMR LLC, 

724 F.Supp.2d 167 (D. Mass. 2010)........................................................................................... 3

Lewis v. Casey, 

518, U.S. 343 (1996)........................................................................................................... 14, 15

Lujan v. Defenders of Wildlife, 

504 U.S. 561 (1992)........................................................................................................... passim

Marbury v. Madison, 

5 U.S. (1 Cranch) 137 (1803) ............................................................................................. 11, 12

Massachusetts v. Environmental Protection Agency, 

549 U.S. 497 (2007)............................................................................................................ 12, 15

McDonald v. City of Chicago, Ill., 

561 U.S. 742 (2010).................................................................................................................. 20

McFarlin v. Conseco Servs., LLC, 

381 F.3d 1251 (11th Cir. 2004) .................................................................................................. 5

McNulty v. Borden, Inc., 

474 F.Supp. 1111 (E.D. Pa. 1979).............................................................................................. 4

Miller v. Bolger, 

802 F.2d 660 (3rd Cir. 1986)...................................................................................................... 8

Molybdenum Corp. of America v. Kasey, 

279 F.2d 216 (9th Cir. 1960) ........................................................................................ 6, 7, 8, 14

Movsesian v. Victoria Verischerung Ag, 

578 F.3d 1052 (9th Cir. 2009) .............................................................................................. 8, 18

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

No. 6:14-CV-00094-AA, 2015 WL 5665302 (D. Or. September 23, 2015).............................. 2

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

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

Native Village of Kivalina v. ExxonMobil Corp., 

696 F.3d 849, 2012 WL 4215921. (9th Cir. 2012)................................................................... 23

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Natural Res. Defense Council v. Cnty. of L.A., 

No. 08-cv-1467-AHM(PLAx), 2011 WL 318543 (C.D. Cal. Jan. 27, 2011)........................... 22

Novak v. United States, 

795 F.3d 1012 (9th Cir. 2015) ............................................................................................ 11, 12

Nutrishare, Inc. v. Conn. Gen. Life Ins. Co., 

No. 2:13-cv-02378-JAM-AC (E.D. Cal. June 11, 2014)................................................ 6, 10, 26

Obergefell v. Hodges, 

135 S.Ct. 2584 (2015)........................................................................................................... 8, 20

Penilla v. City of Huntington Park, 

115 F.3d 707 (9th Cir. 1997) .................................................................................................... 21

PPL Montana, LLC v. Montana, 

565 U.S. 576 (2012)............................................................................................................ 22, 24

Presbyterian Church v. United States, 

870 F.2d 518 (9th Cir. 1989) .................................................................................................... 18

Raines v. Byrd, 

521 U.S. 811 (1997).................................................................................................................. 12

Reno v. Flores, 

507 U.S. 292 (1993).................................................................................................................. 19

Richardson Elecs., Ltd. V. Panache Broad. Of Pa., Inc.,

202 F.3d 957 (7th Cir. 2000) .................................................................................................... 28

Robinson Twp., Wash. Cnty., Pa. v. Pennsylvania, 

83 A.3d 901 (Pa. Sup. Ct. 2013)............................................................................................... 24

Ryes v. BCS Ins. Co., 

379 F.App’x 412 (5th Cir. 2010).............................................................................................. 18

Scanlon v. M.V. Super Servant 3, 

429 F.3d 6 (1st Cir. 2005)......................................................................................................... 28

Struthers Scientific & Intern. Corp. v. General Foods Corp., 

290 F. Supp. 122 (S.D. Tex. 1968)........................................................................................... 26

Tamas v. Dep’t of Soc. & Health Servs., 

630 F.3d 833 (9th Cir. 2010) .................................................................................................... 21

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Teem v. Doubravsky, 

No. 3:15-cv-00210-ST, 2016 U.S. Dist. LEXIS 13452, 3 (D. Or. Jan. 7 2016)......................... 2

U.S. Rubber Co. v. Wright, 

359 F.2d 784 (9th Cir. 1966) .............................................................................................. 3, 4, 7

U.S. v. Nixon, 

418 U.S. 683 (1974).................................................................................................................. 19

U.S. v. Woodbury, 

263 F.2d 784 (9th Cir. 1929) ...................................................................................................... 3

United States v. 34.42 Acres of Land, 

683 F.3d 1030 (9th Cir. 2012) ............................................................................................ 24, 25

Washington Envt’l Council v. Bellon, 

732 F.3d 1131 (9th Cir. 2013) ...................................................................................... 12, 14, 15

Washington v. Trump, 

847 F.3d 1151 (9th Cir. Feb. 9, 2017) ...................................................................................... 19

White v. Nix, 

43 F.3d 374 (9th Cir. 1994) ........................................................................................................ 7

WildEarth Guardians v. U.S. Dep’t of Agric., 

795 F.3d 1148 (9th Cir. 2015) .................................................................................................. 15

Youngstown Sheet & Tube Co. v. Sawyer, 

343 U.S. 579 (1952).................................................................................................................. 19

STATUTES

28 U.S.C. § 1292.................................................................................................................... passim

OTHER AUTHORITIES

16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, 

FEDERAL PRACTICE & PROCEDURE § 3930 (3d. ed. 2012)..................................... passim

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

Justice Kennedy and Illinois Central Railroad, 45 ENVTL. L. 399 (2015)............................... 23

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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RULES

D.C. Circuit Rule 36(e)(2) ............................................................................................................ 22

F.R.C.P. 8...................................................................................................................................... 14

REGULATIONS

Exec. Order ___, 82 Fed. Reg. ___ (March 28, 2017).................................................................. 26

Exec. Order 13766, 82 Fed. Reg. 8657 (Jan. 24, 2017)................................................................ 26

Exec. Order 13778 82 Fed. Reg. 12497 (Feb. 28, 2017).............................................................. 26

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

Interlocutory Appeal

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INTRODUCTION 

Plaintiffs oppose and respectfully request that this Court deny Federal Defendants’ 

Motion to Certify Order for Interlocutory Appeal (ECF No. 120) (“Motion to Certify”). This

Court should not grant Defendants’ request to certify this Court’s November 10, 2016 Opinion 

and Order denying Federal and Intervenor Defendants’ Motions to Dismiss (ECF No. 83) 

(“November 10 Order”) because any delay in resolving the merits of this case irreversibly 

prejudices the Youth Plaintiffs in securing and protecting their fundamental constitutional rights. 

As Federal Defendants acknowledge in their Answer to Plaintiffs’ First Amended Complaint 

(“FAC”), “‘business as usual’ CO2 emissions” imperil Plaintiffs with “dangerous, and 

unacceptable economic, social, and environmental risks.” ECF 98 at ¶ 150.

Federal Defendants failed to meet their burden of showing that the November 10 Order 

satisfies the minimum requirements for interlocutory appeal under 28 U.S.C. § 1292(b). For 

purposes of interlocutory appeal, not one of the holdings in the November 10 Order presents a 

controlling question of law. Even if reversed on appeal, the conclusions in the November 10 

Order as to the public trust doctrine and Plaintiffs’ due process rights would not substantially 

affect the scope of this litigation or the matters at issue for discovery and trial. Additionally, each 

of the November 10 Order’s holdings would benefit from, and those with respect to standing 

require, factual development in order to permit considered appellate review. Although the 

November 10 Order may involve holdings that develop the law, it provides no substantial 

grounds for differences of opinion as to its conclusions since those holdings find direct support 

in precedent as well as this Court’s careful and reasoned analysis of assertedly contradictory

caselaw. Further, appellate reversal of those holdings would not materially advance the ultimate

determination of this litigation as each of Plaintiffs’ remaining claims seeks similar relief and, 

while presenting different standards, involves and requires similar overlapping factual 

development through discovery, argument, and presentation of evidence at trial. Finally, Federal 

Defendants’ considerable delay in requesting an interlocutory appeal counsels against 

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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certification. Here, interlocutory appeal will serve only to squander the valuable time and 

resources of the judiciary and parties through piecemeal appellate review of an undeveloped 

factual record, thereby lengthening and protracting this litigation. In keeping with this Court’s 

projected trial scheduling for the fall of 2017, the Ninth Circuit is likely to have a full factual 

record and final decision on the merits from this Court within a year to review under the 

preferred method of appeal. See November 28, 2016 Transcript, ECF 100 at 12:2-5. Appellate 

review at this stage would not relieve Federal Defendants of their discovery obligations and

would materially prejudice Plaintiffs by delaying prompt resolution of their claims amidst the 

urgency of the climate crisis. Plaintiffs respectfully request this Court to exercise its unfettered 

discretion to deny Federal Defendants’ Motion to Certify.

