IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

KELSEY CASCADIA ROSE JULIANA, et al., 

Plaintiffs, 

v. 

UNITED STATES OF AMERICA, et al., 

Defendants. 

AIKEN, Judge: 1 

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

OPINION AND ORDER 

In this civil rights action, plaintiffs-a group of young people who were between the ages 

of eight and nineteen when this lawsuit was filed; Earth Guardians, a nonprofit association of 

young environmental activists; and Dr. James Hansen, acting as guardian for plaintiff "future 

1 As with the Court's previous Order and Opinion on the federal defendants' motions to 

dismiss, student externs worked on each stage of the preparation of this opinion. The Court 

would be remiss if it did not acknowledge the invaluable contributions of J oAnna Atkinson 

(George Washington University Law School), Trevor Byrd (Willamette University Law School), 

Doyle Canning (University of Oregon School of Law), Omeed Ghafarri (University of 

Washington School of Law), Tyler Hardman (University of Oregon School of Law), Maggie 

Massey (University of Oregon School of Law), and Patrick Rosand (Boston University School of 

Law), Elise Williard (University of Oregon School of Law). 

Page 1 - OPINION AND ORDER 
generations"-allege that the federal government 1s violating their rights under the Fifth 

Amendment to the United States Constitution. 

Before the Court are two dispositive motions: federal defendants' Motion for Judgment 

on the Pleadings (doc. 195) and federal defendants' Motion for Summary Judgment (doc. 207). 

For the reasons set forth below, the Motion for Judgment on the Pleadings is granted in part and 

denied in part, and the Motion for Summary Judgment is granted in part and denied in part. 

BACKGROUND 

Plaintiffs filed this action in August 2015, naming the United States, President Barack 

Obama, and the heads of numerous executive agencies (collectively, "federal defendants") as 

defendants. 2 Plaintiffs allege that federal defendants have known for more than fifty years that 

carbon dioxide ("C02") produced by the industrial scale burning of fossil fuels was "causing 

global warming and dangerous climate change, and that continuing to bum fossil fuels would 

destabilize the climate system on which present and future generations of our nation depend for 

their wellbeing and survival." First Am. Compl. ii 1. Plaintiffs further allege that federal 

defendants have long "known of the unusually dangerous risks of harm to human life, liberty, 

and property that would be caused by continued fossil fuel burning." Id. ii 5. Plaintiffs assert 

that, rather than responding to this knowledge by "implement[ing] a rational course of effective 

action to phase out carbon pollution," federal defendants "have continued to permit, authorize, 

and subsidize fossil fuel extraction, development, consumption and exportation[,]" thereby 

2 The First Amended Complaint names as defendants the United States, the President, 

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

the Office of Science and Technology Policy, the Department of Energy, the Department of the 

Interior, the Department of Transportation, the Department of Agriculture, the Department of 

Commerce, the Department of Defense, the Department of State, and the Environmental 

Protection Agency. 

Page 2 - OPINION AND ORDER 
"deliberately allow[ing] atmospheric C02 concentrations to escalate to levels unprecedented in 

human history[.]" Id. ifif 5, 7. 

Plaintiffs contend that federal defendants' policy on fossil fuels deprives plaintiffs of life, 

liberty, and property without due process of law; impermissibly discriminates against "young 

citizens, who will disproportionately experience the destabilized climate system in our 

country[;]" and fails to live up to federal defendants' obligations to hold certain essential natural 

resources in trust for the benefit of all citizens. Id. if 8. Plaintiffs seek injunctive and declaratory 

relief, asserting that there is "an extremely limited amount of time to preserve a habitable climate 

system for our country" before "the warming of our nation will become locked in or rendered 

increasingly severe." Id. if 10. 

In November 2015, federal defendants moved to dismiss for failure to state a claim under 

Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6). (doc. 27) Federal defendants argued 

that plaintiffs lacked standing to sue; that plaintiffs' public trust claims failed as a matter of law 

because the public trust doctrine does not apply to the federal government; that plaintiffs' equal 

protection claims could not proceed because plaintiffs are not members of a protected class and 

the government's energy and climate policies have a rational basis; and that plaintiffs' due 

process claims were deficient because they had not alleged violation of a fundamental right. 

Also in November 2015, three national trade organizations-the National Association of 

Manufacturers, American Petroleum Institute, and American Fuel & Petrochemical 

Manufacturers (collectively, "intervenor-defendants")-moved to intervene under Federal Rule 

of Civil Procedure 24(a) and dismiss the complaint. (doc. 14 & 19) Like federal defendants, 

intervenor-defendants argued that plaintiffs lacked standing to sue. Intervenor defendants also 

Page 3 - OPINION AND ORDER 
argued that plaintiffs had failed to identify a cognizable cause of action and that dismissal was 

required because the case presented non-justiciable political questions. 

In January 2016, Magistrate Judge Coffin granted intervenor-defendants' motion to 

intervene. Juliana v. United States, 2016 WL 138903, at *5 (D. Or. Jan. 14, 2016). In April 

2016, following oral argument, Judge Coffin issued his Findings and Recommendation ("F&R"), 

recommending that the Court deny both motions to dismiss. (doc. 68) Federal defendants and 

intervenor-defendants filed objections to the F&R and the Court held oral argument in 

September 2016. (doc. 73, 74 & 81) Following that argument, in November 2016, the Court 

issued an opinion and order adopting Judge Coffin's F &R and denying the motions to dismiss. 

Juliana v. United States, 217 F. Supp. 3d 1224, 1276 (D. Or. 2016). 

In January 2017, federal defendants filed their Answer. (doc. 98) They agreed with 

many of the scientific and factual allegations in the First Amended Complaint, including that: 

• "for over fifty years some officials and persons employed by the federal government have 

been aware of a growing scientific body of research concerning the effects of fossil fuel 

em1ss10ns on atmospheric concentrations of C02-including that increased 

concentrations of atmospheric C02 could cause measureable long-lasting changes to the 

global climate, resulting in an array of severe and deleterious effects to human beings, 

which will worsen over time;" 

• "global atmospheric concentrations of C02, methane, and nitrous oxide are at 

unprecedentedly high levels compared to the past 800,000 years of historical data and 

pose risks to human health and welfare;" 

• "Federal Defendants . . . permit, authorize, and subsidize fossil fuel extraction, 

development, consumption, and exportation;" 

• "fossil fuel extraction, development, and consumption produce C02 emissions and . . . 

past emissions of C02 from such activities have increased the atmospheric concentration 

of C02;" 

• "EPA has concluded ... that, combined, emissions of six well-mixed [greenhouse gases] 

are the primary and best understood drivers of current and projected climate change;" 

Page 4 - OPINION AND ORDER 
• "the consequences of climate change are already occurring and, in general, those 

consequences will become more severe with more fossil fuel emissions;" 

• "climate change is damaging human and natural systems, increasing the risk of loss of 

life, and requiring adaptation on larger and faster scales than current species have 

successfully achieved in the past, potentially increasing the risk of extinction or severe 

disruption for many species;" and 

• "human activity is likely to have been the dominant cause of observed warming since the 

mid-1900s." 

Fed. Defs.' Answer to First Am. Compl. ifif 1; 5; 7; 10; 213; 217. Those admissions and federal 

defendants' other filings make clear that plaintiffs and federal defendants agree on the following 

contentions: climate change is happening, is caused in significant part by humans, specifically 

human induced fossil fuel combustion, and poses a "monumental" danger to Americans' health 

and welfare. See Juliana, 217 F. Supp. 3d at 1234 n.3 (quoting federal defendants' objections to 

Judge Coffin's F&R recommending denial of the motions to dismiss). The pleadings also make 

clear that plaintiffs and federal defendants agree that federal defendants' policies regarding fossil 

fuels and greenhouse gas emissions play a role in global climate change, though federal 

defendants dispute that their actions can fairly be deemed to have caused plaintiffs' alleged 

injuries.3 

In January 2017, Barack Obama left office and Donald J. Trump assumed the 

presidency. In March 2017, both federal defendants and intervenor-defendants moved to certify 

the opinion and order denying their motion to dismiss for interlocutory appeal, pursuant to 28 

U.S.C. § 1292(b). (doc. 120 & 122) That same day, federal defendants sought a stay of 

3 Intervenor-defendants' Answer, by contrast, contained no admissions with respect to 

plaintiffs' factual and scientific assertions about climate change. (doc. 93) Intervenordefendants asserted that they lacked sufficient information to admit or deny those allegations. At 

a series of status conferences in 2017, Judge Coffin pressed intervenor-defendants to clarify their 

position regarding whether the issues to be litigated at trial would include whether climate 

change is happening or whether humans play a role in causing climate change. Intervenordefendants withdrew from the lawsuit before taking a position on those questions. 

Page 5 - OPINION AND ORDER 
proceedings pending this Court's resolution of the motion to certify for interlocutory appeal and 

the Ninth Circuit's resolution of that proposed appeal. (doc. 121) In April 2017, Judge Coffin 

denied the request for a stay. (doc. 137) In May 2017, Judge Coffin issued his F&R 

recommending that the Court deny the motions to certify. (doc. 146) Federal defendants and 

intervenor-defendants filed objections, and in June 2017, the Court adopted Judge Coffin's F&R 

and declined to certify the opinion and order for interlocutory appeal. Juliana v. United States, 

2017 WL 2483705, at *2 (D. Or. June 8, 2017). 

In May and June 201 7, intervenor-defendants moved to withdraw from this lawsuit. 

(docs. 163, 166 & 167) Judge Coffin granted that motion. (doc. 182) 

In June 2017, federal defendants filed a petition for writ of mandamus in the Ninth 

Circuit, seeking an order directing this Court to dismiss the case. (doc. 177) Federal defendants 

asked the Ninth Circuit to stay all proceedings in this Court pending resolution of that petition. 

Id. In July 2017, the Ninth Circuit granted the request for a stay and ordered plaintiffs to file a 

response to the petition for writ of mandamus. Ninth Circuit Case No. 17-71692. 

On March 7, 2018, the Ninth Circuit denied the petition for writ of mandamus. In re 

United States, 884 F.3d 830, 833 (9th Cir. 2018). The denial rested on the court's determination 

that federal defendants had not satisfied any of the factors justifying the extraordinary remedy of 

mandamus. Id. at 834-38. 

On May 7, 2018, federal defendants filed a motion for judgment on the pleadings. (doc. 

195) In that motion, they seek to dismiss President Trump as a party and to obtain dismissal of 

the entire lawsuit on the grounds that plaintiffs failed to state a claim under the Administrative 

Procedure Act ("APA"). Additionally, federal defendants argue that plaintiffs' requested relief is 

barred by the separation of powers. Federal defendants also moved for a protective order, 

Page 6 - OPINION AND ORDER 
seeking a stay of all discovery on the theory that discovery in this case is barred by the AP A. 

(doc. 196) Specifically, federal defendants sought a stay of discovery pending the resolution of 

the motion for a protective order, the motion for judgment on the pleadings, and a not-yet-filed 

motion for summary judgment. On May 22, 2018, federal defendants filed a motion for 

summary judgment. (doc. 207) In that motion, they seek a judgment as a matter of law in their 

favor, arguing that (1) there are no genuine issues of material fact; (2) plaintiffs lack Article III 

standing to sue; (3) plaintiffs have failed to assert a valid cause of action under the APA; (4) 

plaintiffs' claims violate separation of powers principles; (5) plaintiffs have no due process right 

to a climate system capable of sustaining human life; and ( 6) the federal government has no 

obligations under the public trust doctrine. 

Meanwhile, the Solicitor General was considering seeking Supreme Court review of the 

Ninth Circuit's opinion denying mandamus relief. The presumptive deadline to file a petition for 

writ of certiorari to review that opinion was June 5, 2018. On May 24, 2018, the Solicitor 

General sought to extend the time for filing a petition for writ of certiorari to July 5, 2018. That 

request was docketed in United States v. US. District Court for the District of Oregon, Supreme 

Court No. 17A13 04. Justice Kennedy granted the extension. 

On May 25, 2018, Judge Coffin denied federal defendants' motion for a protective order 

and a stay. (doc. 212) On June 1, 2018, federal defendants filed objections to Judge Coffin's 

denial of the protective order and requested a stay of discovery pending resolution of those 

objections. (doc. 215 & 216) On June 14, 2018, the Court denied that request for a stay by 

minute order. (doc. 238) 

Page 7 - OPINION AND ORDER 
On June 25, 2018, federal defendants sought a second extension of the deadline for filing 

a petition for writ of certiorari. Justice Kennedy granted that request and extended the deadline 

to August 4, 2018. 

On June 29, 2018, the Court affirmed Judge Coffin's denial of federal defendants' 

request to stay all discovery. (doc. 300) On July 5, 2018, federal defendants sought review of 

that decision through a second petition for writ of mandamus in the Ninth Circuit. In separate 

filings, federal defendants asked this Court and the Ninth Circuit to stay all discovery and trial 

pending the Ninth Circuit's resolution of that petition. On July 16, 2018, the Ninth Circuit 

denied the request for a stay. On July 17, 2018, the Court denied the request for a stay. (doc. 

324) That same day, the Solicitor General petitioned Justice Kennedy for a stay of proceedings 

pending the Ninth Circuit's resolution of the mandamus petition. That request was docketed at 

United States v. US. District Court for the District of Oregon, Supreme Court No. 18A65. In his 

application for a stay, the Solicitor General suggested to Justice Kennedy that he could construe 

the stay application as a petition for writ of mandamus directing this Court to dismiss the lawsuit 

or as a petition for a writ of certiorari to review the Ninth Circuit's first mandamus decision. 

On July 18, 2018, the parties appeared for oral argument before this Court on the Motion 

for Judgment on the Pleadings and Motion for Summary Judgment. 

On July 20, 2018, the Ninth Circuit denied federal defendants' second mandamus 

petition, holding that federal defendants had not met the standard to qualify for mandamus relief. 

In re United States,_F.3d_, 2018 WL 3484444, at *1 (9th Cir. July 20, 2018). The court 

concluded that because "no new circumstances justify this second petition," it "remains the case 

that the issues the government raises in its petition are better addressed through the ordinary 

course oflitigation." Id. 

Page 8 - OPINION AND ORDER 
That same day, the Solicitor General wrote to Justice Kennedy to reiterate his request that 

he construe the application for a stay in Supreme Court Case No. 18A65 as a petition for a writ 

of certiorari to review the Ninth Circuit's first mandamus decision. Alternatively, he suggested 

that Justice Kennedy could construe the application as a petition for a writ of certiorari to review 

the Ninth Circuit's second mandamus decision. On July 30, 2018, Justice Kennedy referred the 

application for a stay to the entire Supreme Court. In a summary order, the Supreme Court 

denied as the Solicitor General's application as premature. 

