BRIEF FOR THE STATES OF NEW YORK, DELAWARE, HAWAI‘I, 

MINNESOTA, OREGON, AND VERMONT AS AMICI CURIAE

LETITIA JAMES

 Attorney General

 State of New York 

28 Liberty Street 

New York, New York 10005

BARBARA D. UNDERWOOD

 Solicitor General

ANISHA S. DASGUPTA 

Deputy Solicitor General

MARK S. GRUBE* (NY No. 5038195) 

 Assistant Solicitor General 

mark.grube@ag.ny.gov

212-416-8028

*Counsel of Record

Counsel for Amici Curiae States: 

New York, Delaware, Hawai‘i, Minnesota, Oregon, and Vermont

KELSEY CASCADIA ROSE JULIANA;

XIUHTEZCATL TONATIUH M., through his 

Guardian Tamara Roske-Martinez; et al.,

 Plaintiffs, 

v.

The UNITED STATES OF AMERICA; et al.,

 Defendants. 

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

BRIEF FOR THE STATES OF 

NEW YORK, DELAWARE, 

HAWAI‘I, MINNESOTA, 

OREGON, AND VERMONT 

AS AMICI CURIAE 

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........................................................................................ii

INTEREST OF AMICI CURIAE................................................................................... 1

ARGUMENT.................................................................................................................. 3

POINT I

AS AMICI STATES’ EXPERIENCES SHOW, PROPOSED INTERVENORS’ EXAMPLES 

OF PURPORTED COLLUSION DID NOT INVOLVE ANY COLLUSION. ............................... 3

A. The Challenges to the Title X Rule Brought by Amici States and 

Others Were Resolved Through a Lawful Exercise of Executive 

Authority..................................................................................................... 4

B. The Challenges to the Public Charge Rule Brought by Some of the 

Amici States and Others Were Resolved Through Lawful 

Executive Authority and Discretion. ......................................................... 7

POINT II

AMICI STATES’ EXPERIENCES SHOW THAT CLIMATE CHANGE POSES SERIOUS 

HARMS TO STATE LANDS AND STATE RESIDENTS ..................................................... 10

CONCLUSION............................................................................................................. 15

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TABLE OF AUTHORITIES

Cases Page(s)

American Fuel & Petrochem. Mfrs. v. O’Keeffe, 

903 F.3d 903 (9th Cir. 2018) ........................................................................ 2, 11, 13

Becerra v. Mayor & City Council of Baltimore, 

No. 20-454, 2021 WL 1951787 (U.S. May 17, 2021)................................................ 6 

California v. Azar, 

385 F. Supp. 3d 960 (N.D. Cal. 2019) ...................................................................... 5 

California v. Azar, 

950 F.3d 1067 (9th Cir. 2020) .................................................................................. 5 

Casa de Maryland, Inc. v. Trump, 

971 F.3d 220 (4th Cir. 2020) .................................................................................... 8 

Casa de Maryland, Inc. v. Trump, 

981 F.3d 311 (4th Cir. 2020) .................................................................................... 8 

City & County of San Francisco v. United States Citizenship & Immigr. Servs., 

981 F.3d 742 (9th Cir. 2020) .................................................................................... 7 

City & County of San Francisco v. United States Citizenship & Immigr. Servs., 

992 F.3d 742 (9th Cir. 2021) ................................................................................ 4, 9

Cochran v. Mayor & City Council of Baltimore, 

141 S. Ct. 1369 (2021) .............................................................................................. 5 

Cook County v. Wolf, 

498 F. Supp. 3d 999 (N.D. Ill. 2020) ........................................................................ 8 

Cook County v. Wolf, 

962 F.3d 208 (7th Cir. 2020) .................................................................................... 7 

Department of Homeland Sec. v. New York, 

141 S. Ct. 1370 (2021) .............................................................................................. 8 

Diffenderfer v. Central Baptist Church of Miami, 

404 U.S. 412 (1972) ................................................................................................ 10

Juliana v. United States, 

947 F.3d 1159 (9th Cir. 2020) ............................................................................ 1, 14

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Cases Page(s)