ARGUMENT 

Pursuant to 28 U.S.C. § 1292(b), an otherwise non-final order may be subject to 

interlocutory appeal only if the district court certifies, in writing: (1) the order involves a 

“controlling issue of law”; (2) the controlling issue of law is one to which there is a “substantial 

ground for difference of opinion”; and (3) “an immediate appeal from the order may materially 

advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). 

The party seeking the interlocutory appeal bears the burden of establishing that “all three 

§ 1292(b) requirements are met.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). 

Satisfaction of all three requirements is a “minimum” for certification, Nat’l Asbestos Workers 

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

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

“[E]ven when all three statutory criteria are satisfied, district court judges have unfettered 

discretion to deny certification.” Mowat Const. Co. v. Dorena Hydro, LLC, No. 6:14-CV-00094-

AA, 2015 WL 5665302, at * 5 (D. Or. September 23, 2015) (Aiken, C.J.) (quotations and 

citation omitted); see also Exec. Software N. Am., Inc. v. United States Dist. Ct. for the Cent. Dist. 

Of Cal., 24 F.3d 1545, 1550 (9th Cir. 1994) (a district court’s certification decision is 

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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“unreviewable”), overruled on other grounds by Cal. Dep’t of Water Resources v. Powerex 

Corp., 533 F.3d 1087 (9th Cir. 2008). 

These requirements are jurisdictional. Couch, 611 F.3d at 633. Even if the district court 

grants certification, the appellate court still has the “independent duty to confirm,” Kuehner v. 

Dickinson & Co., 84 F.3d 316, 318-19 (9th Cir. 1996), whether the appellant met its burden 

establishing that “exceptional circumstances justify a departure from the basic policy of 

postponing appellate review until after the entry of final judgment.” Coopers & Lybrand v. 

Livesay, 437 U.S. 463, 475 (1978). Appellate courts may deny certification for any reason, 

including docket congestion. Id. at 475.

Seeking to prevent “the debilitating effect on judicial administration caused by piecemeal 

appeal” of cases, Congress “carefully confined the availability” of review under Section 1292(b) 

to exceedingly rare circumstances. Id. at 471; U.S. v. Woodbury, 263 F.2d 784, 799 n. 11 (9th Cir. 

1929) (Section 1292(b) to be applied “only in exceptional circumstances”); U.S. Rubber Co. v. 

Wright, 359 F.2d 784, 785 (9th Cir. 1966) (Section 1292(b) “not merely intended to provide 

review of difficult rulings in hard cases”); see also Camacho v. P.R. Ports Auth., 369 F.3d 570, 

573 (1st Cir. 2004) (“Section 1292(b) is meant to be used sparingly, and appeals under it are, 

accordingly, hen’s-teeth rare”); see also Lawson v. FMR LLC, 724 F.Supp.2d 167 (D. Mass. 

2010) (“after twenty-four years as a District Judge within this Circuit, I cannot recall an occasion 

in which I have been willing to make a § 1292(b) certification”).

Federal Defendants fail to carry their burden to establish any of the Section 1292(b) 

statutory requirements. Nor can they demonstrate that the November 10 Order and the 

circumstances of this case present the “hen’s teeth rare” justification for departure from the 

strong policy preference against piecemeal appellate review. To the contrary, Federal Defendants’ 

delay in seeking certification counsels in favor of a denial of the Motion to Certify, especially in 

light of the immense harm that will befall Plaintiffs as a result of further delay relative to Federal 

Defendants’ comparatively modest discovery obligations. 

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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I. The November 10 Order Does Not Present Any Controlling Question of 

Law 

Not one of the issues posed by Federal Defendants constitutes a controlling question of 

law for purposes of Section 1292(b). A question is only “controlling” if “resolution of the issue 

on appeal could materially affect the outcome of the litigation in the district court.” In re Cement 

Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982), aff’d 459 U.S. 1190 (1983). Although 

resolution of an issue need not terminate an action in order to be “controlling,” a mere effect on 

the duration of litigation without effect on its final outcome will not suffice. Id. at 1027

(interpreting a question as “controlling” by the effect of its resolution on the time, effort, or 

expense of conducting a suit would read the “controlling question of law” requirement out of 

Section 1292(b)).

No controlling question of law is present if additional claims would remain to be tried 

after appeal, especially if those claims involve similar evidence as those to which the question 

relates. See, e.g., U.S. Rubber Co., 359 F.2d at 785 (denying certification since question of law 

was only relevant to one of several causes of action alleged); McNulty v. Borden, Inc., 474 

F.Supp. 1111, 1120-22 (E.D. Pa. 1979) (claim involving substantially the same evidence would 

remain to be tried in any event); Ashmore v. Northeast Petroleum Div. of Cargill, Inc., 855 

F.Supp. 438, 440 (D. Me. 1994) (same issues would remain no matter outcome of appeal, since 

other legal theories were also advanced); In re Magic Marker Securities Litig., 472 F.Supp. 436 

(E.D. Pa. 1979) (elimination of issues did not support certification in view of overlap of issues 

with remaining claim); see also 16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & 

EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 3930 (3d. ed. 2012)

(“WRIGHT & MILLER”) (“[T]here is little doubt that a question is not controlling if the 

litigation would be conducted in the same way no matter how it were decided.... Rejection of 

one theory may not be controlling when another theory remains available that may support the 

same result.”) (Footnotes omitted). Even if the November 10 Order’s conclusions as to the public 

trust doctrine and due process rights were reversed on appeal, Plaintiffs’ remaining constitutional 

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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claims dictate that this litigation would be conducted in the same manner. Hence, though those 

conclusions are law of the case and would control on summary judgment, they are not 

controlling for purposes of interlocutory appeal.

Additionally, a “controlling question of law” is one that presents a purely legal question

as opposed to a question of fact, a mixed question of law and fact, or a question for which 

additional factual development is necessary prior to ultimate disposition of an issue. Chehalem 

Physical Therapy, Inc. v. Coventry Health Care, Inc., 2010 WL 952273, at *3 (D. Or. March 10, 

2010) (collecting cases); see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th 

Cir. 2004) (“§ 1292(b) appeals were intended, and should be reserved for situations in which the 

court of appeals can rule on a pure, controlling question of law without having to delve beyond 

the surface of the record in order to determine the facts”); Keystone Tobacco Co. v. U.S. Tobacco 

Co., 217 F.R.D. 235, 239 (D.D.C. 2003) (When “the crux of an issue decided by the court is factdependent, the court has not decided a ‘controlling question of law’”).

A. Plaintiffs’ Standing is Not a Controlling Question of Law

Contrary to Federal Defendants’ contentions, this Court’s determinations that Plaintiffs 

adequately pleaded the injury, causation, and redressability elements of standing do not present 

controlling questions of law. As an initial matter, rulings on the sufficiency of pleadings 

generally are unsuitable for interlocutory appeal because of the ready availability of amendment. 

16 WRIGHT & MILLER § 3930, n. 21 (3d. ed. 2012) (citing City of Burbank v. General Elec. 

Co., 329 F.2d 825, 828-29 (9th Cir. 1964)). Further, as discussed in Section II.A, Plaintiffs’ 

allegations as to standing are more than adequate for the minimal showing required of them to 

survive a motion to dismiss. 

The determination that Plaintiffs have adequately pleaded standing is not suitable for 

interlocutory appeal since the “case has not yet developed far enough to permit considered 

appellate disposition of the questions presented.” 16 WRIGHT & MILLER § 3930 (3d. ed. 2012). 

Determinations of standing at the motion to dismiss stage are unfitting for interlocutory appeal 

because factual development in the discovery stage may add color to general standing allegations, 

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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thus determining whether specific facts necessary to support a claim are in fact embraced by a 

complaint's general allegations. Nutrishare, Inc. v. Conn. Gen. Life Ins. Co., No. 2:13-cv-02378-

JAM-AC (E.D. Cal. June 11, 2014) (denying motion for certification where claimant argued that

standing is a controlling question of law; discovery might establish standing making certification 

inappropriate). The standing inquiry here, and the sufficiency of Plaintiffs’ allegations 

thereunder, is necessarily informed and dependent on development and presentation of factual 

evidence distinguishing Plaintiffs’ case from those cited by Federal Defendants as undermining 

the adequacy of Plaintiffs’ injuries, and their causation and redressability. As such, the standing 

inquiry here is intertwined with questions of fact and, therefore, does not pose a “controlling 

question of law.” 

