________________________________________________________________

________________________________________________________________

No. 17A-_______

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

UNITED STATES OF AMERICA, ET AL., APPLICANTS

v.

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON

_______________

APPLICATION FOR A STAY PENDING DISPOSITION BY THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

OF A PETITION FOR A WRIT OF MANDAMUS TO THE 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 

AND ANY FURTHER PROCEEDINGS IN THIS COURT 

AND REQUEST FOR AN ADMINISTRATIVE STAY

_______________

NOEL J. FRANCISCO

 Solicitor General

 Counsel of Record

 Department of Justice

 Washington, D.C. 20530-0001

 SupremeCtBriefs@usdoj.gov

 (202) 514-2217

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(I)

PARTIES TO THE PROCEEDING

Petitioners (defendants in the district court, and mandamus 

petitioners in the court of appeals) are the United States of 

America; Donald J. Trump, in his official capacity as the President 

of the United States; Office of the President of the United States; 

the Director of Council on Environmental Quality; Mick Mulvaney, 

in his official capacity as the Director of the Office of 

Management and Budget; the Director of the Office of Science and 

Technology Policy; U.S. Department of Agriculture; Sonny Perdue, 

in his official capacity as the Secretary of Agriculture; U.S. 

Department of Commerce; Wilbur Ross, in his official capacity as 

the Secretary of Commerce; U.S. Department of Defense; James N. 

Mattis, in his official capacity as the Secretary of Defense; U.S. 

Department of Energy; Rick Perry, in his official capacity as the 

Secretary of Energy; U.S. Environmental Protection Agency (EPA); 

Andrew R. Wheeler, in his official capacity as the Acting 

Administrator of the EPA; U.S. Department of the Interior; Ryan 

Zinke, in his official capacity as the Secretary of the Interior; 

U.S. Department of State; Michael R. Pompeo, in his official 

capacity as the Secretary of State; U.S. Department of 

Transportation; and Elaine Chao, in her official capacity as the 

Secretary of Transportation.

Respondent in this Court is the United States District Court 

for the District of Oregon. Respondents also include Kelsey 

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II

Cascadia Rose Juliana; Xiuhtezcatl Tonatiuh M., through his 

Guardian Tamara Roske-Martinez; Alexander Loznak; Jacob Lebel; 

Zealand B., through his Guardian Kimberly Pash-Bell; Avery M., 

through her Guardian Holly McRae; Sahara V., through her Guardian 

Toña Aguilar; Kiran Isaac Oommen; Tia Marie Hatton; Isaac V.,

through his Guardian Pamela Vergun; Miko V., through her Guardian 

Pamela Vergun; Hazel V., through her Guardian Margo Van Ummersen; 

Sophie K., through her Guardian Dr. James Hansen; Jaime B., through 

her Guardian Jamescita Peshlakai; Journey Z., through his Guardian 

Erika Schneider; Victoria B., through her Guardian Daisy Calderon; 

Nathaniel B., through his Guardian Sharon Baring; Aji P., through 

his Guardian Helaina Piper; Levi D., through his Guardian LeighAnn Draheim; Jayden F., through her Guardian Cherri Foytlin; 

Nicholas V., through his Guardian Marie Venner; Earth Guardians,

a nonprofit organization; and future generations, through their 

Guardian Dr. James Hansen (collectively plaintiffs in the district 

court, and real parties in interest in the court of appeals).

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 3 of 111
IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17A-_______

UNITED STATES OF AMERICA, ET AL., APPLICANTS

v.

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON

_______________

APPLICATION FOR A STAY PENDING DISPOSITION BY THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

OF A PETITION FOR A WRIT OF MANDAMUS TO THE 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 

AND ANY FURTHER PROCEEDINGS IN THIS COURT 

AND REQUEST FOR AN ADMINISTRATIVE STAY

_______________

Pursuant to Rule 23 of the Rules of this Court and the All 

Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of the

United States, the President of the United States, the Executive 

Office of the President, the U.S. Environmental Protection Agency, 

the U.S. Departments of Agriculture, Commerce, Defense, Energy, 

the Interior, State, and Transportation, and all other federal 

parties, respectfully applies for a stay of discovery and trial in

the United States District Court for the District of Oregon, 

pending the disposition of the government’s petition for a writ of 

mandamus filed on July 5, 2018, in the United States Court of

Appeals for the Ninth Circuit and any further proceedings in this 

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 4 of 111
2

Court. Petitioners also request an administrative stay pending 

the Court’s consideration of this stay application.

This suit is an attempt to redirect federal environmental and 

energy policies through the courts rather than through the 

political process, by asserting a new and unsupported fundamental 

due process right to certain climate conditions. Rather than

challenging any specific agency action or inaction (save one), the 

plaintiffs allege that the “affirmative aggregate acts” of the 

federal defendants for the past 50 years in the area of fossilfuel production and use are causing a “dangerous climate system” 

and systematically violating their asserted substantive due 

process rights. Am. Compl. ¶ 289. The plaintiffs ask the district 

court to address these alleged wrongs by ordering the President 

and the defendant agencies to prepare and implement a national 

remedial plan, without regard to the procedural and substantive 

limitations of those agencies’ organic statutes and the 

Administrative Procedure Act (APA), and by retaining jurisdiction 

indefinitely to ensure compliance. 

Remarkably, the district court has allowed this improper suit 

to proceed for nearly three years over the repeated objections of 

the government and has now set aside 50 trial days this fall for 

the plaintiffs’ requested “Trial of the Century.”1 In 2016, the 

court refused to dismiss the plaintiffs’ claims, concluding that 

 1 Youth v. Gov, Draw #youthvgov., http://www.youthvgov.org/

artist-search/ (last visited July 16, 2018).

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3

the plaintiffs had adequately pleaded facts sufficient to 

establish Article III standing, that the plaintiffs had stated a 

violation of an asserted fundamental right to “a climate system 

capable of sustaining human life,” App., infra, 27a, and that the 

court could remedy that violation by ordering defendants to “move 

to swiftly phase out CO2 emissions, as well as take such other 

action necessary to ensure that atmospheric CO2 is no more 

concentrated than 350 ppm by 2100, including to develop a national 

plan to restore Earth’s energy balance, and implement that national 

plan so as to stabilize the climate system,” id. at 24a-25a. 

After the district court declined to certify its ruling for 

interlocutory appeal, the government immediately sought from the 

Ninth Circuit a writ of mandamus ordering dismissal. That court 

declined to intervene. The court of appeals observed that no order 

concerning discovery had yet issued and the government had not yet 

moved for a protective order, to dismiss the President, or for 

summary judgment. In the court’s view, there remained the 

opportunity for the government to raise and re-raise legal 

objections to the plaintiffs’ claims and for the district court to 

reconsider its prior decisions, including whether the claims are 

“too broad to be legally sustainable” and whether this litigation 

must be “focus[ed] * * * on specific governmental decisions and 

orders.” App., infra, 61a-62a. The court of appeals stated that 

it expected the claims to be “vastly narrowed as litigation 

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4

proceed[ed]” beyond that “very early stage” of litigation. Id. at 

62a-63a.

Following the Ninth Circuit’s decision, the government took 

every step contemplated by that court in its decision. In a motion 

for judgment on the pleadings, the government moved to dismiss the 

President and made two additional arguments for why the plaintiffs’ 

claims in this case are not justiciable. In a motion for summary 

judgment, the government restated its prior objections to the 

plaintiffs’ standing and to the merits of their claims, permitting 

the district court to reconsider those rulings on the basis of a 

more developed record. And the government moved for a protective 

order against all discovery, explaining that discovery is 

categorically inappropriate because it would violate the APA’s

judicial-review provisions, as well as the APA’s comprehensive 

regulation of agency decisionmaking and the Constitution’s 

separation of powers. 

Meanwhile, the plaintiffs have done nothing to narrow their 

claims or focus them on specifically identified agency actions. 

Nonetheless, the district court summarily denied the government’s 

motion for a protective order and denied the government’s request

for a stay pending consideration of the two dispositive motions 

that would obviate the occasion for any discovery. The court has 

repeatedly stated its expectation that, absent intervention from 

a higher court, trial will begin in just over three months and 

will likely proceed for 50 trial days. 

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5

In light of these developments, on July 5, 2018, the 

government again petitioned the Ninth Circuit for mandamus relief, 

requesting an order directing dismissal of this ill-conceived suit 

or, at a minimum, an order directing the district court to stay 

all discovery and trial pending the resolution of the government’s 

pending dispositive motions. In accordance with Supreme Court 

Rule 23.3, the government also separately moved in the district 

court and the court of appeals for a stay of discovery and trial 

pending disposition of its petition for a writ of mandamus filed 

in the court of appeals. The district court has not yet acted on 

the government’s motion. After briefing from the parties, the 

Ninth Circuit yesterday denied the government’s motion for a stay. 

The standards for granting a stay pending consideration of a 

matter in the court of appeals are readily met in this case. If 

the Ninth Circuit does not grant the government’s mandamus 

petition, this Court is likely to grant review to consider the 

district court’s manifestly wrong recognition of a new fundamental

substantive due process right to certain climate conditions in the 

context of litigation over which the district court lacks 

jurisdiction under Article III and that is otherwise deeply flawed

as a procedural matter. Absent relief from the Ninth Circuit or 

this Court, the government will be forced to participate in a 

highly compacted period of discovery and trial preparation 

followed by a 50-day trial, all of which will itself violate 

bedrock limitations on agency decisionmaking and the judicial 

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6

process imposed by the APA and the separation of powers. In light 

of these impending harms, the Court is therefore likely to order 

dismissal of this suit or, at a minimum, direct the district court 

to stay discovery and trial until the government’s pending 

dispositive motions are resolved. In contrast to the obvious harms 

to the government, respondents can make no credible claim of 

imminent, irreparable harm. Their alleged injuries stem from the 

cumulative effects of CO2 emissions from every source in the world 

over decades; whatever additions to the global atmosphere that may 

somehow be attributed to the government over the time it takes to 

resolve the pending mandamus petition are plainly de minimis.

Accordingly, the government requests that this Court stay 

discovery and trial pending the Ninth Circuit’s consideration of 

the government’s mandamus petition and any further proceedings in 

this Court. Alternatively, given the numerous manifest defects in 

this suit and the district court’s egregious errors, the government 

respectfully submits that the Court may wish to construe this 

application as a petition for a writ of mandamus or as a petition 

for a writ of certiorari from the Ninth Circuit’s prior mandamus 

decision and directly order dismissal of this suit or a stay of 

discovery and trial until the government’s pending dispositive 

motions are resolved. 

STATEMENT

1. The plaintiffs below (respondents in this Court) are 21

minor individuals, an organization known as Earth Guardians, and 

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7

future generations (by and through their self-appointed guardian 

Dr. James Hansen). They filed this suit in 2015 against President 

Obama, the Executive Office of the President, and numerous Cabinetlevel Executive agencies, alleging that these Executive officials 

and agencies contributed to climate change in violation of rights 

that respondents assert under the Fifth and Ninth Amendments to 

the Constitution and an asserted federal public-trust doctrine. 

Am. Compl. ¶¶ 277-310. Respondents allege that the federal 

defendants (now President Trump and officials in his 

Administration) have, through action and inaction, enabled the 

combustion of fossil fuels, which releases greenhouse gases into 

the atmosphere. Id. ¶ 1. With one exception, respondents do not 

challenge any specific agency actions, such as agency orders, 

permits, adjudications, or rulemakings, or even any failure to 

undertake any specific required actions. Instead, they challenge 

what they term the government’s “aggregate actions,” id. ¶ 129, 

which they assert have caused “climate instability” that injures 

their prospects for long and healthy lives, id. ¶ 288.

Respondents ask the district court to declare that they have

the right under the Constitution to a particular climate system 

and to require that the Executive Branch “prepare a consumptionbased inventory of U.S. CO2 emissions” and “prepare and implement 

an enforceable national remedial plan to phase out fossil fuel 

emissions and draw down excess atmospheric CO2.” Am. Compl. 94. 

In addition, they ask the court to retain jurisdiction for an 

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indefinite period of time to monitor the government’s compliance 

with this “national remedial plan.” Ibid.

2. In November 2016, the district court denied the 

government’s motion to dismiss respondents’ claims for lack of 

jurisdiction and failure to state a claim. App., infra, 1a-53a. 

The court found that respondents had established Article III 

standing by alleging that they had been harmed by the effects of 

climate change through increased droughts, wildfires, and 

flooding; and that the government’s regulation of (and failure to 

further regulate) fossil fuels had caused respondents’ injuries. 

The court determined that it could redress those injuries by 

“order[ing] [the government] to cease [its] permitting, 

authorizing, and subsidizing of fossil fuels and, instead, move to 

swiftly phase out CO2 emissions, as well as take such other action 

necessary to ensure that atmospheric CO2 is no more concentrated 

than 350 ppm by 2100, including to develop a national plan to 

restore Earth’s energy balance, and implement that national plan 

so as to stabilize the climate system.” Id. at 24a-25a (citation 

omitted); see id. at 19a-25a.

On the merits, the district court concluded that respondents

had stated a claim under the Fifth Amendment’s Due Process Clause 

and a federal public-trust doctrine. App., infra, 25a-38a. The 

court found in the Fifth Amendment’s protection against the 

deprivation of “life, liberty, or property, without due process of 

law,” U.S. Const. Amend. V, a previously unrecognized fundamental 

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9

right to a “climate system capable of sustaining human life,” and 

the court determined that respondents had adequately alleged 

infringement of that fundamental right, App., infra, 27a. The 

court further determined that respondents had adequately stated a 

claim under a federal public-trust doctrine, which it held imposes 

a judicially enforceable prohibition on the federal government 

against “depriving a future legislature of the natural resources 

necessary to provide for the well-being and survival of its 

citizens.” Id. at 30a (citation omitted). Respondents’ claims 

under this doctrine, the court concluded, are also “properly 

categorized as substantive due process claims.” Id. at 38a.

3. The government petitioned the Ninth Circuit for a writ 

of mandamus ordering dismissal, contending that the district 

court’s order denying the motion to dismiss contravened 

fundamental limitations on judicial review imposed by Article III 

of the Constitution and clearly erred in recognizing a sweeping 

new fundamental right to certain climate conditions under the Due 

Process Clause. The government further requested a stay of the 

litigation pending the court of appeals’ consideration of the 

mandamus petition.

On July 25, 2017, the court of appeals granted the 

government’s request for a stay. App., infra, 54a. But on March 

7, 2018, the court ultimately “decline[d] to exercise [its] 

discretion to grant mandamus relief at th[at] stage of the 

litigation.” App., infra, 63a; see id. at 55a-63a. In its 

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decision, the court recognized that “some of [respondents’] claims 

as currently pleaded are quite broad, and some of the remedies 

[respondents] seek may not be available as redress.” Id. at 62a. 

The court reasoned, however, that “the district court need[ed] to 

consider those issues further in the first instance.” Id. at 63a. 

The court of appeals “underscore[d] that this case [wa]s at a very 

early stage, and that the [government] [would] have ample 

opportunity to raise legal challenges to decisions made by the 

district court on a more fully developed record, including 

decisions as to whether to focus the litigation on specific 

governmental decisions and orders.” Id. at 62a. The court of 

appeals observed that “[c]laims and remedies often are vastly 

narrowed as litigation proceeds” and that it had “no reason to 

assume this case will be any different.” Id. at 63a. And the 

court stated that the governmental defendants could continue to 

“raise and litigate any legal objections they have,” id. at 62a, 

including by challenging future discovery orders; moving to 

“dismiss the President as a party”; “reasserting a challenge to 

standing, particularly as to redressability”; “seeking mandamus in 

the future”; or “asking the district court to certify orders for 

interlocutory appeal of later rulings,” id. at 61a, 63a. 

On May 29, 2018, Justice Kennedy extended the time within 

which to file a petition for a writ of certiorari to review the 

Ninth Circuit’s decision to and including July 5. On June 25, 

Justice Kennedy further extended the time within which to file a 

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petition for a writ of certiorari to review the Ninth Circuit’s 

decision to and including August 4, 2018.

4. Following the court of appeals’ decision, the government 

filed a series of motions in the district court as contemplated by 

the Ninth Circuit’s decision.