Massachusetts v. EPA, 

549 U.S. 497 (2007) ................................................................................................ 11

Mayor & City Council of Baltimore v. Azar, 

392 F. Supp. 3d 602 (D. Md. 2019) .......................................................................... 5 

Mayor & City Council of Baltimore v. Azar, 

439 F. Supp. 3d 591 (D. Md. 2020) .......................................................................... 5 

Mayor & City Council of Baltimore v. Azar, 

973 F.3d 258 (4th Cir. 2020) .................................................................................... 5 

New York State Rifle & Pistol Ass’n v. City of New York, 

140 S. Ct. 1525 (2020) ............................................................................................ 10

New York v. Department of Homeland Sec., 

969 F.3d 42 (2d Cir. 2020)........................................................................................ 7 

Oregon v. Azar, 

389 F. Supp. 3d 898 (D. Or. 2019) ........................................................................... 5 

Oregon v. Cochran, 

141 S. Ct. 1369 (2021) .............................................................................................. 5 

Triangle Improvement Council v. Ritchie, 

402 U.S. 497 (1971) ................................................................................................ 10

Washington v. Azar, 

376 F. Supp. 3d 1119 (E.D. Wash. 2019)................................................................. 5 

Statutes

Del. Code Ann. tit. 26, § 354(a) ................................................................................... 13

Minn. Stat. Ann. § 216H.02(1) .................................................................................... 13

Climate Leadership and Community Protection Act, 

ch. 106, 2019 McKinney’s N.Y. Laws 856.............................................................. 13

Or. Rev. Stat. Ann. §§ 468A.265-468A.277................................................................. 13

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Administrative & Executive Sources Page(s)

49 C.F.R.

§ 59.14....................................................................................................................... 4 

§ 59.15....................................................................................................................... 4 

84 Fed. Reg. 41,292 (Aug. 14, 2019).............................................................................. 1 

84 Fed. Reg. 7,714 (Mar. 4, 2019) ................................................................................. 1 

Inadmissibility on Public Charge Grounds; Implementation of Vacatur, 

86 Fed. Reg. 14,221 (Mar. 15, 2021) ........................................................................ 9 

86 Fed. Reg. 19,812 (Apr. 15, 2021) .............................................................................. 6 

Exec. Order No. 14,012, 86 Fed. Reg. 8,277 (Feb. 2, 2021).......................................... 8 

Memorandum on Protecting Women’s Health at Home and Abroad, 

2021 Daily Comp. Pres. Doc. 100 (Jan. 28, 2021) ................................................... 5 

Or. Admin. R. 340-253-0000 to 340-253-8100 ............................................................ 13

Vt. Pub. Util. Comm’n, Renewable Energy Standard Rule § 4.401........................... 13

Rules

4th Cir. R. 35(c).............................................................................................................. 8 

Miscellaneous Authorities

Acadia Ctr., Outpacing the Nation: RGGI’s Environmental and 

Economic Success (Sept. 2017), http://acadiacenter.org/wpcontent/uploads/2017/09/Acadia-Center_RGGI-Report_Outpacingthe-Nation.pdf......................................................................................................... 14

Alex Harris, Miami’s Sea Level Rise Bill is $4 Billion by 2060. It Won’t Keep 

Every Neighborhood Dry, Miami Herald (last updated Apr. 23, 2021), 

https://www.miamiherald.com/news/local/environment/article250781284.

html......................................................................................................................... 11

The Biden Plan for Securing Our Values as a Nation of Immigrants, 

https://joebiden.com/immigration/ ........................................................................... 8 

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Miscellaneous Authorities Page(s)

Myles Allen et al., Summary for Policymakers, in Intergovernmental 

Panel on Climate Change, Global Warming of 1.5°C (2018), 

https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_

version_report_LR.pdf............................................................................................ 13

Nadja Popovich & Christopher Flavelle, Summer in the City Is Hot, but Some 

Neighborhoods Suffer More, N.Y. Times (Aug. 9, 2019), 

https://www.nytimes.com/interactive/2019/08/09/climate/city-heatislands.html............................................................................................................ 12

National Integrated Drought Info. Sys., Nat’l Oceanic & Atmospheric Admin., 

U.S. Dep’t of Com., Southwest and California Drought Status Updated

(May 2021), https://www.drought.gov/sites/default/files/2021-

05/SouthwestStatusUpdate_May20_Final.pdf ..................................................... 12

Obama White House, The Threat of Carbon Pollution: Alabama, 

https://obamawhitehouse.archives.gov/sites/default/files/docs/statereports/climate/Alabama%20Fact%20Sheet.pdf................................................... 11

Office of Population Affairs, HHS, Statement on Proposed Revision of Title X 

Regulations (Mar. 18, 2021), https://opa.hhs.gov/about/news/opa-newsroom ....... 5 