Further, interlocutory appeal at this early stage would run contrary to Congress’ intent in 

enacting Section 1292(b) of preventing piecemeal appeals without adequate development of the 

record. Id.; see also Molybdenum Corp. of America v. Kasey, 279 F.2d 216 (9th Cir. 1960)

(vacating initial grant of certification for appeal as improvident where record was inadequate to 

resolve the questions presented for review of denial of motion to dismiss); Dept. of Economic 

Dev. V. Arthur Anderson & Co., 683 F.Supp. 1463, 1487 (S.D.N.Y. 1988) (denying certification 

where determination of question alleged to be controlling depended on sufficiency of facts; 

“discovery may turn up new facts relevant to the issue of subject matter jurisdiction, and these 

facts may in turn influence this Court’s interpretation of facts already proffered by the parties.”)

Finally, Federal Defendants cite one case to support their proposition that standing 

presents a controlling question of law. ECF 120-1 at 7 (citing Edwards v. First Am. Corp., 610 

F.3d 514, 515-16 (9th Cir. 2010)). In Edwards, the claimant failed to allege any actual injury; the 

sole question presented was whether standing with respect to injury had been conferred by 

statute. Edwards, 610 F.3d at 516-18. Thus, the standing inquiry in Edwards involved only a 

pure legal question of statutory interpretation, as opposed to the standing inquiry involved in the 

November 10 Order that requires further factual development prior to any appellate review.

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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B. The Right to a Climate System Capable of Sustaining Human Life is Not a 

Controlling Question of Law For Purposes of This Motion Because it is Not 

the Only Constitutional Right at Issue

Federal Defendants provide no authority to support their contention that this Court’s 

finding of an unenumerated fundamental Due Process right to “a climate system capable of 

sustaining human life” presents a controlling question of law. To the contrary, applicable 

authority establishes that this issue does not present a controlling question for purposes of this 

Motion. Even were an appellate court to reverse this Court’s determination, this litigation would 

proceed in substantially the same manner such that reversal would not “materially affect the 

outcome of the litigation in the district court.” In re Cement, 673 F.2d at 1026. As a result, this 

issue is not controlling for interlocutory appeal purposes. Id. 

Irrespective of any analysis as to this particular implied right, the November 10 Order did 

not dispose of Plaintiffs’ claims of infringement of their enumerated Due Process rights to life, 

liberty, and property and previously recognized unenumerated rights implied thereunder, nor did 

the November 10 Order dispose of Plaintiffs’ Equal Protection claims of discrimination with 

respect to such rights or Plaintiffs’ claims of discrimination against them as a suspect class. 

Review at this early stage would violate the strong policy against piecemeal review of cases 

because this Court has not yet ruled on Plaintiffs’ remaining constitutional claims. Coopers & 

Lybrand, 437 U.S. at 471 (citing the “debilitating effect on judicial administration caused by 

piecemeal” appeal); see also Molybdenum Corp. of America, 279 F.2d 216. Those claims require 

discovery, expert testimony, and presentation of issues and information significantly overlapping 

those presented by Plaintiffs’ claims of infringement to their right to a climate system capable of 

sustaining human life. Therefore, this litigation will proceed in much the same way no matter 

how this issue is decided and its resolution is therefore not controlling under Section 1292(b).

See, e.g., U.S. Rubber Co., 359 F.2d at 785; White v. Nix, 43 F.3d 374, 378-89 (9th Cir. 1994).

While the existence of the right to a climate system capable of sustaining human life

finds an indisputable and independent basis in law, see Section II.B infra, appellate review of this

issue will benefit from a full record of facts from which an appellate court may ascertain the 

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necessity of the recognition of this implicit right at this crucial moment in history. Molybdenum 

Corp. of America, 279 F.2d 216 (interlocutory appeal is improvident where record has not 

developed adequately to allow considered appellate review). Information as to the factual 

realities and history of climate change, its impacts, and the role Federal Defendants play in its 

creation and continuity is exactly the type of “new insight [that] reveals discord between the 

Constitution’s central protections and a received legal stricture,” such that development of this 

information on the record will be indispensable to a court of appeals in reviewing whether “a 

claim to liberty must be addressed.” Obergefell v. Hodges, 135 S.Ct. 2584, 2598 (2015).

C. The Federal Public Trust Doctrine Is Not a Controlling Question of Law

For similar reasons, whether this Court recognizes a federal public trust doctrine that 

cannot be displaced is not a controlling question of law for purposes of Section 1292(b). Even 

were an appellate court to reverse with respect to this issue, each of Plaintiffs’ remaining 

constitutional claims, while presenting different standards, would require overlapping factual 

development through discovery, argument, and presentation of evidence similar to that involved 

in Plaintiffs’ public trust claim. Here too, appellate review of this Court’s holdings would be 

premature and implicate piecemeal consideration of an undeveloped record contrary to the letter 

and spirit of Section 1292(b). The November 10 Order did not specifically address whether the 

atmosphere is a public trust resource. Absent detailed consideration by the district court and 

development of a sufficient record, appellate deliberations on that issue would not be proper.

Movsesian v. Victoria Verischerung Ag, 578 F.3d 1052, 1056 (9th Cir. 2009) (in deciding issues 

on appeal under Section 1292(b), the Ninth Circuit “will not address issues outside the order 

appealed from, or issues not yet considered by the district court”) (citation omitted); Miller v. 

Bolger, 802 F.2d 660, 666 (3rd Cir. 1986) (“We have refused to reach an issue posed by an order 

appealed under section 1292(b) where that issue was not addressed by the district court”) 

(citation omitted). Additionally, the November 10 Order’s conclusions as to the public trust 

doctrine in the territorial seas, its connection to the atmosphere, and the results of the 

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displacement analysis are determinations for which a fully developed factual record should be 

provided in order to facilitate non-piecemeal appellate review.

1

Each of the issues that Federal Defendants claim to be controlling requires further 

development of the record in order to ensure considered appellate disposition of the questions 

presented. Additionally, even if these issues were reversed on appeal, this litigation would be 

conducted in substantially the same manner. Rather than contributing to the ultimate termination 

of this litigation, appellate review at this stage would only protract the proceedings through 

piecemeal consideration of issues in this urgent case. For these reasons, none of the issues 

presented by Federal Defendants constitutes a controlling question of law under Section 1292(b).

II. There Are No Substantial Grounds for Differences of Opinion 

No substantial grounds for differences of opinion exist with respect to any determinations 

in the November 10 Order. Section 1292(b) is clear that the grounds for disagreement must be 

“substantial.” 28 U.S.C. § 1292(b) (emphasis added). “[A] party’s strong disagreement with the 

Court’s ruling is not sufficient.” Couch, 611 F.3d at 633.

To determine if a substantial ground for difference of opinion exists...courts must 

determine to what extent the controlling law is unclear. Courts traditionally will 

find that a substantial ground for difference of opinion exists where the circuits 

are in dispute on the question and the court of appeals of the circuit has not 

spoken on the point, if complicated questions arise under foreign law, or if novel 

and difficult questions of first impression are presented. Id. at 633 (citation and 

quotations omitted).

However, in keeping with the principle that circumstances justifying interlocutory appeal are 

“hen’s teeth rare,” Camacho, 369 F.3d at 573, the Ninth Circuit made clear that “just because a 

																																																						 1

 For example, record development as to the hydrologic connection between atmospheric 

greenhouse gas pollution and acidification of the territorial seas will provide an appellate court 

with important information for review of Plaintiffs’ public trust claims. Additionally, even were 

Plaintiffs’ constitutionally-rooted public trust claims subject to displacement - which they are 

not – the effect of greenhouse gas pollution on the territorial seas necessarily informs the 

consideration of whether the Clean Air Act and other statutes “speak directly” to a question at 

issue here – the impairment of public trust aquatic resources. Am. Elec. Power Co. v. Conn., 564 

U.S. 410, 424 (2010).

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court is the first to rule on a particular question or just because counsel contends that one 

precedent rather than another is controlling does not mean there is such substantial difference of 

opinion as will support an interlocutory appeal.” Couch, 611 F.3d at 633 (citation and quotations 

omitted). “That settled law might be applied differently does not establish a substantial ground 

for difference of opinion.” Id. (citations omitted). No grounds for disagreement are present where, 

as here, the holdings in the November 10 Order find support in precedent and a careful and 

reasoned analysis (previously not conducted by any court) of allegedly contradictory cases.

A. There are No Substantial Grounds for Disagreement that Plaintiffs 

Adequately Pleaded Standing

In conducting the standing inquiry at the motion to dismiss stage, a court must “presume 

that general allegations embrace those specific facts that are necessary to support the claim.” 

Lujan v. Defenders of Wildlife, 504 U.S. 561 (1992). As discussed below, there are no substantial 

grounds to dispute that Plaintiffs met this undemanding standard. Moreover, interlocutory appeal 

of the issue of standing is unsuitable at this stage because development of the factual record will 

conclusively establish the specific facts embraced by Plaintiffs’ standing allegations. Nutrishare, 

Inc. v. Connecticut General Life Insurance Company, No. 2:13-cv-02378-JAM-AC (E.D. Cal. 

