Case No. 17-__________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

In re: UNITED STATES OF AMERICA. 

UNITED STATES OF AMERICA, et al. 

Petitioners, 

v. 

UNITED STATES DISTRICT COURT FOR 

THE DISTRICT OF OREGON 

Respondent, 

and 

KELSEY CASCADIA ROSE JULIANA, et al., 

Real Parties in Interest. 

On Petition For A Writ Of Mandamus In 

Case No. 6:15-cv-01517-TC-AA (D. Or.) 

PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES 

DISTRICT COURT FOR THE DISTRICT OF OREGON AND REQUEST 

FOR STAY OF PROCEEDINGS IN DISTRICT COURT 

 

 JEFFREY H. WOOD 

Acting Assistant Attorney General 

 

ERIC GRANT 

Deputy Assistant Attorney General 

 

 ANDREW C. MERGEN 

DAVID C. SHILTON 

 Appellate Section 

 Environment & Natural Res. Div. 

 U.S. Department of Justice 

 P.O. Box 7415 

 Washington, DC 20044 

 (202) 514-5580 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 1 of 53
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TABLE OF CONTENTS 

 PAGE 

INTRODUCTION AND RELIEF SOUGHT .................................................................. 1 

STATEMENT OF JURISDICTION ................................................................................... 3 

STATEMENT OF THE ISSUE ............................................................................................ 3 

STATEMENT OF RELEVANT FACTS ............................................................................ 3 

STANDARD OF REVIEW ................................................................................................... 8 

REASON FOR GRANTING THE WRIT ....................................................................... 10 

I. The district court’s order denying the motion to dismiss is based on 

clear error .......................................................................................................... 10 

A. The district court clearly erred by finding that plaintiffs adequately 

alleged standing based on vague and attenuated allegations of 

injury, causation and redressability .................................................... 11 

1. Plaintiffs did not allege a cognizable injury that is 

particularized and concrete ..................................................... 13 

2. Plaintiffs failed to adequately allege causation ..................... 15 

3. Plaintiffs failed to adequately allege redressability ............... 19 

B. The district court clearly erred by allowing plaintiffs to proceed 

on their claim of a fundamental right under the due process 

clause ...................................................................................................... 21 

1. There is no basis in law for a due process right to a 

particular climate system ......................................................... 22 

2. Plaintiffs failed to identify any cause of action for their 

claims .......................................................................................... 26 

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C. The district court clearly erred in holding that plaintiffs stated on 

actionable “public trust” claim against the federal government ... 28 

II. Mandamus is warranted to confine the district court to the lawful 

exercise of its jurisdiction ............................................................................... 31 

III. Defendants have no other means of obtaining immediate review needed 

to avoid a serious intrusion on the separation of powers, and without 

action by this court the defendants will be prejudiced in a way not 

correctable on appeal ....................................................................................... 32 

IV. The order raises new and important problems and issues of first 

impression ......................................................................................................... 37 

V. A stay of proceedings is warranted ............................................................... 38 

CONCLUSION ...................................................................................................................... 40 

STATEMENT OF RELATED CASES 

CERTIFICATE REGARDING COMPLIANCE 

CERTIFICATE OF SERVICE 

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TABLE OF AUTHORITIES 

CASES: 

Alec L. v. Jackson, 

 863 F. Supp. 2d 11 (D.D.C. 2012), aff’d, Alec L. ex rel. Loorz v. McCarthy, 

 561 Fed. App’x (Mem.) (D.C. Cir. 2014), cert. denied, 135 S. Ct. 774 

 (2014) ....................................................................................................................... 28-30 

Allen v. Wright, 

 468 U.S. 737 (1984), abrogated in non-relevant part by Lexmark Int’l, Inc. v. Static 

 Control Components, Inc., 134 S. Ct. 1377 (2014) .............................. 11, 12, 15, 16, 19 

American Electric Power Company v. Connecticut, 

 564 U.S. 410 (2011) ..................................................................................................... 29 

Bauman v. U.S. District Court, 

 557 F.2d 650 (9th Cir. 1977) ..................................................................... 2, 4, 8, 9, 38 

Bell Atlantic Corp. v. Twombly, 

 550 U.S. 544 (2007) ..................................................................................................... 22 

Bush v. Lucas, 

 462 U.S. 367 (1983) ..................................................................................................... 27 

Carlson v. Green, 

 446 U.S. 14 (1980) ....................................................................................................... 26 

Cheney v. U.S. Dist. Ct., 

 542 U.S. 367 (2004) .................................................................................... 9, 10, 34, 35 

Christensen v. U.S. District Court for Central District of California, 

 844 F.2d 694 (9th Cir. 1988) ........................................................................................ 9 

Clapper v. Amnesty Int’l USA, 

 133 S. Ct. 1138 (2013) ................................................................................................. 12 

Clinton v. Jones, 

 520 U.S. 681 (1997) ..................................................................................................... 21 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 4 of 53
 v 

Collin s v. Harker Heights, 

503 U.S. 115 (1992) ..................................................................................................... 24 

Consol. Gas Supply Corp. v. Fed. Energy Regulatory Comm’n, 

 611 F.2d 951 (4th Cir. 1979) ........................................................................................ 4 

Credit Suisse v. United States District Court for the Central District of California, 

 130 F.3d 1342 (9th Cir. 1997) ............................................................................. 32, 33 

Cty. of Sacramento v. Lewis, 

 523 U.S. 833 (1998) ..................................................................................................... 26 

Davis v. Passman, 

 442 U.S. 228 (1979) .............................................................................................. 26, 27 

Ex Parte Peru, 

 318 U.S. 578 (1943) ..................................................................................................... 10 

Flast v. Cohen, 

 392 U.S. 83 (1968) ....................................................................................................... 13 

Franklin v. Massachusetts, 

 505 U.S. 788 (1992) ..................................................................................................... 21 

Gasper v. La. Stadium & Exposition Dist., 

 418 F. Supp. 716 (E.D. La. 1976), aff’d, 577 F.2d 897 (5th Cir. 1978) ................ 23 

Hilton v. Braunskill, 

 481 U.S. 770 (1987) ..................................................................................................... 38 

In re Cement Antitrust Litig., 

 688 F.2d 1297 (9th Cir. 1982) ............................................................................... 9, 31 

In re Cheney, 

 406 F.3d 723 (D.C. Cir. 2005) ................................................................................... 35 

LaBuy v. Howes Leather Co., 

 352 U.S. 249 (1957) ................................................................................................ 9, 31 

Laird v. Tatum, 

 408 U.S. 1 (1972).......................................................................................................... 13

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 5 of 53
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Leiva-Perez v. Holder, 

 640 F.3d 962 (9th Cir. 2011) ...................................................................................... 38 

Lewis v. Casey, 

 518 U.S. 343 (1996) .............................................................................................. 17, 19 

Lombardi v. Whitman, 

 485 F.3d 73 (2d Cir. 2007) .......................................................................................... 26 

Lujan v. Nat’l Wildlife Fed’n, 

 497 U.S. 871 (1990) ..................................................................................................... 27 

Lujan v. Defenders of Wildlife, 

 504 U.S. 555 (1992) ......................................................................................... 13, 16-19 

Massachusetts v. EPA, 

 549 U.S. 497 (2007) ................................................................................. 14, 15, 19, 28 

Medhekar v. U.S. Dist. Court for the N. Dist. of California, 

 99 F.3d 325 (9th Cir. 1996) ........................................................................................ 33 

Michael H. v. Gerald D., 

 491 U.S. 110 (1989) ..................................................................................................... 23 

Mississippi v. Johnson, 

 71 U.S. (4 Wall.) 475 (1867) ....................................................................................... 20 

Nat’l Sea Clammers Ass’n v. City of New York, 

 616 F.2d 1222 (3d. Cir. 1980), dismissed and vacated in part on other grounds 

 sub nom. by Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 

 453 U.S. 1 (1981)................................................................................................... 23, 24 

Newdow v. Bush, 

 355 F. Supp. 2d 265 (D.D.C. 2005) .......................................................................... 21 

Nken v. Holder, 

 556 U.S. 418 (2009) ..................................................................................................... 38 

Norton v. S. Utah Wilderness All., 

 542 U.S. 55 (2004) ....................................................................................................... 27 

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Obergefell v. Hodges, 

 135 S. Ct. 2584 (2015) .......................................................................................... 24, 25 

Penilla v. City of Huntington Park, 

 115 F.3d 707 (9th Cir. 1997) ...................................................................................... 25 

Perry v. Schwarzenegger, 

 591 F.3d 1147 (9th Cir. 2009) ............................................................................... 9, 32 

Philipps Petroleum Co. v. Mississippi, 

 484 U.S. 469 (1988) ..................................................................................................... 30 