First, the government filed a motion for judgment on the 

pleadings, reiterating its prior arguments for dismissal: 

respondents lack standing, and their novel assertion of judicially 

enforceable fundamental rights to a particular climate system 

lacks any support in the Constitution or this Nation’s history and 

tradition. See D. Ct. Doc. 195, at 6-7 (May 9, 2018). The 

government also set forth three new grounds for dismissing some or 

all of respondents’ claims: (1) the President must be dismissed 

because the court lacks jurisdiction to enjoin him in the 

performance of his official duties; (2) all of respondents’ claims 

must be dismissed because the APA provides the mechanism for 

challenging the federal administrative actions that underlie 

respondents’ claims, but respondents fail to challenge discrete, 

identified agency actions or alleged failures to act, as the APA 

requires; and (3) in any event, respondents’ claims and requested 

relief violate the constitutional separation of powers by 

effectively requiring the district court to usurp the role of

Congress in enacting a government-wide regulatory framework and

the President in calling on the expertise and resources of the 

Executive Branch to formulate environmental and energy policies

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and to make recommendations to Congress concerning changes to laws 

governing those policies. Id. at 7-25.

Second, on the same day, the government filed a motion for a 

protective order barring all discovery or, at a minimum, a stay of 

all discovery pending resolution of its motion for judgment on the 

pleadings and its forthcoming motion for summary judgment. D. Ct. 

Doc. 196, at 1-2 (May 9, 2018). The government argued that, 

because this case may proceed only under the APA, judicial review 

must be based on the administrative record of specifically 

identified actions or decisions, and therefore no discovery is 

proper. Id. at 9-14. The government also contended that, even if 

review were not otherwise limited to the administrative record of 

specific agency actions, discovery in this case would be 

independently barred by the procedural requirements that the APA 

imposes on agency fact-finding and decisionmaking and the 

separation of powers. Id. at 14-19. Finally, the government 

argued that, at a minimum, the district court should stay all 

discovery until the court ruled on the government’s pending motion 

for judgment on the pleadings and its forthcoming motion for 

summary judgment, the granting of which would either eliminate any 

occasion for discovery or substantially affect its scope. Id. at 

19-20.

Third, the government filed a motion for summary judgment, 

arguing that (1) respondents lack standing both as a matter of law 

and as judged against the evidentiary record; (2) respondents have 

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failed to identify a right of action for their claims apart from 

the APA and have not satisfied the APA’s requirement to challenge

discrete agency actions or inactions; and (3) respondents’ claims 

fail on the merits. D. Ct. Doc. 207, at 5-19, 24-30 (May 22, 

2018). In addition, the government contended that it was entitled 

to summary judgment because, even aside from respondents’ lack of 

standing, this suit is not a case or controversy within the meaning 

of Article III. Id. at 20-24.

5. In the meantime, both respondents and the district court 

wholly failed to narrow or focus the claims in this case. 

Immediately following the court of appeals’ prior decision, the 

district court ordered the parties to proceed with discovery, and 

it set an opening trial date of October 29, 2018. D. Ct. Doc. 189

(Mar. 26, 2018); D. Ct. Doc. 192 (Apr. 12, 2018). The court 

indicated its expectation that the trial will last for 

approximately 50 trial days. See, e.g., 4/12/18 Tr. 8 (Coffin, 

J.) (estimating “five weeks per side in essence”). And the court 

has repeatedly made clear that it has no intention of delaying 

trial. See, e.g., 5/23/18 Tr. 16 (Aiken, J.) (“[A]s we have talked 

about in this case before, we are not delaying the trial at this 

point. We are moving forward.”); id. at 17 (“[W]e have got a trial 

date and we are moving forward.”); 5/10/18 Tr. 27 (Coffin, J.) 

(“[H]ere’s the big picture. October 29, 2018, trial starts unless 

some higher court says no.”); D. Ct. Doc. 239 (June 14, 2018)

(Aiken, J.) (denying request to extend the trial date for the same 

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period as extension of time for respondents to oppose summary 

judgment).

At the same time, the district court extended the deadline 

for respondents to respond to the government’s motion for judgment 

on the pleadings to June 15, D. Ct. Doc. 210 (May 23, 2018), and 

set argument on that motion for July 18, D. Ct. Doc. 214 (May 30, 

2018). It similarly extended the deadline for respondents to 

respond to the government’s motion for summary judgment until June 

28. D. Ct. Doc. 240 (June 14, 2018). After the government filed 

its mandamus petition, the court granted the government’s request

to set argument on the motion for summary judgment for the July 18 

hearing. D. Ct. Doc. 316 (July 13, 2018).

Meanwhile, in April 2018, respondents served the government 

with 17 expert reports. In May 2018, respondents served 

413 requests for admissions (RFAs) and Federal Rule of Civil 

Procedure 30(b)(6) deposition notices on the U.S. Departments of 

Agriculture, the Interior, and Transportation. These RFAs are 

broad in scope, seeking admissions dating back to the 1960s on 

topics such as whether, in the agencies’ views, certain resources 

are “at risk”; and admissions concerning “cultural services” such 

as “spiritual renewal[] and aesthetic enjoyment.” See, e.g., 

D. Ct. Doc. 194-3, at 17 (May 8, 2018); D. Ct. Doc. 194-4, at 29. 

Among the topics noticed for the Rule 30(b)(6) depositions, 

respondents demanded that the government designate witnesses to 

express the defendant agencies’ official positions on “[a]ny 

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analysis or evaluation” related to “atmospheric CO2 

concentrations, climate change targets, or greenhouse gas 

emission” that “would avoid endangerment of human health and 

welfare for current and future generations,” as well as on the 

role of the agencies in implementing President Trump’s energy 

policy. D. Ct. Doc. 196-1, at 6 (capitalization omitted) (Rule 

30(b)(6) notice of deposition of U.S. Department of the Interior); 

D. Ct. Doc. 196-2, at 6 (capitalization omitted) (Rule 30(b)(6) 

notice of deposition of U.S. Department of Agriculture); D. Ct. 

Doc. 217-6, at 6 (June 4, 2018) (capitalization omitted) (Rule 

30(b)(6) notice of deposition of U.S. Department of 

Transportation).

In June 2018, respondents served similar RFAs and nearly 

identical Rule 30(b)(6) deposition notices on the U.S. Departments

of Energy and Defense. When the government sought a protective 

order with respect to the May RFAs and deposition notices on 

multiple grounds, respondents refused to withdraw the requests but 

asked the district court to hold the government’s responses in 

abeyance while respondents seek to obtain the same information 

through contention interrogatories and requests for judicial 

notice. D. Ct. Doc. 247, at 2-4 (June 25, 2018).

6. Magistrate Judge Coffin denied the government’s motion 

for a protective order for all discovery or, at a minimum, a stay 

of all discovery pending resolution of the government’s motions 

for judgment on the pleadings and summary judgment. App., infra, 

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64a-66a. Judge Coffin determined that respondents’ complaint does 

not assert claims arising under the APA because their claims are 

“based on alleged violations of their constitutional rights.” Id.

at 65a. He expressed the view that the district court had already 

rejected the government’s argument that respondents must bring 

their claims under the APA. Ibid. And he refused to grant a 

protective order based on the separation of powers, ruling instead 

that “[s]hould a specific discovery request arise during discovery 

in this case that implicates a claim of privilege the government 

wishes to assert, the government may file a motion for a protective 

order directed at any such specific request.” Id. at 66a. Judge 

Coffin denied the government’s request for a stay of discovery 

without explanation. Ibid.

On June 29, the district court summarily affirmed Judge 

Coffin’s order, stating that it had “carefully reviewed [that] 

order in light of [the government’s] objections” and “conclude[d] 

that the order is not clearly erroneous or contrary to law.” App., 

infra, 68a; see id. at 67a-68a. The court provided no additional 

explanation for its decision. Also without explanation, the court 

“decline[d] to certify [its] decision for interlocutory appeal 

under 28 U.S.C. § 1292(b).” Id. at 68a. Meanwhile, the 

government’s trial-preparation burdens continue, as the October 

trial date fast approaches. Among other obligations, the 

government is required to provide expert reports to respondents by 

August 13, 2018. D. Ct. Doc. 192.

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7. On July 5, the government again petitioned the Ninth 

Circuit for a writ of mandamus and a stay pending the court’s 

consideration of the government’s petition. The government 

explained that, in an effort to terminate or narrow this case, it 

had taken every step that the Ninth Circuit had contemplated in 

its prior decision. And yet respondents had failed to narrow their 

claims in any respect, and the district court’s orders made clear 

that this case will not be terminated or respondents will not be 

required to narrow their manifestly overbroad claims in time to 

have any meaningful effect on discovery or trial. Accordingly, 

the government asked the Ninth Circuit (1) to direct the district 

court to dismiss this case or (2) at a minimum, to direct the 

district court to stay all discovery and trial pending the 

resolution of the government’s dispositive motions, and consider 

certifying for interlocutory appeal any rulings on those motions,

and (3) to stay all discovery and trial while the court of appeals 

considered the government’s mandamus petition.

The court of appeals ordered respondents to respond to the 

government’s stay request by July 10, with the government to file 

any reply the following day. On July 16, the court denied the 

stay request, stating that it would rule on the government’s 

mandamus petition “on an expedited basis.” App., infra, 69a. The 

court has not yet ordered a response to the government’s mandamus 

petition.

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ARGUMENT

The government respectfully requests that this Court grant a 

stay of all discovery and trial pending the Ninth Circuit’s 

resolution of the government’s petition for a writ of mandamus and 

any further proceedings in this Court. The government also 

respectfully requests an administrative stay pending this Court’s 

ruling on this application for a stay. Under this Court’s Rule 23 

and the All Writs Act, 28 U.S.C. 1651, a single Justice or the 

Court has authority to enter a stay pending proceedings in a court 

of appeals.2 In considering an application for such a stay, the 

Court or Circuit Justice considers whether four Justices are likely 

to vote to grant a writ of certiorari if the court of appeals 

ultimately rules against the applicant; whether five Justices 

would then likely conclude that the case was erroneously decided 

below; and whether, on balancing the equities, the injury asserted 

by the applicant outweighs the harm to the other parties or the 

public. See San Diegans for the Mt. Soledad Nat’l War Mem’l v. 

Paulson, 548 U.S. 1301, 1302 (2006) (Kennedy, J., in chambers); 

Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (traditional stay 

factors). All of those factors support a stay here.

1. This Court is likely to grant review if the court of 

appeals denies the government’s petition for mandamus. The 

 2 See, e.g., Trump v. International Refugee Assistance 

Project, 138 S. Ct. 542 (2017); West Virginia v. EPA, 136 S. Ct. 

1000 (2016); Stephen M. Shapiro et al., Supreme Court Practice

§ 17.6, at 881-884 (10th ed. 2013).

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district court has egregiously erred in declaring a never-beforerecognized fundamental right to a particular climate system that 

lacks any support in the Constitution, this Court’s precedents, or 

this Nation’s history and tradition. It has done so in the context 

of litigation over which the court lacks Article III jurisdiction 

in multiple respects and is otherwise fundamentally procedurally 

flawed. Absent relief from the Ninth Circuit or this Court, this 

litigation is barreling toward an extremely compacted period of 

discovery that, in one form or another, will force the government 

to violate its obligations under the APA and the separation of 

powers, followed immediately by a 50-day trial that would itself 

violate the same constraints. If the court of appeals sanctions 

such a dramatic “depart[ure] from the accepted and usual course of 

judicial proceedings,” an exercise of this Court’s supervisory 

power would be warranted. Sup. Ct. R. 10(a). 

2. Moreover, if the court of appeals denies the 

government’s petition, a majority of this Court will likely reverse 

the Ninth Circuit’s denial of mandamus relief or issue a writ of 

mandamus directly to the district court. As this Court has 

observed, the traditional use of mandamus has been “to confine the

court against which mandamus is sought to a lawful exercise of its 

prescribed jurisdiction.” Cheney v. United States Dist. Court, 

542 U.S. 367, 380 (2004) (brackets and citation omitted).

Moreover, mandamus may also be justified by errors “amounting to 

a judicial ‘usurpation of power’” or a “clear abuse of discretion.” 

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Ibid. (citation omitted). A court may issue a writ of mandamus 

when the petitioner establishes that (1) the petitioner’s “right 

to issuance of the writ is ‘clear and indisputable’”; (2) “no other 

adequate means [exist] to attain the relief he desires”; and 

(3) “the writ is appropriate under the circumstances.” 

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam)

(quoting Cheney, 542 U.S. at 380-381) (brackets in original). Each 

of those prerequisites for mandamus relief is met here. 

a. The government’s right to the dismissal of this case is 

“clear and indisputable.” Perry, 558 U.S. at 190 (citation 

omitted). Respondents’ implausible and far-reaching claims are 

procedurally and substantially defective in at least three ways.

i. Most fundamentally, the district court lacks 

jurisdiction over respondents’ claims. “[N]o principle is more 

fundamental to the judiciary’s proper role in our system of 

government than the constitutional limitation of federal-court 

jurisdiction to actual cases or controversies.” DaimlerChrysler 

Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Raines v. Byrd, 

521 U.S. 811, 818 (1997)). This suit fails to qualify as a “Case[]” 

or “Controvers[y]” within the meaning of Article III for two 

independent reasons. U.S. Const. Art. III, § 2, Cl. 1.

First, respondents lack Article III standing. To demonstrate 

standing, respondents must prove that (1) they “have suffered an

injury in fact,” i.e., “an invasion of a legally protected interest 

which is (a) concrete and particularized, and (b) actual or 

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imminent, not conjectural or hypothetical”; (2) the injury is 

“fairly . . . trace[able] to the challenged action of the 

defendant, and not . . . th[e] result [of] the independent action 

of some third party not before the court”; and (3) it is “likely, 

as opposed to merely speculative, that the injury will be redressed 

by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560-561 (1992) (citations, footnote, and internal quotation 

marks omitted; brackets in original). The purpose of these

standing requirements is “to prevent the judicial process from 

being used to usurp the powers of the political branches.” Clapper

v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “In keeping with 

that purpose,” a court’s inquiry must be “‘especially rigorous 

when reaching the merits of the dispute would force [it] to decide 

whether an action taken by one of the other two branches of the 

Federal Government was unconstitutional.’” Ibid. (citation 

omitted). Respondents cannot establish any of the standing 

requirements here.

Respondents assert “generalized grievance[s],” not “concrete 

and particularized” injuries sufficient to satisfy the first prong 

of the standing analysis. See, e.g., Lexmark Int’l, Inc. v. Static 

Control Components, Inc., 134 S. Ct. 1377, 1386, 1387 n.3 (2014); 

Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam); Cuno, 

547 U.S. at 344-346. This Court has made clear that “standing to 

sue may not be predicated upon an interest * * * which is held 

in common by all members of the public, because of the necessarily 

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abstract nature of the injury all citizens share.” Schlesinger v. 

Reservists Comm. to Stop the War, 418 U.S. 208, 220 (1974). The 

injuries that respondents claim all involve the diffuse effects of 

a generalized phenomenon on a global scale that are the same as 

those felt by any other person in their communities, in the United 

States, or throughout the world at large. 

Moreover, respondents cannot establish that the government 

policies they challenge -- expressed in broad and undifferentiated 

terms, rather than directed to discrete agency actions -- caused 

their asserted injuries. See Defenders of Wildlife, 504 U.S. at 

560. Respondents principally complain of the government’s 

regulation (or lack thereof) of private parties not before the 

district court. Among their widely scattered objections, for 

example, respondents claim that the United States subsidizes the 

fossil-fuel industry. Am. Compl. ¶¶ 171-178. But when a 

plaintiff’s alleged harms may have been caused directly by the 

conduct of parties other than the defendants (and only indirectly 

by the defendants), it is “substantially more difficult to meet 

the minimum requirement of Art. III: to establish that, in fact, 

the asserted injury was the consequence of the defendants’ actions, 

or that prospective relief will remove the harm.” Warth v. Seldin, 

422 U.S. 490, 504-505 (1975). And respondents cannot establish a 

causal link between the amorphously described policy decisions and 

the specific harms that they allege, as opposed to the independent 

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actions by private persons both within and outside the United

States. 

Finally, even if respondents could somehow establish injuryin-fact and causation, they could not establish that it is likely 

that their asserted injuries could be redressed by an order of a 

federal court. Indeed, respondents have not even begun to 

articulate a remedy that a federal court would have authority to 

award and that could move the needle on the complex phenomenon of 

global climate change, much less likely redress their alleged 

injuries. See, e.g., Simon v. Eastern Kentucky Welfare Rights 

Org., 426 U.S. 26, 40-46 (1976) (holding that plaintiffs 

challenging tax subsidies for hospitals serving indigent patients

lacked standing where they could only speculate on whether a change 

in policy would “result in [the plaintiffs] receiving the hospital 

services they desire”). The district court assumed that it had 

the authority to “[o]rder Defendants to prepare and implement an 

enforceable national remedial plan to phase out fossil fuel 

emissions and draw down excess atmospheric CO2.” App., infra, 41a 

(quoting Am. Compl. 94). But neither respondents nor the court 

cited any legal authority that would permit such a usurpation of 

legislative and executive authority by an Article III court.