This leaves two substantive motions before the Court, which the Court now addresses in 

Sections I and II below: federal defendants' motion for judgment on the pleadings, and federal 

defendants' motion for summary judgment. Defendants have also requested that the Court 

certify any portion of this opinion and order denying their substantive motions for interlocutory 

appeal, this is addressed in Section III. Plaintiffs' Motion in Limine, (doc. 254) seeking judicial 

notice of certain documents, is addressed in Section IV. 

STANDARDS 

A party may move for judgment on the pleadings after the pleadings are closed but early 

enough not to delay trial. Fed. R. Civ. P. 12(c). "Analysis under Rule 12(c) is substantially 

identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine 

whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy." 

Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155 (9th Cir. 2015) (citation and 

quotation marks omitted). Accordingly, "[a] judgment on the pleadings is properly granted 

when, taking all allegations in the pleadings as true, the moving party is entitled to judgment as a 

matter of law." Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) 

(quotation marks omitted). To survive a motion for judgment on the pleadings, "the nonPage 9 - OPINION AND ORDER 
conclusory 'factual content' [of the complaint]," and reasonable inferences from that content, 

"must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. US. Secret 

Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007)). 

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 

U.S. at 678. "[O]nce a claim has been stated adequately, it may be supported by showing any set 

of facts consistent with the allegations in the complaint." Bell At!. Corp. v. Twombly, 550 U.S. 

544, 563 (2007). 

Summary judgment is appropriate if "there is no genuine dispute as to any material fact 

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

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

Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine 

issue of material fact, the nonmoving party must go beyond the pleadings and identify facts 

which show a genuine issue for trial. Id. at 324. Summary judgment is inappropriate if a 

rational trier of fact, drawing all inferences in favor of the nonmoving party, could return a 

verdict in the nonmoving party's favor. Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 

(9th Cir. 2008). Any doubt as to the existence of a genuine issue for trial should be resolved 

against the moving party. Celotex, 477 U.S. at 339. Finally, even if the standards of Rule 56 are 

met, a court has discretion to deny a motion for summary judgment if it believes that "the better 

course would be to proceed to a full trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 

(1986). 

II I 

II I 

Page 10 - OPINION AND ORDER 
DISCUSSION 

There are two motions before the Court in this now three year old case: federal 

defendants' Motion for Judgment on the Pleadings (doc. 195) and Motion for Summary 

Judgment (doc. 207). Many of the issues raised in these motions are interrelated. Given the 

nature of the arguments presented, it is more efficient and likely to avoid confusion to deal with 

all of the pending issues in a single opinion and order. Thus, the Court addresses each motion in 

turn. 

I. Motion for Judgment on the Pleadings 4 

Federal defendants' motion for judgment on the pleadings rests on four grounds, two of 

which they raise for the first time in their 12( c) motion and two of which the Court has already 

considered and ruled upon. First, federal defendants move to dismiss President Trump as a 

defendant, arguing that he is not essential to effective relief and his presence in the lawsuit 

violates the separation of powers. Second, federal defendants seek dismissal of the lawsuit in its 

entirety, on the theory that the AP A governs all challenges to federal agency action and plaintiffs 

have failed to state a claim under the AP A. Third, federal defendants invite the Court to 

reconsider all aspects of its opinion and order denying their November 2016 motion to dismiss 

4 Even though federal defendants could have raised each argument in its 12(c) motion in 

its initial motion to dismiss, that fai~ure is not a bar to asserting the arguments now. See Fed. R. 

Civ. P. 12(g) (prohibiting subsequent Rule 12 motions "based on [a] defense or objection ... 

omitted" in a prior Rule 12 motion "except ... as provided in subdivision (h)(2)"); Fed. R. Civ. 

P. 12(h)(2) ("A defense of failure to state a claim upon which relief can be granted ... may be 

made in any pleading permitted or ordered under Rule 7 (a), or by motion for judgment on the 

pleadings, or at the trial on the merits."). There are reasons to question the wisdom of permitting 

failure-to-state-a-claim defenses to be raised on different legal theories in back-to-back 12(b )(6) 

and 12( c) motions. See Sprint Telephony PCS) L.P. v. Cty. of San Diego, 311 F. Supp. 2d 898, 

905 (S.D. Cal. 2004) ("It is a waste of judicial resources to consider motion after motion in 

which defendants raise the same defense over and over, each time testing a new argument. 

Allowing such a tactic means that defendants potentially could stall litigation indefinitely as long 

as they can conjure up a new argument on which to base a failure to state a claim defense."). But 

as presently written, the rules plainly permit such successive motions. 

Page 11 - OPINION AND ORDER 
and urge dismissal of the lawsuit on the grounds raised in that motion. Finally, echoing 

arguments raised two years ago by intervenor-defendants, federal defendants contend that 

dismissal of this action is required because the Court cannot redress plaintiffs' injuries without 

violating the separation of powers. 

A. Motion to Dismiss President Trump as a Defendant 

Federal defendants first move to dismiss President Trump as a defendant. The Ninth 

Circuit declined to address federal defendants' argument on that point in its denial of the 2017 

mandamus petition because defendants had not first raised the issue in this Court. See In re 

United States, 884 F.3d at 836 ("First, to the extent the defendants argue that the President 

himself has been named as a party unnecessarily and that defending this litigation would 

unreasonably burden him, this argument is premature because the defendants never moved in the 

district court to dismiss the President as a party."). 

At oral argument, the parties reported that plaintiffs were willing to stipulate to the 

dismissal of the President without prejudice. Federal defendants rejected that offer and request 

dismissal with prejudice. In the absence of a stipulation, the Court must address both whether 

dismissal is warranted and, if it is, whether that dismissal should be with or without prejudice. 

Federal defendants assert that it would violate separation of powers principles for this 

Court to issue an injunction or declaration against President Trump in connection with his 

official duties. The extent to which a federal court may issue equitable relief against a sitting 

President is unsettled and hotly contested. As Justice O'Connor, writing for a plurality of the 

Court, explained twenty-five years ago: 

While injunctive relief against executive officials like the Secretary of Commerce 

is within the courts' power, see Youngstown Sheet & Tube Co. v. Sawyer, [343 

U.S. 579 (1952),] the District Court's grant of injunctive relief against the 

President himself is extraordinary, and should have raised judicial eyebrows. We 

Page 12 - OPINION AND ORDER 
have left open the question whether the President might be subject to a judicial 

injunction requiring the performance of a purely "ministerial" duty, Mississippi v. 

Johnson, 4 Wall. 475, 498-499 (1867), and we have held that the President may 

be subject to a subpoena to provide information relevant to an ongoing criminal 

prosecution, United States v. Nixon, 418 U.S. 683 (1974), but in general "this 

court has no jurisdiction of a bill to enjoin the President in the performance of his 

official duties." Mississippi v. Johnson, [4 Wall. at 501]. At the threshold, the 

District Court should have evaluated whether injunctive relief against the 

President was available, and, if not, whether appellees' injuries were nonetheless 

redressable. 

Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality op.) (parallel citations 

omitted). Justice O'Connor ultimately concluded that it was unnecessary to "decide whether 

injunctive relief against the President was appropriate" because "the injury alleged [wa]s likely 

to be redressed by declaratory relief against the Secretary [of Commerce] alone." Id. at 803. 

Since Franklin, subsequent cases have made clear that there is no absolute bar on 

issuance of declaratory and injunctive relief against a sitting president, even with regard to the 

exercise of his official duties. For example, in Clinton v. City of New York, 524 U.S. 417, 449 

(1998), the Supreme Court affirmed a declaratory judgment holding that certain actions taken by 

President Clinton under the Line Item Veto Act violated the Constitution's allocation of 

lawmaking authority between Congress and the President. 

In its recent decision on President Trump's second "travel ban" executive order, the 

Ninth Circuit cited Franklin for the proposition that when adequate equitable relief is likely 

available from some inferior governmental official (or group of officials) the President ought to 

be dismissed out of respect for separation of powers: 

Finally, the Government argues that the district court erred by issuing an 

injunction that runs against the President himself. This position of the 

Government is well taken. Generally, we lack "jurisdiction of a bill to enjoin the 

President in the performance of his official duties." Franklin v. Massachusetts, 

505 U.S. 788, 802-03 (1992) (quoting Mississippi v. Johnson, 71 U.S. (4 Wall. ) 

475, 501 (1866)); see id. at 802 ("[I]njunctive relief against the President himself 

is extraordinary, and should ... raise [ ] judicial eyebrows."). Injunctive relief, 

however, may run against executive officials, including the Secretary of 

Page 13 - OPINION AND ORDER 
Homeland Security and the Secretary of State. See, e.g., Youngstown Sheet & 

Tube Co., 343 U.S. at 588-89 (holding that President Truman did not act within 

his constitutional power in seizing steel mills and affirming the district court's 

decision enjoining the Secretary of Commerce from carrying out the order); 

Franklin, 505 U.S. at 802-03. 

We conclude that Plaintiffs' injuries can be redressed fully by injunctive relief 

against the remaining Defendants, and that the extraordinary remedy of enjoining 

the President is not appropriate here. See Franklin, 505 U.S. at 803. We 

therefore vacate the district court's injunction to the extent the order runs against 

the President, but affirm to the extent that it runs against the remaining 

"Defendants and all their respective officers, agents, servants, employees, and 

attorneys, and persons in active concert or participation with them." 

Hawaii v. Trump, 859 F.3d 741, 788 (9th Cir. 2017), vacated and remanded on mootness 

grounds, 138 S. Ct. 377 (2017). Hawaii makes Franklin's plurality opinion on this point binding 

Ninth Circuit precedent. The inquiry is not into the President's action or inaction in relationship 

to the injuries complained of, but rather into the relief requested, and whether or not equitable 

remedies involving the President himself are essential to that relief. As adopted in Hawaii, 

Franklin's rule on when the President is an appropriate defendant is best understood as a strain 

of the canon of constitutional avoidance: because granting equitable relief against the President 

of the United States raises serious constitutional questions, dismissal of the President as a 

defendant is appropriate whenever it appears likely that the plaintiffs' injuries can be redressed 

through relief against another defendant. 

Plaintiffs' opposition to dismissing President Trump boils down to a general assertion 

that complete relief may be unavailable without the President as a defendant. They argue that 

further development of the factual record is necessary to determine whether injunctive or 

declaratory relief is available against President Trump and whether plaintiffs' injuries are 

redressable in the absence of such relief. The Court is not persuaded. This lawsuit is, at its 

heart, a challenge to the environmental and energy policies of the federal government as 

Page 14- OPINION AND ORDER 
expressed through the action (or inaction) of federal agencies. Because the Supreme Court and 

Ninth Circuit have spoken so clearly about the separation of powers concerns inherent in 

awarding equitable relief against a sitting president, the burden is on plaintiffs to explain with 

specificity why relief against President Trump is essential to redressing their injuries. They have 

failed to carry that burden. 

In an attempt to demonstrate why President Trump is necessary to effective equitable 

relief, plaintiffs cite a number of specific presidential actions in their Amended Complaint and 

briefs. For example, plaintiffs cite: 

• An Executive Order in which President Trump directed a rollback of the Clean Power 

Plan by rescinding the moratorium on coal mining on federal lands and six other Obamaera executive orders aimed at curbing climate change and regulating emissions; 

• An Executive Order in which President Trump ordered the expedition of environmental 

reviews and approvals for infrastructure projects; 

• An Executive Order in which President Trump ordered a review of the "Waters of the 

United States" Rule; and 

• Presidential memoranda encouraging approval of the Dakota Access Pipeline and the 

Keystone XL Pipeline. 

The problem with those examples is that it is not enough, under Hawaii, to show that the 

President was involved in the challenged action; plaintiffs must show that effective relief is 

unavailable unless it is awarded against the President. Like the "travel ban" challenged in 

Hawaii, each of the foregoing orders and memoranda included express directives to be carried 

out by other governmental officials. See, e.g. Exec. Order No. 13783, 82 Fed. Reg. 16093 (Mar. 

28, 2017) (issuing orders to "[t]he heads of agencies" including to the "Administrator of the 

Environmental Protection Agency" and the "Secretary of the Interior"); Exec. Order No. 13766, 

82 Fed. Reg. 8657 (directing the Chairman of the White House Council on Environmental 

Quality the Director of the Office of Management and Budget to take certain actions); Exec. 

Page 15 - OPINION AND ORDER 
Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017) (addressing "the Administrator, the 

Assistant Secretary, and the heads of all executive departments and agencies" including the 

Administrator of the Environmental Protection Agency); President Trump Takes Action to 

Expedite Priority Energy and Infrastructure Projects (Jan. 24, 2017), 

https://www.whitehouse.gov/briefings-statements/president-trump-takes-action-expeditepriority-energy-infrastructure-projects/ (summarizing memoranda addressed to "relevant Federal 

agencies"). Thus, with respect to the propriety of the President as a defendant, this case is 

indistinguishable from Hawaii and Franklin: because lower governmental officials are charged 

with executing the challenged presidential policies, equitable relief against President Trump is 

not essential to redressability. 

Plaintiffs note that Hawaii concerned injunctive relief only, and certainly injunctive relief 

implicates more serious separation of powers concerns than declaratory relief. But as articulated 

in Franklin, any equitable relief awarded against a sitting president with respect to his official 

duties raises constitutional concerns. Accordingly, when effective relief is available against 

lower administration officials, the Court concludes that dismissal of the President is the correct 

decision for either type of equitable relief. See Franklin, 505 U.S. at 827-828 (Stevens, J., 

concurring) (arguing that declaratory relief against the president, like injunctive relief, "would 

produce needless head-on confrontations between district judges and the Chief Executive"). On 

the current record, the Court concludes that President Trump is not essential to effective relief 

because "[p]laintiffs' injuries can be redressed fully by injunctive [or declaratory] relief against 

the remaining [d]efendants." Hawaii, 859 F.3d at 788. Due respect for separation of powers 

therefore requires dismissal of President Trump as a defendant. 