June 11, 2014) (denying motion for certification where discovery would determine standing). 

Appellate consideration without development of such a record would run contrary to the twin 

policy aims against piecemeal appeal and review of unripe cases. 16 WRIGHT & MILLER § 

3930 (3d. ed. 2012) (interlocutory appeal not appropriate when “the case has not yet developed 

far enough to permit considered appellate disposition of the question presented”); Lujan, 504 U.S. 

at 561 (burden of proof as to standing varies “with the manner and degree of evidence required at 

successive stages of litigation”).

Federal Defendants correctly assert that “[a]t the heart of the standing doctrine is ‘the Art. 

III notion that federal courts may exercise power only in the last resort, and as a necessity...and 

only when adjudication is consistent with a system of separated powers and the dispute is one 

traditionally thought to be capable of resolution through the judicial process.’” ECF 120-1 at 8-9 

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(quoting Allen v. Wright, 468 U.S. 737, 752 (1984). However, Federal Defendants manifestly 

mischaracterize Plaintiffs’ claims as running afoul of these principles. For more than fifty years,

Federal Defendants knowingly and substantially contributed to the urgent climate crisis upon 

which Plaintiffs’ claims are founded. As a result, it is clear that the judiciary in fact represents

Plaintiffs’ “last resort” and that exercise of judicial jurisdiction is a “necessity.” Id. Plaintiffs’

claims, and the standing allegations supporting them, are eminently suitable for judicial 

resolution without implicating separation of powers concerns. See Allen, 468 U.S. at 760 (“[I]t is 

not the role of the judiciary” to serve as “continuing monitors of the wisdom and soundness of 

Executive action”...absent actual present or immediately threatened injury resulting from 

unlawful government action”) (emphasis added); Bowsher v. Synar, 478 U.S. 714, 721 (1986)

(“The declared purpose of separating and dividing the powers of government, of course, was to 

diffuse power, the better to secure liberty”); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 

(1803) (“The very essence of civil liberty consists in the right of every individual to claim the 

protection of the laws, whenever he receives an injury”).

1. Plaintiffs Adequately Pleaded Injury In Fact 

Federal Defendants argue Plaintiffs cannot establish standing because their alleged 

injuries are “widely shared by essentially every member of society.” ECF 120-1 at 10. A 

generalized grievance insufficient to establish injury is one claiming harm only to an abstract 

interest such as the “proper application of the Constitution and laws....” Lujan, at 504 U.S. at 

573. However, if an alleged harm is personally and concretely manifested in an individual, it 

does not matter how many people share in its effect. Novak v. United States, 795 F.3d 1012, 

1018 (9th Cir. 2015). Here, Plaintiffs more than adequately allege concrete injury-in-fact by 

pointing to highly personalized and unique impacts to their health, safety, property, recreational, 

spiritual, and other interests. See November 10 Order at 19-20 (detailing a selection of alleged 

impacts). Consequently, despite Federal Defendants’ contentions, there is no need here to rely on 

Congress to elevate by statute Plaintiffs’ already concrete, legally cognizable injuries.

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Contrary to Federal Defendants’ characterization of Massachusetts v. EPA, extension of 

standing based on personal and concrete manifestation of a widely-shared harm is not limited to 

claims involving quasi-sovereign interests. Massachusetts v. Environmental Protection Agency, 

549 U.S. 497 (2007); see, e.g., Novak, 795 F.3d at 1016, 1018 (interests of six individuals and 

one corporation); Fed. Election Comm’n v. Akins, 524 U.S. 11 (1998) (interests of group of 

individual voters). Likewise, despite Federal Defendants’ assertion that Plaintiffs’ injuries fail to 

establish standing because they have not brought suit under a procedural statute, the Supreme 

Court has clearly stated there is “[a]bsolutely no basis for making the Article III inquiry turn on 

the source of the asserted right.” Lujan, 504 U.S. at 576. Notwithstanding this clear principle, 

Federal Defendants’ incongruously assert that Plaintiffs’ claims, because they are 

constitutionally rather than statutorily based, are not “traditionally thought to be capable of 

resolution through the judicial process.” ECF 120-1 at 10 (quoting Raines v. Byrd, 521 U.S. 811, 

819 (1997)). However, as Chief Justice Marshall famously stated, “[i]t is emphatically the 

province and duty of the judicial department to say what the law is.” Marbury, 5 U.S. (1 Cranch) 

at 177. The Raines Court itself recognized “the irreplaceable value of the power articulated by 

Mr. Chief Justice Marshall [in Marbury] lies in the protection it has afforded the constitutional

rights and liberties of individual citizens and minority groups against oppressive or 

discriminatory government action.” 521 U.S. at 829 (emphasis added). Federal Defendants’ 

misconstrual of the generalized grievance doctrine, erroneous conception of the capabilities of 

the judiciary, and invocation of inapposite cases2 does not suffice to show substantial grounds for 

disagreement as to the sufficiency of Plaintiffs’ injuries. Moreover, Federal Defendants’ 

admissions as to the impacts of climate change in their Answer to the FAC seriously undermine 

their contention that reasonable grounds for difference of opinion exist here. See FAC, ECF 98 at 

																																																						 2

 Washington Envt’l Council v. Bellon is also inapposite. 732 F.3d 1131 (9th Cir. 2013). In 

that case, the Ninth Circuit found the plaintiffs lacked standing on summary judgment and only 

after development of a factual record, further demonstrating that this Court should not permit 

appellate review as to standing prior to development of a full factual record. 

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¶¶ 1, 5, 8, 10, 123(b), 127, 130, 150, 202, 206-207, 213-233, 235, 237-238, 241, 243, 245-250, 

252, 254, 255, 259-60.

2. Plaintiffs Have Adequately Pleaded Causation

Federal Defendants argue Plaintiffs have failed to plead causation because, as they claim, 

the FAC relies upon the “simple expedient of aggregating a vaguely-defined category of 

government actions and inactions,” rather than specifically identifying particular government 

projects for challenge. ECF 120-1 at 11. This argument misconstrues Plaintiffs’ FAC, the law 

governing its adequacy, and the November 10 Order. As noted previously, “on a motion to 

dismiss [courts] presume that general allegations embrace those specific facts that are necessary 

to support the claim.” Lujan, 504 U.S. at 561. Plaintiffs’ allegations establish the general 

authority of each Federal Defendant over its own actions, and those of third parties, which 

directly affect the atmospheric concentration of CO2. FAC, ECF at ¶¶ 98- 130, 180-183, 185, 

186-190, 263-276. Under this authority, Federal Defendants have the ability to increase or 

decrease the overwhelming portion of all U.S. CO2 emissions, which historically account for 

approximately one quarter of worldwide human emissions. Id.; see also Federal Defendants’ 

Answer to FAC, ECF 98 at ¶ 151 (admitting U.S.’s share of cumulative global CO2 emissions for 

1850 to 2012 as over twenty-five percent); Declaration of Michael C. MacCracken, ECF 44, ¶¶ 3, 

4, 6, 8. Plaintiffs further generally allege Federal Defendants have acted under this authority to 

authorize, permit, and promote activities that have increased CO2 concentrations to dangerous 

levels. FAC, ECF 7 at ¶¶ 154, 164-179, 181-183, 185, 190, 193. Additionally, Plaintiffs allege 

that, in spite of the known dangers of elevated CO2 concentrations, Federal Defendants have 

failed to use their authority to maintain or restore atmospheric CO2 at safe levels. FAC, ECF 7 at 

¶¶ 1-9, 132-163, 180, 183. Finally, Plaintiffs allege that current and projected levels of CO2 

concentrations result in direct and specific impacts resulting in infringement of their rights. FAC, 

ECF at ¶¶ 16-97, 200-255, 277-310. These allegations are amply sufficient to “embrace those 

specific facts that are necessary to support” their claims. Lujan, 504 U.S. at 561.

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Plaintiffs’ specific facts as to causation have been developed in informal discovery, are 

currently being developed through formal discovery, and will be established in the factual record 

of the case. There is no reason to burden this Court or an appellate court with an unwieldy 

complaint setting forth the multitude of discrete policy decisions and specific actions of Federal 

Defendants that has caused the current climate crises when the pleading standard requires only 

“short and plain statements.” Id.; F.R.C.P. 8. Further, precedent establishes that causation in 

climate change cases is “an issue best left to the rigors of evidentiary proof at a future stage of 

the proceedings, rather than dispensed with as a threshold question of constitutional standing.” 