Second, quite aside from these fatal flaws with respect to 

standing, this suit simply is not one that a federal court may

entertain consistent with the Constitution. The “judicial Power 

of the United States,” U.S. Const. Art. III, § 1, is “‘one to 

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render dispositive judgments’” in “cases and controversies” as 

defined by Article III. Plaut v. Spendthrift Farm, Inc., 514 U.S. 

211, 218-219 (1995) (citation omitted). It can “come into play 

only in matters that were the traditional concern of the courts at 

Westminster” and only when those matters arise “in ways that to 

the expert feel of lawyers constituted ‘Cases’ or 

‘Controversies.’” Vermont Agency of Natural Res. v. United States 

ex rel. Stevens, 529 U.S. 765, 774 (2000) (citation omitted). 

Respondents’ suit is not such a case or controversy cognizable 

under Article III. Respondents ask the district court to review 

and assess the entirety of Congress’s and the Executive Branch’s 

programs and policies relating to climate change and then to 

undertake to pass upon the comprehensive constitutionality of all 

of those policies, programs, and inaction in the aggregate. See, 

e.g., Am. Compl. ¶¶ 277-310. No federal court, nor the courts at 

Westminster, has ever purported to use the “judicial Power” to 

perform such a review -- and for good reason: the Constitution 

commits to Congress the power to enact comprehensive governmentwide measures of the sort respondents seek. And it commits to the 

President the power to oversee the Executive Branch in its 

administration of existing law and to draw on its expertise and 

formulate policy proposals for changing existing law. Such 

functions are not the province of Article III courts. See U.S. 

Const. Art. I, § 1; id. Art. II, § 2, Cl. 1; id. § 3; cf. Cheney, 

542 U.S. at 385.

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Respondents appeal to the district court’s equitable powers

as justifying the review they seek in this case. But a federal 

court’s equitable powers are “subject to restrictions: the suit 

must be within the traditional scope of equity as historically 

evolved in the English Court of Chancery.” Guaranty Trust Co. v. 

York, 326 U.S. 99, 105 (1945). The relief respondents request is 

plainly not of the sort “traditionally accorded by courts of 

equity.” Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, 

Inc., 527 U.S. 308, 319 (1999). “There simply are certain things 

that courts, in order to remain courts, cannot and should not do.” 

Missouri v. Jenkins, 515 U.S. 70, 132 (1995) (Thomas, J., 

concurring). One of those things is “running Executive Branch 

agencies.” Id. at 133. And it surely includes running all of 

them. 

ii. Beyond these limitations imposed by Article III, a suit 

challenging an agency’s regulatory measures would have to be 

targeted at specifically identified agency actions or alleged 

failures to act, and review would have to be based on the 

administrative record for those actions. The APA provides that a 

“person suffering legal wrong because of agency action, or 

adversely affected or aggrieved by agency action within the meaning 

of a relevant statute, is entitled to judicial review thereof.” 

5 U.S.C. 702. The APA authorizes a reviewing court to “hold 

unlawful and set aside agency action” that is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance 

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with law” or “contrary to constitutional right, power, privilege, 

or immunity,” 5 U.S.C. 706(2)(A)-(B), and to “compel agency action 

unlawfully withheld or unreasonably delayed,” 5 U.S.C. 706(1). 

The APA thus provides a “comprehensive remedial scheme” for a 

“person ‘adversely affected’ * * * by agency action” or alleged 

failure to act with respect to regulatory requirements and 

standards, permitting, and other administrative measures. Western 

Radio Servs. Co. v. United States Forest Serv., 578 F.3d 1116, 

1122-1123 (9th Cir. 2009) (citation omitted), cert. denied, 559 

U.S. 1106 (2010); see Wilkie v. Robbins, 551 U.S. 537, 551-554 

(2007) (describing the APA as the remedial scheme for vindicating 

complaints against “unfavorable agency actions”); Webster v. Doe, 

486 U.S. 592, 607 n.* (1988) (Scalia, J., dissenting) (explaining 

that the APA “is an umbrella statute governing judicial review of 

all federal agency action” and that “if review is not available 

under the APA it is not available at all”).

Respondents allege that a vast number of (mostly unspecified) 

“agency action[s]” and inactions spanning the last several decades

are, in the words of the APA, “contrary to constitutional right.” 

5 U.S.C. 702, 706(2)(B). As currently formulated, however, 

respondents’ claims cannot proceed under the APA, because the APA

allows only for challenges to “circumscribed, discrete” final 

agency action, not the sort of “broad programmatic attack” on 

agency policies that respondents assert here. Norton v. Southern 

Utah Wilderness Alliance, 542 U.S. 55, 62, 64 (2004) (SUWA); see 

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Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891 (1990). 

Respondents expressly cast their claims as a challenge to 

“affirmative aggregate actions” by the numerous defendant agencies 

that “permitted, encouraged, and otherwise enabled continued 

exploitation, production, and combustion of fossil fuels.” Am. 

Compl. ¶¶ 1, 5. A challenge to “aggregate actions” is the 

antithesis of the “discrete agency action” that this Court has 

explained must be challenged under the APA. SUWA, 542 U.S. at 64.

Respondents suggest that they can evade the APA’s limitations 

because the Constitution itself provides the right of action for 

constitutional claims. Am. Compl. ¶ 13. But this Court has never 

held that the Constitution itself provides an across-the-board 

right of action for all constitutional claims -- and especially 

for the sweeping constitutional claims concerning governmental

regulation that respondents advance here and the sweeping relief 

they seek. Cf. Armstrong v. Exceptional Child Ctr., Inc., 135 

S. Ct. 1378, 1384 (2015) (“[T]he Supremacy Clause does not confer 

a right of action.”). Federal courts do have equitable authority 

in some circumstances “to enjoin unlawful executive action.” Id.

at 1385. But that equitable power is “subject to express and 

implied statutory limitations.” Ibid. Thus, “[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 

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(1996). Here, even if the equitable authority of an Article III 

court could ever extend to a case of this sort, the APA provides 

“express * * * statutory limitations” that “‘foreclose,’”

Armstrong, 135 S. Ct. at 1385 (citation omitted), respondents’ 

asserted constitutional claims against the broad and largely 

unspecified “aggregate actions” of the federal government as a 

whole, Am. Compl. ¶ 129.

iii. Even if a court could reach the merits of respondents’ 

constitutional theories, they plainly fail. In denying the 

government’s motion to dismiss, the district court concluded that 

respondents stated two related constitutional claims based on 

substantive due process: (1) a previously unidentified judicially 

enforceable fundamental right to “a climate system capable of 

sustaining human life”; and (2) a federal public-trust doctrine to 

the same effect. App., infra, 27a; see id. at 25a-38a. Those

claims are baseless.

This Court has instructed courts considering novel due 

process claims to “‘exercise the utmost care whenever * * * asked 

to break new ground in this field,’ lest the liberty protected by 

the Due Process Clause be subtly transformed” into judicial policy 

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

of public debate and legislative action.” Washington v. 

Glucksberg, 521 U.S. 702, 720 (1997) (citation omitted). The Court 

has “regularly observed that the Due Process Clause specially 

protects those fundamental rights and liberties which are, 

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objectively, ‘deeply rooted in this Nation’s history and 

tradition.’” Id. at 720-721 (citation omitted). The district 

court’s recognition of an “unenumerated fundamental right” to “a 

climate system capable of sustaining human life,” App., infra, 

26a-27a, is entirely without basis in this Nation’s history or 

tradition. It threatens to wrest fundamental policy issues of 

energy development and environmental regulation affecting everyone

in the country from “the arena of public debate and legislative 

action,” Glucksberg, 521 U.S. at 720, and to thrust them into the 

supervision of the federal courts -- indeed, here, into a single 

district court at the behest of a handful of individuals, a person 

purporting to act on behalf of future generations, and a single 

environmental organization, advancing just one perspective on the 

complex issues involved.

The district court relied principally on the Court’s 

recognition of a fundamental right to same-sex marriage in 

Obergefell v. Hodges, 135 S. Ct. 2584 (2015). App., infra, 26a. 

There is no relationship, however, between a distinctly personal 

and circumscribed right to same-sex marriage and the alleged right 

to a climate system capable of sustaining human life that 

apparently would run indiscriminately to every individual in the 

United States. The right recognized by the district court has no 

relationship to any right as “fundamental as a matter of history 

and tradition” as the right to marry recognized in Obergefell.

135 S. Ct. at 2602. Nor was the Obergefell Court’s recognition of 

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that narrow right an invitation to abandon the cautious approach 

to recognizing new fundamental rights that is demanded by the 

Court’s prior decisions.

Respondents’ public-trust claim fares no better. The roots 

of a public-trust doctrine “trace to Roman civil law and its 

principles can be found in the English common law on public 

navigation and fishing rights over tidal lands and in the state 

laws of this country.” PPL Montana, LLC v. Montana, 565 U.S. 576, 

603 (2012). Where it applies, such a doctrine generally holds 

that the sovereign “owns all of its navigable waterways and the 

lands lying beneath them as trustee of a public trust for the 

benefit of the people.” National Audubon Soc’y v. Superior Court, 

658 P.2d 709, 718 (Cal.), cert. denied, 464 U.S. 977 (1983) 

(citation and internal quotation marks omitted). 

Respondents attempt to invoke that doctrine to impose 

judicially enforceable, extra-statutory obligations on the federal 

government’s regulation of the fossil-fuel industry and its 

alleged effects on the atmosphere. They fail, however, to identify 

a single decision applying the public-trust doctrine in this novel 

manner. And even if such a doctrine could ever dictate a 

sovereign’s regulation of private parties, respondents’ claim 

would be unavailing because, as this Court has repeatedly 

recognized, the public-trust doctrine is purely a matter of state

law and pertains only to a State’s functions. See, e.g., PPL 

Montana, 565 U.S. at 603 (“[T]he public trust doctrine remains a 

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matter of state law.”) (citing Idaho v. Coeur d'Alene Tribe of 

Idaho, 521 U.S. 261, 285 (1997)). Indeed, the D.C. Circuit 

recently concluded that a nearly identical public-trust claim was 

so insubstantial that it could not provide even a basis for federal 

court subject-matter jurisdiction. See Alec L. ex rel. Loorz

v. McCarthy, 561 Fed. Appx. 7, 8 (per curiam), cert. denied, 

135 S. Ct. 774 (2014). 

iv. Finally, even if the Court were hesitant at this moment

to direct dismissal in light of all these defects, it is likely at 

least to direct the district court to stay discovery and trial 

pending resolution of the government’s motion for judgment on the 

pleadings and its motion for summary judgment. A favorable ruling 

on either motion would terminate the litigation or substantially 

narrow it to allow challenges only to specifically identifiable 

agency action under the APA, thus eliminating any occasion for 

discovery or trial. At the very least, such a ruling would 

substantially affect the scope of any trial or discovery, including 

the government’s expert reports that are due in the coming weeks. 

In similar circumstances, this Court recently held that the 

Ninth Circuit erred in denying the government’s petition for a 

writ of mandamus against district court orders that would have 

required the government to produce certain materials before the 

district court had resolved the government’s threshold arguments 

for dismissal. See In re United States, 138 S. Ct. 443 (2017)

(per curiam). In that case, the district court had refused to 

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stay all discovery pending resolution of the government’s motion 

to dismiss the case as nonjusticiable and the court ordered the 

expansion of the administrative record that the government had 

produced. Id. at 444. After the Ninth Circuit denied the 

government’s mandamus petition challenging those orders, this

Court unanimously vacated the decision, remanding with 

instructions that the district court first rule on the government’s 

threshold arguments and then “consider certifying that ruling for 

interlocutory appeal under 28 U.S.C. § 1292(b) if appropriate.” 

Id. at 445. At the very least, the same relief is warranted here.

b. Mandamus is an appropriate remedy to correct the 

district court’s egregious errors because the government has no 

adequate means to obtain relief from the court’s refusal to dismiss 

this litigation or to prevent the impending discovery and trial. 

This Court observed in Cheney that mandamus may be used to correct 

a “judicial ‘usurpation of power,’” 542 U.S. at 380 (citation 

omitted), and “mandamus standards are broad enough to allow a 

court of appeals to prevent a lower court from interfering with a 

coequal branch’s ability to discharge its constitutional 

responsibilities,” id. at 382; see ibid. (recognizing the 

“paramount necessity of protecting the Executive Branch from 

vexatious litigation that might distract it from the energetic 

performance of its constitutional duties”). Here, as a result of 

the district court’s denial of a protective order, the defendant 

agencies will now be required to proceed with discovery and, in 

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all likelihood, participate in a fast-approaching 50-day trial

that is not only flatly inconsistent with the APA’s rules requiring 

a challenge to be directed to specific agency actions based on 

record review, but would also (i) violate the APA’s carefully 

reticulated scheme for agencies to make factual assessments and 

policy determinations through rulemaking and adjudication in 

matters within their jurisdiction and (ii) contravene the 

constitutional separation of powers. 

i. The APA sets forth a “comprehensive regulation of 

procedures” for agency decisionmaking. Wong Yang Sung v. McGrath, 

339 U.S. 33, 36, modified, 339 U.S. 908 (1950); see 5 U.S.C. 551-

554. “Time and again,” this Court has explained that the APA 

establishes the exclusive procedural requirements for agency 

decisionmaking, and courts are not free to alter those 

requirements. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 

1207 (2015). To require agencies to comply with discovery seeking 

official positions on factual assessments and questions of policy

concerning the climate and then participate in a trial to impose 

on them an “enforceable national remedial plan to phase out fossil 

fuel emissions and draw down excess atmospheric CO2,” Am. Compl.

94, would impermissibly conflict with the procedures prescribed by 

the APA and deprive other interested parties and the public of the 

ability to provide input where the APA’s rulemaking provisions or 

agency procedures require.

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In pending discovery requests, for example, respondents seek 

to depose under Rule 30(b)(6) an official representative of the

U.S. Department of Transportation on the agency’s “role in 

implementing President Trump’s America First Energy Plan,” D. Ct. 

Doc. 217-6, at 6, and have the agency “admi[t]” propositions such 

as “[p]etroleum use in the transportation sector in the United 

States is expected to remain at about 13.5 million barrels per day 

through 2040 and beyond,” D. Ct. Doc. 217-9, at 19 (capitalization 

omitted). If discovery proceeds in this case, the agencies’ 

official statements and conclusions on such topics would be offered 

without public input from other stakeholders and without any of 

the relevant orderly procedures of agency decisionmaking 

contemplated by the APA. See 5 U.S.C. 553, 554. Those and similar 

required responses to discovery thus would be in direct 

contravention of Congress’s judgment in the APA and the agencies’ 

respective organic statutes to vest such determinations in the 

agencies’ administrative processes in the first instance. And

trial on such matters seeking to bind the defendant agencies (much 

less the President) would be fundamentally inconsistent with the 

APA and the agencies’ organic statutes.

ii. Discovery and trial in this case would also violate the 

Constitution’s separation of powers. Even before the enactment of 

the APA, this Court recognized that permitting an agency’s 

“findings to be attacked or supported in court by new evidence 

would substitute the court for the administrative tribunal,” Tagg 

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Bros. & Moorhead v. United States, 280 U.S. 420, 444 (1930), a 

step that would improperly allow the court to “usurp[] the agency’s 

function,” Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 155 

(1946). Moreover, “in cases where Congress has simply provided 

for review, without setting forth the standards to be used or the 

procedures to be followed,” the Court “has held that consideration 

is to be confined to the administrative record and that no de novo

proceeding may be held.” United States v. Carlo Bianchi & Co., 

373 U.S. 709, 715 (1963).

Limiting judicial review to the administrative record of 

actions taken within the scope of the agency’s authority as 

conferred by Congress in its organic statute reflects fundamental 

separation-of-powers principles. This suit, in which respondents

seek discovery in aid of requiring the defendant agencies (and the 

President) to develop and implement a comprehensive, governmentwide climate policy outside the congressionally prescribed 

statutory framework runs roughshod over those principles. It 

violates the vesting of the “legislative Power” in Congress to the 

extent it would require agencies to transgress the substantive and 

procedural constraints imposed on them by statute. U.S. Const. 

Art. I, § 1. And to the extent it seeks to require the President 

and Executive agencies to develop and implement such policies, it 

violates the Constitution’s vesting of “executive Power * * * in 

a President of the United States.” Id. Art. II, § 1, Cl. 1.