Page 16 - OPINION AND ORDER 
The next question is whether dismissal should be with or without prejudice. Across a 

host of contexts, the default rule is dismissal without prejudice. See, e.g., Lopez v. Smith, 203 

F.3d 1122, 1127 (9th Cir. 2000) (stating that dismissal under Federal Rule of Civil Procedure 

12(b)(6) should be with prejudice only if the court determines that the pleading "could not 

possibly be cured by the allegation of other facts"); Hamilton Copper & Steel Corp. v. Primary 

Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990) (explaining that, even when a party's misconduct 

justifies the sanction of dismissal, dismissal with prejudice is "extreme" and rarely deployed); 

Fed. R. Civ. P. 41(a)(2) (providing that dismissal at the plaintiffs request shall be without 

prejudice unless the dismissal order states otherwise); In re Fresenius Granujlo/Naturalyte 

Dialysate Prods. Liability Litig., 111 F. Supp. 3d 103, 106 (D. Mass. 2015) (explaining that 

dismissal with prejudice under Rule 41(a)(2) generally is justified only in situations where it is 

clear that there is "no way for any plaintiff to bring the same claim" in the future, for example 

when the applicable statute of limitations has "conclusively run"); Lepesh v. Barr, 2001 WL 

34041885, *3 (D. Or. 2001) (citing Ninth Circuit precedent governing when amendment of a 

pleading would be futile for the proposition that dismissal should be with prejudice only if it 

"appear[ s] to a certainty that Plaintiff would not be entitled to relief under any set of facts that 

could be proven"). 

Federal defendants argue that President Trump should be dismissed with prejudice 

because Supreme Court and Ninth Circuit precedent is clear that federal courts lack jurisdiction 

to issue equitable relief in connection with a sitting president's performance of his official duties. 

As explained above, however, neither the Supreme Court nor the Ninth Circuit has gone so far. 

Indeed, it is clear that under some limited circumstances and when required by the constitution, 

such equitable relief is available. Clinton, for example, involved a challenge to President 

Page 17 - OPINION AND ORDER 
Clinton's use of the line-item veto. Clinton, 524 U.S. at 449. The veto power is, of course, 

exercised directly by the President and not by subordinate agencies, so no other federal official 

would have been an appropriate defendant in that case. More recently, in a case involving 

alleged violations of the Foreign and Domestic Emoluments Clauses of the Constitution, the U.S. 

District Court for the District of Maryland addressed the availability of equitable relief against 

President Trump: 

The Court also disagrees that the President's status as the sole defendant changes 

this analysis, given that no official other than he could be sued to enforce the 

purported violations at issue. "[I]t would be exalting form over substance if the 

President's acts were held to be beyond the reach of judicial scrutiny when he 

himself is the defendant, but held within judicial control when he and/or the 

Congress has delegated the performance of duties to federal officials subordinate 

to the President and one or more of them can be named as a defendant." Nat'! 

Treasury Emps. Union v. Nixon, 492 F.2d 587, 613 (D.C. Cir. 1974). 

District of Columbia v. Trump, 291 F. Supp. 3d 725, 751-52 (D. Md. 2018). The Emoluments 

Clauses, like the veto power, are specific to the President. A lawsuit asserting violation of those 

clauses therefore could not be directed to federal agency heads or other federal officials. 

As explained above, on the current record, it appears that this is a case in which effective 

relief is available through a lawsuit addressed only to lower federal officials. It is not possible to 

know how developments to the record in the course of the litigation may change the analysis. 

The Court cannot conclude with certainty that President Trump will never become essential to 

affording complete relief. For that reason, the Court concludes that dismissal without prejudice 

is the appropriate course. Any harm the President will suffer from the continuing hypothetical 

possibility that he might be joined as a defendant in the future is minimal. Moreover, that 

minimal harm is further mitigated by the fact that federal defendants would be free to oppose any 

future motion for leave to amend the complaint and add the President as a defendant on the 

Page 18- OPINION AND ORDER 
grounds that permitting such amendment would cause "undue prejudice to the opposing party." 

Foman v. Davis, 371 U.S. 178, 182 (1962). 

Federal defendants' motion to dismiss President Trump from this lawsuit is granted. The 

dismissal is without prejudice. 

B. Motion to Dismiss for Failure to State a Claim under the APA 

Federal defendants next argue that this entire case must be dismissed because plaintiffs 

are challenging the actions (and inactions) of federal agencies, and thus must bring their suit, if at 

all, under the APA. 5 The APA provides a right of judicial review to "[a] person suffering legal 

wrong because of agency action, or adversely affected or aggrieved by agency action." 5 U.S.C. 

§ 702. "Agency action made reviewable by statute and final agency action for which there is no 

other adequate remedy in court are subject to judicial review." Id. § 704. A reviewing court has 

authority both to "compel agency action unlawfully withheld or unreasonably delayed" and to 

5 As a threshold matter, plaintiffs contend that this Court already has rejected federal 

defendants' APA argument, and that the Ninth Circuit affirmed that rejection under the "no clear 

error' standard. Neither contention is correct. First, this Court has not addressed federal 

defendants' AP A argument. Federal defendants argued in their motion to dismiss that plaintiffs 

had failed to identify a viable cause of action, but they did not argue that the AP A was the 

exclusive vehicle for claims that a federal agency has violated a plaintiffs constitutional rights. 

Second, the Ninth Circuit did not "affirm" any of this Court's determinations under the "clear 

error" standard. It is true that in both mandamus opinions, the Ninth Circuit held that the 

government had not shown that this Court's order was "clearly erroneous as a matter oflaw," as 

required to satisfy the third factor of the five-factor test for mandamus relief. In re United States, 

884 F.3d at 837-38; see also In re United States, 2018 WL 3484444, at *2 ("As detailed in our 

opinion denying the first mandamus petition, the government does not satisfy the third, fourth, or 

fifth Bauman factors."). But in finding that the third factor had not been satisfied, the Ninth 

Circuit declined to take a position on whether this Court's rulings were clearly erroneous. See In 

re United States, 884 F.3d at 837 ("[W]e decline to exercise our discretion to intervene at this 

stage of the litigation to review preliminary legal decisions made by the district court or 

otherwise opine on the merits."). Because this is the first time either this Court or the Ninth 

Circuit has addressed federal defendants' AP A argument, the Court will address the argument on 

its merits. See Sprint Telephony, 311 F. Supp. 2d at 905 (holding that application of the law of 

the case doctrine was inappropriate because, "although the court previously considered 

defendants' failure to state a claim defense in its earlier order, the court has not considered the 

issues defendants now raise in their motion presently before the court"). 

Page 19- OPINION AND ORDER 
"set aside agency action" on several grounds, including that the action is "arbitrary, capricious, 

[or] an abuse of discretion;" is "contrary to constitutional right, power, privilege, or immunity"; 

or exceeds the agency's statutory authority. Id. § 706(1) & (2)(A)-(C). The APA's judicial 

review provisions apply only in limited circumstances such as when agency action is final or 

"otherwise reviewable by statute." Navajo Nation v. Dep 't of the Interior, 876 F.3d 1144, 1171 

(9th Cir. 2017). 

When a plaintiff asserts an AP A claim, the court must determine whether the plaintiff has 

identified a final agency action subject to judicial review. Lujan v. Nat'! Wildlife Fed., 497 U.S. 

871, 882 (1990). But here, plaintiffs have not asserted APA claims; their claims are brought 

directly under the United States Constitution, which has no "final agency action" requirement. 

As a general rule, plaintiffs are "master[ s] of [their] complaint" and may choose which claims to 

assert and which legal theories to press. Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99 

(1987). Federal defendants' APA argument succeeds only if they can demonstrate that the APA 

is the only available avenue to judicial review of the government's conduct that plaintiffs 

challenge in this lawsuit. 

Federal defendants' argument that the APA is the exclusive means to challenge any 

agency action rests on the proposition that "[w]here Congress has created a remedial scheme for 

the enforcement of a particular federal right," courts "have, in suits against federal officers, 

refused to supplement that scheme with one created by the judiciary." Seminole Tribe of Fla. v. 

Florida, 517 U.S. 44, 74 (1996). Federal defendants indiscriminately cite cases involving both 

claims for damages and claims for equitable relief in arguing that the AP A is a comprehensive 

statutory scheme demonstrating Congressional intent to cut off common law claims. But in 

order to properly analyze federal defendants' argument, it is critical to avoid conflating the 

Page 20 - OPINION AND ORDER 
Supreme Court's treatment of claims for damages with its treatment of claims for equitable 

relief. 

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 

396 (1971), the Supreme Court broke new ground by permitting a suit for damages against 

federal officials for violations of the Fourth Amendment, even though no federal statute created 

such a cause of action. The Court subsequently extended Bivens to two other contexts. In Davis 

v. Passman, 442 U.S. 228, 247 (1979), the Court recognized an implied right of action to sue for 

damages based on an allegation that a U.S. Congressman had discriminated against an employee 

on the basis of sex, in violation of the Due Process Clause of the Fifth Amendment. And in 

Carlson v. Green, 446 U.S. 14, 20 (1980), the Court recognized a Bivens cause of action for a 

federal prisoner alleging violations of his rights under the Eighth Amendment. 

"Since Carlson, however, the Supreme Court has consistently refused to extend Bivens 

liability to any new context or new category of defendants." Western Radio Servs. Co. v. US. 

Forest Serv., 578 F.3d 1116, 1119 (9th Cir. 2009); see also, Armstrong v. Exceptional Child Ctr., 

Inc.,_U.S._, 135 S. Ct. 1378, 1384 (2015) (rejecting the argument that the Supremacy 

Clause creates an implied cause of action for every violation of federal law). As the Ninth 

Circuit has explained, whether to recognize a Bivens cause of action in a new context involves a 

two-step inquiry: 

First, the Court determines whether there is any alternative, existing process for 

protecting the plaintiffs interests. Such an alternative remedy would raise the 

inference that Congress expected the Judiciary to stay its Bivens hand and refrain 

from providing a new and freestanding remedy in damages. The Court has 

explained that, when the design of a Government program suggests that Congress 

has provided what it considers adequate remedial mechanisms for constitutional 

violations that may occur in the course of its administration, we have not created 

additional Bivens remedies .... 

Page 21- OPINION AND ORDER 
Second, if the Court cannot infer that Congress intended a statutory 

remedial scheme to take the place of a judge-made remedy, the Court next asks 

whether there nevertheless are factors counseling hesitation before devising such 

an implied right of action. Even where Congress has given plaintiffs no damages 

remedy for a constitutional violation, the Court has declined to create a right of 

action under Bivens when doing so would be plainly inconsistent with Congress' 

authority in this field. 

Id. at 1120-21 (citations and internal quotation marks omitted). 

Applying that two-step inquiry in Western Radio, the Ninth Circuit determined that the 

AP A is the sort of "comprehensive remedial scheme" that indicates "Congress's intent that 

courts should not devise additional, judicially crafted default remedies." Id. at 1123. Based on 

that determination, the court held "that the AP A leaves no room for Bivens claims based on 

agency action or inaction." Id. Federal defendants cite Western Radio for its broad language on 

the comprehensiveness of the AP A. However, Ninth Circuit and Supreme Court precedent make 

clear that the analysis for Bivens claims is specific to the availability ofremediesfor damages. 

The process for determining whether Congress intended to cut off common law claims 

for equitable relief-such as those contained in plaintiffs' petition-is substantially different. 

With respect to equitable relief, the Supreme Court has expressly required a "heightened" 

showing of clear legislative intent to displace constitutional claims in part to avoid the "serious 

constitutional question" that would arise "if a federal statute were construed to deny any judicial 

forum for a colorable constitutional claim." Webster v. Doe, 486 U.S. 592, 603 (1988). In 

Webster, the Supreme Court expressly rejected the argument that the APA provided the only 

available route to judicial review of agency action and inaction. Id. That rejection is brought 

into sharp relief by Justice Scalia' s assertion, in dissent, that "at least with respect to all entities 

that come within the [AP A]' s definition of 'agency,' if review is not available under the AP A it 

is not available at all." Id. at 607 n. * (Scalia, J., dissenting). 

Page 22 - OPINION AND ORDER 
The AP A contains no express language suggesting that Congress intended it to displace 

constitutional claims for equitable relief. Indeed, the Ninth Circuit has held that § 702 of the 

AP A "is an unqualified waiver of sovereign immunity in actions seeking nonmonetary relief 

against legal wrongs for which governmental agencies are accountable"-whether such actions 

are asserted under the AP A or under the general federal question jurisdiction statute. The 

Presbyterian Church (US.A.) v. United States, 870 F.2d 518, 525 & n.9 (9th Cir. 1989). 

Recognition of causes of action against federal agencies that fall outside the AP A is implicit in 

Presbyterian Church; it makes little sense to hold that the AP A waives sovereign immunity for 

both APA and non-APA claims against federal agencies if the only viable claims are subject to 

the APA' s judicial review provisions. 

In a recent case involving a challenge to "the confinement conditions imposed on illegal 

aliens pursuant to a high-level executive policy," the Supreme Court underscored the difference 

between claims for damages and claims for equitable relief: 

It is of central importance, too, that this is not a case like Bivens or Davis in which 

it is damages or nothing. Unlike the plaintiffs in those cases, respondents do not 

challenge individual instances of discrimination or law enforcement overreach, 

which due to their very nature are difficult to address except by way of damages 

actions after the fact. Respondents instead challenge large-scale policy decisions 

concerning the conditions of confinement imposed on hundreds of prisoners. To 

address those kinds of decisions, detainees may seek injunctive relief 

Ziglar v. Abbasi,_U.S._137 S. Ct. 1843, 1862 (2017) (citations and internal quotation marks 

omitted) (emphasis added). The Court expressly noted that separation-of-powers concerns "are . 

. . more pronounced when the judicial inquiry comes in the context of a claim seeking money 

damages rather than a claim seeking injunctive or other equitable belief' because "the risk of 

personal damages liability is more likely to cause an official to second-guess difficult but 

necessary decisions[.]" Id. at 1861. 

Page 23 - OPINION AND ORDER 
Supreme Court, Ninth Circuit, and other cases plainly show that challenge to federal 

agency action may, depending on the circumstances, be stated as an AP A claim or a 

constitutional claim. See, e.g., Franklin, 505 U.S. at 801 ("Although the apportionment 

challenge is not subject to review under the standards of the AP A, that does not dispose of 

appellees' constitutional claims."); Webster, 486 U.S. at 603 (holding that § 102(c) of the 

National Security Act rendered the CIA director's personnel decisions unreviewable under the 

AP A, but rejecting that argument that the same statute precluded a claim that those decisions 

violated the Constitution); Navajo Nation, 876 F.3d at 1170 ("Claims not grounded in the APA, 

like . . . constitutional claims . . . , do not depend on the cause of action found in the first 

sentence of§ 702 [of the APA] and thus § 704's limitation does not apply to them.") (internal 

quotation marks omitted and alterations normalized); Stone v. Trump, 280 F. Supp. 3d 747, 772 

(D. Md. 2017) (dismissing the plaintiffs' APA claim but permitting equal protection and due 

process claims to proceed in a case challenging the ban on transgender individuals serving in the 

military); L. v. US. Immigration & Customs Enforcement, 302 F. Supp. 3d 1149, 1168 (S.D. Cal. 