Pacific Coast Collaborative, About, http://pacificcoastcollaborative.org/about/ ........ 14

Press Release, DHS Statement on Litigation Related to the Public 

Charge Ground of Inadmissibility (Mar. 9, 2021), 

https://www.dhs.gov/news/2021/03/09/dhs-statement-litigationrelated-public-charge-ground-inadmissibility......................................................... 9 

Regional Greenhouse Gas Initiative, Elements of RGGI, 

https://www.rggi.org/program-overview-and-design/elements............................. 14

U.S. Citizenship & Immigr. Servs., DHS, RIN 1615-AC74, Inadmissibility 

on Public Charge Grounds (Spring 2021), 

https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RI

N=1615-AC74 ........................................................................................................... 9 

U.S. Dep’t of Agric., USDA Technical Bull. No. 1935, Climate Change and 

Agriculture in the United States: Effects and Adaptation (Feb. 2013), 

https://www.usda.gov/sites/default/files/documents/CC%20and%20Agric

ulture%20Report%20(02-04-2013)b.pdf................................................................. 12

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Miscellaneous Authorities Page(s)

U.S. Glob. Change Rsch. Program, The Impacts of Climate Change on Human 

Health in the United States: A Scientific Assessment (Apr. 2016), 

https://health2016.globalchange.gov/low/ClimateHealth2016_FullReport_s

mall.pdf................................................................................................................... 12

U.S. Glob. Change Rsch. Program, Fourth National Climate Assessment: 

Vol. II (2018), 

https://nca2018.globalchange.gov/downloads/NCA4_2018_FullReport.pdf......... 11

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INTEREST OF AMICI CURIAE

This lawsuit concerns the federal government’s long history of promoting 

“fossil fuel use despite knowing that it can cause catastrophic climate change” and 

“that failure to change existing policy may hasten an environmental apocalypse.” 

Juliana v. United States, 947 F.3d 1159, 1164 (9th Cir. 2020). Following this Court’s 

order referring the parties to a magistrate judge for a settlement conference, a

coalition of States moved to intervene. The amici here—Delaware, Hawaii, 

Minnesota, New York, Oregon, and Vermont—have interests that are implicated by 

proposed intervenors’ arguments and they submit this amicus brief to correct two 

aspects of proposed intervenors’ submissions. 

First, amici States have an interest in correcting proposed intervenors’

erroneous assertions about purported collusion between the parties in two legal 

disputes in which amici were among the plaintiffs: namely, litigation challenging a 

2019 U.S. Department of Health and Human Services (HHS) rule concerning the 

Title X program, see 84 Fed. Reg. 7,714 (Mar. 4, 2019) (Title X Rule), and litigation 

challenging a 2019 U.S. Department of Homeland Security (DHS) rule that expanded 

the Immigration and Nationality Act’s statutory definition of “public charge,” see 84 

Fed. Reg. 41,292, 41,501 (Aug. 14, 2019) (Public Charge Rule). In explaining why they 

believe they need to intervene in this suit, the proposed intervenors argue that “the 

federal government has recently engaged in collusive litigation tactics to achieve the 

Executive’s policy goals through federal courts.” Mot. for Limited Intervention & 

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Mem. in Supp. (Intervenors’ Br.) at 7-9. As plaintiffs in the two disputes that proposed 

intervenors proffer as examples of collusion (see id.), amici States are well positioned 

to explain the context for the resolution of their claims and show that proposed 

intervenors’ claims of collusion are baseless. As the experiences of the amici States 

demonstrate, the public benefits when the federal government is able to exercise its 

lawful rulemaking authority and discretion to resolve claims brought by States and 

state residents. 

Second, amici States have an interest in correcting proposed intervenors’ 

incomplete picture of the effects that federal action to address climate change will 

have on States and state residents. Proposed intervenors argue that curtailing the 

use of fossil fuels will result in certain adverse economic consequences. See id. at 9-

11. However, as the Ninth Circuit has recognized, States also have an “interest in 

combatting the adverse effects of climate change on their residents.” American Fuel 

& Petrochem. Mfrs. v. O’Keeffe, 903 F.3d 903, 913 (9th Cir. 2018). States have ‘“quasisovereign interests in the health and well-being—both physical and economic—of 

[their] residents,’” as proposed intervenors acknowledge. See Intervenors’ Br. at 10 

(quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 

(1982)). Here, the wide-ranging effects of climate change—including the costs of 

combatting rising sea levels, health risks posed by rising temperatures, and threats 

to States’ food and water supplies, among others—implicate far broader quasiCase 6:15-cv-01517-AA Document 507-1 Filed 07/06/21 Page 9 of 23
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sovereign interests in the health and well-being of state residents than those noted 

by proposed intervenors. 