Pinkney v. Ohio Envtl. Prot. Agency, 

 375 F. Supp. 305 (N.D. Ohio 1974) ......................................................................... 23 

PPL Mont., LLC v. Montana, 

 565 U.S. 576 (2012) .............................................................................................. 29, 30 

Raich v. Gonzales, 

 500 F.3d 850 (9th Cir. 2007) ...................................................................................... 24 

Raines v. Byrd, 

 521 U.S. 811 (1997) .............................................................................................. 13, 15 

Reno v. Flores, 

 507 U.S. 292 (1993) ..................................................................................................... 24 

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

 No. C, 07-04936 CRB, 2008 WL 859985 (N.D. Cal. Mar. 28, 2008) .................. 23 

Schlesinger v. Reservists Comm. to Stop the War, 

 418 U.S. 208 (1974) ..................................................................................................... 13 

Spokeo, Inc. v. Robins, 

 136 S. Ct. 1540 (2016) ................................................................................................. 14 

United States v. 32.42 Acres of Land, 

 683 F.3d 1030 (9th Cir. 2012) .................................................................................... 29 

United States v. Nixon, 

 418 U.S. 683 (1974) ..................................................................................................... 35 

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Washington v. Glucksberg, 

 521 U.S. 702 (1997) .............................................................................................. 23, 24 

Washington Environmental Council v. Bellon, 

 732 F.3d 1131 (9th Cir. 2013) ............................................................................. 15, 18 

Wood v. Ostrander, 

 879 F.2d 583 (9th Cir. 1989) ...................................................................................... 25 

U.S. CONSTITUTION: 

Article III ............................................................................................. 5, 11, 12, 14, 17, 18, 21 

Article II, § 3 ..................................................................................................................... 31, 39 

STATUTES: 

Energy Policy Act: 

 15 U.S.C. § 717r(b) ........................................................................................................ 4

28 U.S.C. § 1292(b) ........................................................................................................ 1, 7, 32 

28 U.S.C. § 1331 ...................................................................................................................... 28 

28 U.S.C. § 1651 .................................................................................................................... 2, 3 

RULES: 

Fed. R. App. P. 8(a)(1) ............................................................................................................ 38 

Fed. R. App. P. 12(b)(6) ......................................................................................................... 21 

Fed. R. App. P. 21 .............................................................................................................. 3, 38 

Fed. R. App. P. 30(b)(6) ........................................................................................................... 7 

OTHER AUTHORITIES: 

Minors Oposa, 33 I.L.M (Phillipines)................................................................................... 24 

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MISCELLEANOUS: 

Richard J. Lazarus, Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: 

 Can Two Wrongs Make It Right?, 45 ENVTL. L. 1139 (2015) .................................... 31

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INTRODUCTION AND RELIEF SOUGHT 

 In this case, the United States District Court for the District of Oregon has 

declared that the Due Process Clause guarantees American citizens an “unenumerated 

fundamental right” to “a climate system capable of sustaining human life.” Dkt. 83 in 

No. 6:15-cv-01517 (D. Or.) at 31-32 (Attach. 1). The court has determined that this 

amorphous and sweeping right is judicially enforceable, permitting the court to dictate 

and manage—indefinitely—all federal policy decisions related to fossil fuels, energy 

production, alternative energy sources, public lands, and air quality standards. To say 

the least, and by the district court’s own admission, this ruling is “unprecedented.” Id. 

at 52. 

 The defendants—the United States, the President, and twenty other Executive 

Branch Departments, agencies, offices, Cabinet Secretaries, Directors and Officers— 

have in both the prior and the current Administrations endeavored to bring to an end 

this improper case. Defendants moved on November 11, 2015, for the court to 

dismiss the case (Dkt. 17), and on March 7, 2017, to certify an interlocutory appeal 

pursuant to 28 U.S.C. §1292(b) from the district court’s order denying the motion to 

dismiss (Dkt. 120). Defendants also moved for a stay of proceedings. Dkt. 121. 

Despite requests for expedition, the district court did not finally rule on the motion to 

certify an appeal until June 8, 2017, when it adopted the magistrate judge’s 

recommendation to deny certification, and denied the requested stay. Dkt. 172 

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(Attach. 2). In the meantime, it has permitted the start of an unbounded discovery 

process, including requests relating to sensitive internal workings of the Office of the 

President reaching as far back as the Administration of President Lyndon Johnson. 

See infra at 6-7, 32-37. 

 The governing criteria for mandamus relief articulated in Bauman v. U.S. District 

Court, 557 F.2d 650 (9th Cir. 1977), are easily satisfied here. The district court has 

committed multiple and clear errors of law in refusing to dismiss an action that seeks 

wholesale changes in federal government policy based on utterly unprecedented legal 

theories. Immediate review is needed to prevent the district court from the unlawful 

exercise of its jurisdiction and to avoid the staggering burden imposed on the federal 

government by the ongoing discovery directed at the entire course of federal decisionmaking relating to the broad issues raised by these unprecedented claims. No other 

means are available to obtain the relief the government seeks since the district court 

refused to certify for interlocutory appeal its order denying the motions to dismiss. 

Defendants respectfully request this Court to issue the writ and direct the district 

court to dismiss the case. They also request that the Court exercise its authority under 

the All Writs Act to stay proceedings in the district court until the merits of this 

petition for mandamus are resolved. 

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STATEMENT OF JURISDICTION 

 This Court has authority to issue a writ of mandamus pursuant to 28 U.S.C. 

§ 1651 and Rule 21 of the Federal Rules of Appellate Procedure. 

STATEMENT OF THE ISSUE 

 Whether the district court committed clear legal error and exceeded its judicial 

authority by refusing to dismiss this action against the President and multiple federal 

agencies that seeks to fundamentally redirect federal policy regarding energy 

development, transportation and consumption in order to bring about dramatic 

reductions in global concentrations of carbon dioxide (CO2). 

STATEMENT OF RELEVANT FACTS 

 Twenty-one minors and an organization called Earth Guardians filed this 

action on August 12, 2015, naming the President, the Executive Office of the 

President, and numerous cabinet-level Executive agencies. An Amended Complaint 

was filed on September 10, 2015. Dkt. 7 (Attach. 3). The Amended Complaint 

alleges that the defendants have allowed cumulative CO2 emissions to increase, ¶151, 

by enabling and permitting fossil fuel production and combustion, ¶¶164-70, 185-91, 

by subsidizing the fossil fuel industry, ¶¶171-78, and by allowing interstate and 

international transport of fossil fuels, ¶¶179-84. With one exception, plaintiffs do not 

identify or challenge specific agency actions, such as agency orders, permits, or 

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rulemakings, or the failure to undertake any specific required actions.1

 Instead, they 

challenge what they term the federal government’s “aggregate actions,” ¶129, which 

they assert have caused “climate instability” that injures their prospects for long and 

healthy lives. ¶288. Plaintiffs allege that the aggregate actions by the defendants 

violate their rights under the Due Process Clause and the equal protection component 

of the Fifth Amendment, their rights reserved by the Ninth Amendment, and the 

public trust doctrine. ¶¶277-310. 

 For relief, plaintiffs ask the court to declare their rights under the Constitution 

to a certain kind or quality of “climate system” and to enjoin the Executive Branch to 

“prepare a consumption-based inventory of U.S. CO2 emissions” and to “prepare and 

implement an enforceable national remedial plan to phase out fossil fuel emissions 

and draw down excess atmospheric CO2.” Dkt. 7 at 94. They ask the court to retain 

jurisdiction for an indefinite period of time to monitor the government’s compliance 

with this “national remedial plan.” Id. 

 

1

 The exception is a challenge to the Department of Energy’s (DOE) 2011 

authorization, pursuant to Section 201 of the Energy Policy Act, of the export of 

liquefied natural gas (LNG) from the Jordan Cove, Oregon, LNG Terminal. Dkt. 7 at 

¶193. Plaintiffs ask that Section 201 be declared unconstitutional as a violation of 

plaintiffs’ “fundamental rights to life, liberty, and property,” and that the DOE Order 

be set aside. Id. at ¶288 and p. 94. This claim is indisputably beyond the district 

court’s jurisdiction because exclusive jurisdiction to review export authorizations like 

this one is vested in the courts of appeals. 15 U.S.C. § 717r(b); Consol. Gas Supply Corp. 

v. FERC, 611 F.2d 951, 957 (4th Cir. 1979). 