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Allowing respondents to simply file a complaint in federal 

court and then leverage the civil litigation system to marshal the 

views of federal agencies on broad questions concerning climate 

conditions and national environmental and energy policies would 

displace the President in his superintendence of the Executive 

Branch and encroach on his exclusive authority to elicit the views 

of federal agencies in formulating national policies for 

addressing important issues of general concern. See U.S. Const. 

Art. II, § 2, Cl. 1 (vesting in the President the exclusive power 

to “require the Opinion * * * of the principal Officer in each 

of the executive Departments, upon any Subject relating to the 

Duties of their respective Offices”); id. § 3 (vesting the 

President with power to “recommend to” Congress for “Consideration 

such Measures as he shall judge necessary and expedient”). Just 

as the President may not compel an advisory opinion from a court 

on a question of law, see, e.g., Flast v. Cohen, 392 U.S. 83, 96

& n.14 (1968), a court may not compel the opinions and proposals 

of executive officials on such matters. The Court should grant 

mandamus relief to prevent the irreparable harm that would be 

caused by such intrusions.

3. The balance of equities strongly supports granting a 

stay of discovery and trial pending consideration of the 

government’s mandamus petition. Absent a stay, the government 

will be forced to proceed with burdensome discovery on a highly

compressed timeframe and to prepare for (and eventually 

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participate in) a fast-approaching 50-day trial while, at the same 

time, violating its obligations under the APA and transgressing 

the separation of powers under the Constitution. Most immediately, 

by August 13 the government must produce expert reports rebutting 

respondents’ 17 expert witnesses. Respondents’ expert reports 

opine on wide-ranging topics from the merits vel non of 

implementing a carbon tax, D. Ct. Doc. 266-1, at 33-35 (June 28, 

2018), to the technological and economic feasibility of converting 

100% of the United States’ energy from fossil fuels to renewable 

energy for all sectors by 2050, D. Ct. Doc. 261-1, at 4-11 (June 

28, 2018). Respondents also have not withdrawn their requests for

admission propounded on the U.S. Departments of Agriculture, 

Defense, Energy, the Interior, and Transportation or their Rule 

30(b)(6) notices seeking an official designee from the same 

agencies to testify to each agency’s positions on various aspects 

of climate change and the agency’s view of its role in implementing 

the President’s energy policies. See pp. 14-15, supra. Indeed, 

respondents have promised that more discovery requests on similar 

topics will be served soon, D. Ct. Doc. 247, at 4, all of which 

are unlawful and unnecessary. 

By contrast, respondents can make no credible claim that a 

relatively brief stay to decide the government’s petition will 

cause them irreparable harm. Because respondents’ alleged 

injuries stem from the cumulative effects of CO2 emissions from 

every source in the world over decades, whatever additions to the

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global atmosphere that may somehow be attributed to the defendant 

agencies over the time it takes to resolve the government’s pending 

petition are plainly de minimis in context and not a source of 

irreparable harm.

CONCLUSION

For the foregoing reasons, this Court should stay discovery 

and trial pending the court of appeals’ disposition of the 

government’s petition for a writ of mandamus and any further 

proceedings in this Court. Alternatively, the Court should

construe this application as a petition for a writ of mandamus to 

the district court, or as a petition for a writ of certiorari 

seeking review of the Ninth Circuit’s prior mandamus decision

(App., infra, 55a-63a), and it should order that the district court

dismiss this suit or that the district court stay discovery and 

trial until the government’s pending dispositive motions are 

resolved and then consider certifying for interlocutory appeal any 

rulings on those motions. The government also requests that this 

Court enter an administrative stay pending its consideration of 

this stay application. 

Respectfully submitted.

NOEL J. FRANCISCO

 Solicitor General

JULY 2018

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 41 of 111
APPENDIX

Order Denying Motion to Dismiss (D. Or. Nov. 10, 2016).........1a

Order Granting Stay (9th Cir. July 25, 2017)..................54a

Opinion Denying Petition for a Writ of Mandamus

(9th Cir. Mar. 7, 2018) ....................................55a

Order Denying Motion for Protective Order and Stay

(D. Or. May 25, 2018) ......................................64a

Order Affirming Denial of Motion for Protective Order 

and Stay (D. Or. June 29, 2018) ............................67a

Order Denying Stay (9th Cir. July 16, 2018)...................69a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 42 of 111
1224 217 FEDERAL SUPPLEMENT, 3d SERIES

(citing Int’l Ass’n of Machinists v. Street,

367 U.S. 740, 761, 81 S.Ct. 1784, 6 L.Ed.2d

1141 (1961) and Hughes Tool Co., 104

N.L.R.B. 318, 324–25 (1953) (‘‘[A] union

could not assess nonmembers for costs

arising from contract negotiations for the

latter are the exclusive duty and prerogative of the certified representative which

the nonmember minority is both entitled to

and bound under.’’)). As the Sweeney

Court explained:

The powers of the bargaining representative are ‘comparable to those possessed by a legislative body both to create and restrict the rights of those

whom it represents.’ The duty of fair

representation is therefore a ‘corresponding duty’ imposed in exchange for

the powers granted to the Union as an

exclusive representative. It seems disingenuous not to recognize that the Union’s position as a sole representative

comes with a set of powers and benefits

as well as responsibilities and duties.

Id. (quoting Steele v. Louisville & N.R.

Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed.

173 (1944)).

Because Local 370 is ‘‘fully and adequately compensated by its rights as the

sole and exclusive member at the negotiating table,’’ Local 370 fails to state a Fifth

Amendment claim. Id.

ORDER

NOW, THEREFORE, IT IS HEREBY

ORDERED:

1. Defendant’s Motion to Dismiss FAC

(Dkt. 16) is GRANTED. This case is

dismissed in its entirety, with prejudice.

2. Defendant’s Motion to Dismiss Complaint (Dkt. 11) is MOOT and is

therefore DENIED.

,

Kelsey Cascadia Rose JULIANA,

et al., Plaintiffs,

v.

UNITED STATES of America,

et al, Defendants.

Case No. 6:15–cv–01517–TC

United States District Court,

D. Oregon,

Eugene Division.

Signed 11/10/2016

Background: Environmental activists

who were too young to vote, and purported

guardian for future generations, brought

action for declaratory and injunctive relief

against United States, the President, and

numerous executive agencies, alleging that

greenhouse gas emissions from carbon dioxide, produced by burning fossil fuels,

were destabilizing the climate system, and

asserting violations of substantive due process and defendants’ obligation to hold natural resources in public trust. The District

Court, Coffin, United States Magistrate

Judge, 2016 WL 183903, allowed industry

associations to intervene as defendants.

Defendants and intervenors filed motions

to dismiss for lack of subject matter jurisdiction and for failure to state a claim.

Holdings: The District Court, Aiken, J.,

adopted the report and recommendation of

Coffin, United States Magistrate Judge,

and held that:

(1) a nonjusticiable political question was

not raised;

(2) activists alleged a concrete and particularized injury, as required for Article

III standing;

(3) the alleged injury was imminent;

(4) the right to a climate system capable

of sustaining human life is a fundamental right protected by substantive due

process;

(1a)

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 43 of 111
JULIANA v. U.S. 1225

Cite as 217 F.Supp.3d 1224 (D.Or. 2016)

(5) activists stated a claim for a substantive due process violation based on a

danger creation theory;

(6) activists adequately alleged harm to

public trust assets;

(7) the public trust doctrine can apply to

the federal government; and

(8) activists had a right of action to enforce the public trust doctrine.

Motions denied.

1. Federal Courts O2078, 2080

A motion to dismiss for lack of subject

matter jurisdiction may attack either the

allegations of the complaint or the existence of subject matter in fact. Fed. R.

Civ. P. 12(b)(1).

2. Federal Courts O2081

The party seeking to invoke the district court’s jurisdiction bears the burden

of establishing subject matter jurisdiction.

3. Constitutional Law O2580

If a case presents a political question,

federal courts lack subject matter jurisdiction to decide that question.

4. Constitutional Law O2580

The political question doctrine, as basis for abstention by federal courts, is primarily a function of the constitutional separation of powers.

5. Constitutional Law O2580

Six criteria, each of which could individually signal the presence of a nonjusticiable political question, are: (1) a textually

demonstrable constitutional commitment of

the issue to a coordinate political department; (2) a lack of judicially discoverable

and manageable standards for resolving it;

(3) the impossibility of deciding without an

initial policy determination of a kind clearly for nonjudicial discretion; (4) the impossibility of a court’s undertaking independent resolution without expressing lack of

the respect due coordinate branches of

government; (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality

of embarrassment from multifarious pronouncements by various departments on

one question.

6. Constitutional Law O2330

Constitutional separation of powers is

fundamental to the system of government,

known even before the birth of the country

to be a defense against tyranny.

7. Constitutional Law O2332

Under separation of powers, it is a

basic principle of the constitutional scheme

that one branch of the government may

not intrude upon the central prerogatives

of another.

8. Constitutional Law O2580

The decision to deny access to judicial

relief, based on the political question doctrine, should never be made lightly, because federal courts have the power, and

ordinarily the obligation, to decide cases

and controversies properly presented to

them; accordingly, a court cannot simply

err on the side of declining to exercise

jurisdiction when it fears a political question may exist, and it must instead diligently map the precise limits of jurisdiction. U.S. Const. art. 3, § 2, cl. 1.

9. Constitutional Law O2580

A case does not present a nonjusticiable political question merely because it

raises an issue of great importance to the

political branches; instead, dismissal on political question grounds is appropriate only

if one of the considerations for finding a

political question is inextricable from the

case.

10. Declaratory Judgment O203

There was no textually demonstrable

constitutional commitment, to a coordinate

political department, of issue of whether

greenhouse gas emissions from carbon di2a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 44 of 111
1226 217 FEDERAL SUPPLEMENT, 3d SERIES

oxide, produced by burning fossil fuels,

were destabilizing the climate system, as

would provide basis for nonjusticiability

under political question doctrine, in environmental activists’ action for declaratory

and injunctive relief against President and

executive branch agencies, asserting substantive due process claim; Constitution

did not mention environmental policy, atmospheric emissions, or global warming,

and climate change policy was not a fundamental power on which any other power

allocated exclusively to other branches of

government rested. U.S. Const. Amend.

5.

11. Declaratory Judgment O203

Environmental activists were not asking federal court to pinpoint the best

greenhouse gas emissions level, and thus,

action for declaratory and injunctive relief

against President and executive branch

agencies, asserting substantive due process claim alleging that greenhouse gas

emissions from carbon dioxide, produced

by burning fossil fuels, were destabilizing

the climate system, did not suffer from

lack of judicially discoverable and manageable standards or from impossibility of

making a decision without an initial policy

determination of a kind clearly for nonjudicial discretion, as would provide basis for

nonjusticiability under political question

doctrine; activists were seeking a determination of what emissions level would be

sufficient to redress their injuries, which

question could be answered without any

consideration of competing interests. U.S.

Const. Amend. 5.

12. Declaratory Judgment O203

Environmental activists were not asking the federal court to choose which agencies and sectors should reduce greenhouse

gas emissions, and by how much, and thus,

action for declaratory and injunctive relief

against President and executive branch

agencies, asserting substantive due process claim alleging that greenhouse gas

emissions from carbon dioxide, produced

by burning fossil fuels, were destabilizing

the climate system, did not suffer from

lack of judicially discoverable and manageable standards or from impossibility of

making a decision without an initial policy

determination of a kind clearly for nonjudicial discretion, as would provide basis for

nonjusticiability under political question

doctrine; activists were asking federal

court to direct the agencies to conduct a

consumption-based inventory of carbon dioxide emissions and use that inventory to

prepare and implement an enforceable national remedial plan. U.S. Const. Amend.

5.

13. Declaratory Judgment O203

Environmental activists’ action concerning climate change, by asserting a constitutional claim against President and executive branch agencies for violation of

substantive due process, rather than asserting violations of precise statutes or

regulations, did not present a claim for

which judicially discoverable and manageable standards for resolution were lacking,

as would provide basis for nonjusticiability

under political question doctrine, in action

for declaratory and injunctive relief, alleging that greenhouse gas emissions from

carbon dioxide, produced by burning fossil

fuels, were destabilizing the climate system; every day, federal courts applied legal standards governing due process

claims to new sets of facts. U.S. Const.

Amend. 5.

14. Declaratory Judgment O319

While environmental activists did not

cite particular statutory or regulatory provisions, the allegations in their complaint

were specific enough to put President and

executive branch agencies on notice of

their claims, as required under general

pleading standards, in action for declaratory and injunctive relief, alleging that

greenhouse gas emissions from carbon di3a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 45 of 111
JULIANA v. U.S. 1227

Cite as 217 F.Supp.3d 1224 (D.Or. 2016)

oxide, produced by burning fossil fuels,

were destabilizing the climate system; activists’ theory was that defendants’ aggregate actions violated their substantive due

process rights and government’s public

trust obligations. U.S. Const. Amend. 5;

Fed. R. Civ. P. 8, 12.

15. Declaratory Judgment O203

Even if executive and legislative

branches had taken numerous steps to address climate change, judicial resolution of

environmental activists’ action concerning

climate change, asserting a constitutional

claim against President and executive

branch agencies for violation of substantive

due process, would not express a lack of

respect for another branch of government,

as would provide basis for nonjusticiability

under political question doctrine, in action

for declaratory and injunctive relief, alleging that greenhouse gas emissions from

carbon dioxide, produced by burning fossil

fuels, were destabilizing the climate system. U.S. Const. Amend. 5.

16. Federal Courts O2073

Federal courts have an independent

obligation to assure themselves of the existence of subject matter jurisdiction.

17. Declaratory Judgment O203

A nonjusticiable political question was

not raised in action concerning climate

change, brought by environmental activists

who were too young to vote, alleging a

substantive due process violation and seeking declaratory and injunctive relief

against President and executive branch

agencies, based on allegations that greenhouse gas emissions from carbon dioxide,

produced by burning fossil fuels, were destabilizing the climate system. U.S. Const.

Amend. 5.

18. Constitutional Law O2450

Despite constitutional separation of

powers, federal courts retain broad authority to fashion practical remedies when confronted with complex and intractable constitutional violations.

19. Declaratory Judgment O328

Speculation about the difficulty of

crafting a remedy without violating constitutional separation of powers did not support early-stage dismissal on a motion asserting lack of subject matter jurisdiction,

based on political question doctrine, in environmental activists’ action concerning climate change, alleging a substantive due

process violation and seeking declaratory

and injunctive relief against President and

executive branch agencies, based on allegations that greenhouse gas emissions

from carbon dioxide, produced by burning

fossil fuels, were destabilizing the climate

system. U.S. Const. Amend. 5; Fed. R.

Civ. P. 12(b)(1).

20. Federal Civil Procedure O103.2

A threshold question in every federal

case is whether at least one plaintiff has

standing.

21. Federal Civil Procedure O103.2

Standing requires a plaintiff to allege

such a personal stake in the outcome of

the controversy as to warrant the invocation of federal-court jurisdiction and to

justify exercise of the court’s remedial

powers.

22. Federal Civil Procedure O103.2,

103.3

To demonstrate Article III standing, a

plaintiff must show: (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. U.S. Const. art. 3, § 2, cl. 1.

23. Federal Civil Procedure O103.2

A plaintiff must support each element

of the test for Article III standing with the

4a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 46 of 111
1228 217 FEDERAL SUPPLEMENT, 3d SERIES

manner and degree of evidence required at

the successive stages of the litigation.

U.S. Const. art. 3, § 2, cl. 1.

24. Federal Civil Procedure O103.5,

1829

At the motion to dismiss stage, general allegations suffice to establish Article

III standing, because those allegations are

presumed to embrace those specific facts

that are necessary to support the claim.

U.S. Const. art. 3, § 2, cl. 1; Fed. R. Civ.

P. 12(b)(1).

25. Environmental Law O651

In an environmental case, a plaintiff

cannot demonstrate injury in fact, as element for Article III standing, merely by

alleging injury to the environment; there

must be an allegation that the challenged

conduct is harming or imminently will

harm the plaintiff. U.S. Const. art. 3, § 2,

cl. 1.

26. Environmental Law O656

Environmental activists who were too

young to vote sufficiently alleged injury in

fact, as element for Article III standing, in

action alleging a substantive due process

violation and seeking declaratory and injunctive relief against President and executive branch agencies, based on allegations

that greenhouse gas emissions from carbon dioxide, produced by burning fossil

fuels, were destabilizing the climate system; activists alleged harm to their personal, economic, and aesthetic interests that

were concrete and particularized, not abstract or indefinite, and that harms to

youths and future generations were greater. U.S. Const. art. 3, § 2, cl. 1; U.S.

Const. Amend. 5.