2018) (dismissing the plaintiffs' AP A claim but permitting their due process claim to proceed in 

a case challenging the federal practice of separating migrant children from their parents at the 

border). 

Plaintiffs' claims simply do not fall within the scope of the AP A. As federal defendants 

correctly point out, the Supreme Court has made clear that review under the AP A requires a 

"case-by-case approach" to determine whether "a specific final agency action has an actual or 

immediately threatened effect." Lujan, 497 U.S. at 892. By its terms, the APA contains no 

provisions by which plaintiffs may "seek wholesale improvement of [an agency] program by 

court decree[.]" Id. at 891 (emphasis in original). But that case law does not support the 

Page 24 - OPINION AND ORDER 
conclusion that plaintiffs' claims must be dismissed; it simply underscores that plaintiffs' claims 

are not AP A claims. Plaintiffs do not contend that any single agency action is causing their 

asserted injuries-nor could they, given the complex chain of causation involved in climate 

change. They seek review of aggregate action by multiple agencies, something the APA's 

judicial review provisions do not address. The AP A does not govern plaintiffs' claims. As a 

result, plaintiffs' failure to state a claim under the AP A is not a ground for dismissal of this 

action. 

C. Motion to Dismiss on Separation of Powers Grounds & Request to Reconsider the 

November 2016 Denial of the Government's 12(b)(6) Motion 

Finally, federal defendants raise a set of arguments on which this Court already has ruled. 

First, federal defendants open their Rule 12( c) motion by asserting "that [they are] entitled to 

judgment as a matter of law for the reasons set forth in [their] November 2015 motion to 

dismiss." Defs.' Mot. for J. on the Pleadings 6. Federal defendants ask the Court to "revisit its 

order denying the motion to dismiss and grant judgment to Defendants on some or all of 

Plaintiffs' claims." Id. at 7. Second and more specifically, federal defendants argue that any 

claim brought outside the AP A's framework is foreclosed by the separation of powers. 

As an initial matter, the Court acknowledges now, as it did in 2016, that the allocation of 

power among the branches of government is a critical consideration in this case and reiterate 

that, "[s]hould plaintiffs prevail on the merits, this Court would no doubt be compelled to 

exercise great care to avoid separation-of-powers problems in crafting a remedy." Juliana, 217 

F. Supp. 3d at 1241. The Court recognizes that there are limits to the power of the judicial 

branch, as demonstrated by the Court's determination that President Trump is not a proper 

defendant in this case. 

Page 25 - OPINION AND ORDER 
This is the first time that federal defendants have highlighted separation of powers 

concerns; they did not raise that argument, except in passing, in their 12(b )( 6) motion. But 

former defendant-intervenors raised and fully briefed separation-of-powers arguments in the 

section of their motion to dismiss addressing the political question doctrine. Although this is the 

first time federal defendants are raising a political question challenge, their brief on the subject 

largely reiterates arguments considered and rejected in the opinion and order on the motion to 

dismiss. And obviously, the invitation to reconsider the November 2016 order and opinion 

necessarily implicates issues on which this Court has already ruled. 

In order to determine how to address federal defendants' attempt to re-raise these issues, 

the Court begins by considering the application of the law of the case doctrine. Under that 

doctrine, "a court is ordinarily precluded from reexamining an issue previously decided by the 

same court." Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002). The doctrine is 

"founded upon the sound public policy that litigation must come to end." Jeffries v. Wood, 114 

F.3d 1484, 1489 (9th Cir. 1997) (en bane). It also "serves to maintain consistency." Id. The 

doctrine has three exceptions: reconsideration is permitted when "(l) the decision is clearly 

erroneous and its enforcement would work a manifest injustice, (2) intervening controlling 

authority makes reconsideration appropriate, or (3) substantially different evidence was adduced 

at a subsequent trial." Old Person, 114 F.3d at 1039. Although the federal rules permit back-toback motions to dismiss for failure to state a claim, see Section I n.3, supra, courts are under no 

obligation to give full consideration to a rehash of arguments already presented in a 12(b)(6) 

motion. See Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 434 (M.D.N.C. 2011) 

(declining to "reconsider issues that it addressed fully at the Rule 12(b)(6) stage" in adjudicating 

a Rule 12(c) motion). 

Page 26 - OPINION AND ORDER 
To the extent that federal defendants seek reconsideration on questions unrelated to the 

Court's subject matter jurisdiction, the Court declines to revisit its earlier rulings. The Court 

gave full and fair consideration to the arguments federal defendants now raise in their November 

2016 opinion. Nothing has changed to warrant expending judicial resources in retreading that 

ground at this juncture. The same legal standard applies to motions under Rules 12(b)(6) and 

12(c) and federal defendants have cited no intervening changes in the law. 

To the extent that federal defendants' arguments challenge subject matter jurisdiction, the 

law of the case doctrine does not apply. United States v. Houser, 804 F.2d 565, 569 (9th Cir. 

1986). But federal defendants have pointed to no relevant change in circumstances or the 

governing law between November 2016 and today. Accordingly, the Court has little to add to 

the prior opinion, which addressed the separation of powers issue at length. See Juliana, 217 F. 

Supp. 3d at 1235-42, 1270-71. The separation of powers did not require dismissal of this 

lawsuit in November 2016, and it does not require dismissal of this lawsuit now. 

Due respect for the separation of powers has informed, and will continue to inform, the 

Court's approach to this case at every step of the litigation. The Court remains mindful, 

however, that it is "emphatically the province and duty of the judicial department to say what the 

law is." Marbury v. Madison, 5 U.S. 137, 177 (1803). Courts have an obligation not to overstep 

the bounds of their jurisdiction, but they have an equally important duty to fulfill their role as a 

check on any unconstitutional actions of the other branches of government. 

II I 

II I 

II I 

II I 

Page 27 - OPINION AND ORDER 
II. Motion for Summary Judgment6 

Federal defendants raise several arguments in their motion for summary judgment, many 

of which were previously considered in the November 2016 Order. Namely, federal defendants 

reiterate their contention that plaintiffs lack Article III standing because their injuries are not 

concrete and particularized; the harms alleged by plaintiffs are not fairly traceably to federal 

defendants; and plaintiffs' claims are not redressable by this Court. Federal defendants also 

argue that plaintiffs have failed to adequately state a claim under the AP A and that plaintiffs' 

claims would violate separation of powers principles. Federal defendants further argue, as they 

did in their previous motion to dismiss, that there is no fundamental right to a climate system 

capable of sustaining human life; that plaintiffs cannot establish a state-created danger claim; and 

that the public trust doctrine does not apply to the federal government. 

In response, plaintiffs proffer the declarations of the named plaintiffs as well as 

declarations from eighteen expert witnesses. 7 They argue that genuine issues of material fact 

exist as to standing, separation of powers, and their due process and public trust claims. 

6 Subsequent to Oral Argument in July 2018, plaintiffs filed what they style as a Notice 

of Supplemental Disputed Facts Raised by federal defendants' Expert Reports in Support of 

Plaintiffs' Opposition to Defendants' Motion for Summary Judgment. (doc. 338) Essentially, 

plaintiffs submit excerpts from defendant's expert reports and argue that these submissions show 

that genuine issues of material fact remain for trial. However, the Court declines to consider the 

notice as it is untimely and prohibited under the District's Local Rules. L.R. 7-l(f). 

7 Many of documents referenced by plaintiffs' in their response to the motion for 

summary judgment, and supporting declarations, are subject to their motion in limine (doc. 254) 

seeking judicial notice of certain documents. The Court has examined which of those documents 

are judicially noticeable in a contemporaneous opinion. Further, at oral argument plaintiffs 

requested that the Court take judicial notice of the announcement of the Department of Interior's 

plan to offer 78 million acres offshore of the Gulf Coast for oil and gas exploration and 

development. The Court has located the announcement of the plan available on the 

Department's public website. https://www.doi.gov/pressreleases/interior-announces-region-wideoil-and-gas-lease-sale-gulf-mexico. Consistent with the Court's analysis the contemporaneous 

opinion regarding plaintiffs' first motion in limine, the Court takes judicial notice of the 

announcement. 

Page 28 - OPINION AND ORDER 
Many of these arguments raised in the present motion are substantially similar to those 

raised in federal defendants' and the former defendant-intervenors' motions to dismiss. 

However, federal defendants correctly note that the standard for this Court in reviewing a motion 

for summary judgment is different than the standard which was applied in the previous order. 

Thus the Court must review the briefing and record to determine whether there is any genuine 

dispute as to any material fact and the government is entitled to judgment as a matter of law. 

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

A. Standing 

Federal defendants argue, as they did at the pleadings stage, that plaintiffs lack Article III 

standing to bring their claims. While many of the arguments offered in the present summary 

judgment motion are substantially similar to those offered in the federal defendants' previous 

motion to dismiss, a different standard applies at this stage of the proceedings. 

To avoid summary judgment, plaintiffs need not establish that they in fact have standing 

but only that there is a genuine question of material fact as to the standing elements. Cent. Delta 

Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002). To demonstrate standing, a 

plaintiff must show that (1) she suffered an injury in fact that is concrete, particularized, and 

actual or imminent; (2) the injury is fairly traceable to the defendant's challenged conduct; and 

(3) the injury is likely to be redressed by a favorable court decision. Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must support each element of the standing test 

"with the manner and degree of evidence required at the successive stages of the litigation." Id. 

at 561. General factual allegations of injury resulting from the defendant's conduct will suffice 

in responding to a motion to dismiss. Id. In responding to a motion for summary judgment, 

however, a plaintiff can no longer rest on '"mere allegations,' but must 'set forth' by affidavit or 

Page 29 - OPINION AND ORDER 
other evidence 'specific facts,' Fed. Rule Civ. Proc. 56(e), which for purposes of the summary 

judgment motion will be taken to be true." Id. And at the final stage of standing evaluation, 

those facts (if controverted) must be supported adequately by the evidence adduced at trial. Id. 

1. Injury in Fact 

In an environmental case, a plaintiff cannot demonstrate injury in fact merely by alleging 

injury to the environment; there must be an allegation that the challenged conduct is harming (or 

imminently will harm) the plaintiff. Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (I'OC), 

Inc., 528 U.S. 167, 181 (2000). For example, a plaintiff may meet the injury in fact requirement 

by alleging that the challenged activity "impairs his or her economic interests or aesthetic and 

environmental well-being." Wash. Envt 'l Council v. Bellon, 732 F.3d 1131, 1140 (9th Cir. 

2013) (quotation marks omitted and alterations normalized). 

Plaintiffs have filed sworn declarations attesting to a broad range of personal injuries 

caused by human induced climate change. For example, plaintiff J ayden F. attests to being 

injured by extreme weather events in 2016 and 2017 which led to the flooding in both 2016 and 

2017 of her home in Rayne, Louisiana. Jayden Deel. if 2-16; if 26; if 28-32. This has caused 

emotional trauma, lost recreational opportunities, as well as lost personal and economic security. 

Id. at if 36; 39-42. Other plaintiffs also attest to injuries caused by flooding caused by sea level 

rise and extreme weather events. See Journey Deel. ifif 21-27; Levi Deel. ifif 3; 12-16; Tia Deel. if 

9; Victoria Deel. ifif 8-9. Similarly, plaintiff Journey attests that harm to his health, personal 

safety, cultural practices, economic stability, food security and recreation interests have occurred 

due to climate destabilization and ocean acidification. Journey Deel. ifif 1; 11-20;; See also 

Journey Deel. 21-27; Levi Deel. ifif 3; 12-16; Tia Deel. if 9; Victoria Deel. ifif 8-9; Jacob Deel. if 

20; Wanless Deel. Ex. 1 at 30. 

Page 30 - OPINION AND ORDER 
Plaintiff Kelsey Juliana attests that climate change has harmed her recreational interests 

in Oregon's freshwater lakes, rivers, forests, and mountains and has degraded the quality of local 

food sources and drinking water. Kelsey Deel. ifif 10-12. She, like other plaintiffs, also alleges 

adverse health and recreation impacts caused by the increased occurrence and intensity of 

seasonal wildfires. Id. if 15; Aji Deel. ifif 2-3; Alexander Deel. ifif 33-41; Jaime Deel. if 17; Kirin 

Deel. ifif 6-8; Xiuhtezcatl Deel. if 15; Zealand Deel. if 6. Some plaintiffs attest that they are 

suffering psychological trauma as result of fossil-fuel induced climate change caused by federal 

defendants. See Levi Deel. if 5; Victoria Deel. ifif 8-10, 16-18; Jayden Deel. if 42; Nicholas Deel. 

ifif 4, 7, 17. Other plaintiffs attest to injuries to their indigenous and cultural practices and 

values. Miko Deel. ifif, 6-7, Jamie Deel. ifif 12-14; Xiuhtezcatl Deel. ifif6-8. These are merely a 

selection of the many injuries alleged. 

Plaintiffs further offer expert testimony tying injuries alleged by plaintiffs to fossil fuel I 

induced global warming. See Trenberth Deel. 23 ("[I]t is my expert opinion that Plaintiffs 

including Jayden, Levi, Xiuhtezcatl, Victoria, Jaime, Journey, Zealand, and Nathan are already 

experiencing extreme weather events that have been exacerbated due to anthropogenic climate 

change."); Frumpkin Deel. Ex. 1, 2 & 11; Running Deel. 13 ("This will impact the many 

Plaintiffs in the West who suffer increased risk and severity of impacts from wildfires near their 

homes, in places that they visit for recreation, and in the air they breathe during the extended fire 

season, including Xiuhtezcatl, Jaime Lynn, Jacob, Sahara, Kelsey, Alex, Zealand, Nick, Aji, 

Nathan, Hazel and Avery."); Van Sustem Deel. Ex. 1, 17 ("The Plaintiffs I interviewed are 

suffering a range of emotional injuries from acute and chronic exposure to climate change - from 

being personally harmed by climate change impacts like drought and extreme weather events, to 

empathic identification with others who are harmed by climate change, to profound fears about 

Page 31 - OPINION AND ORDER 
future harm - consistent with those injuries described in the literature."); Stiglitz Deel. Ex. 1 if 29 

("Youth Plaintiffs themselves will suffer the disproportionate, increased financial burdens of 

climate change as the impacts of climate change propagate throughout the economy."). 