ARGUMENT

POINT I

AS AMICI STATES’ EXPERIENCES SHOW, PROPOSED 

INTERVENORS’ EXAMPLES OF PURPORTED COLLUSION 

DID NOT INVOLVE ANY COLLUSION

Proposed intervenors moved to intervene in this lawsuit following this Court’s 

order referring the parties to a magistrate judge for a settlement conference. See 

Minute Order (May 13, 2021), ECF No. 472. Emphasizing the federal government’s 

“agreement” to comply with this Court’s order (see Intervenors’ Br. at 3), proposed 

intervenors argue that they need party status in order to prevent a “collusive

settlement” (id. at 12). They base their request on an assertion “that the federal 

government has recently engaged in collusive litigation tactics to achieve the 

Executive’s policy goals through federal courts.” Id. at 7. 

But the two examples proposed intervenors discuss as purportedly illustrative 

of those tactics did not in fact involve either collusion or executive branch arrogation 

of “policymaking powers that the People entrusted to their elected representatives” 

(id. at 3). Rather, in those litigations, the claims of amici States and the other 

plaintiffs were resolved through ordinary and lawful exercises of executive 

rulemaking authority and discretion. Specifically, an incoming administration 

decided to replace a challenged administrative rule that was inconsistent with its 

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policy priorities, and the parties to lawsuits challenging the rule decided not to 

continue their potentially moot litigation over the validity of the former rule. 

Changes in course with respect to administrative rules and related litigation 

are “neither surprising nor particularly unusual” after an election brings into office a

“new presidential administration[], especially of a different party.” See City & County 

of San Francisco v. United States Citizenship & Immigr. Servs., 992 F.3d 742, 743 

(9th Cir. 2021) (Vandyke, J., dissenting). And the public benefits when injuries that 

the federal government has caused States and state residents can be addressed 

through executive rulemaking rather than lengthy and costly litigation. 

The Challenges to the Title X Rule Brought by Amici States and 

Others Were Resolved Through a Lawful Exercise of Executive 

Authority. 

Proposed intervenors are mistaken in asserting that the federal government 

collusively resolved the challenges to the Title X Rule that were brought by amici 

States here and other plaintiffs. See Intervenors’ Br. at 8-9. In fact, those claims were 

resolved when HHS announced and then published a proposed new rule that 

eliminated the aspects of the Title X Rule that plaintiffs were challenging. 

Multiple States (including amici here), local governments, individuals, and 

private entities challenged the Title X Rule’s prohibition on abortion referrals by 

recipients of Title X funds and the rule’s requirement that Title X projects maintain 

physical and financial separation from abortion-related activities. See 42 C.F.R. 

§§ 59.14(a), 59.15. Four district courts entered preliminary injunctions against the 

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Title X Rule’s enforcement, and one district court ultimately entered a permanent 

injunction blocking enforcement of the rule in Maryland.1 The Fourth Circuit then 

affirmed the permanent injunction barring enforcement of the rule in Maryland, 

while the Ninth Circuit vacated the preliminary injunctions against the rule entered 

by district courts in Washington, California, and Oregon.2

Following the change in administration in January 2021, HHS commenced a 

review of the Title X Rule.3 In February 2021, while HHS was reviewing the rule, the

Supreme Court granted petitions for a writ of certiorari filed by plaintiffs in the Ninth 

Circuit cases and defendants in the Fourth Circuit case.4 In March 2021, HHS 

determined that it would promulgate a new rule that would be substantively similar 

to the rule that the Title X Rule replaced.5 Such a rule would resolve the legal 

 

1 See Washington v. Azar, 376 F. Supp. 3d 1119 (E.D. Wash. 2019); California 

v. Azar, 385 F. Supp. 3d 960 (N.D. Cal. 2019); Oregon v. Azar, 389 F. Supp. 3d 898 (D. 

Or. 2019); Mayor & City Council of Baltimore v. Azar, 392 F. Supp. 3d 602 (D. Md. 

2019); see also Mayor & City Council of Baltimore v. Azar, 439 F. Supp. 3d 591 (D. 

Md. 2020) (permanent injunction).

2 See Mayor & City Council of Baltimore v. Azar, 973 F.3d 258 (4th Cir. 2020) 

(en banc); California v. Azar, 950 F.3d 1067 (9th Cir. 2020) (en banc).