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 On November 17, 2015, defendants moved to dismiss the complaint for lack 

of jurisdiction due to a failure to establish Article III standing and for failure to state a 

claim under the Fifth Amendment, the Ninth Amendment, and the public trust 

doctrine. Dkt. 27. On April 8, 2016, the magistrate judge assigned to the case issued 

findings and a recommendation that the court deny defendants’ motion to dismiss, as 

well as a motion to dismiss on political question grounds filed by intervenordefendants. Dkt. 68 (Attach. 4).2

 Defendants and intervenors filed objections to the 

magistrate’s findings and recommendation. Dkt. 73, 74. On November 10, 2016, the 

district court issued an opinion and order adopting the magistrate’s findings and 

recommendations and denying the motions to dismiss. Dkt. 83 (Attach. 1). The 

district court found that plaintiffs had adequately alleged the injury-in-fact, causation, 

and redressability elements of standing, id. at 18-28; had not raised non-justiciable 

political questions, id. at 6-17; and had asserted cognizable claims under the Due 

Process Clause and the public trust doctrine, id. at 28-51. With respect to plaintiffs’ 

due process claims, the district court held that the Federal Government’s aggregate 

actions on climate change are subject to “strict scrutiny,” id. at 29, because plaintiffs 

have adequately alleged the violation of “an unenumerated fundamental right” to “a 

climate system capable of sustaining human life,” id. at 31-32. With respect to 

 

2 The intervenors have subsequently moved to withdraw from the case. Dkt. 163, 

166, 167.

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plaintiffs’ “public trust” claim, the district court held that, as a matter of “substantive 

due process,” id. at 51, plaintiffs have a cause of action under the Constitution to 

assert claims that the Federal Government has violated “duties as trustee[] by failing 

to protect the atmosphere, water, seas, seashores, and wildlife,” id. at 40. 

 Defendants filed an Answer on January 13, 2017. Dkt. 98. On January 24, 

2017, plaintiffs sent a Notice of Litigation Hold and Request for Preservation 

demanding that defendants preserve, among other things: 

All Documents related to climate change since the Federal Defendants * * * 

became aware of the possible existence of climate change; 

All Documents related to national energy policies or systems, including fossil 

fuels and alternative energy sources and transportation; 

All Documents related to federal public lands, navigable waters, territorial 

waters, navigable air space or atmosphere; [and] 

All Documents related to greenhouse gas emissions or carbon sequestration as 

those terms apply to agriculture, forestry, or oceans. 

Dkt. 121-1 at 5-7. 

 Consistent with their extraordinarily broad conception of the scope of this 

case, plaintiffs served Requests for Admissions on the Executive Office of the 

President and on EPA on January 20, 2017, Dkt. 151-1; filed broad Requests for 

Production of Documents on all defendants in February and March 2017, Dkt. 151-2, 

151-3, 151-4, 151-5, 151-6, 151-7, 151-8; and have announced their intention to 

depose, inter alios: 

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 Rex Tillerson, Secretary of State 

 Scott Pruitt, Administrator, EPA 

 Rick Perry, Secretary of Energy 

 Ryan Zinke, Secretary of Interior 

 Rule 30(b)(6) witness for Executive Office of the President 

Dkt. 151-9. 

 On March 7, 2017, defendants moved the district court to certify its Opinion 

and Order of November 10, 2016, for interlocutory appeal pursuant to 28 U.S.C. 

§1292(b). Dkt. 120. The motion identified controlling questions of law pertaining to 

plaintiffs’ lack of standing and to their failure to state cognizable claims under the 

Constitution or the public trust doctrine. Defendants also moved to stay the litigation 

pending consideration of the issues raised by the request under 28 U.S.C. §1292(b). 

Dkt. 121. 

 As time passed and discovery deadlines approached, defendants sought 

expedited rulings on these motions. Dkt. 120 at 2. The district court, however, 

referred the stay motion to the magistrate judge. The magistrate judge then granted 

(over defendants’ objections) plaintiffs’ requests for additional time to respond to the 

motions. Dkt. 127. The magistrate judge denied the stay motion and recommended 

denying the §1292(b) motion on May 1, 2017. Dkt. 146 (Attach. 5). Defendants filed 

objections with the district court on May 5, 2017 and on May 9, 2017, respectively, 

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again requesting expedited rulings since the court had refused to extend pending 

discovery deadlines while the motions were being considered. Dkt. 149, 151. On 

May 31, 2017, the Executive Office of the President was forced to respond to the 

above-discussed Requests for Admissions. All defendants will be forced to respond 

in the coming weeks to document requests that seek material dating back over at least 

five decades. 

 On June 6, 2017, defendants filed a Notice Regarding Pending Motions 

reminding the district court of the urgent need for resolution of the defendants’ 

requests for interlocutory appeal and for a stay. Dkt. 171. On June 8, 2017, the 

district court issued an order adopting the magistrate judge’s findings and 

recommendations, denying the motions to certify for interlocutory appeal, and 

denying the requested stay. Dkt. 172.3

 

STANDARD OF REVIEW 

The Court considers a petition for a writ of mandamus by applying the five 

factors identified in Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 1977): 

(1) whether the petitioner has no other means, such as direct appeal, to 

obtain the desired relief; 

 

3 The district court declined to dismiss defendants’ motion to certify as untimely. 

Dkt. 172 at 3, n.2. The November 9, 2017, decision denying the motions to dismiss 

was issued immediately following the election resulting in a new Administration. 

That, along with the necessarily complex process for approving an appeal by the 

government, explains why the motion to certify was not filed until March 7, 2017. 

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(2) whether the petitioner will be damaged or prejudiced in any way not 

correctable on appeal; 

(3) whether the district court’s order is clearly erroneous as a matter of 

law; 

(4) whether the district court’s order is an oft repeated error or manifests 

a persistent disregard of the federal rules; and 

(5) whether the district court’s order raises new and important problems 

or issues of first impression. 

Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2009) (citing Bauman, 557 F.2d at 

654-55).4

 Not every factor is relevant in every case, and the writ may issue even if 

some of the factors point in different directions. Christensen v. U.S. District Court, 844 

F.2d 694, 697 (9th Cir. 1988). This Court has identified the key factor as whether it is 

“firmly convinced that [the] district court erred” in issuing the challenged order. Id.

(quotes, citation omitted). 

This Court may also grant mandamus as an exercise its supervisory authority 

over a district court, to ensure that the judicial system operates in an orderly, efficient 

manner. See In re Cement Antitrust Litig., 688 F.2d 1297, 1307 (9th Cir. 1982); see also 

LaBuy v. Howes Leather Co., 352 U.S. 249 (1957). Mandamus may also be appropriate 

 

4

 The three factors the Supreme Court has established for mandamus relief — 

(1) the party seeking relief has no other adequate means of relief; (2) the right to relief 

is clear and undisputable; and (3) issuing the writ is appropriate in the circumstances 

— overlap substantially with the Bauman factors and are also satisfied for the reasons 

discussed. See Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004) (Cheney). 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 18 of 53
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“to restrain a lower court when its actions would threaten the separation of powers by 

‘embarrass[ing] the executive arm of the Government * * *.’” Cheney, 542 U.S. at 381, 

quoting Ex parte Peru, 318 U.S. 578, 588 (1943). 

REASONS FOR GRANTING THE WRIT 

I. The district court’s order is based on clear error. 

In its order denying the motions to dismiss, the district court rendered 

unprecedented and clearly erroneous rulings. It found that plaintiffs had adequately 

alleged standing based on alleged injuries that are widely shared by every member of 

society, cannot plausibly be traced to particular actions of the federal government, and 

cannot be redressed by an order within the authority of a federal court. It accepted 

plaintiffs’ novel and unprecedented interpretation of the scope of the Due Process 

Clause as providing an “unenumerated fundamental right” to a global atmosphere 

capable of sustaining human life with CO2 concentrations that the district court 

determines are necessary to protect plaintiffs from asserted injury. It improperly 

found that plaintiffs could proceed on a theory that the President and federal agencies 

had violated the “public trust” doctrine, even though the Supreme Court has found 

that such doctrine is purely a creature of state law and even though the Court of 

Appeals for the District of Columbia Circuit has affirmed the dismissal of nearlyidentical claims by some of these same plaintiffs. 

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These rulings constitute clear and profound error warranting a writ of 

mandamus directing that the case be dismissed. They also demonstrate a remarkable 

disregard for essential separation-of-powers limitations on the role of federal courts 

and call for this Court to exercise its supervisory mandamus powers to end this clearly 

improper attempt to have the judiciary decide important questions of energy and 

environmental policy to the exclusion of the elected branches of government. 

A. The district court clearly erred by finding that plaintiffs adequately alleged 

standing based on vague and attenuated allegations of injury, causation and 

redressability. 

The Supreme Court has consistently stressed that “the standing inquiry requires 

careful judicial examination of a complaint’s allegations to ascertain whether the 

particular plaintiff is entitled to an adjudication of the particular claims asserted.” 

Allen v. Wright, 468 U.S. 737, 752 (1984), abrogated in non-relevant part by Lexmark Int’l, 

Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014). Accordingly, in response to 

a motion to dismiss, a district court must determine: 

Is the injury too abstract, or otherwise not appropriate, to be considered 

judicially cognizable? Is the line of causation between the illegal conduct and 

injury too attenuated? Is the prospect of obtaining relief from the injury as a 

result of a favorable ruling too speculative? 