Conn. v. Am. Elec. Power Co., Inc., 582 F.3d 309, 347 (2d Cir. 2009) rev’d on other grounds, 

Am. Elec. Power Co., Inc. v. Conn., 564 U.S. 410, 429 (2011); see also Bellon, 732 F.3d 1131, 

1144 (disposing of standing in climate change case only after development of factual record). As 

such, interlocutory appeal here would only present the appellate court with a record inadequate 

to resolve the question at issue. Molybdenum Corp. of America, 279 F.2d 216. 

Federal Defendants mischaracterize and misquote a number of inapposite cases to 

support their erroneous contention that Plaintiffs cannot establish causation absent a challenge

limited to specifically identified government actions.

3 In Lewis, the Supreme Court invalidated a 

sweeping lower court order enjoining, on a systemwide basis, specific inadequacies of a 

challenged prison library system that were found after trial to have had no connection to the 

plaintiffs’ injuries. 518 U.S. at 357-60. In DaimlerChrsyler, the Supreme Court similarly held 

that, where the claimants had standing for purposes of their municipal taxes, such an injury did 

																																																						 3

 ECF 120-1 at 11 (quoting Lewis v. Casey, 518, U.S. 343, 358 n. 6 (1996) (“standing is not 

dispensed in gross. If the right to complain of one administrative deficiency automatically 

conferred the right to complain of all administrative deficiencies, any citizen aggrieved in one 

respect could bring the whole structure of state administration before the courts for review”) and 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006) (quoting Lewis, 518 U.S. at 357) 

(“[t]he actual-injury requirement would hardly serve the purpose...of preventing courts from 

undertaking tasks assigned to the political branches[,] if once a plaintiff demonstrated harm from 

one particular inadequacy in government administration, the court were authorized to remedy all 

inadequacies in that administration”)).

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not entitle them to seek a remedy as to their state taxes, for which they lacked standing. 547 U.S. 

at 353. “The remedy must of course be limited to the inadequacy that produced the injury-in-fact 

that the plaintiff has established.” Lewis, 518 U.S. at 344; DaimlerChrysler Corp. v. Cuno, 547 

U.S. 353 (2006). In contrast to both Lewis and DaimlerChrysler, Plaintiffs’ injuries here are 

causally connected to the aggregate actions and omissions of each Federal Defendant with 

respect to climate change. Systemwide relief is appropriate here because, in contrast to Lewis, 

Plaintiffs’ injuries are causally related to systemwide actions and inadequacies. 518 U.S. at 360

(“The constitutional violation has not been shown to be systemwide and granting a remedy 

beyond what was necessary to provide relief to [plaintiffs] was therefore improper.”).

Similarly, Federal Defendants’ reliance on Bellon and Mass. v. EPA lacks any basis. In 

Bellon, the Ninth Circuit found causation lacking only after development of a factual record on 

summary judgment,

4 “because the defendant[s]...were such minor contributors to greenhouse 

gas emissions...that [their] contribution...was ‘scientifically indiscernible.’” WildEarth 

Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1158 (9th Cir. 2015) (quoting and explaining 

Bellon, 732 F.3d at 1144). In contrast, the FAC alleges Federal Defendants are responsible for a 

substantial share of global CO2 emissions – allegations that have not yet been subject to 

evidentiary proof and must be taken as true at this stage. Further, neither Mass. v. EPA nor 

Bellon require that a plaintiff identify particular government projects for challenge in pleadings.

Cf. Brown v. Plata, 563 U.S. 493 (2011) (ordering reduction of inmate populations across entire 

state prison system).

Federal Defendants object that “[t]here is no way to determine from the complaint what 

role particular actions of each Defendant has played or will play in the creation of the alleged 

injuries, as opposed to the role played by parties not before the court.” ECF 1201-1 at 12. 

However, it is plainly not the function of a complaint to establish such “detailed factual matters,” 

but only to present sufficient allegations which, accepted as true, “state a claim to relief that is 

																																																						 4

 See Bellon, 732 F.3d at 1143 n. 6, n. 8 (distinguishing Conn. v. Am Elec. Power Co., 582 

F.3d 309 (2d Cir. 2009) as to causation based on procedural posture).

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plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Likewise,

the argument that Plaintiffs have failed to establish authority under which Federal Defendants 

can provide the requested relief is without merit. The standards under which Plaintiffs’ 

constitutional claims are founded determine the measure of necessary relief, which Federal 

Defendants may effectuate through their existing authority, as alleged in the FAC. ECF 7 at ¶¶ 

98-130, 180-183, 185-190, 263-276. 

Similarly, Federal Defendants’ consistent refrain that the Administrative Procedure Act 

may provide relief for discrete agency actions is of no moment; in fact, they cite no authority to 

suggest that Plaintiffs are foreclosed from bringing constitutional claims merely on the basis on 

the APA’s existence. Furthermore, the objection that the FAC is inadequate because, as Federal 

Defendants argue, the climate crisis hinges on the response of regulated third parties likewise 

misunderstands the FAC, which alleges Federal Defendants are a but-for causal factor of that 

crisis. Were it not for the actions of Federal Defendants in permitting, authorizing, and 

promoting the actions of third parties with respect to fossil fuel development, emissions 

associated with such activities would not occur.

Finally, Federal Defendants also misconstrue Allen to support their argument that a 

constitutional claim must rest upon a challenge to a specifically identified and discrete

government project. In Allen, the Supreme Court found:

The diminished ability of respondents’ children to receive a desegregated 

education would be fairly traceable to unlawful IRS grants of tax exemptions only 

if there were enough racially discriminatory private schools receiving tax 

exemptions in respondents’ communities for withdrawal of those exemptions to 

make an appreciable difference in public school desegregation. 468 U.S. at 758

It was with respect to this conclusion that the Supreme Court pronounced a finding of causation 

would “pave the way generally for suits challenging, not specifically identifiable Government 

violations of law, but the particular programs agencies establish to carry out their legal 

obligations.” Id. at 759. In stark contrast to the circumstances of Allen, Federal Defendants’ 

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responsibility for a major share of global CO2 emissions is surely “enough” such that their 

elimination would “make an appreciable difference” as to the devastating injuries upon which 

Plaintiffs’ claims are founded. See ECF 98 at ¶ 151 (admitting U.S.’s share of cumulative global 

CO2 emissions for 1850 to 2012). As Federal Defendants themselves acknowledge,5 the Allen 

Court clearly recognized “it is not the role of the judiciary” to serve as “continuing monitors of 

the wisdom and soundness of Executive action...absent actual present or immediately 

threatened injury resulting from unlawful government action.” 468 U.S. at 760 (emphasis added). 

Where, as here, government action has directly resulted in infringement of individual 

fundamental rights, causing concrete as opposed to merely abstract injury, it is the duty of the 

courts to entertain jurisdiction irrespective of the scope of the actions challenged and the breadth 

of the necessary relief. Id. Federal Defendants cannot carry their burden to establish substantial 

grounds for disagreement that Plaintiffs have adequately pleaded causation. Here again, Federal 

Defendants’ own admissions in their Answer undermine their position on this issue. See ECF 98 

at ¶¶ 7, 10, 105, 110-112, 114(b), 123(a), 123(b), 125, 130, 147, 150-153, 159, 165-170, 177, 

181-84, 186-89, 191, 193, 202, 205-207, 213, 216, 221, 224, 227, 231, 235, 238.

3. Plaintiffs Have Adequately Pleaded Redressability 

There are no reasonable grounds for disagreement that Plaintiffs have adequately pleaded 

redressability. Federal Defendants again argue the FAC must specifically identify particular 

government projects for challenge. Plaintiffs’ arguments in response, including those based on 

Federal Defendants’ own admissions, are set forth in Section II.A.2 and are not repeated here. 

Federal Defendants also posit that Plaintiffs’ claims lack redressability because, as they 

claim, Plaintiffs have not alleged these Defendant agencies have the statutory authority to take 

the remedial actions sought, and this Court could not compel Congress to enact additional 

statutory authority. Federal Defendants fail to recognize that they cannot employ their authority 

over emissions generating activities, which authority Plaintiffs allege, in a manner that violates 

																																																						 5

 ECF 120-1 at 14, (quoting Allen, 468 U.S. at 760)

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Plaintiffs’ constitutional rights. A court order directing Federal Defendants to prepare a national 

plan that would phase out such emissions and cause Federal Defendants to use their existing

authority, alleged in the FAC, over management of the nation’s forests and energy infrastructure 

to drawdown CO2 concentrations, would implicate none of these concerns. To the extent any 

statute or regulation compels Federal Defendants to take actions that infringe Plaintiffs’ rights, 

such a statute would be unconstitutional as applied.