27. Federal Civil Procedure O103.2,

103.4

Federal courts lack jurisdiction to

hear a case, because the injury in fact

element for Article III standing is not

satisfied, where 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. U.S. Const. art. 3, § 2, cl. 1.

28. Federal Civil Procedure O103.4

The fact that a harm is widely shared,

alone, does not necessarily render it a

generalized grievance that is insufficient to

satisfy the injury-in-fact element for Article III standing. U.S. Const. art. 3, § 2,

cl. 1.

29. Federal Civil Procedure O103.2

Even if the experience at the root of

the complaint is shared by virtually every

American, the inquiry regarding the injury-in-fact element for Article III standing

remains whether that shared experience

caused an injury that is concrete and particular to the plaintiff. U.S. Const. art. 3,

§ 2, cl. 1.

30. Federal Civil Procedure O103.2

Plaintiffs must demonstrate Article

III standing for each claim they seek to

press and for each form of relief sought.

U.S. Const. art. 3, § 2, cl. 1.

31. Injunction O1044

Plaintiffs seeking injunctive relief

must show their injuries are ongoing or

likely to recur.

32. Declaratory Judgment O300

 Environmental Law O656

Environmental activists sufficiently alleged the imminence of their injuries, for

purposes of injury-in-fact element for Article III standing, in action alleging a substantive due process violation and seeking

declaratory and injunctive relief against

President and executive branch agencies,

based on allegations that greenhouse gas

emissions from carbon dioxide, produced

by burning fossil fuels, were destabilizing

the climate system; complaint alleged that

present level of carbon dioxide and its

warming, both realized and latent, were

5a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 47 of 111
JULIANA v. U.S. 1229

Cite as 217 F.Supp.3d 1224 (D.Or. 2016)

already in zone of danger, and that early

consequences of carbon overshoot were already threatening and would, in the short

term, rise to an unbearable level unless

immediate action was taken by defendants.

U.S. Const. art. 3, § 2, cl. 1; U.S. Const.

Amend. 5.

33. Federal Civil Procedure O103.3

Although a defendant’s action need

not be the sole source of injury, to support

the causation element for Article III

standing, the line of causation between the

defendant’s action and the plaintiff’s harm

must be more than attenuated. U.S.

Const. art. 3, § 2, cl. 1.

34. Federal Civil Procedure O103.3

A causal chain does not fail, for purposes of Article III standing, simply because it has several links, provided those

links are not hypothetical or tenuous and

remain plausible. U.S. Const. art. 3, § 2,

cl. 1.

35. Environmental Law O656

Environmental activists satisfied causation element for Article III standing, in

action alleging a substantive due process

violation and seeking declaratory and injunctive relief against President and executive branch agencies, based on allegations

that greenhouse gas emissions from carbon dioxide, produced by burning fossil

fuels, were destabilizing the climate system; the emissions at issue, produced in

the United States, allegedly made up onefourth of global emissions, and activists’

theory of causation involved both defendants’ affirmative acts and their failure to

act. U.S. Const. art. 3, § 2, cl. 1; U.S.

Const. Amend. 5.

36. Federal Civil Procedure O103.3

A plaintiff need not show a favorable

decision is certain to redress his injury, in

order to establish Article III standing, but

must show a substantial likelihood it will

do so. U.S. Const. art. 3, § 2, cl. 1.

37. Federal Civil Procedure O103.3

It is sufficient, for the redressability

element for Article III standing, to show

that the requested remedy would slow or

reduce the harm. U.S. Const. art. 3, § 2,

cl. 1.

38. Environmental Law O656

Environmental activists satisfied redressability element for Article III standing, in action alleging a substantive due

process violation and seeking declaratory

and injunctive relief against President and

executive branch agencies, based on allegations that greenhouse gas emissions

from carbon dioxide, produced by burning

fossil fuels, were destabilizing the climate

system; activists alleged that defendants

controlled over one-fourth of planet’s

greenhouse gas emissions, and they were

asking the court to order defendants to

prepare and implement an enforceable national remedial plan to phase out fossil fuel

emissions and draw down excess atmospheric carbon dioxide. U.S. Const. art. 3,

§ 2, cl. 1; U.S. Const. Amend. 5.

39. Federal Civil Procedure O103.3

The possibility that some other individual or entity might later cause the same

injury does not defeat the redressability

element for Article III standing; the question is whether the injury caused by the

defendant can be redressed. U.S. Const.

art. 3, § 2, cl. 1.

40. Federal Civil Procedure O103.2

Once a federal court concludes one

plaintiff has Article III standing, it need

not determine whether the remaining

plaintiffs have standing. U.S. Const. art.

3, § 2, cl. 1.

41. Constitutional Law O3877, 3901

When a plaintiff challenges affirmative government action under the Due Process Clause, the threshold inquiry is the

applicable level of judicial scrutiny, and the

6a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 48 of 111
1230 217 FEDERAL SUPPLEMENT, 3d SERIES

default level of scrutiny is rational basis,

which requires a reviewing court to uphold

the challenged governmental action so long

as it implements a rational means of

achieving a legitimate governmental end.

U.S. Const. Amend. 5.

42. Constitutional Law O3901

When the government infringes a fundamental right, a reviewing court applies

strict scrutiny for a due process violation.

U.S. Const. Amend. 5.

43. Constitutional Law O3901

Substantive due process forbids the

government to infringe certain fundamental liberty interests at all, no matter what

process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. U.S. Const. Amend.

5.

44. Constitutional Law O3894

Fundamental liberty rights, protected

by the substantive component of the Due

Process Clause, include both rights enumerated elsewhere in the Constitution and

rights and liberties which are either: (1)

deeply rooted in the Nation’s history and

tradition, or (2) fundamental to the scheme

of ordered liberty. U.S. Const. Amend. 5.

45. Constitutional Law O3894

Federal courts must exercise the utmost care whenever they are asked to

break new ground in the field of substantive due process, lest the liberty protected

by the Due Process Clause be subtly

transformed into judicial policy preferences. U.S. Const. Amend. 5.

46. Constitutional Law O3894

The identification and protection of

fundamental rights protected by the substantive component of the Due Process

Clause is an enduring part of the judicial

duty to interpret the Constitution, which

has not been reduced to any formula.

U.S. Const. Amend. 5.

47. Constitutional Law O3894

In determining whether a right is fundamental, for purposes of substantive due

process, courts must exercise reasoned

judgment, keeping in mind that history

and tradition guide and discipline this inquiry but do not set its outer boundaries.

U.S. Const. Amend. 5.

48. Constitutional Law O4320

 Environmental Law O700

The right to a climate system capable

of sustaining human life was fundamental

to a free and ordered society, and thus,

strict scrutiny for a violation of substantive

due process was applicable, in environmental activists’ action seeking declaratory and

injunctive relief against President and executive branch agencies, based on allegations that greenhouse gas emissions from

carbon dioxide, produced by burning fossil

fuels, were destabilizing the climate system; a stable climate system was quite

literally the foundation of society, without

which there would be neither civilization

nor progress. U.S. Const. Amend. 5.

49. Constitutional Law O4048

With limited exceptions, the Due Process Clause does not impose on the government an affirmative obligation 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. U.S. Const. Amend.

5.

50. Constitutional Law O4049, 4050

There are two exceptions to the general rule that the Due Process Clause does

not impose on the government an affirmative obligation to act: (1) the special relationship exception, and (2) the danger creation exception. U.S. Const. Amend. 5.

51. Constitutional Law O4049

The special relationship exception, to

the general rule that the Due Process

7a

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JULIANA v. U.S. 1231

Cite as 217 F.Supp.3d 1224 (D.Or. 2016)

Clause does not impose on the government

an affirmative obligation to act, 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. U.S. Const.

Amend. 5.

52. Constitutional Law O4050

The danger creation exception, to the

general rule that the Due Process Clause

does not impose on the government an

affirmative obligation to act, permits a substantive due process claim when government conduct places a person in peril in

deliberate indifference to their safety.

U.S. Const. Amend. 5.

53. Constitutional Law O4050

A plaintiff challenging government inaction on a danger creation theory of a

violation of substantive due process must

show the government actor created or exposed the plaintiff to a danger which he or

she would not have otherwise faced; the

government action must place the plaintiff

in a worse position than that in which he

or she would have been had the government not acted at all. U.S. Const. Amend.

5.

54. Constitutional Law O4050

When challenging government inaction on a danger creation theory of a violation of substantive due process, the

plaintiff must show the government actor

recognized the unreasonable risks to the

plaintiff and actually intended to expose

the plaintiff to such risks without regard

to the consequences to the plaintiff; the

government actor must have acted with

deliberate indifference, which requires a

culpable mental state more than gross

negligence. U.S. Const. Amend. 5.

55. Constitutional Law O4320

 Environmental Law O700

Environmental activists stated a claim

for a substantive due process violation

based on a danger creation theory, in action seeking declaratory and injunctive relief against President and executive branch

agencies, based on allegations that greenhouse gas emissions from carbon dioxide,

produced by burning fossil fuels, were destabilizing the climate system; activists alleged that defendants knowingly, with full

appreciation of the consequences, caused,

and continued to cause, dangerous interference with the atmosphere and climate

system by permitting, authorizing, and

subsidizing fossil fuel extraction, production, transportation, and utilization. U.S.

Const. Amend. 5.

56. Public Lands O7

In its broadest sense, the term ‘‘public

trust,’’ in context of public trust doctrine,

refers to the fundamental understanding

that the federal government cannot legitimately abdicate its core sovereign powers.

See publication Words and Phrases

for other judicial constructions and

definitions.

57. Public Lands O7

The public trust doctrine rests on the

fundamental principle that every succeeding legislature possesses the same jurisdiction and power with respect to the public

interest as its predecessors.

58. Public Lands O7

The public trust doctrine conceives of

certain powers and obligations, such as the

police power, as inherent aspects of sovereignty, and recognizes that permitting the

government to permanently give one of

these powers to another entity diminishes

the power of future legislatures to promote

the general welfare.

59. Public Lands O7

With respect to essential natural resources, the sovereign’s public trust obligations prevent it from depriving a future

legislature of the natural resources necessary to provide for the well-being and survival of its citizens.

8a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 50 of 111
1232 217 FEDERAL SUPPLEMENT, 3d SERIES

60. Public Lands O7

The public trust doctrine, with respect

to natural resources, operates according to

basic trust principles, which impose upon

the trustee a fiduciary duty to protect the

trust property against damage or destruction, and the trustee owes this duty equally to both current and future beneficiaries

of the trust.

61. Public Lands O7

The public trust doctrine is generally

thought to impose three types of restrictions on governmental authority: (1) the

property subject to the trust must not only

be used for a public purpose, but it must

be held available for use by the general

public; (2) the property may not be sold,

even for a fair cash equivalent; and (3) the

property must be maintained for particular

types of uses.

62. Declaratory Judgment O203

 Water Law O2651

Allegation of environmental activists,

that the federal government was failing to

protect the territorial sea, involved a public trust asset, for purposes of stating a

claim for violation of public trust doctrine,

in action seeking declaratory and injunctive relief against President and executive

branch agencies, based on allegations that

greenhouse gas emissions from carbon dioxide, produced by burning fossil fuels,

were destabilizing the climate system. 43

U.S.C.A. § 1312.

63. Water Law O2660

The public trust doctrine applies to

lands beneath tidal waters.

64. Declaratory Judgment O203

 Water Law O2651

Environmental activists, by alleging

injuries relating to effects of ocean acidification and rising ocean temperatures, adequately alleged harm to public trust assets,

for purposes of stating a claim for violation

of public trust doctrine, in action seeking

declaratory and injunctive relief against

President and executive branch agencies,

based on allegations that greenhouse gas

emissions from carbon dioxide, produced

by burning fossil fuels, were destabilizing

the climate system.

65. Public Lands O7

The public trust doctrine can apply to

the federal government.

66. Constitutional Law O4320

 Environmental Law O700

Environmental activists’ right of action, to enforce the federal government’s

obligations as trustee under the public

trust doctrine, arose from the Due Process

Clause’s substantive component, in action

seeking declaratory and injunctive relief

against President and executive branch

agencies, based on allegations that greenhouse gas emissions from carbon dioxide,

produced by burning fossil fuels, were destabilizing the climate system. U.S. Const.

Amend. 5.

67. Federal Civil Procedure O103.2,

103.4

Even when a case falls within the

constitutional boundaries for Article III

standing, a plaintiff may still lack standing

under the prudential principles by which

the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated, and to

limit access to the federal courts to those

litigants best suited to assert a particular

claim. U.S. Const. art. 3, § 2, cl. 1.

68. Constitutional Law O3896

Substantive due process rights are

limited by careful respect for the teachings

of history and recognition of the basic

values that underlie society, and therefore,

only official conduct that shocks the conscience is cognizable as a due process violation. U.S. Const. Amend. 5.

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JULIANA v. U.S. 1233

Cite as 217 F.Supp.3d 1224 (D.Or. 2016)

Julia A. Olson, Wild Earth Advocates,

Daniel M. Galpern, Law Offices of Daniel

M. Galpern, Eugene, OR, Philip L. Gregory, Cotchett, Pitre & McCarthy, LLP,

Burlingame, CA, for Plaintiffs.

Sean C. Duffy, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION AND ORDER

Aiken, Judge:1

Plaintiffs in this civil rights action are a

group of young people between the ages

of eight and nineteen (‘‘youth plaintiffs’’);

Earth Guardians, an association of young

environmental activists; and Dr. James

Hansen, acting as guardian for future

generations.2

 Plaintiffs filed this action

against defendants the United States,

President Barack Obama, and numerous

executive agencies. Plaintiffs allege defendants have known for more than fifty

years that the carbon dioxide (‘‘CO2’’) produced by burning fossil fuels was destabilizing the climate system in a way that

would ‘‘significantly endanger plaintiffs,

with the damage persisting for millenia.’’

First. Am. Compl. ¶ 1. Despite that knowledge, plaintiffs assert defendants, ‘‘[b]y

their exercise of sovereign authority over

our country’s atmosphere and fossil fuel

resources, TTT permitted, encouraged, and

otherwise enabled continued exploitation,

production, and combustion of fossil fuels,

TTT deliberately allow[ing] atmospheric

CO2 concentrations to escalate to levels

unprecedented in human history[.]’’ Id.

¶ 5. Although many different entities contribute to greenhouse gas emissions,

plaintiffs aver defendants bear ‘‘a higher

degree of responsibility than any other individual, entity, or country’’ for exposing

plaintiffs to the dangers of climate

change. Id. ¶ 7. Plaintiffs argue defendants’ actions violate their substantive due

process rights to life, liberty, and property, and that defendants have violated their

obligation to hold certain natural resources in trust for the people and for

future generations.

Plaintiffs assert there is a very short

window in which defendants could act to

phase out fossil fuel exploitation and avert

environmental catastrophe. They seek (1) a

declaration their constitutional and public

trust rights have been violated and (2) an

order enjoining defendants from violating

those rights and directing defendants to

develop a plan to reduce CO2 emissions.

Defendants moved to dismiss this action for lack of subject matter jurisdiction

and failure to state a claim. Doc. 27. Intervenors the National Association of

Manufacturers, the American Fuel & Petrochemical Manufacturers, and the

American Petroleum Institute moved to

dismiss on the same grounds. Doc. 19.

After oral argument, Magistrate Judge

Coffin issued his Findings and Recommendation (‘‘F & R’’) and recommended

denying the motions to dismiss. Doc. 68.

Judge Coffin then referred the matter to

me for review pursuant to 28 U.S.C.

§ 636 and Federal Rule of Civil Procedure 72. Doc. 69. Defendants and interve1. Student externs worked on each stage of the

preparation of this opinion, from initial background research to final copyedits. I would be

remiss if I did not acknowledge the invaluable

contributions of Daniel Bodden (University of

Kentucky), Elizabeth Jacklin (University of

Oregon School of Law), Ann Richan Metier

(Willamette University College of Law), James

Mullins (University of Washington School of

Law), Jessy R. Nations (University of Washington School of Law), Lydeah Negro (Lewis

& Clark Law School), and Eleanor J. Vincent

(University of Oregon School of Law.)

2. Although plaintiffs in this lawsuit hale from

a number of different states, venue is proper

in the District of Oregon. The majority of

youth plaintiffs, including lead plaintiff Kelsey

Juliana, reside in the District of Oregon. First

Am. Compl. ¶¶ 16, 23, 31, 35, 44, 47, 50, 53,

57, 60. In addition, plaintiff Earth Guardians

has a chapter in Eugene, Oregon.

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1234 217 FEDERAL SUPPLEMENT, 3d SERIES

nors filed objections (docs. 73 & 74), and

on September 13, 2016, this Court heard

oral argument.