Id. at 752. These questions go to the heart of whether an adjudication is proper, and 

they “must be answered by reference to the Art. III notion that federal courts may 

exercise power only in the last resort, and as a necessity, * * * and only when 

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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.” Id. at 

738 (inner citations and quote marks omitted); see also Clapper v. Amnesty Int’l USA, 133 

S. Ct. 1138, 1146 (2013) (standing requirement preserves the separation of powers by 

“prevent[ing] the judicial process from being used to usurp the powers of the political 

branches.”) 

 This suit is plainly not “consistent with a system of separated powers” Allen, 

468 at 752, as it seeks to have a federal court decide broad matters of national energy 

and environmental policy that are reserved to the elected branches of government, at 

the behest of plaintiffs who assert highly generalized injuries purportedly resulting 

from a decades-long failure of Congress and the Executive Branch to adequately 

address the buildup of CO2 in the global atmosphere.5

 The Supreme Court has made 

clear that Article III does not permit suits that seek “broad-scale investigation” into 

 

5

 The district court recognized that “[t]his lawsuit challenges decisions defendants 

have made across a vast set of topics,” including “whether and to what extent to 

regulate CO2 emissions from power plants and vehicles, whether to permit fossil fuel 

extraction and development to take place on federal lands, how much to charge for 

use of those lands, whether to give tax breaks to the fossil fuel industry, whether to 

subsidize or directly fund that industry,” and many others. Dkt. 83 at 3-4. But rather 

than recognizing that these broad policy questions are for the elected branches of 

government, the court found them to be appropriate for judicial determination 

because “[t]he identification and protection of fundamental rights is an enduring part 

of the judicial duty to interpret the Constitution.” Id. at 31, 32. As shown infra at 22-

26, this was clear error. 

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13 

government functions “with the district court determining at the conclusion of that 

investigation the extent to which those activities may or may not be appropriate,” 

because “this approach would have the federal courts as virtually continuing monitors 

of the wisdom and soundness of Executive action.” Laird v. Tatum, 408 U.S. 1, 14–15 

(1972). Contrary to the district court’s assumption, no additional fact finding could 

possibly repair the fundamental defects that foreclose standing in this case. The 

refusal to dismiss on grounds of lack of standing was clear error. 

1. Plaintiffs did not allege a cognizable injury that is particularized and 

concrete. 

 The Supreme Court has consistently “stressed that the alleged injury must be 

legally and judicially cognizable.” Raines v. Byrd, 521 U.S. 811, 819 (1997). This 

requires that “the plaintiff have suffered ‘an invasion of a legally protected interest 

which is * * * concrete and particularized,’ Lujan, supra, at 560 * * * and that the 

dispute is ‘traditionally thought to be capable of resolution through the judicial 

process,’ Flast v. Cohen, 392 U.S. 83, 97 (1968).” Id. As the Court explained in 

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220–21 (1974): 

Concrete injury, whether actual or threatened, is that indispensable 

element of a dispute which serves in part to cast it in a form traditionally 

capable of judicial resolution. It adds the essential dimension of specificity to 

the dispute by requiring that the complaining party have suffered a particular 

injury caused by the action challenged as unlawful. 

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14 

See also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (“[f]or an injury to be 

‘particularized,’ it ‘must affect the plaintiff in a personal and individual way’”). 

 The allegations of injury accepted by the district court as adequate to survive 

the motion to dismiss fell far short of these Article III requirements. The allegations 

of the complaint involve generalized phenomena such as drought, floods, rising sea 

levels, reduced agricultural productivity, and fire-prone forests that may affect 

plaintiffs, but in the same way and to the same extent as they may affect everyone else 

in the world. Dkt. 7 ¶¶ 16-91. These generalized harms are allegedly caused or 

exacerbated by a “global” increase in atmospheric CO2 that plaintiffs allege has 

resulted, in part, from the “aggregate” actions and inactions of the federal government 

over six decades of implementing congressional policy concerning energy 

development and environmental protection. Id. at ¶129 (defendants “aggregate 

actions * * * have substantially caused the present climate crisis”); see also ¶275. These 

allegations do not plausibly allege a cognizable injury that is “concrete” and 

“particularized.” 

 Contrary to the district court, nothing in Massachusetts v. EPA, 549 U.S. 497 

(2007), supports standing based on non-specific allegations of harm allegedly resulting 

from decades-long failures by the federal government to enact and implement policies 

that would lessen the buildup of CO2 in the global atmosphere. In that case, the 

Court permitted Massachusetts to pursue a claim involving an alleged failure to 

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15 

comply with a specific provision of the Clean Air Act because it had a “stake in 

protecting its quasi-sovereign interests” through the exercise of a “procedural right” 

provided in the statute. Id. at 518-20. As this Court has expressly recognized, the 

standing holding in Massachusetts v. EPA does not apply where “the present case 

neither implicates a procedural right nor involves a sovereign state.” Washington 

Environmental Council v. Bellon, 732 F.3d 1131, 1145 (9th Cir. 2013) (“Bellon”). There is 

no equivalent statutory provision giving these plaintiffs a protectable interest in 

seeking relief from effects allegedly resulting from the aggregate effect of 

governmental actions and inactions over many decades relating to CO2. And whereas 

Massachusetts’ claim “turn[ed] on the proper construction of a congressional statute, 

a question eminently suitable to resolution in federal court,” 549 U.S. at 516, 

plaintiffs’ claims here do not rely on any statute but instead ask the court to make 

essentially legislative determinations regarding energy, transportation, public lands and 

pollution control policies, matters which are far removed from a dispute that is 

“traditionally thought to be capable of resolution through the judicial process.” Raines, 

supra, 521 U.S. at 819. 

2. Plaintiffs failed to adequately allege causation. 

 The Supreme Court observed in Allen that allowing standing where the alleged 

injury could not fairly be traced to a particular government action “would pave the 

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16 

way generally for suits challenging, not specifically identifiable Government violations 

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

obligations. Such suits, even when premised on allegations of several instances of 

violations of law, are rarely if ever appropriate for federal-court adjudication.” 468 

U.S. at 759-60. That describes this case, where plaintiffs rely on the “aggregate” of 

everything the federal government has done (or not done) over the past six decades 

relating to CO2 emissions as the “cause” of their asserted injuries. See Dkt. 83 at 14 

(district court finds that “the theory of plaintiffs’ case is * * * that defendants’ aggregate 

actions violate their substantive due process rights and the government’s public trust 

obligations”) (emphasis in original). 

 It is impossible to determine from the complaint what role particular actions of 

each defendant agency or of various presidents (over decades) supposedly has played 

or will play in the creation of the alleged injuries, as opposed to the role played by 

third parties not before the court. Where “the plaintiff is not himself the object of the 

government action or inaction he challenges, standing is not precluded, but it is 

ordinarily ‘substantially more difficult’ to establish.” Lujan v. Defenders of Wildlife, 504 

U.S. 555, 562 (1992) (quoting Allen, 468 U.S. at 758). The plaintiffs do not allege that 

they are the object of any government action, but instead that the federal government 

has engaged in policies that encourage private actors to develop and use fossil fuels, 

or done too little to regulate the emission of CO2. Where “causation and 

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redressability ordinarily hinge on the response of the regulated (or regulable) third 

party to the government action or inaction — and perhaps on the response of others 

as well — it becomes the burden of the plaintiff to adduce facts showing that those 

choices have been or will be made in such manner as to produce causation and permit 

redressability of injury.” Lujan, 504 U.S. at 562. 

 That requirement is rendered meaningless if plaintiffs simply lump together 

everything the federal government does or does not do that relates to fossil fuels or to 

the emission of CO2 and then allege that the “aggregate” effect of government 

conduct and private conduct they wish to see regulated causes them injury through 

climate change. The district court found it sufficient for plaintiffs to simply allege that 

“defendants have the power to increase or decrease” CO2 emissions from fossil fuel 

combustion through policies relating to fossil fuel development and that “DOT and 

EPA have broad power to set emissions standards” with respect to the transportation 

and power sectors of the economy. Dkt. 83 at 25-26. But a central part of the Article 

III inquiry is the requirement that a plaintiff identify with particularity a government 

failure that is a meaningful cause of the plaintiff’s injury. That inquiry cannot be 

avoided by the expedient of aggregating a vaguely-defined category of government 

actions and inactions relating to vast sectors of the American economy. See 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 

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18 

complain of all administrative deficiencies, any citizen aggrieved in one respect could 

bring the whole structure of state administration before the courts for review.”) 