Federal Defendants contend they have not waived sovereign immunity with respect to 

Plaintiffs’ claims, raising an argument ineligible for interlocutory consideration as it was neither 

argued by any party nor addressed by the November 10 Order. Movsesian, 578 F.3d at 1056 (in 

deciding issues on appeal under Section 1292(b), the Ninth Circuit “will not address issues 

outside the order appealed from, or issues not yet considered by the district court”) (citation 

omitted); Ryes v. BCS Ins. Co., 379 F.App’x 412, 415 (5th Cir. 2010) (declining to address an 

argument on interlocutory review that was not raised before the trial court).

Furthermore, sovereign immunity is inapplicable here for at least two reasons. First, 

sovereign immunity does not apply in a suit against a sovereign trustee by the citizen 

beneficiaries because the judicial branch remains the ultimate guardian of the trust. See Ctr. for 

Biological Diversity v. FPL Grp., 83 Cal.Rptr.3d 588, 602 (Cal. Ct. App. 2008). Second, Section 

702 of the APA is a general waiver of sovereign immunity for suits seeking nonmonetary relief 

against the United States and its agencies, even if the claim does not arise under the APA.

Presbyterian Church v. United States, 870 F.2d 518, 524 (9th Cir. 1989).

Likewise, Federal Defendants’ argument that “no relief could be obtained against the 

President,” ECF 120-1 at 17, is not eligible for interlocutory appeal as it was not previously 

addressed by any party or the November 10 Order. Further, this line of reasoning is substantially 

similar to one flatly rejected by the Ninth Circuit as “contrary to the fundamental structure of our 

constitutional democracy” in Washington v. Trump, in which the current president argued that he 

had “unreviewable authority” with respect to immigration policy “even if those actions 

potentially contravene constitutional rights and protections.” Washington v. Trump, 847 F.3d 

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1151, 1161 (9th Cir. Feb. 9, 2017). Similarly, the argument here is an attempt at

“aggrandizement of one of the three co-equal branches of the Government at the expense of 

another,” a position the separation of powers doctrine is designed to prevent. Clinton v. Jones, 

520 U.S. 681, 699 (1997) (citations omitted). Contrary to Federal Defendants’ alarming 

argument, the judiciary may even “severely burden the Executive Branch by reviewing the 

legality of the President’s official conduct,” Id. at 682, 705 (citing Youngstown Sheet & Tube Co. 

v. Sawyer, 343 U.S. 579 (1952)), and “direct appropriate process to the President himself.” Id. 

(citing U.S. v. Nixon, 418 U.S. 683 (1974). “Insofar as a court orders a President...to act or 

refrain from action, it defines, or determines, or clarifies, the legal scope of an official duty....[I]f 

the order itself is lawful[], it cannot impede, or obstruct, or interfere with the President’s basic 

task – the lawful exercise of his Executive Authority.” Id. at 718 (Breyer, J., concurring). There 

are no grounds for disagreement as to any issue not argued at the motion to dismiss stage or 

addressed in the November 10 Order. 

B. No Substantial Grounds for Disagreement on Plaintiffs’ Due Process Rights

There are no substantial grounds for disagreement as to whether Plaintiffs enjoy a right to 

a climate system capable of sustaining human life. Though this Court may be the first to 

recognize this fundamental right, and though other courts have rejected the existence of 

significantly broader and easily distinguishable rights to a “healthy” or “pollution-free 

environment,” the Ninth Circuit has made clear that “just because a court is the first to rule on a 

particular question or just because counsel contends that one precedent rather than another is 

controlling does not mean there is such substantial difference of opinion as will support an 

interlocutory appeal.” Couch, 611 F.3d at 633 (citation and quotations omitted).

Here, this Court indisputably “exercise[d] the utmost care” in recognizing the right at 

issue by “beginning with a careful description” of the right, Reno v. Flores, 507 U.S. 292, 302 

(1993), as that to a climate system capable of sustaining human life. November 10 Order, ECF 

83 at 32-33. To assert, as Federal Defendants do, ECF 120-1 at 19, that recognition of this 

specific and narrowly cabined right divests the public and legislature of a contentious debate as 

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to whether the baseline conditions on which life depends should be preserved is nonsensical and 

a point to which no reasonable jurist could subscribe.

This Court noted that, when deciding upon previously unrecognized fundamental rights,

the Supreme Court has inquired whether such rights are either “deeply rooted in this Nation’s 

history and tradition” or “fundamental to our scheme of ordered liberty[.]” November 10 Order, 

ECF 83 at 30 (quoting McDonald v. City of Chicago, Ill., 561 U.S. 742, 767 (2010).) To the 

extent there exists any perceived lack of historical support for the right at issue here, the 

thoroughly unprecedented nature of the current climate crisis is surely explanatory. Moreover, as 

the Supreme Court recently stated: “The identification and protection of fundamental rights...has 

not been reduced to any formula.” Obergefell, 135 S. Ct. at 2598. Drawing on tests used by the 

Supreme Court, this Court found a climate system capable of sustaining human life is a 

fundamental right protected by the Constitution, noting all enumerated and previously 

recognized unenumerated rights rest upon its foundation. November 10 Order, ECF 83 at 31-32 

(“Certain rights may be necessary to enable the exercise of other rights....a stable climate system 

is quite literally the foundation of society, without which there would be neither civilization nor 

progress.”) (citations and quotations omitted). No reasonable grounds exist upon which anyone

could disagree that the baseline conditions necessary for preserving life underlie each of our 

Constitutionally protected rights, including the rights to life, liberty, and property, as well as 

others equally touching upon intimate and personal liberty interests. Examples of the latter 

include the choice of whether to bring children into the world, the right to determine one’s diet, 

to practice one’s chosen spirituality, to determine where one lives and travels, and a myriad other 

choices. Recognition of a right to these baseline conditions does not announce a “new” 

fundamental right. A fully developed factual record on appeal allows the appellate court to more 

readily determine whether “new insight reveals discord between the Constitution’s central 

protections and a received legal stricture,” such that “a claim to liberty must be addressed.” 

Obergefell, 135 S.Ct. at 2598. 

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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Similarly, no reasonable grounds exist for debate as to whether Plaintiffs have adequately 

plead a claim under the “danger creation” exception to De Shaney v. Winnebago Cty. Dep’t of 

Soc. Servs., 489 U.S. 189, 196 (1989). As an initial matter, the dubiousness of Federal 

Defendants’ position on this issue is underscored by their admissions of facts highly relevant to 

the elements of this claim. See ECF 98 at ¶¶ 1, 5, 7, 10, 111, 123(b), 127, 130, 134, 139, 147, 

149, 150, 153, 165-70, 183, 184, 193, 202, 206, 207, 210, 211, 213, 216, 217, 228, 238, 241, 243, 

245, 247, 249, 252, 253, 261. Even absent such admissions, at the motion to dismiss stage, this

Court must accept the truth of the as-yet unpresented specific facts embraced by Plaintiffs’ 

general allegations. Lujan, 504 U.S. at 1139. The FAC alleges Federal Defendants played a 

material part in the creation of the climate crisis and continue to exacerbate it despite decades of 

knowledge of the dangers it poses to Plaintiffs. These allegations state a claim under the “danger 

creation” exception. See, e.g. Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997)

(claimant can recover where the government’s “conduct places a person in peril in deliberate 

indifference to their safety”). Further, because the specific facts embraced by the FAC have not 

yet been presented to this Court, this issue is a matter for which the “case has not yet developed 

far enough to permit considered appellate disposition of the questions presented.” 16 WRIGHT 

& MILLER § 3930 (3d. ed. 2012). As to Federal Defendants’ contention that the dangers and 

impacts posed by Federal Defendants’ actions are not “actual, or particularized,” Plaintiffs have 

addressed these arguments in Section II.A.2. Though “a dearth of cases does not give rise to a 

substantial ground for differences of opinion,” Couch, 611 F.3d at 634 (quotations and citations 

omitted), Federal Defendants point to no precedent contrary to recognition of a “danger creation”

claim in the circumstances of this case. See Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 

833, 842 (9th Cir. 2010) (recognizing “a foster child’s liberty interest in social worker 

supervision and protection from harm” and “reasonable safety and minimally adequate care”). 

There are no reasonable grounds for disagreement as to Plaintiffs’ due process rights. 