Federal defendants argue that these declarations fail to show that plaintiffs' injuries are 

concrete and particularized to them; rather federal defendants' contend that the injuries alleged 

are generalized widespread environmental phenomena which affect all other humans on the 

planet, making them nonjusticiable. See Lexmark Int'!, Inc. v. Static Control Components, 

Inc.,_U.S._134 S. Ct. 1377, 1387 n.3 (2014) (explaining that generalized grievances do not 

meet Article Ill's case or controversy requirement). 

However, as the Court noted in its November 2016 order: 

The government misunderstands the generalized grievance rule. As the Ninth 

Circuit recently explained, federal courts lack jurisdiction to hear a case when the 

harm at issue is "not only widely shared, but is also of an abstract and indefinite 

nature - for example, harm to the common concern for obedience to the law." 

Novak v. United States, 795 F.3d 1012, 1018 (9th Cir. 2015) (quoting Fed Elec. 

Comm 'n v. Akins, 524 U.S. 11, 23 (1998)). Standing alone, "the fact that a harm 

is widely shared does not necessarily render it a generalized grievance." Jewel, 

673 F .3d at 909; see also Massachusetts v. EPA, 549 U.S. 497, 517 (2007) ("[I]t 

does not matter how many persons have been injured by the challenged action" so 

long as "the party bringing suit shows that the action injures him in a concrete and 

personal way." (quotation marks omitted and alterations normalized)); Akins, 524 

U.S. at 24 ("[A]n injury .... widely shared ... does not, by itself, automatically 

disqualify an interest for Article III purposes. Such an interest, where sufficiently 

concrete, may count as an 'injury in fact."); Covington v. Jefferson Cnty., 358 F.3d 

626, 651 (9th Cir. 2004) (Gould, J., concurring) ("[T]he most recent Supreme 

Court precedent appears to have rejected the notion that injury to all is injury to 

none for standing purposes."); Pye v. United States, 269 F.3d 459, 469 (4th Cir. 

2001) ("So long as the plaintiff ... has a concrete and particularized injury, it does 

not matter that legions of other persons have the same injury."). Indeed, even if 

the experience at the root of [the] complaint was shared by virtually every 

American," the inquiry remains whether that shared experience caused an injury 

that is concrete and particular to the plaintiff. Jewel, 673 F.3d at 910. 

Juliana, 217 F. Supp.3d at 1243-44. 

Page 32 - OPINION AND ORDER 
Further, denying "standing to persons who are in fact injured simply because many others 

are also injured, would mean that the most injurious and widespread Government actions could 

be questioned by nobody." United States v. Students Challenging Regulatory Agency 

Procedures, 412 U.S. 669, 687 (1973). Federal defendants have presented no new controlling 

authority or other evidence which changes the Court's previous analysis. 

As to imminence, plaintiffs must demonstrate standing for each claim they seek to press 

and for each form of relief sought. DaimlerChrysler Corp. v. Cuna, 547 U.S. 332, 352 (2006). 

Because plaintiffs seek injunctive relief, they must show that their injuries are "ongoing or likely 

to recur." Consumer Fin. Prat. Bureau v. Gordon, 819 F.3d 1179, 1197 (9th Cir. 

2016) (quoting FTC v. Evans Prods. Co., 775 F.2d 1084, 1087 (9th Cir. 1985)). Plaintiffs have 

met this requirement under the summary judgment standard. 

Plaintiffs submit evidence that fossil fuel emissions are responsible for most of the 

increase in atmospheric C02, and that increasing C02, in turn, is the main cause of global 

warming, and that atmospheric concentrations of greenhouse gasses, due to fossil fuel 

combustion, are increasing quickly such that planetary warming is accelerating at rates never 

before seen in human history. Hansen Deel. Ex. A, at 38. Further, not only are concentrations of 

atmospheric C02 continuing to increase, but the rate of increase has also nearly doubled since 

measurements began being recorded pushing humanity closer to the "point of no return." Id. at 

29, 38. Estimates show that extreme weather events are likely to continue to increase as the 

global surface temperature continues to rise. Id. at 35; Trenberth Deel. Ex. 1, at 1, 8, 13. Indeed, 

the five hottest years in the 123 years of record-keeping in the United States have all occurred in 

the past decade. Trenberth Deel. Ex. 1, at 3. Plaintiffs present evidence that 2017 saw record 

Page 33 - OPINION AND ORDER 
setting events such as extreme wildfires in the western United States8 and abnormally strong 

hurricanes in the southeastern United States and Gulf of Mexico (Hurricanes Harvey, Irma, and 

Maria), all of which were exacerbated by climate change. Id. at 7-11. 

Further, plaintiffs offer that global sea level rise will continue unabated under current 

conditions. Plaintiffs' expert Dr. James Hansen has submitted video animations showing how 

the future impacts of seal level rise will flood or impact the livability of the homes of plaintiffs in 

Louisiana, Oregon, Washington, Florida, New York, and Hawaii based on current assumptions 

about carbon emission. Hansen Deel. Ex. E-R. The most recent projections from the National 

Oceanic and Atmospheric Administration ("NOAA") provide that global mean sea level will rise 

between 1.5-2.5 m (5- 8.2 ft.) by 2100 and that it is expected to continue to rise and even 

accelerate more after 2100. Wanless Deel. Ex. 1at12. 

In sum, the Court is left with plaintiffs' sworn affidavits attesting to their specific 

injuries, as well as a swath of extensive expert declarations showing those injuries are linked to 

fossil fuel-induced climate change and if current conditions remain unchanged, these injuries are 

likely to continue or worsen. Federal defendants offer nothing to contradict these submissions, 

and merely recycle arguments from their previous motion. Thus, for the purposes of this case, 

the declarations submitted by plaintiffs and their experts have provided "specific facts," of 

immediate and concrete injuries. Lujan, 504 U.S. at 561; See Bellon, 732 F.3d at 1141. 

II I 

8 "By 2006, scientists documented that the wildfire season in the western United States 

was 87 days longer than it was in the 1980s (Westerling et al. 2006). The number of large fires, 

> 1000 acres, had grown four times, and the number of acres burned per year had increased six 

times. Recent studies have found the global wildfire season increased 19 [percent] globally from 

1979-2013, and the global area vulnerable to wildfire increased 108 [percent] (Jolly et al. 

2015)." Running Deel. Ex. 1, 13. Future wildfire activity may be 200- 600 [percent] higher than 

today in the Pacific Northwest alone. Id. at 28. 

Page 34 - OPINION AND ORDER 
11. Causation 

A plaintiff must show the injury alleged is "fairly traceable" to the challenged action of 

the defendant and not the result of the independent action of some third party not before the 

court." Lujan, 504 U.S. at 560 (citation and quotation marks omitted). Although a defendant's 

action need not be the sole source of injury to support standing, Barnum Timber Co. v. EPA, 633 

F.3d 894, 901 (9th Cir. 2011), "[t]he line of causation between the defendant's action and the 

plaintiffs harm must be more than attenuated," Native Vil!. of Kivalina v. ExxonMobil Corp., 696 

F.3d 849, 867 (9th Cir. 2012) (citations and quotation marks omitted). However, a "causal chain 

does not fail simply because it has several links, provided those links are not hypothetical or 

tenuous and remain plausible." Id. (citations, quotation marks, and alterations omitted). At the 

summary judgment stage, the "causal connection put forward for standing purposes cannot be 

too speculative, or rely on conjecture about the behavior of other parties, but need not be so 

airtight at this stage of the litigation as to demonstrate that the plaintiffs would succeed on the 

merits." Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1152 (9th Cir. 2000) 

Here, federal defendants argue again that the association between the conduct of which 

plaintiffs complain, namely the government's subsidizing the fossil fuel industry; allowing the 

transportation, exportation, and importation of fossil fuels; setting of energy and efficiency 

standards for vehicles, appliances, and buildings; reducing carbon sequestration capacity and 

expanding areas for fossil fuel extraction and production through federal land leasing policies is 

tenuous and filled with many intervening actions by third parties. Thus, they argue that plaintiffs 

have failed to tether their injuries, both direct and indirect, to specific actions of the United 

States. 

Page 35 - OPINION AND ORDER 
Federal defendants again rely on the Ninth Circuit's holding in Bellon to support their 

argument that "the causal chain is too weak to support standing" for plaintiffs' injuries. Bellon, 

732 F.3d at 1142. The Court discussed Bellon in detail in its November 2016 Order on the 

motions to dismiss. See Juliana, 217 F. Supp. 3d at 1244-1246. Briefly, the court in Bellon 

found that the five oil refineries at issue in that case were responsible for just under six percent of 

total greenhouse gas emissions produced in the State of Washington. The court quoted the state's 

expert's declaration that the effect of those emissions on global climate change was 

"scientifically indiscernible, given the emission levels, the dispersal of greenhouse gases worldwide, and the absence of any meaningful nexus between Washington refinery emissions and 

global greenhouse gases concentrations now or as projected in the future." Bellon, 732 F.3d at 

1144 (quotation marks omitted). 

Previously, the Court distinguished Bellon on the procedural basis that it was considering 

motions to dismiss, while the court in Bellon reviewed an order on a motion for summary 

judgment. Now on summary judgment in this case, the Court still finds that Bellon does not 

foreclose standing for plaintiffs. The court in Bellon relied on the scientific evidence, presented 

in an "unchallenged declaration" from the defendants' expert that showed that the causal 

connection between the regulatory actions of the defendants, the greenhouse gas emissions in 

question, and the injuries complained of by the plaintiffs were too tenuous to support standing. 

Id. at 1143-44 (emphasis added). The Ninth Circuit later clarified, "causation was lacking [in 

Bellon] because the defendant oil refineries were such minor contributors to greenhouse gas 

emissions, and the independent third-party causes of climate change were so numerous, that the 

contribution of the defendant oil refineries was 'scientifically indiscernible."' WildEarth 

Page 36 - OPINION AND ORDER 
Guardians v. US. Dep't of Agric., 795 F.3d 1148, 1158 (9th Cir. 2015) 

(quoting Bellon, 732 F.3d at 1144). 

Unlike in Bellon, plaintiffs' claims· do not challenge the global impact of such specific 

em1ss10ns. Rather, plaintiffs have proffered uncontradicted evidence showing that the 

government has historically known about the dangers of greenhouse gases but has continued to 

take steps promoting a fossil fuel based energy system, thus increasing greenhouse gas 

em1ss10ns. As the Court noted in the November 2016 Order, climate science and our ability to 

understand the effects of climate change are constantly evolving. Juliana, 217 F.Supp 3d at 

1245 (quoting Kirsten Engel & Jonathan Overpeck, Adaptation and the Courtroom: Judging 

Climate Science, 3 Mich. J. Envt'l & Admin. L. 1, 25 (2013) (although "climate impacts at the 

regional and local levels are subject, among other things, to the uncertainties of downscaling 

techniques [,] ... our knowledge of the climate is developing at a breakneck pace.")). Bellon does 

not foreclose standing in any suit simply because it is based on actions causing dangerous levels 

atmospheric carbon emissions. 

In further contrast to Bellon, the pattern of federally authorized emissions challenged by 

plaintiffs in this case do make up a significant portion of global emissions. Federal defendants 

have admitted that "from 1850 to 2012, C02 emissions from sources within the United States 

including from land use "comprised more than 25 [percent] of cumulative global C02 

emissions." Answer at if 151. At oral argument, federal defendants noted that plaintiffs' 

evidence only shows "United States' current global contribution to current emissions is around 

14 to 15 percent." July 18, 2018 Hearing Trans. 29. In a different context the Supreme Court 

held that United States motor-vehicle emissions which were responsible for six percent of 

worldwide C02 "make a meaningful contribution to greenhouse gas concentrations" when 

Page 37 - OPINION AND ORDER 
"judged by any standard." 9 Mass. v. EPA, 549 U.S. at 524-25. The emissions implicated by 

federal defendants' conduct in the case outstrip either of those considered in either Bellon or 

Massachusetts. 

Still, federal defendants contend that plaintiffs do not adequately show a causal 

connection between a specific action taken by federal defendants and their climate change 

related injuries. They argue that plaintiffs' causal connection is based on the actions of thirdparty emitters. However, plaintiffs challenge not only the direct emissions of federal defendants 

through their use of fossil fuels to power its buildings and vehicles10, but also the emissions that 

are caused and supported by their policies. Plaintiffs have alleged that federal defendants' 

systematic conduct, which includes "government policies practices, and actions, showing how 

each Defendant permits, licenses, leases, authorizes, and/or incentivizes the extraction, 

development, processing, combustion, and transportation of fossil fuel" caused plaintiffs' 

injuries. Plaintiffs' Resp. to Mot. for Summ J. 11. And plaintiffs provide evidence that federal 

defendants' actions (or inaction), such as coal leasing, oil development, fossil fuel industry 

subsidies, and the setting of fuel efficiency standards for vehicles, led to plaintiffs' injuries. 

For example, regarding federal leasing policy, more than five million acres of National 

Forest lands are currently leased for oil, natural gas, coal, and phosphate development. Olsen 

Deel. Ex. 73. In 2016, the Department of Interior administered some 5000 active oil and gas 

9 The court in Bellon declined to extend the rationale of Massachusetts in part because 

while the 6 percent of Washington state emissions at issue in that case might be significant in 

that state, the plaintiffs did not "provide any evidence that places this statistic in national or 

global perspective to assess whether the refineries' emissions are a meaningful contribution to 

global greenhouse gas levels." 732 F.3d 1131, 1146 (9th Cir. 2013) (internal citation omitted). 

10 These emissions are not insignificant. In 2016, the federal government had 1,340,000 

cars and 1,810,000 trucks in its fleet. Olson Deel. Ex.136. In 2015, the federal fleet consumed 

310,416 gallons of gasoline and 66,736 gallons of diesel. Id. The Department of Defense uses 

enough electricity to power 2.6 million average American homes. Id. at Ex. 217 

Page 38 - OPINION AND ORDER 
leases on nearly 27 million acres in the Outer Continental Shelf. Id. Ex. 215. In 2015, 782 

million barrels of crude oil, five trillion cubic feet of natural gas, and 421 million tons of coal 

were produced on federal lands managed by the Department of Interior. See Id. Ex. 74. 