 The fundamental deficiency in plaintiffs’ causation showing is confirmed by 

this Court’s decision in Bellon, supra, 732 F.3d 1131. Although the plaintiffs in Bellon, 

unlike plaintiffs here, had alleged a specific failure by an agency — not setting 

standards for CO2 emissions from refineries — that allegation was insufficient for 

causation. This Court made clear that where standing rests on alleged climate change 

injuries, “[t]o satisfy the causality element for Article III standing, Plaintiffs must 

show that the injury is causally linked or ‘fairly traceable’ to the Agencies’ alleged 

misconduct, and not the result of misconduct of some third party not before the 

court.” Id. at 1141, citing Lujan, 504 U.S. at 560–61. As the Court noted, “simply 

saying that the Agencies have failed to curb emission of greenhouse gases, which 

contribute (in some undefined way and to some undefined degree) to their injuries, 

relies on an attenuated chain of conjecture insufficient to support standing.” Id. at 

1142-43 (quote marks and citation omitted). Plaintiffs here rely on a far more 

attenuated and diffuse chain of causation, one that fails to point to a specific alleged 

failure to regulate but relies instead on alleged but unidentified failures over many 

decades. Contrary to the district court’s assumption (Dkt. 83 at 25), this is not a 

failure that can be corrected by allowing plaintiffs to conduct factual discovery. 

Basing causation on the “aggregate” effect of all federal policies relating to fossil fuel 

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19 

production and overall regulatory policy toward CO2 emissions is a fundamental legal 

flaw that no factual showing could possibly cure.6

3. Plaintiffs failed to adequately allege redressability. 

 The district court similarly assumed that plaintiffs could properly allege 

redressability by aggregating all sources of CO2 emissions that have any connection 

with the federal government or federal lands, and then alleging that reducing that 

aggregate quantity by broad relief directed at the federal government would lessen 

their injuries. Dkt. 83 at 27 (“If plaintiffs can show, as they have alleged, that 

defendants have control over a quarter of the planet’s greenhouse gas emissions, and 

that a reduction in those emissions would reduce atmospheric CO2 and slow climate 

change, then plaintiffs’ requested relief would redress their injuries”). This approach 

is clearly at odds with Allen and Lujan, as well as with Lewis v. Casey, 518 U.S. at 358 

n.6, which affirmed that standing focuses on redress of particular administrative 

 

6

 Contrary to the district court (Dkt. 83 at 26), Massachusetts v. EPA does not support 

causation here. The State there alleged that its injuries were caused by a particular 

failure of the defendant agency (EPA’s denial of a rulemaking petition asking for 

regulation of greenhouse gas emissions under a specific section of the Clean Air Act), 

and that this failure to follow a statutory duty led to significantly increased greenhouse 

gas emissions from a specific source (new motor vehicles). 549 U.S. at 510-14, 523-

24. Here, the complaint simply lists examples of various regulations, orders, actions 

and inactions, and then alleges that the entire course of federal government conduct 

in past decades has caused plaintiffs’ injuries. 

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deficiencies, rather than “confer[ing] the right to complain of all administrative 

deficiencies.” 

 Plaintiffs cannot establish redressability by the simply alleging that the district 

court can order the federal government to take “‘action necessary to ensure that 

atmospheric CO2 is no more concentrated than 350 ppm by 2100.’” Dkt. 83 at 28 

(quoting Dkt. 7 ¶12). The complaint never alleges that the agencies have statutory 

authority for the sweeping remedial action plaintiffs assert is necessary to remedy their 

harms, and the district court specifically noted that plaintiffs’ theory of the case 

“requires no citation to particular statutory or regulatory provisions.” Dkt. 83 at 14.7

 

Nor, under the Constitution’s framework of separation of powers, could the court 

compel Congress to enact the additional authority that would be needed to provide 

the requested relief. 

 Equally problematic is the erroneous assumption of the district court that this 

relief could be obtained against the President. See, e.g., Mississippi v. Johnson, 71 U.S. (4 

Wall.) 475, 501 (1866) (“this court has no jurisdiction of a bill to enjoin the President 

 

7

 In a recent filing, plaintiffs claim that they “have adequately alleged existing 

statutory and regulatory authority under which Federal Defendants can provide the 

relief requested.” Dkt. 129 at 25, citing Dkt. 7 at ¶¶ 98-130, 180, 183, 265, 266. 

Nothing in those paragraphs of the complaint identifies any statutory or regulatory 

authority that would permit the court to order defendants “to prepare a consumptionbased inventory of U.S. CO2 emissions,” or “to prepare and implement an 

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

excess atmospheric CO2 so as to stabilize the climate system.” Dkt. 7 at 94. 

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in the performance of his official duties”). “There is longstanding legal authority that 

the judiciary lacks the power to issue an injunction or a declaratory judgment against 

the co-equal branches of government * * *.” Newdow v. Bush, 355 F. Supp. 2d 265, 

280-82 (D.D.C. 2005) (declining to carve an exception to Presidential immunity 

“where [the President] is claimed to have violated the Constitution”); see also Clinton v. 

Jones, 520 U.S. 681, 718-19 (1997) (Breyer, J. concurring) (acknowledging “the 

apparently unbroken historical tradition * * * implicit in the separation of powers that 

a President may not be ordered by the Judiciary to perform particular Executive acts”) 

(quoting Franklin v. Massachusetts, 505 U.S. 788, 802–03 (1992) (Scalia, J. concurring)). 

 Plaintiffs’ redressability allegations thus also clearly fail to establish an Article 

III controversy: plaintiffs have failed to identify specific agency actions or inactions 

that could be redressed by a federal court and they have failed to identify any statutory 

authority for an order directing the defendants to “phase out fossil fuel emissions and 

draw down excess atmospheric CO2.” Dkt. 7 at 94. 

B. The district court clearly erred by allowing plaintiffs to proceed on their 

claim of a fundamental right under the due process clause. 

 

 Even if plaintiffs had shown that this case was within the district court’s 

jurisdiction under Article III, it should have been dismissed for failure to state a claim 

upon which relief can be granted. “While a complaint attacked [under] Rule 12(b)(6) 

* * * does not need detailed factual allegations, a plaintiff’s obligation to provide the 

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grounds of his entitlement to relief requires more than labels and conclusions, and a 

formulaic recitation of a cause of action’s elements will not do.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007) (citation and brackets omitted). The complaint 

must set forth facts supporting a plausible, not merely possible, claim for relief. Id. 

The complaint here clearly failed to do that. 

1. There is no basis in law for a due process right to a particular climate 

system. 

 

 The district court recognized the unprecedented nature of its ruling that 

plaintiffs could pursue a due process claim against the federal government based on a 

global phenomenon like climate change. The court nevertheless allowed the case to 

go forward because “[p]laintiffs purport to challenge the government’s failure to limit 

third-party CO2 emissions pursuant to the danger creation DeShaney exception.” Dkt. 

83 at 33. The district court’s attempt to analogize this case involving the entire federal 

government’s alleged contribution to global levels of CO2 to cases involving actions 

of police officers that placed individual plaintiffs in direct and immediate peril is 

riddled with error. 

 No federal court at any level has ever found a right to be protected from a 

general environmental phenomenon like climate change, and many courts have 

dismissed similar arguments asserting constitutionally-protected rights to various 

aspects of the environment. See Nat’l Sea Clammers Ass’n v. City of New York, 616 F.2d 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 31 of 53
23 

1222, 1237-38 (3d. Cir. 1980) (“[i]t is established in this circuit and elsewhere that 

there is no constitutional right to a pollution-free environment”), dismissed and vacated 

in part on other grounds sub nom. by Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers 

Ass’n, 453 U.S. 1 (1981); S.F. Chapter of A. Philip Randolph Inst. v. EPA, No. C 07-

04936 CRB, 2008 WL 859985, at *6-7 (N.D. Cal. Mar. 28, 2008) (“Plaintiffs also allege 

deprivation of the right to be free of climate change pollution, but that right is not 

protected by the Fourteenth Amendment [Due Process Clause] either.”); Pinkney v. 

Ohio Envtl. Prot. Agency, 375 F. Supp. 305, 310 (N.D. Ohio 1974) (“[T]he Court has not 

found a guarantee of the fundamental right to a healthful environment implicitly or 

explicitly in the Constitution.”); Gasper v. La. Stadium & Exposition Dist., 418 F. Supp. 

716, 720-21 (E.D. La. 1976) (“[T]he courts have never seriously considered the right 

to a clean environment to be constitutionally protected under the Fifth and 

Fourteenth Amendments”), aff’d, 577 F.2d 897 (5th Cir. 1978). 