3 See Memorandum on Protecting Women’s Health at Home and Abroad at 1-

2, 2021 Daily Comp. Pres. Doc. 100 (Jan. 28, 2021) (directing HHS to review the Title 

X Rule and to consider “as soon as practicable, whether to suspend, revise, or rescind, 

or publish for notice and comment proposed rules suspending, revising, or rescinding 

[the Title X Rule]”).

4 See Cochran v. Mayor & City Council of Baltimore, 141 S. Ct. 1369 (2021); 

Oregon v. Cochran, 141 S. Ct. 1369 (2021). 

5 See Office of Population Affairs, HHS, Statement on Proposed Revision of Title 

X Regulations (Mar. 18, 2021) (internet). For internet sources, URLs are provided in 

the Table of Authorities. All sites last visited July 6, 2021.

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challenges that amici States and the other plaintiffs challenging the Title X Rule had 

brought in their lawsuits. 

Anticipating that the Title X Rule would no longer be in effect by the time that 

the Supreme Court could hear the challenge to it, the parties to the Supreme Court 

proceedings stipulated to dismiss those proceedings. A coalition of States and a group 

of private medical associations that supported the Title X Rule moved to intervene to 

continue the litigation, arguing that the parties sought to enter “collusive 

agreements” to prevent the Supreme Court “from saying what the law is.” Suppl. Br. 

in Supp. of Intervention of Proposed Intervenors Ohio & 18 Other States at 2, 

American Med. Ass’n v. Cochran, No. 20-429 (U.S. Mar. 15, 2021). 

In April 2021, while the motions to intervene in the Supreme Court proceeding

were still pending, HHS published the proposed new rule. 86 Fed. Reg. 19,812 (Apr. 

15, 2021). In response to an inquiry from the Supreme Court, the federal government 

represented “that it will continue enforcing the challenged rule and regulations 

outside the State of Maryland for as long as they remain operative” and “that it will 

either oppose [future litigation challenging the Title X Rule] on threshold grounds or 

seek to hold the litigation in abeyance pending the completion of notice and 

comment.” Becerra v. Mayor & City Council of Baltimore, No. 20-454, 2021 WL 

1951787 (U.S. May 17, 2021). The Supreme Court then denied the intervention 

motions and granted the stipulations of dismissal. 

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The record of the Title X Rule litigation thus contains no support for proposed 

intervenors’ assertion of past collusion that, if repeated here, would “deprive[] the 

States of procedural guarantees under the [Administrative Procedure Act] and the

Constitution.” See Intervenors’ Br. at 15. To the contrary, the resolution of the Title 

X Rule litigation reflects a legitimate exercise of executive authority that obviated 

the need for further costly and unnecessary litigation.

The Challenges to the Public Charge Rule Brought by Some of 

the Amici States and Others Were Resolved Through Lawful 

Executive Authority and Discretion. 

Proposed intervenors are also incorrect in suggesting that the federal 

government collusively resolved lawsuits—brought by some of amici States and 

others—challenging the Public Charge Rule. See Intervenors’ Br. at 7-8. Plaintiffs’ 

claims there were resolved not by settlement but through lawful exercises of 

executive rulemaking authority and discretion. 

Before the new administration took office, the Second, Seventh, and Ninth 

Circuits all upheld preliminary injunctions in challenges to the Public Charge Rule 

brought by some of the amici States and others. See New York v. Department of 

Homeland Sec., 969 F.3d 42 (2d Cir. 2020); Cook County v. Wolf, 962 F.3d 208 (7th 

Cir. 2020); City & County of San Francisco v. United States Citizenship & Immigr. 

Servs., 981 F.3d 742 (9th Cir. 2020). In subsequent proceedings in Cook County, the 

district court entered summary judgment for the plaintiffs there and entered a final 

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judgment vacating the Public Charge Rule. See Cook County v. Wolf, 498 F. Supp. 3d 

999 (N.D. Ill. 2020).6

Shortly thereafter, the incoming presidential administration declared that it 

would reverse the Public Charge Rule within its first one hundred days in office. See 

The Biden Plan for Securing Our Values as a Nation of Immigrants (internet). 

Following the change in administration, President Biden directed DHS, the 

Department of State, and the Department of Justice to review their actions on public 

charge inadmissibility in light of the effects of those actions “on the integrity of the 

Nation’s immigration system and public health,” as well as the administration’s 

priorities of promoting “integration, inclusion, and citizenship.” See Exec. Order No. 