Between 1905 and 2016, the United States Department of Agriculture authorized the harvest of 

525,484,148 billion board feet of timber from federal land, thus reducing the country's carbon 

sequestration capacity. Id. Ex. 45. Federal defendants permit livestock grazing on over 95 

million acres of National Forest lands in 26 states, further reducing carbon sequestration capacity 

and increasing methane emissions. Id. 42, 46, 52, 50-55, 70. It is uncontested that federal 

defendants control leasing and permitting on federal land. Third parties could not extract fossil 

fuels or make other use of the land without Federal Defendants' permission. 

Federal defendants also set energy and efficiency standards that do impact the rate at 

which individual and businesses emit greenhouse gases. The Department of Energy sets energy 

conservation standards for more than 60 categories of appliances and equipment, which covers 

roughly 90 percent of home energy use. Id Ex. 92. Likewise, passenger cars and light trucks 

cannot be sold in the United States unless they comply with the Fuel Economy Standards set by 

the Department of Transportation, which historically have been lower in the United States than 

other developed nations. Id. Ex. 151. 

Federal defendants' actions impact the import, export, and transport of fossil fuels. For 

example, in 2015, Congress lifted a ban on crude oil exports and exports rose rapidly thereafter. 

Id. Ex. 96. No offshore liquefied natural gas or oil import and export facility can legally operate 

without a license from the Department of Transportation. Id. at 120 189. The Federal Energy 

Regulatory Commission must approve interstate transport of fossil fuel, and Department of 

Transportation permitting is required for transportation of hazardous material including fossil 

Page 39 - OPINION AND ORDER 
fuels. Id. at 384, 385. These examples are merely illustrative of the evidence proffered by 

plaintiffs. 

Plaintiffs' expert declarations also provide evidence that federal defendants' actions have 

led to led to plaintiffs' complained of injuries. Plaintiffs' expert Dr. James Hansen asserts that 

"[t]he United States is, by far, the nation most responsible for the associated increase in global 

temperatures. The [United States] alone is responsible for a 0.15°C increase in global 

temperature." Hansen Deel. 28. Plaintiffs' expert Dr. Joseph Stiglitz offers that "the current 

national energy system, in which approximately 80 percent of energy comes from fossil fuels, is 

a direct result of decisions and actions taken by Defendants." Stiglitz Deel. Ex. 1 if 27. That is 

echoed by plaintiffs' expert Dr. Mark Jacobson who notes that "fossil fuels supply more than 80 

[percent] of our all-purpose energy in the United States, not out of necessity, but because of 

political preference and historic government support that led to the development and 

maintenance of a widespread fossil-fuel infrastructure." Jacobson Deel. Ex. 1, 5. Plaintiffs' 

expert Peter Erickson submitted that by subsidizing the low cost of oil the United States 

government has historically and is currently substantially expanding the country's future oil 

production relative to the production that would occur if these subsidies were not in place. 

Erickson Deel. Ex.1, 15. 

Plaintiffs' experts tether plaintiffs' specific injuries to climate change and climate change 

related weather events. See generally Section 2.A.ii. Plaintiffs' expert Dr. Harold Wanless 

opines that sea level rise solely caused by fossil fuel-induced climate change poses clear and 

irreversible harm to plaintiffs like Levi whose community will likely be uninhabitable in future. 

Wanless Deel. Ex. 1 at 1-2. Likewise, plaintiffs' expert Dr. Kevin Trenberth offers, as an 

example of climate change related weather events harming plaintiffs, localized extreme weather 

Page 40 - OPINION AND ORDER 
events like the flooding affecting plaintiff J ayden and her home were heightened by climate 

change. Trenberth Deel. Ex. 1 at 20-22. The magnitude of rainfall and the extent of flooding 

near Jayden's home would not have occurred without fossil fuel-induced climate change. Id. Dr. 

Steven Running notes that the pattern of drought that led plaintiff Jaime to move from her home 

on the Navajo Reservation in New Mexico is directly linked to climate change. Running Deel. 6. 

At this stage of the proceedings, the Court finds that plaintiffs have provided sufficient 

evidence showing that causation for their claims is more than attenuated. Plaintiffs' "need not 

connect each molecule" of domestically emitted carbon to their specific injuries to meet the 

causation standard. Bellon, 732 F.3d 1142-43. The ultimate issue of causation will require 

perhaps the most extensive evidence to determine at trial, but at this stage of the proceedings, 

plaintiffs have proffered sufficient evidence to show that genuine issues of material fact remain 

on this issue. A final ruling on this issue will benefit from a fully developed factual record 

where the Court can consider and weigh evidence from both parties. 

ni. Redressability 

The final prong of the standing inquiry is redressability. The causation and redressability 

prongs of the standing inquiry "overlap and are two facets of a single causation requirement." 

Bellon, 732 F.3d at 1146 (citation and quotation marks omitted). They are distinct in that 

causation "examines the connection between the alleged misconduct and injury, whereas 

redressability analyzes the connection between the alleged injury and requested judicial relief." 

Id. A plaintiff need not show that a favorable decision is certain to redress her injury, but must 

show a substantial likelihood that it will do so. Id. For the redressability inquiry, it is sufficient 

Page 41- OPINION AND ORDER 
to show that the requested remedy would "slow or reduce" the harm. 11 Mass. v. EPA, 549 U.S. at 

525 (citing Larson v. Valente, 456 U.S. 228, 243 n.15 (1982)). 

Federal defendants contend that there is no possible redress in this case because the 

remedies sought by plaintiffs are beyond the Court's authority to provide. 12 Further, they argue 

that even if this Court did find in favor of plaintiffs, any remedy it fashioned would not redress 

the harms alleged by plaintiffs, because fossil fuel emissions from other entities would still 

contribute to continuing global warming. Thus, they argue that there is no evidence that any 

immediate reduction in emissions caused by the United States would manifest in a reduction of 

climate change induced weather phenomena. As the Court has stated before, whether the Court 

could guarantee a reduction in greenhouse gas emission is the wrong inquiry because 

redressability does not require certainty. Rather, at this stage, it only requires a substantial 

likelihood that the Court could provide meaningful relief. Moreover, the possibility that some 

other individual or entity might later cause the same injury does not defeat standing; the question 

remains whether the injury caused by the defendants in this suit can be redressed. Juliana, 217 

F. Supp. 3d at 1247; See also WildEarth Guardians v. US. Dep't of Agric., 795 F.3d 1148, 1157 

(9th Cir. 2015) ("[T]he mere existence of multiple causes of an injury does not defeat 

redressability, particularly for a procedural injury. So long as a defendant is at least partially 

11 "[A] plaintiff satisfies the redressability requirement when he shows that a favorable 

decision will relieve a discrete injury to himself. He need not show that a favorable decision will 

relieve his every injury." Mass. v. EPA, 549 U.S. at 525 

12 Federal defendants rely on Norton v. Southern Utah Wilderness Alliance for the 

proposition that the Court may only compel ministerial action. 542 U.S. 55, 57-58 (2004). 

However, that case involved a claim brought under the AP A. The Court has already held that 

these claims are not governed by the APA. See Sections l.B. and 2.C. 

Page 42 - OPINION AND ORDER 
causing the alleged injury, a plaintiff may sue that defendant, even if the defendant is just one of 

multiple causes of the plaintiffs injury."). 

Here, plaintiffs request declaratory and injunctive relief as well as any other relief as the 

Court deems just and proper. They ask the Court, inter alia, to "[o]rder Defendants to prepare 

and implement an enforceable national remedial plan to phase out fossil fuel emission and draw 

down excess atmospheric C02." First Am. Compl. if 94. Plaintiffs dispute federal defendants' 

contention, however, that they are asking this Court to create a highly specific plan that federal 

defendants must use remedy any constitutional violations. Instead, plaintiffs urge that their 

request for relief, at its core, is one for a declaration that their constitutional rights have been 

violated and an order for federal defendants to develop their own plan, using existing resources, 

capacities, and legal authority, to bring their conduct into constitutional compliance. Plaintiffs 

point to various statutory authorities by which they claim federal defendants could affect the 

relief they request. Plaintiffs' Resp. to Mot. for Summ. J. 24-25. See inter alia 30 U.S.C §§ 351-

359; 33 U.S.C. § 1344; 42 U.S.C. §§ 7112; 6291-6296; 7401-7431; 13 49 U.S.C. § 32902; 33 

U.S.C. § 1344. 

Plaintiffs also offer evidence that the injuries they allege can be redressed through actions 

by federal defendants. See Hansen Deel. Ex. 1, 4 (staving off the effects of catastrophic climate 

change "remains possible if [the United States] phases out [greenhouse gas emissions] within 

several decades and actively draw[ s] down excess atmospheric C02 [,]" which can be largely 

achieved "via reforestation of marginal lands with improved forestry and agricultural 

13 Judge Coffin cited to§ 7409 (providing the Environmental Protection Agency with the 

authority to regulate national ambient air quality standards for the attainment and maintenance of 

the public welfare) in his F &R as supporting a "strong link between all the supposedly 

independent and numerous third party decisions given the government's regulation of C02 

emissions." (doc. 68 at *10); See also Mass. v. EPA, 549 U.S. 497, 524 (2007). (A "reduction in 

domestic emissions would slow the pace of global emissions increases, no matter what happens 

elsewhere.") 

Page 43 - OPINION AND ORDER 
practices."); Robertson Deel. Ex 1 at 6 ("All told, technology is available today to store carbon 

or avoid future greenhouse gas emissions from agriculture in the U.S. equivalent to more than 30 

[gigatonnes of carbon] by 2100); Jacobson Deel. Ex. 1 at 7 ("[I]t is technologically and 

economically possible to electrify fully the energy infrastructures of all 50 United States and 

provide that electricity with 100 [percent] clean, renewable wind, water, and sunlight (WWS) at 

low cost by 2030 or 2050."); Williams Deel. Ex. 1 at 3 & 64 ("[I]t is technically feasible to 

develop and implement a plan to achieve an 80 [percent] greenhouse gas reduction below 1990 

levels by 2050 in the United States ... with overall net [greenhouse gas] emissions of no more 

than 1,080 [million tons of carbon], and fossil fuel combustion emissions of no more than 750 

[million tons of carbon]."); Stiglitz Deel. Ex. 1, ifil 44-49 (explaining that transitioning the 

United States economy away from fossil fuels is feasible and beneficial). 

It is clearly within a district court's authority to declare a violation of plaintiffs' 

constitutional rights. See, e.g., Obergefell v. Hodges,_U.S. __ 135 S. Ct. 2584 (2015); Brown 

v. Bd of Educ., 347 U.S. 483 (1954); Lawrence v. Texas, 539 U.S. 558 (2003). "Once a right and 

a violation have been shown, the scope of a district court's equitable powers to remedy past 

wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. 

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15. (1970). As mentioned elsewhere in this 

opinion, should the Court find a constitution violation, it would need to exercise great care in 

fashioning any form relief, even if it were primarily declaratory in nature. 14 The Court has 

considered the summary judgment record regarding traceability and plaintiffs' experts' opinions 

that reducing domestic emissions, which plaintiffs contend are controlled by federal defendants' 

14 Indeed, the "remedial powers of an equity court ... are not unlimited." Whitcomb v. 

Chavis, 403 U.S. 124, 161 (1971). 

Page 44 - OPINION AND ORDER 
actions, could slow or reduce the harm plaintiffs are suffering. The Court concludes, for the 

purposes of this motion, that plaintiffs have shown an issue of material fact that must be 

considered at trial on full factual record. 

Regarding standing, federal defendants have offered similar legal arguments to those in 

their motion to dismiss. Plaintiffs, in contrast, have gone beyond the pleadings to submit 

sufficient evidence to show genuine issues of material facts on whether they satisfy the standing 

elements. The Court has considered all of the arguments and voluminous summary judgment 

record, and the Court finds that plaintiffs show that genuine issues of material fact exist as to 

each element. As the Court notes elsewhere in this opinion, the Court will revisit all of the 

elements of standing after the factual record has been fully developed at trial. For now, the 

Court simply holds that plaintiffs have met their burden to avoid summary judgment at this time. 

B. Failure to State a Claim under the AP A 

Federal defendants next argue that even if the Court finds that plaintiffs have established 

standing, plaintiffs still have not identified a valid right of action. Essentially, federal defendants 

argue once again that this case must be dismissed because the AP A provides the "sole 

mechanism" by which plaintiffs must bring their claims. Defs.' Mot. for Summ. J. 18. This 

issue is substantively explored in Section LB, infra, and applies with equal force to this motion 

for summary judgment. Plaintiffs' claims are not governed by the AP A. Thus, federal 

defendants are not entitled to summary judgment on this issue. 

C. Separation of Powers 

Federal defendants contend, once again that plaintiffs' claims and the relief sought are 

broader than what can be entertained as a case or controversy under Article III of the United 

Page 45 - OPINION AND ORDER 
States Constitution. The Court has already discussed similar arguments in the November 2016 

Order and in Section I. C of this Opinion. 

Federal defendants off er no new evidence or controlling authority on this issue that 

warrant reconsideration of the Court's previous analysis. 15 Nor do they offer a rationale as to 

why the outcome should be different under the summary judgment standard. Indeed, they 

contend that the issue here is "purely legal" in nature and that "factual development" is not 

relevant to whether plaintiffs' requested remedy violates separation of powers issues. Defs.' 

Reply to Mot. for Summ. J. 26. 

As the Court noted above, the allocation of powers between the branches of government 

is a critical consideration in this case, but it is the clear province of the judiciary to say what the 

law is. Marbury, 5 U.S. at 177. After a fuller development of the record and weighing of 

evidence presented at trial, should the Court find a constitutional violation, then it would exercise 

great care in fashioning a remedy determined by the nature and scope of that violation. 

Additionally, many potential outcomes and remedies remain at issue in this case. The Court 

15 Federal defendants point to a recent public nuisance case from the Northern District of 

California to support their position that this case violates separation of powers principles. See 

City of Oakland v. BP P.L.C., et al., 2018 WL 3109726 (N.D. Cal. 2018). There, a district court 

dismissed claims brought by certain cities in California against several large oil and natural gas 

producers. The plaintiffs alleged that the worldwide production and sale of fossil fuels by the 

defendants were causing climate change, the effects of which caused damage to the cities. City 

of Oakland is readily distinguishable. Here, plaintiffs allege constitutional violations against the 

federal government based on federal defendants' domestic carbon emissions as well as a 

promulgation of a domestic energy market based on fossil fuels in spite of their awareness of the 

dangers of such emissions. The court in City of Oakland focused on nuisance claims, brought for 

money damages, and the resulting balancing test, as well as extraterritoriality concerns stemming 

from the plaintiffs' attempt to impose liability on the defendants for the production and sale of 

fossil fuels worldwide. Id at *7. ("Because this relief would effectively allow plaintiffs to 

govern conduct and control energy policy on foreign soil, we must exercise great caution.") 