 The consistent and long-standing refusal of courts to accept a due process right 

to environmental quality is required by the Supreme Court’s cautious approach to 

considering novel due process claims and its “insistence that the asserted liberty 

interest be rooted in history and tradition.” Michael H. v. Gerald D., 491 U.S. 110, 122 

(1989). In Washington v. Glucksberg, the Court emphasized that federal courts must 

“exercise the utmost care whenever we are asked to break new ground in this field, 

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

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judicial policy preferences, and lest important issues be placed “outside the arena of 

public debate and legislative action.” 521 U.S. 702, 720 (1997); see also Reno v. Flores, 

507 U.S. 292, 302 (1993) (“‘Substantive due process’ analysis must begin with a careful 

description of the asserted right, for ‘[t]he doctrine of judicial self-restraint requires us 

to exercise the utmost care whenever we are asked to break new ground in this 

field.’”) (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)). 

 Neither plaintiffs nor the district court made any attempt to show that the 

concept of a fundamental right to a stable climate system is “deeply rooted in our 

legal tradition,” as required by Glucksberg, 521 U.S. at 722. The district court cited 

only a single opinion from a Phillipines court to show judicial support for a 

fundamental right to a “‘balanced and healthful ecology.’” Dkt. 83 at 50, citing Minors 

Oposa, 33 I.L.M. at 187; see also id. at 32. This is plainly insufficient to show that an 

asserted right under the United States Constitution to a stable climate system is 

“deeply rooted in our legal tradition.” See Raich v. Gonzales, 500 F.3d 850, 865 (9th Cir. 

2007). 

 The interest in a stable climate system is unlike any of the fundamental liberty 

interests the Supreme Court has accepted. It has no impact on personal autonomy, 

unlike restraints on the ability to marry. While the plaintiffs and the district court rely 

on the decision in Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015), recognizing a 

fundamental right to same-sex marriage, that recognition was based on prior decisions 

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establishing that “[t]he fundamental liberties protected by [the Due Process] Clause 

include * * * certain personal choices central to individual dignity and autonomy, 

including intimate choices that define personal identity and beliefs.” Id. at 2597. 

While Obergefell extended that existing line of cases to recognize a fundamental right to 

marry for same-sex couples, the “fundamental right” found by the district court here 

has no relation to any subject that has previously been afforded heightened 

constitutional protection. 

 The limited due process right recognized by this Court in several post-DeShaney

cases is grounded in the peculiar duty a governmental body takes on when it has 

control over a particular individual’s person and places him or her in imminent peril. 

See Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997) (cause of action 

for due process violation arose where officers “took affirmative actions that 

significantly increased the risk facing Penilla: they cancelled the 911 call to the 

paramedics; they dragged Penilla from his porch, where he was in public view, into an 

empty house; they then locked the door and left him there alone * * * after they had 

examined him and found him to be in serious medical need”); Wood v. Ostrander, 879 

F.2d 583, 588 (9th Cir. 1989) (due process cause of action arose where officer arrested 

a female driver, impounded the car, and left driver by the side of the road at night in a 

high-crime area). This duty of officers not to affirmatively place an individual in a 

position of imminent risk with deliberate indifference to his or her safety can be 

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26 

traced to common law roots. But there is no basis in common law or elsewhere for a 

duty to protect persons (which would presumably include all members of the general 

population of the United States) against whatever perils are produced by emissions of 

CO2.8

 

2. Plaintiffs failed to identify any cause of action for their claims. 

 Neither plaintiffs nor the district court identified a cause of action authorizing 

suits against federal agencies or the President for declaratory and injunctive relief 

related to this alleged right. When the district court asserted that “the Fifth 

Amendment * * * provides the right of action” for both the due process and the 

public trust claims, it cited only cases upholding a cause of action for damages against 

federal officers for violations of constitutional rights. Dkt. 83 at 51, citing Davis v. 

Passman, 442 U.S. 228, 245 (1979), and Carlson v. Green, 446 U.S. 14, 18 (1980). While 

the Supreme Court has in limited circumstances implied causes of action against 

individual federal officers in their personal capacities, in order to vindicate clearly-

 

8

 Nor have plaintiffs properly alleged another prerequisite to a substantive due 

process claim: that the challenged conduct is “so egregious, so outrageous, that it may 

fairly be said to shock the contemporary conscience.” Cty. of Sacramento v. Lewis, 523 

U.S. 833, 848 n. 8 (1998). The complaint cites only instances of federal agencies 

carrying out statutorily-authorized policies that plaintiffs believe are too encouraging 

of energy production and give too little consideration to climate change. Such official 

action that is merely inconsistent with plaintiffs’ policy preferences is not remotely the 

sort of conduct that rises to the conscience-shocking level that can support a due 

process claim. See, e.g., Lombardi v. Whitman, 485 F.3d 73, 84 (2d Cir. 2007). 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 35 of 53
27 

established constitutional rights, it has emphasized that such implication should be 

sparing, and that “such power is to be exercised in the light of relevant policy 

determinations made by the Congress,” and only where no other alternative form of 

relief is available. Bush v. Lucas, 462 U.S. 367, 373-744 (1983); see also Davis, 442 U.S. at 

245. 

 No court has ever recognized an implied Fifth Amendment cause of action 

directly against the federal government itself that would allow plaintiffs to seek, 

through injunctive and declaratory relief, a fundamental re-ordering of national 

priorities to address an environmental problem. Any such implied cause of action 

would run contrary to the consistent refusal of Congress to authorize causes of action 

for programmatic challenges. As the district court recognized, Dkt. 83 at 52, plaintiffs 

could not have brought this broadly programmatic challenge under any statutorilycreated causes of action such as the APA. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 

871, 892–93 (1990) (“it is at least entirely certain that the flaws in the entire ‘program’ 

* * * referenced in the complaint, and presumably actions yet to be taken as well * * * 

cannot be laid before the courts for wholesale correction under the APA”); see also 

Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (“‘respondent cannot seek 

wholesale improvement of this program by court decree, rather than in the offices of 

the Department or the halls of Congress, where programmatic improvements are 

normally made’”) (quoting Lujan, 497 U.S. at 64-65). Nor could plaintiffs have 

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28 

invoked the narrow and specific Clean Air Act cause of action at issue in Massachusetts 

v. EPA, 549 U.S. at 519-20. The district court’s failure to dismiss these programmatic 

claims here further warrants a writ of mandamus. 

C. The district court clearly erred in holding that plaintiffs stated an actionable 

“public trust” claim against the federal government. 

As with its due process holding, the district court was unable to point to any 

authority supporting the proposition that the “public trust” doctrine authorizes suit 

against the federal government writ large to require it to protect the global 

atmosphere or other alleged public trust resources. Moreover, plaintiffs’ public trust 

theory was convincingly rejected in a recent, nearly-identical suit brought in the 

District of Columbia by some of the same individuals who are plaintiffs and their 

counsel here. In Alec L. v. Jackson, 863 F. Supp. 2d 11 (D.D.C. 2012), aff’d, Alec L. ex 

rel. Loorz v. McCarthy, 561 Fed. App’x 7 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 774 

(2014), plaintiffs alleged that several Executive Branch departments and agencies had 

violated their alleged fiduciary duties to preserve and protect the atmosphere as a 

commonly-shared public resource under the public trust doctrine. They invoked the 

federal question statute, 28 U.S.C. §1331, as the basis for subject matter jurisdiction 

over this “public trust” claim. The district court in Alec L. found no support for the 

assertion that the public trust doctrine or claims based on it arise under the 

Constitution or laws of the United States. The court cited the Supreme Court’s 

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29 

reaffirmation in PPL Mont., LLC v. Montana, 565 U.S. 576, 603-04 (2012), that “the 

public trust doctrine remains a matter of state law” and that “the contours of that 

public trust do not depend upon the Constitution.” 

 The district court in Alec L. also ruled that even if the public trust doctrine had 

provided a claim under federal law at one time, that claim has been displaced by 

federal regulation, specifically the Clean Air Act. The district court relied for this 

alternative ruling on American Electric Power Company v. Connecticut, 564 U.S. 410, 423-24 

(2011), where the Supreme Court held that “the Clean Air Act and the EPA actions it 

authorizes displace any federal common law right to seek abatement of carbondioxide emissions from fossil-fuel fired power plants.” 

 The D.C. Circuit affirmed in an unpublished memorandum decision, 

concluding that the district court had correctly dismissed the suit for lack of subject 

matter jurisdiction since the public trust doctrine is a matter of state law, not federal 

law. Alec L. ex rel. Loorz v. McCarthy, 561 Fed. App’x at 8, citing PPL Montana. This 

Court has also interpreted PPL Montana as establishing that the public trust doctrine is 

purely a matter of state law, and as such does not (for example) restrict the power of 

the United States to condemn a parcel of former tidelands in fee. United States v. 32.42 

Acres of Land, 683 F.3d 1030, 1038-39 (9th Cir. 2012). 