14,012, §§ 1, 4, 86 Fed. Reg. 8277, 8277-78 (Feb. 2, 2021). On February 22, 2021, while 

the policy review directed by President Biden was still ongoing, the Supreme Court 

granted a petition for a writ of certiorari from the Second Circuit’s decision, the 

briefing on which was completed before the inauguration. See Department of 

Homeland Sec. v. New York, 141 S. Ct. 1370 (2021). 

On March 9, 2021, DHS issued a statement concluding that “continuing to 

defend the [Public Charge Rule] is neither in the public interest nor an efficient use 

 

6 A panel of the Fourth Circuit initially reversed a preliminary injunction 

against the Public Charge Rule, see Casa de Maryland, Inc. v. Trump, 971 F.3d 220

(4th Cir. 2020), but the full court granted en banc review, vacating the panel decision, 

see Casa de Maryland, Inc. v. Trump, 981 F.3d 311 (4th Cir. 2020); 4th Cir. R. 35(c) 

(“Granting of rehearing en banc vacates the previous panel judgment and opinion.”).

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of limited government resources,” and explaining that the Department of Justice 

would “no longer pursue appellate review of judicial decisions invalidating or 

enjoining enforcement of the [Public Charge Rule].”7 The parties to the Supreme 

Court proceeding thus stipulated to the dismissal of that proceeding, and the federal 

government moved to dismiss its other open appeals concerning the Public Charge 

Rule, leaving in place the nationwide injunction entered by the district court in 

Illinois.8 

DHS published a rule in the Federal Register to implement the vacatur of the 

Public Charge Rule by the court in Cook County,9 and then announced that it will

proceed with a new rulemaking “to define the term public charge and identify 

considerations relevant to the public charge inadmissibility determination.”10 These

 

7 Press Release, DHS Statement on Litigation Related to the Public Charge 

Ground of Inadmissibility (Mar. 9, 2021) (internet).

8 A coalition of States attempted to intervene for the purposes of challenging 

the dismissals in the Fourth and Ninth Circuits, but those courts denied their 

motions. See Order, Casa de Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. Mar. 18, 

2021), ECF No. 216; City & County of San Francisco v. United States Citizenship & 

Immigr. Servs., 992 F.3d 742 (9th Cir. 2021). In the Illinois proceeding, a motion by 

a coalition of States to intervene and vacate the judgment there is still pending. A

full recitation of the complex procedural history of these cases can be found in the 

federal government’s opposition to the intervention motion in the Illinois proceeding. 

See Combined Mem. in Resp. to Mot. to Intervene & Mot. for Relief Under Fed. R. 

Civ. P. 60(b) at 4-10, Cook County v. Mayorkas, No. 19-cv-6334 (N.D. Ill. June 15, 

2021), ECF No. 269. 

9 See Inadmissibility on Public Charge Grounds; Implementation of Vacatur, 

86 Fed. Reg. 14,221, 14,221 (Mar. 15, 2021).

10 U.S. Citizenship & Immigr. Servs., DHS, RIN 1615-AC74, Inadmissibility 

on Public Charge Grounds (Spring 2021) (internet).

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actions do not reflect any improper collusion between the federal government and the 

plaintiffs in the public charge litigation, or any bypassing of “proper channels in the 

executive or legislative branches.” See Intervenors’ Br. at 7. Moreover, the federal 

government’s decision to cease litigating over the Public Charge Rule’s validity is 

consistent with well-settled principles—redounding to the benefit of the taxpaying 

public—that counsel against prolonging lawsuits over a rule that the executive 

branch anticipates replacing. See New York State Rifle & Pistol Ass’n v. City of New 

York, 140 S. Ct. 1525, 1526 (2020) (per curiam) (challenge to rule mooted by its 

amendment to remove challenged provision); Diffenderfer v. Central Baptist Church 

of Miami, 404 U.S. 412, 414-15 (1972) (per curiam) (challenge to statute mooted by 

repeal); Triangle Improvement Council v. Ritchie, 402 U.S. 497, 498-99 (1971) 

(Harlan, J., concurring) (writ of certiorari dismissed as improvidently granted after 

statute at issue is repealed). 