Here, plaintiffs' claims are limited to the territorial boundaries of the United States. The Court is 

not persuaded that City of Oakland offers relevant guidance for the Court's consideration of this 

motion given the vastly different nature of the claims, requested remedies, and parties. 

Page 46 - OPINION AND ORDER 
could find that there is no violation of plaintiffs' rights; that plaintiffs fail to meet one or more of 

the requirements of standing; or, after the full development of the factual record, that the 

requested remedies would indeed violate the separation of powers doctrine. As has been noted 

before, even should plaintiffs prevail at trial, the Court, in fashioning an appropriate remedy, 

need not micro-manage federal agencies or make policy judgments that the Constitution leaves 

to other branches. The record before the Court at this stage of the proceedings, however, does 

not warrant summary dismissal. To grant summary judgment on these grounds at this stagewhen plaintiffs have supplied ample evidence to show genuine issues of material fact-would be 

premature. 16 

Federal defendants also contend that merely participating in ongoing discovery and a 

court trial violates separation of powers principles. Federal defendants previously made this 

argument in their Motion for Protective Order and Stay of All Discovery. (doc. 196) This 

rationale was rejected by Judge Coffin in his Order denying the motion (doc. 212), which the 

Court later affirmed over Federal Defendant's objections. (doc. 300) Moreover, the Ninth 

Circuit considered this argument in federal defendant's latest petition for mandamus. The panel 

noted in its opinion that the government made the same argument in their first mandamus 

petition, and the panel "rejected" it for the purposes of the mandamus. In re United 

States,_F.3d_, 2018 WL 3484444 at *9 (citing In re United States, 884 F.3d at 836). Once 

again, the Court does not find federal defendants' argument persuasive and concludes that 

generally participating in discovery and trial here does not in and of itself violate separation of 

16 Respect for separation of powers might, for example, permit the Court to grant 

declaratory relief, directing federal defendants to ameliorate plaintiffs' injuries without limiting 

its ability to specify precisely how to do so. That said, federal courts retain broad authority "to 

fashion practical remedies when confronted with complex and intractable constitutional 

violations." Brown v. Plata, 563 U.S. 493, 526 (2011). Here the Court has not yet determined 

the scope, if any, of federal defendants' constitutional violations or plaintiffs' injuries. 

Page 47-0PINION AND ORDER 
powers concerns. Federal defendants have been free to raise objections to specific discovery 

requests and orders which they believe implicate separation of powers concerns. 

D. Due Process Claims 

Federal defendants argue that plaintiffs' individual due process claims fail as a matter of 

law. The Court addresses each in tum. 

1. Fundamental Right to an Environment Capable of Sustaining Human Life 

Federal defendants argue, as they did in their previous motion to dismiss that there is no 

right to a climate system capable of sustaining human life. They note that this issue is "a purely 

legal question" and that factual development at trial is not necessary to resolve it. Defs.' Reply 

to Mot. for Summ. J. 29. Federal defendants offer substantially similar arguments to those from 

their motion dismiss here. 17 The Court addressed these arguments in the previous order, and 

nothing in the current briefing persuades the Court to change its previous rationale. As stated in 

the November 2016 order, this Court has simply held that: 

where a complaint alleges knowing governmental action is affirmatively and 

substantially damaging the climate system in a way that will cause human deaths, 

shorten human lifespans, result in widespread damage to property, threaten human 

food sources, and dramatically alter the planet's ecosystem, it states a claim for a 

due process violation. To hold otherwise would be to say that the Constitution 

affords no protection against a government's knowing decision to poison the air 

its citizens breathe or the water its citizens drink. 

Juliana, 217 F. Supp. 3d at 1250. 

17 Federal defendants do cite a recent case from D.C. Circuit Court of Appeals arguing 

that it rejected the notion of a federal due process right to a stable environment. Delaware 

Riverkeeper Network v. Fed. Energy Regulatory Comm 'n, 895 F.3d 102, (D.C. Cir. 2018). 

However, the analysis in that case involved the Environmental Rights Amendment to the 

Pennsylvania State Constitution, and the court ultimately held that the rights created by the 

amendment in question bound only "only state and local governments." Id. at 110. The court 

noted that the plaintiffs grounded their claims on the right outlined in the Pennsylvania 

Constitution as creating "a protected liberty or property interest as a matter of federal due 

process." Id. at 108. The court found that "the Amendment is too vague and indeterminate to 

create a federally cognizable property interest." Id. at 109. Because the court's analysis centered 

on the specific Pennsylvania Environmental Rights Amendment, it is not controlling here. 

Page 48 - OPINION AND ORDER 
Reviewing the summary judgment record, plaintiffs have offered expert testimony on the 

catastrophic harms of climate change. See Section 2.A. They also submitted evidence, in the 

form of expert declarations and government documents, supporting their argument that the 

federal defendants' actions have led to these changes and are linked to the harms alleged by 

plaintiffs. At this stage, federal defendants have offered no legal or factual rationale significantly 

different from those offered in their previous motion to dismiss. As such, the Court finds no 

reason to re-examine the previous ruling on the existence of this due process right. Moreover, 

further factual development of the record will help this Court and other reviewing courts better 

reach a final conclusion as to plaintiffs' claims under this theory. 

11. State-Created Danger Theory 

Federal defendants urge that plaintiffs' claims based on the state created danger doctrine 

must fail. First, they argue that plaintiffs do not show a special relationship between themselves 

and the government. More importantly, federal defendants argue that plaintiffs cannot show that 

government conduct proximately caused a dangerous situation in deliberate indifference to 

plaintiffs' safety or that harm or loss of life has resulted from such conduct. Plaintiffs contend 

that they have proffered ample evidence to show genuine issues of material fact as to whether 

federal defendants have liability for the conduct alleged in their complaint. 

With limited exceptions, the Due Process Clause does not impose an affirmative 

obligation on the government to act, even when "such aid may be necessary to secure life, 

liberty, or property interests of which the government itself may not deprive the individual." 

DeShaney v. Winnebago Cnty. Dep 't of Soc. Servs., 489 U.S. 189, 196 (1989). This rule is 

subject to two exceptions: "(1) the 'special relationship' exception; and (2) the 'danger creation' 

exception." L. W v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). The "special relationship" 

Page 49 - OPINION AND ORDER 
exception provides that when the government takes an individual into custody against his or her 

will, it assumes some responsibility to ensure that individual's safety. Id. The "danger creation" 

exception permits a substantive due process claim when government conduct "places a person in 

peril in deliberate indifference to their safety[.]" Penilla v. City of Huntington Park, 115 F.3d 

707, 709 (9th Cir. 1997). 

A plaintiff challenging government inaction on a danger creation theory must first show 

the "state actor create[ d] or expose[ d] an individual to a danger which he or she would not have 

otherwise faced." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). The state 

action must place the plaintiff "in a worse position than that in which he would have been had 

the state not acted at all." Pauluk v. Savage, 836 F.3d 1117, 1125 (9th Cir. 2016) (quotation 

marks omitted and alterations normalized). Second, the plaintiff must show the "state actor ... 

recognize[ d]" the unreasonable risks to the plaintiff and "actually intend[ ed] to expose the 

plaintiff to such risks without regard to the consequences to the plaintiff." Campbell v. Wash. 

Dep't of Soc. & Health Servs., 671 F.3d 837, 846 (9th Cir. 2011) (brackets and quotation marks 

omitted). The defendant must have acted with "[ d]eliberate indifference," which "requires a 

culpable mental state more than gross negligence." Pauluk, 836 F.3d at 1125 (quotation marks 

omitted). 

Federal defendants' mam argument is that plaintiffs' allegations regarding the 

government's knowledge of the dangers posed to plaintiffs by climate change do not rise to the 

required level of "deliberate indifference." Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 

2011) ("Deliberate indifference is a stringent standard of fault, requiring proof that a municipal 

actor disregarded a known or obvious consequence of his action." (internal citation and 

quotations omitted.)). Plaintiffs' point to their expert declarations to demonstrate that federal 

Page 50 - OPINION AND ORDER 
defendants have known of, and disregarded, the consequences of continued fossil fuel use on the 

United States and its citizens. Federal defendants do not meaningfully refute the factual 

allegations, but instead deny their bearing on the issue. Therefore, there is a genuine issue of 

disputed facts surrounding the government's knowledge of climate change's dangers and 

summary judgment before trial, is inappropriate. 

Plaintiffs specifically refer to the declaration from their expert Gus Speth, former 

chairman of the Council on Environmental Quality under President Jimmy Carter. Mr. Speth' s 

declaration examines a historical record spanning ten presidential administrations and references 

a number of documents, statements of government officials, and federal policy actions that go 

directly to the government's knowledge of the links between fossil fuels and increasing global 

mean temperature and the dangers associated therein, such as sea level rise to Americans at the 

time and in future. 

For example, in 1969 Daniel Moynihan, then counselor to the President Richard Nixon, 

wrote to John Ehrlichman, President Nixon's Assistant for Domestic Affairs, summarizing the 

climate problem: 

The process is a simple one. Carbon dioxide in the atmosphere has the effect of a 

pane of glass in a greenhouse. The C02 content is normally in a stable cycle, but 

recently man has begun to introduce instability through the burning of fossil fuels. 

At the tum of the century several persons raised the question whether this would 

change the temperature of the atmosphere. Over the years the hypothesis has been 

refined, and more evidence has come along to support it. It is now pretty clearly 

agreed that the C02 content will rise 25 [percent] by 2000. This could increase the 

average temperature near the earth's surface by 7 degrees Fahrenheit. This in turn 

could raise the level of the sea by 10 feet. Goodbye New York. Goodbye 

Washington, for that matter. 

Speth Deel.~ 18. (citing Olsen Dec. Ex. 2) (emphasis added) 

In 1977, President Jimmy Carter's science advisor Frank Press wrote to the President explaining: 

Page 51- OPINION AND ORDER 
Fossil fuel combustion has increased at an exponential rate over the last 100 

years. As a result, the atmospheric concentration of C02 is now 12 percent above 

the pre-industrial revolution level and may grow 1.5 to 2.0 times that level within 

60 years. Because of the greenhouse effect of atmospheric C02, the increased 

concentration will induce a global climatic warming of anywhere from 0.5° to 5° 

C .... The urgency of the problem derives from our inability to shift rapidly to 

non-fossil fuel sources once the climatic effects become evident not long after the 

year 2000; the situation could grow out of control before alternate energy sources 

and other remedial actions become effective. 

Id. if 21 (citing Olsen Deel. Ex. 4.) 

Another example of the alleged knowledge and deliberate indifference of the federal 

defendants cited by plaintiffs is the United Nations Framework Convention on Climate Change, 

which was signed by the President George H.W. Bush and ratified by the U.S. Senate in 1992. 

Speth Deel. if 44. The preamble to the Convention provided that: 

[H]uman activities have been substantially increasing the atmospheric 

concentrations of greenhouse gases, that these increases enhance the natural 

greenhouse effect, and that this will result on average in an additional warming of 

the Earth's surface and atmosphere and may adversely affect natural ecosystems 

and humankind 

Olson Deel. Ex. 23 

Plaintiffs further contend that the dangers of global warming were well known during the 

administration of Presidents William Clinton and George W. Bush. In 1996, the Council on 

Environmental Quality reported to Congress: "[t]he average global temperature is projected to 

rise 2 to 6 degrees over the next century ... the longer we wait to reduce our emissions, the more 

difficult the job, and the greater the risks." Olson Deel., Ex. 25, at xi. Further, a 2007 report 

from the House of Representatives Committee on Oversight and Government Reform alleged 

that the Bush Administration misled the public regarding the effects of climate change, 

concluding: 

The Committee's 16-month investigation reveals a systematic White House effort 

to censor climate scientists by controlling their access to the press and editing 

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testimony to Congress. The White House was particularly active in stifling 

discussions of the link between increased hurricane intensity and global warming. 

The White House also sought to minimize the significance and certainty of 

climate change by extensively editing government climate change reports. Other 

actions taken by the White House involved editing EPA legal opinions and op-eds 

on climate change. 

Olson Deel., Ex. 34, at ii. 

In June 2009, the U.S. Global Change Research Program ("USGCRP"), government 

advisory council, released its Second National Climate Assessment which noted that "[ c ]limate 

change is likely to exacerbate these challenges as changes in temperature, precipitation, sea 

levels, and extreme weather events increasingly affect homes, communities, water supplies, land 

resources, transportation, urban infrastructure, and regional characteristics that people have come 

to value and depend on." Olson Deel. Ex. 35 at 100. Recently, in August 2017, the USGCRP 

Fifth National Climate Assessment found "that reversing course on climate, as expected with the 

passage of time, is more urgent than ever." Speth Deel.~ 76. 

At this stage of the proceedings, plaintiffs have introduced sufficient evidence and 

experts' opinions to demonstrate a question of material fact as to federal defendants' knowledge, 

actions, and alleged deliberate indifference. Once this claim is reviewed with a full factual 

record, plaintiffs must still clear a very high bar to ultimately succeed. 

Additionally, based on the proffered evidence and the complex issues involved in this 

claim, the Court exercises its discretion to "deny summary judgment in a case where there is 

reason to believe that the better course would be to proceed to a full trial." Anderson, 477 U.S. 

at 256. 

The Ninth Circuit has reserved summary judgment in the past to obtain a more robust 

record. See Anderson v. Hodel, 899 F.2d 766, 770 (9th Cir 1990) ("[A]ppellate courts, including 

the Supreme Court, have reversed summary judgments where the lower court records have not 

Page 53 - OPINION AND ORDER 
been sufficiently developed to allow the courts to make fully informed decisions on particularly 

difficult and far reaching issues." (internal quotation marks omitted) (alterations omitted)); see 

also Eby v. Reb Realty, Inc., 495 F.2d 646, 649 (9th Cir. 1974) ("In certain cases summary 

judgment may be inapposite because the legal issue is so complex, difficult, or insufficiently 

highlighted that further factual elucidation is essential for its prudently considered resolution."). 