 The district court recognized that “Alec L. was substantially similar to the 

instant action.” Dkt. 83 at 45. Nevertheless, it was “not persuaded by the reasoning 

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30 

of the Alec L. courts,” because, in its view “a close reading of PPL Montana reveals 

that it says nothing about the viability of federal public trust claims.” Id. at 46. But 

although PPL Montana did not involve a federal public trust claim, its holding that 

“the public trust doctrine remains a matter of state law” clearly precludes the 

possibility that the doctrine could form the basis for suit against the federal 

government in federal court. 

 Even if the public trust doctrine could be invoked against federal agencies 

acting pursuant to statutes, the district court cited no case that had ever applied the 

doctrine beyond the context of tidelands and navigable freshwater bodies. The 

Supreme Court has always addressed the public trust doctrine in connection with state 

management of coastal regions and navigable waterways. See, e.g., PPL Montana, 132 S. 

Ct. at 1235; Philipps Petroleum Co. v. Mississippi, 484 U.S. 469, 479 (1988). The district 

court attempted to shoehorn plaintiffs’ claim into the traditional scope of the public 

trust doctrine by finding that, “[b]ecause a number of plaintiffs’ injuries relate to the 

effects of ocean acidification and rising ocean temperatures, they have adequately 

alleged harm to public trust assets.” Dkt. 83 at 42 (footnote omitted). But there is no 

support in the public trust law of any state for bringing a claim based on allegations 

that depend on such an indirect chain of causation; i.e., that CO2 emissions from 

challenged actions and non-actions, when combined with all other worldwide 

emissions of CO2 over decades, leads to warmer and more acidic waters in the earth’s 

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31 

vast oceans, which in turn might affect particular coastal areas that may be subject to 

the public trust doctrine.9

II. Mandamus is warranted to confine the district court to the lawful exercise 

of its jurisdiction. 

Even if it were not so plain that the district court committed clear errors in 

denying the motion to dismiss, it would be appropriate for this Court to exercise its 

supervisory mandamus authority over the district court “to ensure that the judicial 

system operates in an orderly and efficient manner.” See In re Cement Antitrust Litig., 

688 F.2d 1297, 1307 (9th Cir. 1982); see also LaBuy v. Howes Leather Co., 352 U.S. 249, 

259-260 (1957). The district court’s rulings in this case show a clear and continuing 

intent to usurp the power of Congress to determine national policy regarding energy 

development, use of public lands, and environmental protection by constructing out 

of whole cloth a novel constitutional right to a “climate system capable of sustaining 

human life,” thus allowing the plaintiffs and the court to ignore statutory limits and 

directions. See, e.g., Dkt. 83 at 52. The rulings similarly show a clear intent to usurp 

the authority of the President to “take Care that the Laws be faithfully executed,” Art. 

II, § 3, and of the federal agencies to exercise the authority that Congress has 

 

9

 Even scholars who are sympathetic to the broad goals pursued by the plaintiffs here 

acknowledge that plaintiffs’ arguments “take the public trust doctrine far beyond its 

historic moorings.” Richard J. Lazarus, Judicial Missteps, Legislative Dysfunction, and the 

Public Trust Doctrine: Can Two Wrongs Make It Right?, 45 ENVTL. L. 1139, 1152 (2015). 

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delegated to administer statutes governing the federal government’s approach to 

energy and environmental policy. This usurpation of congressional, presidential and 

agency authority is not correctable by way of an appeal after final judgment, and so 

should be corrected by issuance of a writ of mandamus. See Perry v. Schwarzenegger, 591 

F.3d at 1157-59 (supervisory mandamus appropriate where important constitutional 

interests could be compromised before appellate review is available). 

III. Defendants have no other means of obtaining immediate review needed to 

avoid a serious intrusion on the separation of powers, and without action by 

this court the defendants will be prejudiced in a way not correctable on appeal. 

The defendants have no adequate means, other than by a writ of mandamus, to 

obtain needed immediate review of these significant rulings and relief from onerous 

and disruptive discovery based on claims that have no basis in law. This Court found 

that a writ of mandamus was appropriate in similar circumstances where a district 

court denied a motion to dismiss an action against foreign banks on grounds of the 

Act of State doctrine, refused to certify that decision for interlocutory appeal pursuant 

to 28 U.S.C. §1292(b), and allowed discovery against the banks to proceed. Credit 

Suisse v. United States District Court for the Central District of California, 130 F.3d 1342, 1346 

(9th Cir. 1997) (“Credit Suisse”). After finding that “[t]he Banks thus have no other 

means of obtaining immediate review of the denial of their motion to dismiss,” the 

Court issued a writ of mandamus directing the district court to vacate its denial of the 

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Banks’ motion to dismiss and to dismiss the action. Id at 1348. Here as well, 

defendants have no other means of obtaining immediate review of the denial of the 

motion to dismiss, and the burden and cost of complying with the extraordinarily 

intrusive and inappropriate discovery sought by plaintiffs cannot be corrected in a 

subsequent appeal from a final judgment. See also Medhekar v. U.S. Dist. Court for the N. 

Dist. of California, 99 F.3d 325, 326 (9th Cir. 1996) (finding second Bauman factor 

satisfied since “the harm sought to be avoided, the burden and cost of providing the 

initial disclosures, cannot be corrected in a subsequent appeal from a final judgment in 

the absence of mandamus relief”). 

The extraordinary scope of this litigation and the enormous burden of 

discovery became evident with plaintiffs’ January 24, 2017, litigation hold demand 

letter, which demanded that all defendants (including the President) preserve “[a]ll 

Documents related to climate change,” “[a]ll Documents related to national energy 

policies or systems,” “[a]ll Documents related to federal public lands, navigable 

waters, territorial waters, navigable air space or atmosphere;” and “[a]ll Documents 

related to greenhouse gas emissions or carbon sequestration as those terms apply to 

agriculture, forestry, or oceans,” going back at least six decades. Dkt. 121-1 at 5-6. 

The intrusion on the separation of powers has been vividly highlighted by plaintiffs’ 

requests for production of documents, none more so than the RFPs directed at the 

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President.10 That RFP, as revised on May 19, 2017, seeks a vast array of documents 

and communications relating to climate change from the current administration and 

every previous administration going back to the Administration of President Lyndon 

Johnson. See Dkt. 159-6 at ¶¶1-29. Many of the requests relate to sensitive internal 

workings of the Office of the President, including the seeking of advice from agency 

and department heads (e.g., ¶¶ 8-10), and communications relating to international 

negotiations (¶¶ 25-29).11 These requests seriously infringe upon the President’s 

constitutional authority to require opinions from department heads and to conduct 

foreign relations. 

 As the Supreme Court made clear in Cheney, mandamus is appropriate where 

discovery threatens to disrupt the confidentiality that is essential to Presidential or 

Vice-Presidential decision-making, or to burden the Office of the President in ways 

 

10 Plaintiffs therein define “the President” broadly to include “the President, Vice 

President, Executive Office of the President, the President’s Cabinet, Presidential 

advisory boards, [and] Presidential and Vice Presidential task forces,” as well as the 

Council on Environmental Quality, the Office of Management and Budget, and 

Office of Science and Technology Policy, along with “all current and former 

principals, employees, agents, attorneys, consultants and other representatives of the 

President.” RFP at 3-4. 

11 Similarly, the Revised RFP to the State Department dated May 19, 2017, demands 

“Each DOCUMENT that REFERS, RELATES, REGARDS, OR PERTAINS TO 

COMMUNICATIONS between Secretary of State Rex Tillerson and President 

Donald Trump on the issue of CLIMATE CHANGE” as well as on “the issue of 

ENERGY POLICY” since January 20, 2017, and communications and documents 

relating to a host of international negotiations going back as far as 1979. Dkt. 159-3 

at ¶¶ 9-10, 17-48. 

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that distract from the performance of constitutional duties. 542 U.S. at 381-82 (“the 

public interest requires that a coequal branch of Government ‘afford Presidential 

confidentiality the greatest protection consistent with the fair administration of 

justice,’ and give recognition to the paramount necessity of protecting the Executive 

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

of its constitutional duties”) (quoting United States v. Nixon, 418 U.S. 683, 715 (1974)). 

In Cheney, the Court ruled that the court of appeals erred in concluding it lacked 

authority to issue mandamus regarding discovery requested by the Sierra Club and 

others against Vice President Cheney relating to the National Energy Policy 

Development Group; the Court emphasized in particular that “separation-of-powers 

considerations should inform a court of appeals’ evaluation of a mandamus petition 

involving the President or the Vice President.” Id. at 382. 12 The plaintiffs’ discovery 

efforts here constitute an even broader threat of disruption to confidentiality than was 

present in Cheney, since this case involves not just a specific Vice-Presidential task 

force, but everything having to do with climate change over the course of many 

decades. 