POINT II

AMICI STATES’ EXPERIENCES SHOW THAT CLIMATE CHANGE POSES 

SERIOUS HARMS TO STATE LANDS AND STATE RESIDENTS

Amici States also have an interest in correcting proposed intervenors’ 

incomplete description of the state interests implicated by policies addressing climate 

change. Proposed intervenors assert that they will suffer adverse economic 

consequences from any settlement of this case that results in curtailing the use of 

fossil fuels (see Intervenors’ Br. at 9-11), but they ignore the States’ recognized 

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“interest in combatting the adverse effects of climate change on their residents,” 

American Fuel, 903 F.3d at 913.

Climate-change risks are locally significant and “widely shared.” See, e.g., 

Massachusetts v. EPA, 549 U.S. 497, 522-23 (2007) (quotation marks omitted). The 

proposed intervenors’ statement of economic interests fails to account for the massive 

costs that state and local governments are incurring—and will continue incur—to 

combat the risks posed by climate change, including rising sea levels, extreme heat, 

reduced agricultural yields, and declining water supplies.11 In Alabama, in April 2009 

alone, flooding caused over $25 million in damages to roads and buildings.12 And as 

of 2016, Charleston, South Carolina had spent $235 million to respond to increased 

flooding.13 These costs will continue to escalate going forward. Miami officials 

estimate that it will cost nearly $4 billion over the next forty years to protect Miami’s 

residents from rising sea levels, and even that level of spending will not be enough to 

save every neighborhood.14

 

11 See, e.g., U.S. Glob. Change Rsch. Program, Fourth National Climate 

Assessment: Vol. II 1321 (2018) (internet) (“Nationally, estimates of adaptation costs 

range from tens to hundreds of billions of dollars per year.”).

12 See Obama White House, The Threat of Carbon Pollution: Alabama

(internet). 

13 See Fourth National Climate Assessment, supra, at 760.

14 See Alex Harris, Miami’s Sea Level Rise Bill is $4 Billion by 2060. It Won’t 

Keep Every Neighborhood Dry, Miami Herald (last updated Apr. 23, 2021) (internet).

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The consequences of climate change are not limited to coastal States. Rising 

temperatures are adversely affecting localities throughout the country, creating

health risks to sensitive populations like the elderly, children, and people with 

chronic illnesses.15 

The threat of rising temperatures also threatens the water supply, particularly 

in much of the southwest, which is currently suffering from a historic drought.16 In 

addition, as the summary judgment record here shows, climate change threatens food 

security and the economic interests of the agriculture industry.17 

Recognizing the threat that climate change presents to their lands and 

residents, and the urgent need to act immediately to combat climate change,18 amici 

 

15 See Nadja Popovich & Christopher Flavelle, Summer in the City Is Hot, but 

Some Neighborhoods Suffer More, N.Y. Times (Aug. 9, 2019) (internet); U.S. Glob. 

Change Rsch. Program, The Impacts of Climate Change on Human Health in the 

United States: A Scientific Assessment 44-60 (Apr. 2016) (internet). 

16 See Nat’l Integrated Drought Info. Sys., Nat’l Oceanic & Atmospheric 

Admin., U.S. Dep’t of Com., Southwest and California Drought Status Updated (May 

2021) (internet).

17 See The Impacts of Climate Change on Human Health, supra, at 16, 190

(appended as Ex. 303 to Decl. of Andrea Rogers in Supp. of Pls.’ Second Mot. in Lim. 

Seeking Judicial Notice of Publicly Available Docs. (Aug. 24, 2018), ECF No. 341); 

U.S. Dep’t of Agric., USDA Technical Bull. No. 1935, Climate Change and Agriculture 

in the United States: Effects and Adaptation 1-2 (Feb. 2013) (internet) (appended as 

Ex. 24 to Decl. of Julia Olson in Supp. of Pls.’ Mot. in Lim. Seeking Judicial Notice of 

Fed. Gov’t Docs. (June 28, 2018), ECF No. 270).

18 As plaintiffs have demonstrated, the overwhelming scientific consensus is 

that immediate and continual progress toward a near-zero greenhouse gas emission 

economy by mid-century is necessary to avoid catastrophic consequences. See, e.g., 

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States are undertaking actions to address the problem. To curb the emission of 

greenhouse gases, New York is requiring 70% of retail electricity sales in the State to 

come from renewable sources by 2030.19 Oregon has adopted a Clean Fuels Program 

to reduce the carbon intensity of fuel.20 Delaware requires utilities to obtain 40% of 

their electricity from renewable sources, and 10% from solar, by 2035.21 Minnesota 

has a goal of reducing statewide greenhouse gas emissions by at least 80% below 2005 

levels by 2050.22 And Vermont is requiring 75% of retail electricity sales to come from 

renewable sources by 2032.23 

States also have collaborated on successful regional efforts to reduce 

greenhouse gas emissions through market-based systems. Rhode Island, Maryland, 

Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, New 

York, Vermont, and Virginia participate in the Regional Greenhouse Gas Initiative, 

a regional cap-and-trade program that uses an increasingly stringent carbon 

 

Myles Allen et al., Summary for Policymakers, in Intergovernmental Panel on 

Climate Change, Global Warming of 1.5°C, at 12-15 (2018) (internet). 