The Ninth Circuit has further explained that 

[C]ourts must not rush to dispose summarily of cases-especially novel, complex, 

or otherwise difficult cases of public importance-unless it is clear that more 

complete factual development could not possibly alter the outcome and that the 

credibility of the witnesses' statements or testimony is not at issue. Even when 

the expense of further proceedings is great and the moving party's case seems to 

the court quite likely to succeed, speculation about the facts must not take the 

place of investigation, proof, and direct observation. 

TransWorld Airlines, Inc. v. American Coupon Exchange, Inc., 913 F.2d 676, 684 (9th 

Cir. 1990) 

Undoubtedly, this claim involves complicated and novel questions about standing, 

historical context, and constitutional rights. To allow a summary judgment decision 

without cultivating the most exhaustive record possible during a trial would be a 

disservice to the case, which is certainly a complex case of "public importance." 18 Id. 

E. Public Trust Doctrine 

Federal defendants again ask this Court to reconsider the previous ruling on the 

applicability of the public trust doctrine to the federal government. They allege no new 

circumstances or any substantially new arguments for the Court to consider on summary 

judgment. Indeed, federal defendants repeatedly stresses that "[n]o discovery or expert opinion 

is necessary" for this Court to decide "the purely legal question of whether the public trust 

18 This analysis applies with equal force to all of the issues raised in federal defendants' 

motion for summary judgment. 

Page 54 - OPINION AND ORDER 
doctrine provides a cause of action against the federal government." Defs.' Reply to Mot. for 

Summ. J. 38. 

Similar to the issues discussed in Sections LC, II.C, and II.D, the November 2016 Order 

extensively covered this legal argument, and the Court finds no need to revisit its analysis based 

on the nearly identical arguments in this motion. See Juliana, 217 F. Supp. 3d at 1252-1261. 

The Court does not find that its previous order, holding that the public trust doctrine is deeply 

rooted in our nation's history and that plaintiffs' claims are viable was clearly erroneous. Id. at 

125 9, 1261. There have been no changes in the factual record or legal authority that would 

justify a different outcome given the current record and the fact that the arguments presented by 

federal defendants in this motion are substantively the same, the Court declines to revisit its 

previous ruling. Genuine issues of material fact remain as to the specific allegations made by 

plaintiffs. The application of the public trust doctrine to these claims would be better served 

with a full factual record to help guide this Court and any reviewing courts. 

F. Plaintiffs J Remaining Claims 

In their motion for summary judgment, federal defendants state that "[t]his Court's order 

[denying the motions to dismiss] did not address [federal d]efendants' arguments concerning 

[p ]laintiffs' Equal Protection claim under the Fifth Amendment or Plaintiffs' Ninth Amendment 

Claim." Defs.' Mem. of Law in Supp. of Mot. for Summ. J. 4. They assert that "the Equal 

Protection and Ninth Amendment claims are no longer at issue." Id. 24 n.8. Although federal 

defendants overstate their position with respect to the equal protection and Ninth Amendment 

claims, they are correct that the prior opinion and order was somewhat unclear with respect to 

those claims and some clarification is warranted. 

Page 55 - OPINION AND ORDER 
The Court begins with plaintiffs' third claim for relief, which is pleaded as a freestanding 

claim under the Ninth Amendment. This claim is not viable as a matter of law. The Ninth 

Amendment "has never been recognized as independently securing any constitutional right, for 

purposes of pursuing a civil rights claim." Strandberg v. City of Helena, 791 F.2d 744, 748 (9th 

Cir. 1986). Federal defendants are therefore entitled to summary judgment on plaintiffs' third 

claim for relief. 

Plaintiffs' equal protection claim requires a more substantive discussion, as it is linked to 

the allegation of fundamental rights violations. 

When a federal court is presented with an equal protection claim, the first step is to 

"ascertain the appropriate level of scrutiny to employ[.]" Aleman v. Glickman, 217 F.3d 1191, 

1197 (9th Cir. 2000). The default level of scrutiny is rational basis review, which affords 

governmental classifications "a strong presumption of validity." Id. at 1200 (quoting Heller v. 

Doe, 509 U.S. 312, 319 (1993)). The applicable analysis changes, however, when the plaintiff 

alleges either discrimination against a "suspect or semi-suspect class" or infringement of a 

fundamental right. Wright v. Incline Vil!. Gen. Improvement Dist., 665 F.3d 1128, 1141 (9th Cir. 

2011 ). A classification withstands rational basis review so long as "there is any reasonably 

conceivable state of facts that could provide a rational basis for the classification." Id. at 1201 

(quoting FCC v. Beach Commc 'ns, 508 U.S. 307, 313 (1993)). 

Plaintiffs contend that "posterity"-which they defined to include both unborn members 

of plaintiff "future generations" and minor children who cannot vote-is a suspect classification. 

They contend that, for decades, federal defendants have prioritized present-day political and 

economic advantage over prevention of future environmental damage. Plaintiffs assert that 

young people and future generations will be disproportionately harmed by climate change 

Page 56 - OPINION AND ORDER 
because climate change and its effects are worsenmg over time. They assert that federal 

defendants' climate and energy policy treats "posterity" differently than other, similarly situated 

individuals, in violation of the Equal Protection Clause. 

Judge Coffin recommended against recognizing "a new separate suspect class based on 

posterity." Juliana, 217 F. Supp. 3d at 1271 n.8. Although the Court stated in the introduction 

to the opinion and order that the Court was adopting Judge Coffin's findings and 

recommendation "as elaborated in this opinion," the Court expressly declined to decide whether 

youth or future generations were suspect classes. Id. at 1233 & 1249 n.7. 

Both the Supreme Court and the Ninth Circuit have held that age is not a suspect class. 

City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989); United States v. Flores-Villar, 536 F.3d 990, 

998 (9th Cir. 2008). Plaintiffs argue that the Supreme Court has rejected only old age as a 

suspect classification, but that is not the case. Stangl in upheld "modest impairment of the liberty 

of teenagers"-specifically, 14- to 18-year-olds-in the form of an age-based restriction on entry 

to a dance hall. 490 U.S. at 28 (Stevens, J., concurring). Flores-Villar addressed the 

constitutionality of an immigration policy that treated United States citizen fathers differently 

depending on whether they lived in the United States for at least five years after the age of 

fourteen. 19 536 F.3d at 993. Stang/in and Flores-Villar both applied rational basis review to 

governmental action that discriminated against teenagers of a similar age to plaintiffs in this 

case. In both cases, that discrimination was found to be permissible if it had a rational basis. 

Even if plaintiffs' suspect-class argument were not foreclosed by precedent, the Court 

would not be persuaded to break new ground in this area. See Cunningham v. Beavers, 858 F.2d 

19 Flores-Villar also upheld the immigration policy in question against the argument that 

it impermissibly treated mothers and fathers differently. Sessions v. Morales-Santana, 137 S. Ct. 

1698 (2017), abrogated Flores-Villar's gender-discrimination holding but left untouched its agediscrimination holding. 

Page 57 - OPINION AND ORDER 
269, 273 (5th Cir. 1988) ("No cases have ever held, and we decline to hold, that children are a 

suspect class."). Suspect classification triggers strict scrutiny, a famously difficult test to 

survive. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 832 

(2007) (discussing strict scrutiny's somewhat-exaggerated reputation as "strict in theory, but 

fatal in fact"). Balancing competing interests is at the heart of executive and especially 

legislative decision-making, and it is the rare governmental decision that does not have some 

effect on children or posterity. Holding that "posterity" or even just minor children are a suspect 

class would hamstring governmental decision-making, potentially foreclosing even run-of-themill decisions such as prioritizing construction of a new senior center over construction of a new 

playground or allocating state money to veterans' healthcare rather than to the public schools. 

Applying strict scrutiny to every governmental decision that treats young people differently than 

others is unworkable and unsupported by precedent. 

However, the rejection of plaintiffs' proposed suspect class does not fully resolve their 

equal protection claim. As explained above, strict scrutiny is also triggered by alleged 

infringement of a fundamental right. Wright, 665 F.3d at 1141. Plaintiffs' equal protection 

claim rests on alleged interference with their right to a climate system capable of sustaining 

human life-a right the Court has already held to be fundamental. Juliana, 217 F. Supp. 3d at 

1249-5.0; see also id. at 1271 n.8 ("Nonetheless, the complaint does allege discrimination against 

a class of younger individuals with respect to a fundamental right protected by substantive due 

process."); Stop H-3 Ass'n v. Dole, 870 F.2d 1419, 1430 (9th Cir. 1989) (stopping short of 

identifying a fundamental right but stating that "[h ]uman life, itself a fundamental right, will 

vanish if we continue our heedless exploitation of this planet's natural resources"). Plaintiffs' 

equal protection and due process claims both involve violation of a fundamental right and, as 

Page 58 - OPINION AND ORDER 
such, must be evaluated through the lens of strict scrutiny, which would be aided by further 

development of the factual record. 

III. Request to Certify for Interlocutory Appeal 

Federal defendants seek certification for interlocutory appeal any portion of this opinion 

and order denying their motions for judgment on the pleadings or summary judgment. 

The final judgment rule gives the federal courts of appeal jurisdiction over "appeals from 

all final decisions of the district courts of the United States." 28 U.S.C. § 1291. Congress 

created a narrow exception to this rule: a district judge may certify for appeal an order that 

"involves a controlling question of law as to which there is substantial ground for difference of 

opinion" if "an immediate appeal from the order may materially advance the ultimate 

termination of the litigation[.]" Id. § 1292(b). The requirements of§ 1292(b) are jurisdictional, 

so a district court may not certify an order for interlocutory appeal if they are not met. Couch v. 

Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010). Congress did not intend district courts to 

certify interlocutory appeals "merely to provide review of difficult rulings in hard cases." US. 

Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). Rather, certification pursuant to 

§ 1292(b) is reserved for "the most extraordinary situations." Penk v. Or. State Bd. of Higher 

Educ., 99 F.R.D. 508, 509 (D. Or. 1982). Even when all three of§ 1292(b)'s criteria are met, the 

district court retains unfettered discretion to deny a motion to certify for interlocutory review. 

Mowat Constr. Co. v. Dorena Hydro, LLC, 2015 WL 5665302, at *5 (D. Or. Sept. 23, 2015). 

As a preliminary matter, the Court notes that to the extent federal defendants seek to 

certify for interlocutory appeal the legal rulings contained in the November 2016 Opinion and 

Order denying the motion to dismiss, the Court already declined to certify those questions for 

interlocutory appeal. Juliana, 2017 WL 2483705, at *2. That denial is now the law of the case. 

Page 59 - OPINION AND ORDER 
The Court therefore denies federal defendants' request to certify the rulings on standing, the 

political question doctrine, the viability of public trust claims against the federal government, 

and the existence of a fundamental right to a climate system capable of sustaining human life. 

As to the argument that plaintiffs' claims must proceed (if at all) under the AP A, the 

"substantial ground for difference of opinion" standard is not met. 

To determine if a 'substantial ground for difference of opinion' exists under 

§ 1292(b), courts must examine 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." 

Couch, 611 F.3d at 631 (quoting 3 Federal Procedure, Lawyers Edition § 3:212 (2010)). As 

explained in Section LB, supra, Supreme Court and Ninth Circuit precedent make it abundantly 

clear that plaintiffs may (and frequently do) challenge agency action outside the framework of 

the AP A. Moreover, even if the "substantial ground for difference of opinion" standard were 

met, certification of the AP A issue in isolation would not materially advance the litigation. 

Instead, it would protract the litigation by requiring the parties to proceed on dual tracks. 

The request for interlocutory appeal as to the issues raised in the summary judgment 

motion must also fail. As to standing, the issues presented are not purely legal questions, but 

rather implicate mixed questions of law and fact regarding all three prongs of the standing 

inquiry. As genuine issues of material fact remain, this case would benefit from the further 

development of the factual record both for this Court and any reviewing court on final appeal. 

This is also true for plaintiffs' state created danger theory, which directly implicates disputed 

factual questions. 

The Court has already explained why it would be inappropriate to certify an appeal on the 

issue of the applicability of the AP A. As to the legal questions involving in federal defendants' 

Page 60 - OPINION AND ORDER 
arguments regarding separation of powers, the viability of public trust claims against the federal 

government, and the existence of a due process right to a climate system capable of supporting 

human life, the Court has already denied certification on these issues.20 Moreover, certifying a 

narrow piecemeal appeal on some of these legal issues would not materially advance this 

litigation, rather it would merely reshuffle the procedural deck and force the parties to proceed 

on separate tracks for separate claims, which is precisely what the final judgment rule seeks to 

prevent.21 Accordingly, the requests to certify for interlocutory appeal made both in the motion 

for judgment on the pleadings and motion for summary judgment are denied. 

II I 

II I 

II I 

II I 

II I 

2

° Federal defendants argue in their motion that this Court's previous holding is at odds 

with certain out of circuit cases. The Court has addressed these concerns in this order and see no 

need to revisit the Court's analysis of those cases. Federal defendants also argue in a Notice to 

this the Court (doc. 330) that the Supreme Court's recent ruling denying their application implies 

that this Court should certify an interlocutory appeal. The Court has considered the concerns 

raised in the one paragraph order, both in this order and previous orders. The Court does not find 

that Order removes the Court's discretion to deny the request for interlocutory appeal. 

21 The Supreme Court has cautioned that: 

[i]t would seem to us to be a disservice to the Court, to litigants in general and to 

the idea of speedy justice if we were to succumb to enticing suggestions to 

abandon the deeply-held distaste for piecemeal litigation in every instance of 

temptation. Moreover, to find appealability in those close cases where the merits 

of the dispute may attract the deep interest of the court would lead, eventually, to 

a lack of principled adjudication or perhaps the ultimate devitalization of the 

finality rule as enacted by Congress. 

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440 (1985) (internal quotations omitted) 

Page 61 - OPINION AND ORDER 
CONCLUSION 

Federal defendants' Motion for Judgment on the Pleadings (doc. 195) is GRANTED IN 

PART and DENIED IN PART as follows: the motion to dismiss President Trump as a 

defendant is granted, without prejudice, and is otherwise denied. Federal defendants' Motion 

for Summary Judgment (doc. 207) is GRANTED in part and DENIED in part as explained in 

this opinion. Federal defendants' requests to certify this opinion and order for interlocutory 

appeal are DENIED. 

IT IS SO ORDERED. 

Dated this 15th day of October 2018. 

.J 

Ann Aiken 

United States District Judge 

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