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C. There are No Substantial Grounds for Disagreement as to the Public Trust 

Federal Defendants contend that substantial grounds for disagreement on Plaintiffs'

public trust claims are present because, as they claim, “reasonable jurists have already reached a 

contrary conclusion” to the November 10 Order. (ECF 120-1 at 22). However, Federal 

Defendants’ argument hinges exclusively on Alec L. ex. rel Loorz v. Jackson, 863 F.Supp.2d 11 

(D.D.C.2012) and its summary affirmance in Alec L. ex. rel Loorz v. McCarthy, 561 F. App’x 7 

(D.C. Cir. 2014). There the D.C. Circuit decided not to publish its unreflective affirmance of the 

district court’s conclusions, citing D.C. Circuit Rule 36(e)(2), which states in relevant part: “[A] 

panel’s decision to issue an unpublished disposition means that the panel sees no precedential 

value in that disposition.” Alec L., 561 F. App’x at 8. Since no court of appeals has spoken to this 

issue with precedential authority, this is not a situation “where the circuits are in dispute on the 

question and the court of appeals of the circuit has not spoken on the point.” Couch, 611 F.3d at 

633. Further, a contrary pronouncement on the issue by a district court in D.C. does not establish 

substantial grounds for differences of opinion. See, e.g., Natural Res. Defense Council v. Cnty. of 

L.A., No. 08-cv-1467-AHM(PLAx), 2011 WL 318543, at *1 (C.D. Cal. Jan. 27, 2011) (“[A] 

single conflicting district court opinion from a different circuit is not sufficient to establish a 

substantial ground for difference of opinion. If it were, interlocutory appeals would likely be 

justified on any number of issues in routine cases, rather than only in exceptional cases”) 

(internal citations omitted).

Moreover, Alec L. lacks sufficiency to create substantial grounds for disagreement 

because that court, in its unreflective and superficial analysis, relied exclusively on dicta from a 

case where the existence of a federal public trust doctrine was not even at issue. 863 F.Supp.2d at 

15 (citing PPL Montana, LLC v. Montana, 565 U.S. 576, 603-04 (2012)). A thorough analysis of 

PPL Montana against the nature, history, and case law governing the public trust doctrine 

establishes the case’s inapplicability to the present dispute. It also confirms that the Alec L. case 

mispronounced the law as to the scope of the public trust doctrine and the public trust doctrine 

applies to all sovereign entities, including Federal Defendants. See Michael C. Blumm & Lynn S. 

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Schafer, The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois 

Central Railroad, 45 ENVTL. L. 399 (2015). As this Court was the first to conduct such a 

reasoned and careful analysis further confirms the insufficiency of the Alec L. case to establish 

substantial grounds for disagreement. See November 10 Order at 36-47. 

Likewise, contrary to Federal Defendants’ claims, the district court’s order in Alec L.

does not establish substantial grounds for differences of opinion as to whether the Clean Air Act 

displaces the federal public trust.6 Here, one district court opinion from another circuit does not

establish such grounds. Further, Alec L. fundamentally erred in its displacement analysis, relying

exclusively upon Am. Elec. Power Co. v. Connecticut to hold that “even if Plaintiffs allege a 

public trust claim that could be construed as sounding in federal common law, the Court finds 

that that cause of action is displaced by the Clean Air Act.” 863 F.Supp.2d at 15-17. However, in 

AEP, the Supreme Court had before it only the question of the displacement of federal common 

law nuisance claims against private parties. 564 U.S. 410 (2011). Additionally, the Supreme 

Court’s pronouncement that the Clean Air Act “displaces any common law right to seek 

abatement of carbon-dioxide emissions” was expressly limited to emissions “from fossil fuel 

fired power plants.” Id. at 2530. Here Plaintiffs’ claims are neither based on a theory of nuisance 

against private parties nor do they seek relief limited to abatement of CO2 emissions from fossil 

fuel fired power plants.7 Crucially, public trust claims are inherently different from nuisance and 

other similar purely common law claims. 

																																																						 6

 The D.C. Circuit did not address displacement. Alec L., 561 F. App’x at 8.

7

 Neither does Federal Defendants’ invocation of Native Vill. of Kivalina v. ExxonMobil Corp. 

establish substantial grounds for differences of opinion, as that case also dealt only with 

displacement of a nuisance action against private parties seeking relief from fossil fuel fired 

power plants. Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 2012 WL 4215921. 

(9th Cir. 2012).

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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The public trust doctrine is an innate attribute of sovereignty, Ill. Cent. R. Co. v. State of 

Ill., 146 U.S. 387, 455 (1892) (public trust resources are held by the government “by virtue of its 

sovereignty”),

8 inherent in the Constitution and “preserved rather than created by it.” Robinson 

Twp., Wash. Cnty., Pa. v. Pennsylvania, 83 A.3d 901, 948 (Pa. Sup. Ct. 2013). Intrinsic to the 

very concept of sovereignty, the obligations the public trust imposes on government and the 

rights it bestows upon present and future generations may not be diminished by legislation. Ill. 

Cent. R. Co., 146 U.S. at 453 (“The state can no more abdicate its trust in property in which the 

whole people are interested...than it can abdicate its police powers in the administration of 

government and the preservation of peace”). Rooted as they are in the Constitution, and arising 

from it, public trust claims are of a fundamentally different character than the common law 

nuisance claims considered in AEP and Kivalina. 

Nor are there substantial grounds for disagreement as to the Court’s treatment of United 

States v. 34.42 Acres of Land – a case that, like PPL Montana, did not even involve, and in 

which the court did not consider, the applicability of the public trust to the federal government. 

United States v. 34.42 Acres of Land, 683 F.3d 1030 (9th Cir. 2012). In that case, the Ninth 

Circuit invoked PPL Montana, and its proclamation that a state’s public trust is a matter of state 

law, to support the proposition that when the federal government condemns state lands, it takes 

title free from the state’s public trust obligations by virtue of the Supremacy clause. Id. at 1038. 

																																																						 8

 That, as Federal Defendants note, the Supreme Court has not yet addressed the applicability 

of the public trust doctrine outside of cases “regarding state management of coastal regions and 

navigable waterways” is of no moment here. ECF 120-1 at 23 n. 2. “[A] dearth of cases does not 

give rise to a substantial ground for differences of opinion,” nor does the fact that a “court is the 

first to rule on a particular question,” or that “counsel contends that one precedent rather than 

another is controlling[.]”Couch, 611 F.3d at 633, 34 (quotations and citations omitted). Further, 

contrary to Federal Defendants’ assertions, this Court’s holding that,“[b]ecause a number of 

plaintiffs’ injuries relate to the effects of ocean acidification and rising ocean temperatures, they 

have adequately pleaded harm to public trust assets,” November 10 Order at 42 (footnote 

omitted), finds direct support in case law. See Foster v. Wash. Dep’t of Ecology, No. 14-2-2595-

1, slip op. at 8 (Wash. King Cnty. Super. Ct. Nov. 19, 2015) (“The navigable waters and the 

atmosphere are intertwined and to argue a separation of the two, or to argue that [greenhouse 

gas] emissions do not affect navigable waters is nonsensical.”).

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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That holding is wholly inapplicable to this case. The applicability of a state’s public trust 

doctrine to the federal government does not speak to the existence of a separate federal public 

trust. Because the public trust doctrine is an attribute of sovereignty, its contours and 

applicability are necessarily a matter of each particular sovereign’s law. Ill. Cent. R. Co., 146 

U.S. at 455. Importantly, prior to the Ninth Circuit’s ruling in 34.42 Acres, the district court had 

ruled the tidelands included in the parcel condemned by the federal government were subject to a 

federal public trust. 34.42 Acres, 683 F.3d at 1033, 1039 n. 2. This ruling was not overturned on 

appeal. Id. Federal Defendants have presented no authority establishing substantial grounds for 

differences of opinion on this Court’s determinations relevant to Plaintiffs’ public trust claims.

Again, Federal Defendants’ admissions in their Answer undermine their contention that 

substantial grounds exist here. ECF 98 at ¶¶ 1, 5, 7, 8, 10, 105, 110, 111, 112, 119, 123(a), 

123(b), 125, 127, 130, 150, 153, 165, 166, 167-170, 181-184, 193, 202, 205-208, 210, 211, 213, 

216, 228, 231-233, 235, 237, 241, 243, 245, 247-250, 269, 260.

III. Appeal Would Not Materially Advance Ultimate Termination of the 

Litigation 

This delayed effort to appeal the November 10 Order would not materially advance 

ultimate termination of this litigation, but instead result in further protraction and delay, contrary 

to the letter and spirit of Section 1292(b). “The requirement that an appeal may materially 

advance the ultimate termination of the litigation is closely tied to the requirement that the order 

involve a controlling question of law.” 16 WRIGHT & MILLER § 3930 (3d. ed. 2012) (footnote 

omitted). As explained above, no issue offered by Federal Defendants presents a controlling 

question of law. First, each issue requires presentation of evidence in order to present a court of 

appeals with a record adequate “to permit considered appellate disposition of the questions 

presented.” 16 WRIGHT & MILLER § 3930 (3d. ed. 2012). Further, with respect to standing, 

even if this Court’s determination of the adequacy of Plaintiffs’ allegations were reversed, 

“[r]ulings on the sufficiency of a pleading generally are unsuitable for interlocutory appeal” 

because of the “ready availability of amendment.” 16 WRIGHT & MILLER § 3930, n. 21 (3d. 