19 Climate Leadership and Community Protection Act, ch. 106, § 4, 2019 

McKinney’s N.Y. Laws 856, 871.

20 Or. Rev. Stat. Ann. §§ 468A.265-468A.277; Or. Admin. R. 340-253-0000 to 

340-253-8100; see American Fuel, 903 F.3d 903 (rejecting challenge to Oregon’s Clean 

Fuels Program).

21 Del. Code Ann. tit. 26, § 354(a).

22 Minn. Stat. Ann. § 216H.02(1).

23 Vt. Pub. Util. Comm’n, Renewable Energy Standard Rule § 4.401(b)(1).

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emissions cap to reduce carbon pollution from power plants.24 Participating States 

have reduced carbon emissions from the electricity generating sector by 40% since 

the program launched.25 In addition, on the west coast, the Pacific Coast 

Collaborative represents a series of agreements among California, Oregon, 

Washington, British Columbia, and the cities of Los Angeles, Oakland, San Francisco, 

Portland, Seattle, and Vancouver to reduce greenhouse gas emissions dramatically 

by 2050.26

But the risks climate change poses cannot be solved by state and local 

governments alone. As the Ninth Circuit recognized, the federal government 

“affirmatively promotes fossil fuel use in a host of ways, including beneficial tax 

provisions, permits for imports and exports, subsidies for domestic and overseas 

projects, and leases for fuel extraction on federal land.” Juliana, 947 F.3d at 1167. 

And the federal government exercises exclusive control over a substantial portion of 

fossil fuel production: “[a]bout 25% of fossil fuels extracted in the United States come 

from federal waters and lands, an activity that requires authorization from the 

federal government.” Id. at 1169 (citing 30 U.S.C. §§ 181-196, 201). 

In sum, States have a broad and unique range of interests in federal action to 

combat the wide-ranging effects of climate change—including the costs of combatting 

 

24 See Reg’l Greenhouse Gas Initiative, Elements of RGGI (internet).

25 Acadia Ctr., Outpacing the Nation: RGGI’s Environmental and Economic 

Success 3 (Sept. 2017) (internet).

26 See Pac. Coast Collaborative, About (internet).

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rising sea levels, the health risks posed by rising temperatures, and threats to States’ 

food and water supplies, among others—that are not reflected in proposed 

intervenors’ statement of interests.

CONCLUSION

For the foregoing reasons, when assessing the merits of proposed intervenors’ 

intervention motion, this Court should decline to give weight to their claims of 

collusive litigation tactics and should consider the broader landscape of state 

interests implicated by this suit. 

Dated: New York, New York 

July 6, 2021

BARBARA D. UNDERWOOD 

 Solicitor General 

ANISHA S. DASGUPTA

 Deputy Solicitor General

MARK S. GRUBE 

 Assistant Solicitor General 

of Counsel 

Respectfully submitted,

LETITIA JAMES

 Attorney General

 State of New York 

Attorney for Amici States

By: . /s/ Mark S. Grube .

MARK S. GRUBE

Assistant Solicitor General

28 Liberty Street

New York, NY 10005

(212) 416-8028

(Counsel list continues on next page.) 

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KATHLEEN JENNINGS

 Attorney General

 State of Delaware

820 N. French Street

Wilmington, DE 19801

CLARE E. CONNORS

 Attorney General

 State of Hawai‘i

425 Queen Street

Honolulu, HI 96813

KEITH ELLISON

 Attorney General

 State of Minnesota

102 State Capital

75 Rev. Dr. Martin Luther King Jr. Blvd

Saint Paul, MN 55101

ELLEN F. ROSENBLUM

 Attorney General

 State of Oregon 

1162 Court Street NE

Salem, OR 97301

THOMAS J. DONOVAN, JR. 

 Attorney General

 State of Vermont

Office of the Attorney General

109 State Street

Montpelier, VT 05609

 

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