For the reasons set forth below, I adopt

Judge Coffin’s F & R as elaborated in this

opinion and deny the motions to dismiss.

BACKGROUND

This is no ordinary lawsuit. Plaintiffs

challenge the policies, acts, and omissions

of the President of the United States, 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 (‘‘DOT’’), the Department of Agriculture, the Department of Commerce, the

Department of Defense, the Department of

State, and the Environmental Protection

Agency (‘‘EPA’’). This lawsuit challenges

decisions defendants have made across a

vast set of topics—decisions like whether

and to what extent to regulate CO2 emissions from power plants and vehicles,

whether to permit fossil fuel extraction

and development to take place on federal

lands, how much to charge for use of those

lands, whether to give tax breaks to the

fossil fuel industry, whether to subsidize or

directly fund that industry, whether to

fund the construction of fossil fuel infrastructure such as natural gas pipelines at

home and abroad, whether to permit the

export and import of fossil fuels from and

to the United States, and whether to authorize new marine coal terminal projects.

Plaintiffs assert defendants’ decisions on

these topics have substantially caused the

planet to warm and the oceans to rise.

They draw a direct causal line between

defendants’ policy choices and floods, food

shortages, destruction of property, species

extinction, and a host of other harms.

This lawsuit is not about proving that

climate change is happening or that human

activity is driving it. For the purposes of

this motion, those facts are undisputed.3

The questions before the Court are whether defendants are responsible for some of

the harm caused by climate change,

whether plaintiffs may challenge defendants’ climate change policy in court, and

whether this Court can direct defendants

to change their policy without running

afoul of the separation of powers doctrine.

STANDARDS

The Magistrates Act authorizes a district court to ‘‘accept, reject or modify, in

whole or in part, the findings or recommendations made by the magistrate

judge.’’ 28 U.S.C. § 636(b)(1). When a party objects to any portion of the magistrate’s findings and recommendation, the

district court must review de novo that

portion of the magistrate judge’s report.

Fed. R. Civ. P. 72(b)(3); see also McDonnell Douglas Corp. v. Commodore Bus.

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

1981) (for dispositive motions, ‘‘the statute

3. For the purposes of this motion, I proceed

on the understanding that climate change exists, is caused by humans, and poses a serious threat to our planet. Defendants open

their Objections to Judge Coffin’s F & R by

stating that ‘‘[c]limate change poses a monumental threat to Americans’ health and welfare by driving long-lasting changes in our

climate, leading to an array of severe negative effects, which will worsen over time,’’

Fed. Defs.’ Obj. to F & R 1 (doc. 78). In the

2015 State of the Union address, defendant

President Barack Obama declared ‘‘[n]o challenge TTT poses a greater threat to future

generations than climate change,’’ President

Barack Obama, Remarks in State of the Union Address (Jan. 20, 2015), available at

www.whitehouse.gov/the-press-office/2015/01/

20/remarks-president-state-union-addressjanuary-20–2015 (last visited Nov. 7, 2016).

When asked at oral argument if they agreed

that human-caused climate change poses a

serious threat, intervenors declined to take a

clear position. All parties agree, however,

that a dispute over the existence of climate

change is not at the heart of this case.

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grants the broadest possible discretion to

the reviewing district court’’).

[1, 2] Under Federal Rule of Civil Procedure 12(b)(1), a district court must dismiss an action if subject matter jurisdiction is lacking. A motion to dismiss under

Rule 12(b)(1) may attack either the allegations of the complaint or the ‘‘existence of

subject matter in fact.’’ Thornhill Publ’g

Co., Inc. v. Gen. Tel. & Elec. Corp., 594

F.2d 730, 733 (9th Cir. 1979). The party

seeking to invoke the district court’s jurisdiction bears the burden of establishing

subject matter jurisdiction. Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S.

375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391

(1994).

Under Federal Rule of Civil Procedure

12(b)(6), a complaint is construed in favor

of the plaintiff, and its factual allegations

are taken as true. Daniels–Hall v. Nat’I

Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.

2010), However, the court need not accept

as true ‘‘conclusory’’ allegations or unreasonable inferences. Id. Thus, ‘‘for a complaint to survive a motion to dismiss, the

non-conclusory factual content, and reasonable inferences from that content, must

be plausibly suggestive of a claim entitling

the plaintiff to relief.’’ Moss v. U.S. Secret

Serv., 572 F.3d 962, 969 (9th Cir. 2009)

(quotation marks omitted). ‘‘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.’’ Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

‘‘[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 Atl. Corp. v. Twombly,

550 U.S. 544, 563, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007).

DISCUSSION

Judge Coffin recommended denying defendants’ and intervenors’ motions to dismiss and holding that plaintiffs’ public

trust and due process claims may proceed.

Defendants and intervenors object to those

recommendations on a number of grounds.

They contend plaintiffs’ claims must be

dismissed for lack of jurisdiction because

the case presents non-justiciable political

questions, plaintiffs lack standing to sue,

and federal public trust claims cannot be

asserted against the federal government.

They further argue plaintiffs have failed to

state a claim on which relief can be granted. I first address the threshold challenges

to jurisdiction, and then proceed to address the viability of plaintiffs’ due process

and public trust claims.

I. Political Question

[3, 4] If a case presents a political

question, federal courts lack subject matter jurisdiction to decide that question.

Corrie v. Caterpillar, Inc., 503 F.3d 974,

982 (9th Cir. 2007). The political question

doctrine is ‘‘primarily a function of the

separation of powers.’’ Baker v. Carr, 369

U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663

(1962). This limitation on the federal courts

was recognized in Marbury v. Madison, 5

U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803),

in which Chief Justice Marshall wrote,

‘‘[q]uestions, in their nature political, or

which are, by the constitution and laws,

submitted to the executive, can never be

made in this court.’’ However, the scope of

the political question doctrine should not

be overstated. As Alexis de Tocqueviile

observed, ‘‘[t]here is hardly any political

question in the United States that sooner

or later does not turn into a judicial question.’’ 1 Alexis de Tocqueviile, Democracy

in America 440 (Liberty Fund 2012).

[5] In Baker, the Supreme Court identified six criteria, each of which could indi12a

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vidually signal the presence of a political

question:

[ (1) A] textually demonstrable constitutional commitment of the issue to a coordinate political department; [ (2) ] a lack

of judicially discoverable and manageable standards for resolving it; [ (3) ] the

impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [ (4) ] the

impossibility of a court’s undertaking independent resolution without expressing

lack of the respect due coordinate

branches of government; [ (5) ] an unusual need for unquestioning adherence

to a political decision already made; or

[ (6) ] the potentiality of embarrassment

from multifarious pronouncements by

various departments on one question.

Baker, 369 U.S. at 217, 82 S.Ct. 691. The

Baker tests ‘‘are probably listed in descending order of both importance and

certainty.’’ Vieth v. Jubelirer, 541 U.S. 267,

278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004)

(plurality op.). The factors overlap, with

the analyses ‘‘often collapsing into one another.’’ Alperin v. Vatican Bank, 410 F.3d

532, 544 (9th Cir. 2005). The ‘‘common

underlying inquiry’’ is whether ‘‘the question is one that can properly be decided by

the judiciary.’’ Id.

[6–8] Determining whether the political question doctrine requires abstention

calls on a court to balance profoundly important interests. On the one hand, the

separation of powers is fundamental to our

system of government, known ‘‘[e]ven before the birth of this country’’ to be ‘‘a

defense against tyranny.’’ Loving v. United States, 517 U.S. 748, 756, 116 S.Ct.

1737, 135 L.Ed.2d 36 (1996). It is a ‘‘basic

principle of our constitutional scheme that

one branch of the Government may not

intrude upon the central prerogatives of

another.’’ Id. at 757, 116 S.Ct. 1737. On the

other hand, ‘‘[t]he decision to deny access

to judicial relief’’ should never be made

‘‘lightly,’’ because federal courts ‘‘have the

power, and ordinarily the obligation, to

decide cases and controversies properly

presented to them.’’ Alperin, 410 F.3d at

539 (quoting Liu v. Rep. of China, 892

F.2d 1419, 1433 (9th Cir. 1989) and W.S.

Kirkpatrick & Co. v. Envt’l Tectonics

Corp., Int’l, 493 U.S. 400, 409, 110 S.Ct.

701, 107 L.Ed.2d 816 (1990)). Accordingly,

a court cannot simply err on the side of

declining to exercise jurisdiction when it

fears a political question may exist; it

must instead diligently map the precise

limits of jurisdiction.

[9] Climate change, energy policy, and

environmental regulation are certainly ‘‘political’’ in the sense that they have ‘‘motivated partisan and sectional debate during

important portions of our history.’’ U.S.

Dep’t of Commerce v. Montana, 503 U.S.

442, 458, 112 S.Ct. 1415, 118 L.Ed.2d 87

(1992). But a case does not present a political question merely because it ‘‘raises an

issue of great importance to the political

branches.’’ Id. Instead, dismissal on political question grounds is appropriate only if

one of the Baker considerations is ‘‘inextricable’’ from the case. Baker, 369 U.S. at

217, 82 S.Ct. 691. As a result, federal

courts regularly adjudicate claims that

arise in connection with politically charged

issues. See, e.g., Jewel v. Nat’l Sec. Agency,

673 F.3d 902, 912 (9th Cir. 2011) (electronic surveillance); Chiles v. Thornburgh, 865

F.2d 1197, 1216 (11th Cir. 1989) (detention

of undocumented immigrants); Planned

Parenthood Fed’n of Am, Inc. v. Agency

for Int’l Dev., 838 F.2d 649, 656 (2d Cir.

1988) (international funding for birth control and abortion). In each of the above

cases, the court engaged in ‘‘discriminating

inquiry into the precise facts’’ before concluding the controversy was justiciable.

Baker, 369 U.S. at 217, 82 S.Ct. 691. A

similar rigorous analysis is necessary here.

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JULIANA v. U.S. 1237

Cite as 217 F.Supp.3d 1224 (D.Or. 2016)

A. First Baker Factor

The first Baker factor requires abstention ‘‘[w]hen a case would require a court

to decide an issue whose resolution is textually committed to a coordinate political

department’’ because ‘‘the court lacks authority to resolve that issue.’’ Zivotofsky ex

rel Zivotofsky v. Clinton, 566 U.S. 189, 132

S.Ct. 1421, 1431, 182 L.Ed.2d 423 (2012)

(Sotomayor, J., concurring). Since Baker,

the Supreme Court has found such ‘‘textual commitment’’ in very few cases. In Nixon v. United States, 506 U.S. 224, 113 S.Ct.

732, 122 L.Ed.2d 1 (1993), a former federal

judge sought to challenge the Senate’s processes for taking evidence during impeachment trials. Id. at 226, 113 S.Ct. 732. The

Court found his claim nonjusticiable due to

the Constitution’s clear statement granting

the Senate ‘‘the sole Power to try ail Impeachments.’’ Id. at 229, 113 S.Ct. 732

(quoting U.S. Const, art. I, § 3, cl. 6). The

Court found the provision’s use of the

word ‘‘sole’’ to be ‘‘of considerable significance.’’ Id. at 231, 113 S.Ct. 732. The Court

also discussed the history of the clause at

issue, noting that the ‘‘Framers labored

over the question of where the impeachment power should lie’’ and ‘‘at least two

considered’’—and rejected—placing that

power within the federal judiciary. Id. at

233, 113 S.Ct. 732.

In Davis v. Passman, 442 U.S. 228, 235

n.11, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979),

the Court characterized the Speech or Debate Clause as the ‘‘paradigm example’’ of

a ‘‘textually demonstrable constitutional

commitment.’’ That clause provides that

Senators and Representatives, ‘‘for any

Speech or Debate in either House, TTT

shall not be questioned in any other place.’’

U.S. Const. Art. I, § 6, cl. 1. The Court

explained that the clause plainly shields

statements of federal legislators made during speech or debate in committees or on

the House or Senate floor from any sort of

judicial review, and thus speaks ‘‘directly

to TTT separation-of-powers concerns.’’

Davis, 442 U.S. at 235 n.11, 99 S.Ct. 2264.

Most recently, in Zivotofsky ex rel. Zivotofsky v. Kerry, the Court held that the

Constitution gives the president the exclusive authority to recognize foreign nations

and governments. ––– U.S. ––––, 135 S.Ct.

at 2086, 192 L.Ed.2d 83. The Court acknowledged that the Constitution does not

use the term ‘‘recognition.’’ Id. at 2084.

Nonetheless, the Court determined that

the Constitution granted the recognition

power to the Executive Branch ‘‘[a]s a

matter of constitutional structure.’’ Id. at

2085. The Court concluded that the clauses

giving the president exclusive authority to

receive ambassadors and to negotiate treaties implicitly granted the recognition power. Id. at 2086. That determination rested

in part on the Court’s conclusion that recognition was uniquely ‘‘a topic on which

the Nation much speak with one voice.’’ Id.

at 2086 (quotation marks and ellipsis omitted). If Congress had the power to decline

to recognize a foreign state the Executive

had decided to recognize, the president

would be unable to assure that foreign

state that its ambassadors would be received, its officials would be immune from

suit in federal court, and it would be permitted to initiate lawsuits in the United

States to vindicate its rights. Id. In issuing

its decision, the Court expressly declined

to hold that the Constitution gives the

president the ‘‘unbounded power’’ to ‘‘conduct diplomatic relations’’ and exercise

‘‘the bulk of foreign-affairs powers.’’ Id. at

2089.

[10] Unlike in the constitutional provisions at issue Nixon and Passman, the

constitutional provisions cited here contain

nothing approaching a clear reference to

the subject matter of this case. The Constitution does not mention environmental

policy, atmospheric emissions, or global

warming. And unlike in Zivotofksy, climate

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change policy is not a fundamental power

on which any other power allocated exclusively to other branches of government

rests. Intervenors correctly point out that

the Constitution gives the political branches authority over commerce, foreign relations, national defense, and federal lands—

all areas affected by climate change policy.

See U.S. Const, art. I, § 8 cl. 3 (Congress

has authority to ‘‘regulate commerce with

foreign nations, and among the several

states’’); Zivotofsky, 135 S.Ct. at 2084–86

(discussing various constitutional provisions granting the Executive Branch foreign relations authority); U.S. Const. art.

I, § 8 cl. 11–16 (detailing Congress’s powers relating to war and the military); U.S.

Const, art. II, § 2, cl. 1 (President is commander in chief of armed forces); U.S.

Const. art. IV, § 3, cl. 2 (Congress has

power to ‘‘dispose of and make all needful

rules and regulations’’ regarding federal

land). But holding the first Baker factor

applies in any case relating to these topic

areas would permit the exception to swallow the rule. The question is not whether a

case implicates issues that appear in the

portions of the Constitution allocating power to the Legislative and Executive

Branches—such a test would, by definition,

shield nearly all legislative and executive

action from legal challenge, Rather, the

question is whether adjudicating a claim

would require the Judicial Branch to second-guess decisions committed exclusively

to another branch of government.

In the lower courts, the first Baker factor has found its broadest application in

foreign policy cases. See, e.g., Corrie, 503

F.3d at 983 (‘‘Whether to grant military or

other aid to a foreign nation is a political

decision inherently entangled with the conduct of foreign relations.’’); Gonzalez–Vera

v. Kissinger, 449 F.3d 1260, 1263 (D.C.

Cir. 2006) (decision to take ‘‘drastic measures’’ to keep Chilean dictator Augusto

Pinochet in power was a foreign policy

decision textually committed to the Executive Branch); Sadowski v. Bush, 293

F.Supp.2d 15, 21 (D.C. Cir. 2003) (decision

to go to war in Afghanistan was not justiciable, ‘‘primarily because war powers have

been explicitly committed to the political

branches’’), As a result, I give special consideration to the argument that granting

plaintiffs’ requested relief would usurp the

Executive Branch’s foreign relations authority. Climate change policy has global

implications and so is sometimes the subject of international agreements. But unlike the decisions to go to war, take action

to keep a particular foreign leader in power, or give aid to another country, climate

change policy is not inherently, or even

primarily, a foreign policy decision. Moreover, in the foreign policy context, Baker

expressly warned against framing the

‘‘textually committed’’ inquiry too broadly.

See Baker, 369 U.S. at 211, 82 S.Ct. 691

(‘‘[I]t is error to suppose that every case or

controversy which touches foreign relations lies beyond judicial cognizance.’’) The

first Baker factor does not apply.

B. Second and Third Baker Factors

‘‘The second and third Baker factors

reflect circumstances in which a dispute

calls for decisionmaking beyond courts’

competence.’’ Zivotofsky, 132 S.Ct. at 1432

(Sotomayor, J., concurring). ‘‘When a court

is given no standard by which to adjudicate a dispute, or cannot resolve a dispute

in the absence of a yet-unmade policy determination charged to a political branch,

resolution of the suit is beyond the judicial

role envisioned by Article III.’’ Id.