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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ed. 2012); see also Nutrishare, Inc. v. Conn. Gen. Life Ins. Co., No. 2:13-cv-02378-JAM-AC 

(E.D. Cal. June 11, 2014) (denying motion for certification for interlocutory appeal as to 

standing pleadings; discovery might establish standing, making certification inappropriate).

Additionally, even if this Court’s determinations as to the public trust doctrine and the 

fundamental right to a climate system capable of sustaining human life were reversed on 

interlocutory appeal, Plaintiffs’ remaining claims seek similar relief and involve and require 

overlapping factual development through discovery, argument, and presentation of evidence at 

trial. 16 WRIGHT & MILLER § 3930 (3d. ed. 2012) (“Immediate appeal may be found 

inappropriate...if the character of the trial is not likely to be affected.”) (footnote omitted) 

Accordingly, interlocutory appeal would not “appreciably shorten the time, effort, or expense” 

of conducting this litigation, In re Cement Antitrust Litigation, 673 F.2d at 1027 (emphasis added 

and citation omitted), but rather only lengthen and protract the proceedings through disfavored 

piecemeal appeal. Clearly, the urgency of the climate crisis upon which Plaintiffs’ claims rest 

counsels this Court to exercise its unfettered discretion to deny certification. 16 WRIGHT & 

MILLER § 3930 (3d. ed. 2012) (“Delay may be a particularly strong ground for denying appeal 

if...there are special reasons for pressing on with discovery or trial.”); Struthers Scientific & 

Intern. Corp. v. General Foods Corp., 290 F. Supp. 122 (S.D. Tex. 1968) (Appeal would more 

likely delay rather than advance termination of the litigation and “[t]he parties would be better 

advised to expend their energies completing discovery rather than taking appeals”).

Moreover, even in the face of the increasing urgency of the climate emergency, the new 

executive administration has, in the first two months of office, taken and proposed actions which 

profoundly exacerbate the dangers and impacts Plaintiffs face9 and appointed climate science 

																																																						 9

 See Exec. Order ___, 82 Fed. Reg. ___ (March 28, 2017) (directing rollback of Clean Power 

Plan, rescinding moratorium on coal mining on federal lands, and rescinding six Obama 

administration executive orders aimed at curbing climate change and regulating emissions, 

including inclusion of climate change impacts in environmental reviews ); Exec. Order 13766, 

82 Fed. Reg. 8657 (Jan. 24, 2017) (expediting environmental reviews and approvals for 

infrastructure projects”); Exec. Order 13778 82 Fed. Reg. 12497 (Feb. 28, 2017) (ordering a 

review of the “Waters of the United States” Rule); Presidential Memorandum Regarding 

Case 6:15-cv-01517-AA Document 133 Filed 04/03/17 Page 34 of 38
Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

Interlocutory Appeal

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deniers to high ranking office.10 In light of these actions, if presented with further delay in 

resolution of their claims by interlocutory appeal, Plaintiffs will be forced to seek preliminary 

relief in this case. While such equitable relief would afford Plaintiffs reprieve from additional 

aggregate federal actions violating their rights, it would also delay the ultimate termination of 

this case and further protract these proceedings, which this Court has sought to avoid.

Federal Defendants’ fundamentally mischaracterize the nature of their obligations under 

Plaintiffs’ January 24, 2017 Litigation Hold Demand Letter as unduly onerous. Pursuant to the 

January 24 Letter, Plaintiffs simply informed Federal Defendants of their legal obligation to 

refrain from destroying documents relevant to Plaintiffs’ claims. These obligations do not require 

Federal Defendants to take any affirmative action to produce any documents, but merely to 

refrain from their destruction. See Declaration of Julia A. Olson in Support of Plaintiffs’ 

Response to Federal Defendants’ Motion to Certify Order for Interlocutory Appeal. Likewise, 

Federal Defendants’ objections to Plaintiffs’ propoundment of discovery are without merit. 

Given the stage of this case, propounding such discovery is wholly appropriate and Federal 

Defendants’ remedy is a discovery motion before Judge Coffin. Plaintiffs’ discovery efforts are 

aimed at prompt resolution of their claims in keeping with the urgent circumstances of this case. 

																																																																																																																																																																														

Construction of the Dakota Access Pipeline (Jan. 24, 2017), available at 

https://www.whitehouse.gov/the-press-office/2017/01/24/presidential-memorandum-regardingconstruction-dakota-access-pipeline (encouraging approval of Dakota Access Pipeline); 

Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (Jan. 24, 2017), 

available at https://www.whitehouse.gov/the-press-office/2017/01/24/presidential-memorandumregarding-construction-keystone-xl-pipeline; Media Note: Issuance of Presidential Permit to 

TransCanada for Keystone XL Pipeline (March 24, 2017), available at 

https://www.state.gov/r/pa/prs/ps/2017/03/269074.htm; Reuters, “President Trump Prepares to 

Withdraw from Groundbreaking Climate Change Agreement, Transition Official Says” (Jan. 20, 

2017) (Detailing possible withdrawal from Paris Climate Agreement)

10 Coral Davenport, “E.P.A. Head Stacks Agency With Climate Change Skeptics,” N.Y. 

Times (March 7, 2017) available at https://www.nytimes.com/2017/03/07/us/politics/scott-pruittenvironmental-protection-agency.html; Chris Mooney and Brady Dennis, “On Climate Change, 

Scott Pruitt Causes an Uproar – and contradicts the EPA’s Own Website,” Wash. Post (March 9, 

2017) available at https://www.washingtonpost.com/news/energyenvironment/wp/2017/03/09/on-climate-change-scott-pruitt-contradicts-the-epas-ownwebsite/?utm_term=.b164bb28f26e.

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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Furthermore, Federal Defendants’ repetition of their preference to litigate under the APA is 

undeserving of further consideration as the limitation of review to an administrative record for 

claims brought thereunder has no applicability to this case.

With respect to the extent that this case may present discovery issues, many courts “cast 

doubt on the suitability of hardship as a basis for appeal.” 16 WRIGHT & MILLER § 3930 (3d. 

ed. 2012); Id. at n. 51. However, if this Court were to consider hardship in determining whether 

to grant certification, the potentially irreversible impacts of the climate crisis which are befalling 

Plaintiffs increase with every delay in resolution of this case and surely outweigh any relatively 

modest and necessarily temporary hardship to Federal Defendants in collecting and producing 

documents, answering requests for admissions and interrogatories, and attending depositions.

Further, Federal Defendants’ four-month delay in seeking certification counsels strongly 

in favor of denial. See, e.g., Richardson Elecs., Ltd. V. Panache Broad. Of Pa., Inc., 202 F.3d 

957, 958-59 (7th Cir. 2000) (“district judge should not grant an inexcusable dilatory request” for 

certification) (citation omitted); Scanlon v. M.V. Super Servant 3, 429 F.3d 6, 8 (1st Cir. 2005)

(motion filed four months after order); Hypotherm, Inc. v. Am. Torch Tip Co., No 05-373, 2008 

WL 1767062, at *1 (D.N.H. Apr. 15, 2008) (motion filed five months after order).

Notwithstanding the impropriety of interlocutory appeal in this case and Federal 

Defendants’ inflated characterizations of their discovery burdens, Plaintiffs have been and 

remain receptive to Federal Defendants’ concerns regarding discovery. As reflected in the 

monthly status conferences and in keeping with the urgency of the dangers faced by Plaintiffs, 

counsel are constantly working with counsel for Federal Defendants and this Court to narrowly 

tailor discovery and identify the key documents and factual matters necessary to bring this case 

to a prompt, thorough, and successful resolution.

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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CONCLUSION 

This Court should exercise its unfettered discretion to refuse Defendants’ request to 

short-circuit the appeals process at the expense of Plaintiffs’ constitutional rights. For all of the 

foregoing reasons, Plaintiffs respectfully request this Court exercise its unfettered discretion to 

deny Federal Defendants’ Motion in its entirety.

DATED this 3rd day of April, 2017, at Eugene, Oregon.

Respectfully submitted,

/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

COTCHET, PITRE & McCARTHY, LLP

San Francisco Airport Office Center

840 Malcolm Road

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

2495 Hilyard Street, Suite A

Eugene, OR 97405

Tel: (541) 968-7164

Attorneys for Plaintiffs

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Plaintiffs’ Response in Opposition to Federal Defendants’ Motion to Certify Order for 

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CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that the Supporting Memorandum complies with the 

applicable word-count limitation under LR 7-2(b) because it contains 29 pages and 10,362 words, 

including headings, footnotes, and quotations, but excluding the caption, table of contents, table 

of cases and authorities, signature block, exhibits, and any certificates of counsel.

/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

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