 

12 On remand, the Court of Appeals granted the petition for mandamus and ordered 

the case dismissed. In re Cheney, 406 F.3d 723, 731 (D.C. Cir. 2005). 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 44 of 53
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 Plaintiffs’ discovery requests directed at the federal agencies are equally 

inappropriate and disruptive. Plaintiffs have made clear that they intend to seek 

discovery regarding virtually all of the federal government’s activities relating to 

control of CO2 emissions, fossil fuels production and transportation, alternative 

energy sources, and public lands, transportation and energy policy. Thus, plaintiffs 

have stated (Dkt. 159 at 6): 

 The discovery phase of this case will develop a factual record, in part, 

establishing with scientific and factual certainty: (1) the causal mechanisms 

underlying climate change; (2) the global and national injuries and unique 

personal injuries to Plaintiffs resulting from climate change; (3) the degree to 

which Federal Defendants’ actions have caused those impacts; (4) the factual 

context within which Federal Defendants have taken, authorized, and 

permitted the actions resulting in those impacts; and (5) the degree to which 

Federal Defendants can mitigate and reverse those impacts through exercise of 

their authority over our nation’s energy system. 

 Because they are proceeding on clearly erroneous theories as to the sort of 

claims that plaintiffs may bring in this context, neither the magistrate judge nor the 

district court can be expected to rein in this improper discovery. Thus, in 

recommending denial of the motion to certify an interlocutory appeal, the magistrate 

judge specifically cited an alleged need “to develop the record,” reasoning that that 

since “[t]he plaintiffs contend that the federal defendants are denying their basic right 

to a habitable climate system, * * * [t]he fossil fuel production regulatory practices of 

federal defendants both historically and going forward will provide an evidentiary 

framework for their claims.” Dkt. 146 at 10, 11. The district court adopted the 

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magistrate’s findings in toto. Dkt. 172. This extraordinarily broad discovery based on 

clearly incorrect legal theories is already proving to be highly time-consuming and 

resource-intensive and is significantly affecting the operations of the defendant 

agencies. The damage this will do to vital federal operations cannot be remedied by 

an appeal from a final judgment. 

IV. The order raises new and important problems and issues of first 

impression. 

 The district court conceded that “plaintiffs likely could not obtain the relief 

they seek through citizen suits brought under the Clean Air Act, the Clean Water Act, 

or other environmental laws.” Dkt. 83 at 52. But in the court’s view, “that argument 

misses the point,” which is that “[t]his action is of a different order than the typical 

environmental case.” Id. Since the plaintiffs here are alleging that the defendants’ 

actions and inactions “profoundly damaged our home planet,” then “whether or not 

they violate any specific statutory duty” is simply irrelevant. Id. The court conceded 

that its ruling was “unprecedented,” but ultimately concluded that “[f]ederal courts 

too often have been cautious and overly deferential in the arena of environmental law, 

and the world has suffered for it.” 

 The district court is the first in the country to recognize this “different order” 

of case that permits a federal court to run roughshod over both judgments of 

Congress embodied in statutes and limits on justiciability established over decades of 

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Supreme Court precedents. The need for this Court to intervene through a writ of 

mandamus is clear. 

V. A stay of proceedings is warranted. 

 

 Defendants also ask this Court to exercise its authority under the All Writs Act 

to stay district court proceedings while it considers this mandamus petition. See 9th 

Cir. General Order 6.8a (motions panel “may also issue a stay or injunction pending 

further consideration of the application”).13 Whether to issue a stay is “an exercise of 

judicial discretion * * * to be guided by sound legal principles,” Nken v. Holder, 556 

U.S. 418, 433-34 (2009) (internal citations omitted), based on the following factors: 

(1) the applicant’s likely success on the merits; (2) irreparable injury to the applicant 

absent a stay; (3) substantial injury to the other parties; and (4) the public interest. 

Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Leiva-Perez v. Holder, 640 F.3d 962, 

970 (9th Cir. 2011) (Nken requires a showing of irreparable harm, but applies a 

balancing test showing “that irreparable harm is probable and either: (a) a strong 

likelihood of success on the merits and that the public interest does not weigh heavily 

 

13 Fed. R. App. P. 8(a)(1) does not expressly refer to a stay pending review of a 

petition for a writ of mandamus under Fed. R. App. P. 21. Nevertheless, defendants 

sought a stay pending resolution of a requested interlocutory appeal, which was 

denied by the magistrate. Dkt. 146. Defendants renewed that request for stay in their 

objection to the magistrate’s denial of stay, Dkt. 151, but the district court denied that 

request in its June 8, 2017, order. Dkt. 172 at 4. 

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39 

against a stay; or (b) a substantial case on the merits and that the balance of hardships 

tips sharply in the petitioner’s favor”). Each of these factors counsels in favor of a 

stay. 

 The arguments set out above show that the defendants have a strong likelihood 

of success in obtaining mandamus. Absent a stay, the President and the federal 

departments and agencies that are subject to the discovery propounded by plaintiffs 

will be irreparably harmed because of the disruption to important functions that this 

sweeping and improper discovery is causing. A stay of proceedings during the 

pendency of this mandamus petition is not likely to appreciably harm plaintiffs, since 

their alleged injuries stem from the cumulative effects of CO2 emissions from every 

source in the world over decades; whatever additions to the global atmosphere that 

may somehow be attributed to the defendants over the time it takes to resolve the 

petition are plainly de minimis and not a source of irreparable harm. Finally, the public 

interest strongly favors a stay, because absent such relief the Executive Branch and its 

agencies (including the Executive Office of the President) would be subject to 

continued discovery and forced to divert substantial resources away from their 

essential function of “faithfully execut[ing]” the law. U.S. CONST. art. II, § 3. 

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CONCLUSION 

The Court should grant a stay of proceedings in the district court while it 

considers this petition. The petition should be granted and the district court directed 

to vacate its November 10, 2016 Order and dismiss the case.

 Respectfully submitted, 

 JEFFREY H. WOOD 

 Acting Assistant Attorney General 

 

 ERIC GRANT 

 Deputy Assistant Attorney General 

 

 s/ David C. Shilton 

ANDREW C. MERGEN 

DAVID C. SHILTON 

 Attorneys, Appellate Section 

 Environment & Natural Resources Div. 

 U.S. Department of Justice 

 P.O. Box 7415 

 Washington, DC 20044 

 (202) 514-5580 

david.shilton@usdoj.gov 

 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 49 of 53
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STATEMENT OF RELATED CASES 

 Petitioners are not aware of any related cases. 

 

/s/ David C. Shilton 

David C. Shilton 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 50 of 53
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CERTIFICATE REGARDING COMPLIANCE WITH FRAP 21(d) 

 Petitioners are today filing a motion for permission to file an over-length 

petition for mandamus and request for stay. This petition for mandamus and request 

for stay contains 9,926 words, exclusive of the material specified in FRAP 32(f). 

/s/ David C. Shilton 

David C. Shilton 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 51 of 53
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CERTIFICATE OF SERVICE 

 

 I hereby certify that on June 9, 2017, I electronically filed the foregoing petition 

with the Clerk of the Court for the United States Court of Appeals for the Ninth 

Circuit by using the appellate CM/ECF system. On this date, a notice of filing of this 

petition, including the petition itself, will be lodged in the district court in the 

underlying matter, and service in compliance with Federal Rule of Appellate 

Procedure 21(a)(1) will be accomplished through the district court’s CM/ECF system. 

All counsel in this case are participants in the district court’s CM/ECF system. In 

addition, a courtesy copy of the foregoing brief has been provided via e-mail to the 

following counsel: 

Julia A. Olson 

juliaaolson@gmail.com 

Wild Earth Advocates 

1216 Lincoln Street 

Eugene, OR 97401 

Philip L. Gregory 

Pgregory@cpmlegal.com 

Cotchett, Pitre & McCarthy, LLP 

San Francisco Airport Office 

840 Malcolm Road 

Burlingame, CA 94010 

Daniel M. Galpern 

Dan.Galpern@gmail.com 

Law Offices of Daniel M. Galpern 

1641 Oak Street 

Eugene, OR 97401 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 52 of 53
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Attorneys for Plaintiffs 

Frank R. Volpe 

Fvolpe@sidley.com 

Mark D. Hopson 

Mhopson@sidley.com 

Benjamin E. Tannen 

Btannen@sidley.com 

1501 K Street NW 

Washington, DC 20005 

C. Marie Eckert 

Marie.Eckert@millernash.com 

Miller, Nash, Graham & Dunn LLP 

111 SW Fifth Avenue, Suite 3400 

Portland, OR 97204 

Attorneys for Intervenor Defendants 

/s/ David C. Shilton 

David C. Shilton 

Attorney for Federal Defendants 

Case 6:15-cv-01517-TC Document 177-1 Filed 06/09/17 Page 53 of 53