[11] Defendants’ and intervenors’ arguments on the second and third Baker

factors can be divided into two main

points. First, intervenors contend the

Court cannot set a permissible emissions

level without making ad hoc policy determinations about how to weigh competing

economic and environmental concerns. But

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plaintiffs do not ask this Court to pinpoint

the ‘‘best’’ emissions level; they ask this

Court to determine what emissions level

would be sufficient to redress their injuries. That question can be answered without any consideration of competing interests. Cf. Coleman v. Schwarzenegger, 2010

WL 99000, *1 (E.D. Cal. & N.D. Cal. Jan.

12, 2010) (requiring state to reduce the

population of adult prisons to 137.5% of

their total design capacity, a target which

‘‘extend[ed] no further than necessary to

correct the violation of California inmates’

federal constitutional rights’’). The science

may well be complex, but logistical difficulties are immaterial to the political question

analysis. See Alperin, 410 F.3d at 552, 555

(‘‘[T]he crux of th[e political question] inquiry is TTT not whether the case is unmanageable in the sense of being large,

complicated, or otherwise difficult to tackle

from a logistical standpoint,’’ but rather

whether ‘‘a legal framework exists by

which courts can evaluate TTT claims in a

reasoned manner.’’).

[12] Second, intervenors aver the

Court would have to choose which agencies

and sectors should reduce emissions, and

by how much. At oral argument, intervenors contended this would require review

of every environmental rule and regulation

in the last one hundred years. These arguments mischaracterize the relief plaintiffs

seek. Plaintiffs do not seek to have this

Court direct any individual agency to issue

or enforce any particular regulation. Rather, they ask the Court to declare the United States’ current environmental policy infringes their fundamental rights, direct the

agencies to conduct a consumption-based

inventory of United States CO2 emissions,

and use that inventory to ‘‘prepare and

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

and draw down excess atmospheric CO2 so

as to stabilize the climate system and protect the vital resources on which Plaintiffs

now and in the future will depend.’’ First

Am. Compl. at 94. This Court could issue

the requested declaration without directing

any individual agency to take any particular action.

[13] Finally, defendants and intervenors contend that plaintiffs’ failure to identify violations of precise statutory or regulatory provisions leaves this court without

any legal standard by which to judge plaintiffs’ claims, Plaintiffs could have brought

a lawsuit predicated on technical regulatory violations, but they chose a different

path. As masters of their complaint, they

have elected to assert constitutional rather

than statutory claims. Every day, federal

courts apply the legal standards governing

due process claims to new sets of facts.

The facts in this case, though novel, are

amenable to those well-established standards. Neither the second nor the third

Baker factor divests this Court of jurisdiction.

[14] In the political question section of

their objections to Judge Coffin’s F & R,

defendants assert the allegations in the

complaint are not specific enough to put

them on notice of plaintiffs’ claims. This

argument relates to the second and third

Baker factors and the competence of this

Court to adjudicate those claims, considerations which are addressed above. The argument also touches on concerns about

causation and redressability, which are discussed in Section II of this opinion. However, the argument is also phrased in

terms common to cases governing general

pleading standards. See Twombly, 550 U.S.

at 555, 127 S.Ct. 1955 (complaint in federal

court must contain enough information to

‘‘give the defendant fair notice’’ of both the

claim and the ‘‘grounds upon which it

rests’’ (quoting Conley v. Gibson, 355 U.S.

41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To

the extent defendants challenge the First

Amended Complaint as inadequately

pleaded, that challenge fails. This is not a

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typical environmental case, Plaintiffs are

not arguing defendants issued any particular permit in violation of a statutory provision in the Clean Air Act or the Clean

Water Act. They are not arguing any specific tax break, royalty rate, or contract

runs afoul of an agency’s governing regulations. Rather, the theory of plaintiffs’ case

is much broader: it is that defendants’

aggregate actions violate their substantive

due process rights and the government’s

public trust obligations. That theory, which

requires no citation to particular statutory

or regulatory provisions, is clear from the

face of the First Amended Complaint.

C. Fourth through Sixth Baker Factors

The fourth through sixth Baker factors

‘‘address circumstances in which prudence

may counsel against a court’s resolution of

an issue presented.’’ Zivotofsky, 132 S.Ct.

at 1432 (Sotomayor, J., concurring). Only

in ‘‘rare’’ cases will Baker’s ‘‘final factors

alone render a case nonjusticiable.’’ Id. at

1434.

[15] Intervenors contend the fourth

Baker factor, which concerns a court expressing lack of respect to another branch

of government, applies in this case. They

argue that because the Executive and Legislative branches have taken numerous

steps to address climate change, a ruling

in plaintiffs’ favor would be disrespectful

to those efforts. Intervenors would have

this Court hold the political question doctrine prevents a court from determining

whether the federal government has violated a plaintiff’s constitutional rights so long

as the government has taken some steps to

mitigate the damage. However, intervenors cite no cases—and this Court is

aware of none—to support such a broad

application of the fourth Baker factor.

Rather, courts have found the fourth factor applies in cases asking a court to

‘‘question the good faith with which another branch attests to the authenticity of its

internal acts.’’ Id. at 1433. The fourth factor has also been held relevant when ‘‘judicial resolution of a question would contradict prior decisions taken by a political

branch in those limited contexts where

such contradiction would seriously interfere with important governmental interests.’’ Kadic v. Karadzic, 70 F.3d 232, 249

(2d Cir. 1995).

Consistent with those formulations, federal appellate courts have found the fourth

Baker factor present when judicial adjudication of a claim would be wholly incompatible with foreign-relations decisions made

by one of the political branches. See, e.g.,

Whiteman v. Dorotheum GmbH & Co. KG,

431 F.3d 57, 59 (2d Cir. 2005) (political

question doctrine prevented court from adjudicating claims against Austrian government for seizure of property from Jewish

families during World War II because two

presidential administrations had ‘‘committed the United States to a policy of resolving Holocaust-era restitution claims

through international agreements rather

than litigation.’’); Schneider v. Kissinger,

412 F.3d 190, 198 (D.C. Cir. 2005) (political

question doctrine barred review of Executive Branch decision to participate in covert operations in Chile, a decision that

had already been the subject of congressional inquiry).

Although the United States has made

international commitments regarding climate change, granting the relief requested

here would be fully consistent with those

commitments. There is no contradiction

between promising other nations the United States will reduce CO2 emissions and a

judicial order directing the United States

to go beyond its international commitments to more aggressively reduce CO2

emissions. Because this Court could grant

plaintiffs’ requested relief without expressing disrespect for the Executive Branch’s

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international climate change agreements,

the fourth Baker factor does not apply.

[16] Neither intervenors nor defendants suggest the fifth or sixth Baker factors apply here. Nonetheless, I address

those factors because federal courts have

an ‘‘independent obligation to assure

[them]selves of’’ the existence of subject

matter jurisdiction. Rosson v. Fitzgerald

(In re Rosson), 545 F.3d 764, 769 n.5 (9th

Cir. 2008). On the face of the complaint, I

see no evidence of an ‘‘unusual need for

unquestioning adherence to a political decision already made’’ or any ‘‘potentiality of

embarrassment from multifarious pronouncements by various departments on

one question.’’ Baker, 369 U.S. at 217, 82

S.Ct. 691. I conclude neither of the two

final Baker factors deprives this Court of

subject matter jurisdiction.

D. Summary: This Case Does Not

Raise a Nonjusticiable Political

Question

[17] There is no need to step outside

the core role of the judiciary to decide this

case. At its heart, this lawsuit asks this

Court to determine whether defendants

have violated plaintiffs’ constitutional

rights. That question is squarely within the

purview of the judiciary. See INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 77

L.Ed.2d 317 (1983) (judiciary is bound to

determine whether the political branches

have ‘‘chosen a constitutionally permissible

means of implementing [their] power’’);

Jewel, 673 F.3d at 912 (although lawsuit

challenging federal agencies’ surveillance

practices ‘‘strikes at the heart of a major

public policy controversy,’’ claims were

justiciable because they were ‘‘straightforward claims of statutory and constitutional

rights, not political questions’’).

This case shares some key features with

Baker itself, In Baker, a group of voters

challenged a statute governing the apportionment of state legislative districts. 369

U.S. at 188–95, 82 S.Ct. 691. Sixty years of

population growth without legislative reapportionment had led to some votes carrying much more weight than others. Id. at

192–93, 82 S.Ct. 691. Here, the majority of

youth plaintiffs are minors who cannot

vote and must depend on others to protect

their political interests. Thus, as amicus

the League of Women Voters persuasively

argues, the youth plaintiffs’ claims are similar to the Baker claims because they are

‘‘rooted in a ‘debasement of their votes’

and an accompanying diminishment of

their voice in representational government.’’ Br. for the League of Women Voters in the United States et al. as Amici

Curiae at 19–20 (doc. 79–1).4

 In Baker, the

Court acknowledged that the plaintiffs’

claims had political dimensions and ramifications—but nonetheless concluded none

of the Baker factors was inextricable from

the case. 369 U.S. at 209, 82 S.Ct. 691.

Similarly, as discussed in detail above, this

case raises political issues yet is not barred

by the political question doctrine.

[18, 19] Should 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. The separation of powers might,

for example, permit the Court to direct

defendants to ameliorate plaintiffs’ injuries

but limit its ability to specify precisely how

to do so. Cf. S. Burlington Cnty.

N.A.A.C.P. v. Mt. Laurel Twp., 67 N.J.

151, 336 A.2d 713, 734 (1975) (leaving to

municipality ‘‘in the first instance at least’’

the determination of how to remedy the

constitutional problems with a local zoning

ordinance). That said, federal courts retain

4. The motion of the League of Women Voters

of the United States and the League of Women Voters of Oregon to appear as amici curiae(doc. 79) is granted.

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broad authority ‘‘to fashion practical remedies when confronted with complex and

intractable constitutional violations.’’

Brown v. Plata, 563 U.S. 493, 526, 131

S.Ct. 1910, 179 L.Ed.2d 969 (2011). In any

event, speculation about the difficulty of

crafting a remedy could not support dismissal at this early stage. See Baker, 369

U.S. at 198, 82 S.Ct. 691 (‘‘Beyond noting

that we have no cause at this stage to

doubt the District Court will be able to

fashion relief if violations of constitutional

rights are found, it is improper now to

consider what remedy would be most appropriate if appellants prevail at trial.’’)

Because no Baker factor is inextricable

from the merits of this case, the political

question doctrine is not a barrier to plaintiffs’ claims.

II. Standing to Sue

[20–24] ‘‘A threshold question in every

federal case is TTT whether at least one

plaintiff has standing.’’ Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009)

(citation and quotation marks omitted).

Standing requires a plaintiff to allege

‘‘such a personal stake in the outcome of

the controversy as to warrant [the] invocation of federal-court jurisdiction and to

justify exercise of the court’s remedial

powers[.]’’ Warth v. Seldin, 422 U.S. 490,

498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

To demonstrate standing, a plaintiff must

show (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, 112 S.Ct.

2130, 119 L.Ed.2d 351 (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, 112 S.Ct. 2130.

Accordingly, at the motion to dismiss stage

‘‘general allegations’’ suffice to establish

standing because those allegations are presumed to ‘‘embrace those specific facts

that are necessary to support the claim.’’

Id. (citation and quotation marks omitted).

A. Injury in Fact

[25] 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.

(TOC), Inc., 528 U.S. 167, 181, 120 S.Ct.

693, 145 L.Ed.2d 610 (2000). For example,

a plaintiff may meet the injury in fact

requirement by alleging the challenged activity ‘‘impairs his or her economic interests or aesthetic and environmental wellbeing.’’ Wash. Envt’l Council v. Bellon,

732 F.3d 1131, 1140 (9th Cir. 2013) (quotation marks omitted and alterations normalized).

[26] Plaintiffs adequately allege injury

in fact. Lead plaintiff Kelsey Juliana alleges algae blooms harm the water she

drinks, and low water levels caused by

drought kill the wild salmon she eats. First

Am. Compl. ¶¶ 17–18. Plaintiff Xiuhtezcatl

Roske–Martinez alleges increased wildfires

and extreme flooding jeopardize his personal safety. Id. ¶ 21. Plaintiff Alexander

Loznak alleges record-setting temperatures harm the health of the hazelnut orchard on his family farm, an important

source of both revenue and food for him

and his family. Id. ¶ 26. Plaintiff Jacob

Lebel alleges drought conditions required

his family to install an irrigation system at

their farm. Id. ¶ 32. Plaintiff Zealand B.

alleges he has been unable to ski during

the winter as a result of decreased snowpack. Id. ¶ 38. Plaintiff Sahara V. alleges

hot, dry conditions caused by forest fires

aggravate her asthma. Id. ¶ 46.

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The most recent allegations of injury

appear in the supplemental declaration of

plaintiff Jayden F., a thirteen-year-old resident of Rayne, Louisiana. Jayden alleges

that at five o’clock the morning of August

13, 2016, her siblings woke her up. Decl.

Jayden F. ¶ 5 Sept. 7, 2016 (doc. 78). She

stepped out of bed into ankle-deep water.

By the end of the day,

Flood waters were pouring into our

home through every possible opening.

We tried to stop it with towels, blankets,

and boards. The water was flowing down

the hallway, into my Mom’s room and

my sisters’ room. The water drenched

my living room and began to cover our

kitchen floor. Our toilets, sinks, and

bathtubs began to overflow with awful

smelling sewage because our town’s sewer system also flooded. Soon the sewage

was everywhere. We had a stream of

sewage and water running through our

house.

Id. ¶ 8. With no shelters available and

nowhere else to go, the family remained in

the flooded house for weeks. Id. ¶ 10. The

floodwaters eventually receded, but the

damage remains: the carpets are soaked

with sewage water. Id. ¶ 12. The waterlogged walls must be torn down to prevent

the growth of black mold. Id. The entire

family sleeps together in the living room

because the bedrooms are uninhabitable.

Id. ¶ 15. Jayden alleges the storm that

destroyed her home ‘‘ordinarily would happen once every 1,000 years, but is happening now as a result of climate change.’’ Id.

¶ 2.

The government contends these injuries

are not particular to plaintiffs because

they are caused by climate change, which

broadly affects the entire planet (and all

people on it) in some way. According to the

government, this renders plaintiffs’ injuries nonjusticiable generalized grievances.

See Lexmark Int’l, Inc. v. Static Control

Components, Inc., ––– U.S. ––––, 134 S.Ct.

1377, 1387 n.3, 188 L.Ed.2d 392 (2014)

(explaining that generalized grievances do

not meet Article III’s case or controversy

requirement).

[27–29] 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,

118 S.Ct. 1777, 141 L.Ed.2d 10 (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, 127 S.Ct. 1438, 167

L.Ed.2d 248 (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, 118

S.Ct. 1777 (‘‘[A]n injury TTTT widely

shared TTT 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 TTT 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

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shared experience caused an injury that is

concrete and particular to the plaintiff.

Jewel, 673 F.3d at 910. Applying the correct formulation of the generalized grievance rule, plaintiffs’ alleged injuries—harm

to their personal, economic and aesthetic

interests—are concrete and particularized,

not abstract or indefinite.

[30–32] That leaves imminence. Plaintiffs must demonstrate standing for each

claim they seek to press and for each form

of relief sought. DaimlerChrysler Corp. v.

Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854,

164 L.Ed.2d 589 (2006). Because plaintiffs

seek injunctive relief, they must show their

injuries are ‘‘ongoing or likely to recur.’’

Consumer Fin. Prot. 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)). They have met

this requirement. The complaint alleges

that ‘‘[t]he present level of CO2 and its

warming, both realized and latent, are already in the zone of danger.’’ First Am,

Compl, ¶ 8. It also alleges that ‘‘our country is now in a period of carbon overshoot,

with early consequences that are already

threatening and that will, in the short

term, rise to unbearable unless Defendants

take immediate action[.]’’ Id. ¶ 10 (quotation marks omitted). Youth plaintiffs each

allege harm that is ongoing and likely to

continue in the future. See, e.g., id. ¶ 17

(alleging current harm and harm ‘‘[i]n the

coming decades’’ from ocean acidification

and rising sea levels); id. ¶ 45 (alleging

damage to freshwater resources now and

in the future ‘‘if immediate action is not

taken’’ to reduce CO2 emissions). This is

sufficient to satisfy the imminence requirement.

By alleging injuries that are concrete,

particularized, and actual or imminent,

plaintiffs have satisfied the first prong of

the standing test.

B. Causation

[33, 34] The second requirement of

standing is 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, 112

S.Ct. 2130 (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 plaintiff’s harm must

be more than attenuated,’’ Native Vill. 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

bracket omitted).

The government contends plaintiffs have

not adequately alleged causation, relying

on the Ninth Circuit’s decision in Bellon.

In that case, environmental advocacy

groups sought to compel the Washington

State Department of Ecology and other

regional agencies ‘‘to regulate greenhouse

gas emissions’’ (‘‘GHGs’’) from five oil refineries. Bellon, 732 F.3d at 1135. The

court held plaintiffs lacked standing to sue

because the causal link between the agencies’ regulatory decisions and the plaintiffs’

injuries was ‘‘too attenuated.’’ Id. at 1141.

The court explained the special challenge

of showing causation with respect to the

production of greenhouse gases:

Greenhouse gases, once emitted from a

specific source, quickly mix and disperse

in the global atmosphere and have a

long atmospheric lifetime. Current research on how greenhouse gases influence global climate change has focused

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on the cumulative environmental effects

from aggregate regional or global

sources. But there is limited scientific

capability in assessing, detecting, or

measuring the relationship between a

certain GHG emission source and localized climate impacts in a given region.

Id. at 1143. The court noted that the five

oil refineries at issue were responsible for

just under six percent of total greenhouse

gas emissions produced in the state of

Washington, and 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 GHGs worldwide, and the absence of any meaningful

nexus between Washington refinery emissions and global GHG concentrations now

or as projected in the future.’’ Id. at 1144

(quotation marks omitted). The court concluded the ‘‘causal chain [wa]s too tenuous

to support standing.’’ Id.

This case is distinguishable from Bellon

in two important respects. First, the procedural posture is different. In Bellon, the

appeal was taken from a grant of summary

judgment. Id. at 1138. That procedural

posture is underscored by the court’s reliance on expert declarations in rendering

its decision. Plaintiffs have alleged a causal

relationship between their injuries and defendants’ conduct. At this stage, I am

bound to accept those allegations as true.

This rule appropriately acknowledges the

limits of the judiciary’s expertise: at the

motion to dismiss stage, a federal court is

in no position to say it is impossible to

introduce evidence to support a well-pleaded causal connection. See Connecticut v.

Am. Elec. Power Co., Inc., 582 F.3d 309,

347 (2d Cir. 2009) (holding that causation

in climate change cases is ‘‘best left to the

rigors of evidentiary proof at a future

stage of the proceedings, rather than dispensed with as a threshold question of

constitutional standing’’), rev’d on other

grounds, Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 429, 131 S.Ct. 2527,

180 L.Ed.2d 435 (2011). 1 note, too, that

climate science is constantly evolving. See

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[,] TTT our knowledge of the climate is developing at a

breakneck pace.’’) As a result, 1 cannot

interpret Bellon—which relied on a summary judgment record developed more

than five years ago—to forever close the

courthouse doors to climate change claims.

[35] Second, the emissions at issue in

this case, unlike the emissions at issue in

Bellon, make up a significant share of

global emissions, In Bellon, as noted, the

five oil refineries were responsible for just

under six percent of the greenhouse gas

emissions generated in the state of Washington. The Ninth Circuit recently explained that in Bellon, ‘‘causation was lacking 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

undiscernable.’ ’’ WildEarth Guardians v.

U.S. Dep’t of Agric., 795 F.3d 1148, 1158

(9th Cir. 2015) (quoting Bellon, 732 F.3d at

1144). Here, by contrast, plaintiffs’ chain of

causation rests on the core allegation that

defendants are responsible for a substantial share of worldwide greenhouse gas

emissions. Plaintiffs allege that over the

263 years between 1751 and 2014, the

United States produced more than twentyfive percent of global CO2 emissions. First

Am. Compl. ¶ 151. Greenhouse gas emissions produced in the United States continue to increase. Id. ¶ 152. In 2012, the

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ducer and consumer of energy in the

world. Id. ¶ 160. Bellon’s reasoning, which

rested on a determination the oil refineries

were ‘‘minor contributors’’ to climate

change, does not apply. WildEarth Guardians, 795 F.3d at 1158.

The government broadly asserts that

Bellon rejected ‘‘the argument that allegations that a source ‘contributed’ to climate

change are sufficient to satisfy Article Ill’s

causation requirement[.]’’ Fed. Defs.’

Mem. of Points & Auth. in Supp. of Mot.

Dismiss at 12 (doc. 27–1). Not so. Bellon

rejected—at the summary judgment

stage—‘‘vague, conclusory’’ statements

purporting to establish a causal relationship between the emissions of five refineries and the plaintiffs’ injuries. 732 F.3d at

1142. Although the Constitution did not

require the Bellon plaintiffs to ‘‘connect

each molecule to their injuries,’’ it demanded more than ‘‘simply saying that the

Agencies have failed to curb emission of

greenhouse gases, which contribute (in

some undefined way and to some undefined degree) to their injuries[.]’’ Id. at

1142–43.

The causal chain alleged by plaintiffs

here is conclusory, but that is because they

have not yet had the opportunity to present evidence. And unlike in Bellon, plaintiffs’ causation allegations are not vague.

At oral argument, plaintiffs explained that

their theory of causation has two components. The first relates to defendants’ affirmative acts. Specifically, plaintiffs allege

that fossil fuel combustion accounts for

approximately ninety-four percent of United States CO2 emissions. First Am. Compl.

¶ 158. Defendants lease public lands for oil,

gas, and coal production; undercharge

royalties in connection with those leases;

provide tax breaks to companies to encourage fossil fuel development; permit the

import and export of fossil fuels; and incentivize the purchase of sport utility vehicles. Id. ¶¶ 164, 166, 171, 173, 181, 190.

Here, the chain of causation is: fossil fuel

combustion accounts for the lion’s share of

greenhouse gas emissions produced in the

United States; defendants have the power

to increase or decrease those emissions;

and defendants use that power to engage

in a variety of activities that actively cause

and promote higher levels of fossil fuel

combustion.

The second component of plaintiffs’ causation theory involves defendants’ failure

to act in areas where they have authority

to do so. Plaintiffs allege that together,

power plants and transportation produce

nearly two-thirds of CO2 emissions in the

United States. Id. ¶ 115 (transportation

produces approximately twenty-seven percent of annual emissions); id. ¶ 125 (power

plants produce roughly thirty-seven percent of annual emissions). Plaintiffs also

allege DOT and EPA have broad power to

set emissions standards in these sectors.

So the chain of causation is: DOT and

EPA have jurisdiction over sectors producing sixty-four percent of United States

emissions, which in turn constitute roughly

fourteen percent of emissions worldwide;

they allow high emissions levels by failing

to set demanding standards; high emissions levels cause climate change; and climate change causes plaintiffs’ injuries.

Each link in these causal chains may be

difficult to prove, but the ‘‘spectre of difficulty down the road does not inform [the]

justiciability determination at this early

stage of the proceedings.’’ Alperin, 410

F.3d at 539. At the pleading stage, plaintiffs have adequately alleged a causal link

between defendants’ conduct and the asserted injuries.

C. Redressability

[36, 37] 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

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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 a favorable decision is certain to

redress his injury, but must show a substantial likelihood it will do so. Id. It is

sufficient for the redressability inquiry to

show that the requested remedy would

‘‘slow or reduce’’ the harm, Massachusetts,

549 U.S. at 525, 127 S.Ct. 1438 (citing

Larson v. Valente, 456 U.S. 228, 243 n.15,

102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)).

[38] The declaratory and injunctive relief plaintiffs request meets this standard.

Most notably, plaintiffs ask this Court to

‘‘[o]rder Defendants to prepare and implement an enforceable national remedial plan

to phase out fossil fuel emissions and draw

down excess atmospheric CO2[.]’’ First

Am. Compl. ¶ 94. If plaintiffs can show, as

they have alleged, that defendants have

control over a quarter of the planet’s

greenhouse gas emissions, and that a reduction in those emissions would reduce

atmospheric CO2 and slow climate change,

then plaintiffs’ requested relief would redress their injuries.

Bellon is not to the contrary. In Bellon,

the court concluded the plaintiff’s injuries

would continue unabated even if the five

oil refineries shut down, repeating its conclusion that the effect of the emissions

produced by those refineries on global

emissions levels was ‘‘scientifically indiscernable.’’ 732 F.3d at 1147 (quotation

marks omitted), Thus, Bellon’s redressability holding, like its causation holding, rested on a factor not present here: that the

defendants were minor contributors to

global climate change. Accordingly, Bellon’s reasoning does not apply.

[39] Defendants and intervenors essentially argue that because many entities

contribute to global warming, an injunction

operating on one entity—even a major

player—would offer no guarantee of an

overall reduction in greenhouse gas emissions. But whether the Court could guarantee an overall reduction in greenhouse

gas emissions is the wrong inquiry for at

least two reasons. First, redressability

does not require certainty, it requires only

a substantial likelihood that the Court

could provide meaningful relief. Second,

the possibility that some other individual

or entity might later cause the same injury

does not defeat standing—the question is

whether the injury caused by the defendant can be redressed.

Redressability in this case is scientifically complex, particularly in light of the

specter of ‘‘irreversible climate change,’’

wherein greenhouse gas emissions above a

certain level push the planet past ‘‘points

of no return, beyond which irreversible

consequences become inevitable, out of humanity’s control.’’ Hansen Decl. ¶ 13 & Ex.

2 at 13 Sept. 10, 2015 (docs. 7–1 & 7–3)

(quotation marks omitted). This raises a

host of questions, among them: What part

of plaintiffs’ injuries are attributable to

causes beyond this Court’s control? Even

if emissions increase elsewhere, will the

magnitude of plaintiffs’ injuries be less if

they obtain the relief they seek in this

lawsuit? When would we reach this point

of no return, and do defendants have it

within their power to avert reaching it

even without cooperation from third parties? All of these questions are inextricably

bound up in the causation inquiry, and

none of them can be answered at the motion to dismiss stage.

[40] Plaintiffs ask this Court to ‘‘order

Defendants to cease their permitting, authorizing, and subsidizing of fossil fuels

and, instead, move to swiftly phase out

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CO2 emissions, as well as take such other

action necessary to ensure that atmospheric CO2 is no more concentrated than 350

ppm by 2100, including to develop a national plan to restore Earth’s energy balance, and implement that national plan so

as to stabilize the climate system.’’ First

Am. Compl. ¶ 12 (emphasis omitted). Construing the complaint in plaintiffs’ favor,

they allege that this relief would at least

partially redress their asserted injuries.

Youth plaintiffs have adequately alleged

they have standing to sue.5

III. Due Process Claims 6

The Due Process Clause of the Fifth

Amendment to the United States Constitution bars the federal government from depriving a person of ‘‘life, liberty, or property’’ without ‘‘due process of law.’’ U.S.

Const. amend. V. Plaintiffs allege defendants have violated their due process

rights by ‘‘directly caus[ing] atmospheric

CO2 to rise to levels that dangerously interfere with a stable climate system required alike by our nation and Plaintiffs[,]’’

First Am. Compl. ¶ 279; ‘‘knowingly endanger[ing] Plaintiffs’ health and welfare

by approving and promoting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion,’’ id.

¶ 280; and, ‘‘[a]fter knowingly creating this

dangerous situation for Plaintiffs, TTT continu[ing] to knowingly enhance that danger

by allowing fossil fuel production, consumption, and combustion at dangerous

levels,’’ id. ¶ 284.

Defendants and intervenors challenge

plaintiffs’ due process claims on two

grounds. First, they assert any challenge

to defendants’ affirmative actions (i.e. leasing land, issuing permits) cannot proceed

because plaintiffs have failed to identify

infringement of a fundamental right or

discrimination against a suspect class of

persons. Second, they argue plaintiffs cannot challenge defendants’ inaction (i.e.,

failure to prevent third parties from emitting CO2 at dangerous levels) because defendants have no affirmative duty to protect plaintiffs from climate change.

A. Infringement of a Fundamental

Right

[41–43] When a plaintiff challenges affirmative government action under the due

process clause, the threshold inquiry is the

applicable level of judicial scrutiny. Witt v.

Dep’t of the Air Force, 527 F.3d 806, 813

(9th Cir. 2008). The default level of scrutiny is rational basis, which requires a reviewing court to uphold the challenged

governmental action so long as it ‘‘implements a rational means of achieving a legitimate governmental end[.]’’ Kim v.

United States, 121 F.3d 1269, 1273 (9th

Cir. 1997) (quotation marks omitted).

When the government infringes a ‘‘fundamental right,’’ however, a reviewing court

applies strict scrutiny. Witt, 527 F.3d at

817. Substantive due process ‘‘forbids the

government to infringe certain ‘fundamental’ liberty interests at all, no matter what

process is provided, unless the infringement is narrowly tailored to serve a com5. Defendants and intervenors also challenge

the standing of future generations plaintiffs

on a number of grounds. It is not necessary to

address these arguments because once a federal court concludes one plaintiff has standing, it need not determine whether the remaining plaintiffs have standing, Nat’l Ass’n

of Optometrists & Opticians LensCrafters, Inc.

v. Brown, 567 F.3d 521, 523 (9th Cir. 2009).

6. Plaintiffs’ due process claims encompass asserted equal protection violations and violations of unenumerated rights secured by the

Ninth Amendment. For simplicity’s sake, this

opinion refers to these claims collectively as

‘‘due process claims.’’

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pelling state interest.’’ Reno v. Flores, 507

U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d

1 (1993) (emphasis in original). It appears

undisputed by plaintiffs, and in any event

is clear to this Court, that defendants’

affirmative actions would survive rational

basis review. Resolution of this part of the

motions to dismiss therefore hinges on

whether plaintiffs have alleged infringement of a fundamental right.7

[44, 45] Fundamental liberty rights include both rights enumerated elsewhere in

the Constitution and rights and liberties

which are either (1) ‘‘deeply rooted in this

Nation’s history and tradition’’ or (2) ‘‘fundamental to our scheme of ordered liberty[.]’’ McDonald v. City of Chicago, Ill.,

561 U.S. 742, 767, 130 S.Ct. 3020, 177

L.Ed.2d 894 (2010) (internal citations, quotations, and emphasis omitted). The Supreme Court has cautioned that federal

courts must ‘‘exercise the utmost care

whenever we are asked to break new

ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into’’ judicial policy preferences. Washington v. Glucksberg, 521 U.S.

702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772

(1997) (citation and quotation marks omitted).

[46, 47] This does not mean that ‘‘new’’

fundamental rights are out of bounds,

though. When the Supreme Court broke

new legal ground by recognizing a constitutional right to same-sex marriage, Justice Kennedy wrote that

The nature of injustice is that we may

not always see it in our own times. The

generations that wrote and ratified the

Bill of Rights TTT did not presume to

know the extent of freedom in all its

dimensions, and so they entrusted to

future generations a charter protecting

the right of all persons to enjoy liberty

as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty

must be addressed.

Obergefell v. Hodges, ––– U.S. ––––, 135

S.Ct. 2584, 2598, 192 L.Ed.2d 609 (2015).

Thus, ‘‘[t]he identification and protection of

fundamental rights is an enduring part of

the judicial duty to interpret the Constitution TTT [that] has not been reduced to any

formula.’’ Id. (citation and quotation marks

omitted). In determining whether a right is

fundamental, courts must exercise ‘‘reasoned judgment,’’ keeping in mind that

‘‘[h]istory and tradition guide and discipline this inquiry but do not set its outer

boundaries.’’ Id. The genius of the Constitution is that its text allows ‘‘future generations [to] protect TTT the right of all

persons to enjoy liberty as we learn its

meaning,’’ Id.

Often, an unenumerated fundamental

right draws on more than one Constitutional source, The idea is that certain

rights may be necessary to enable the

exercise of other rights, whether enumerated or unenumerated. In Roe v. Wade,

410 U.S. 113, 152–53, 93 S.Ct. 705, 35

L.Ed.2d 147 (1973), the Court exhaustively

chronicled the jurisprudential history of

the fundamental right to privacy—another

right not mentioned in the text of the

Constitution. Roe’s central holding rests on

the Due Process Clause of the Fourteenth

Amendment. Id. at 153, 93 S.Ct. 705. But

the Court also found ‘‘roots’’ of the right to

privacy in the First Amendment, the

7. Strict scrutiny also is triggered by an allegation that the government discriminated on the

basis of a suspect classification, regardless of

whether the government action infringed a

fundamental right. Green v. City of Tucson,

340 F.3d 891, 896 (9th Cir. 2003). Because I

conclude that plaintiffs have alleged a violation of their fundamental rights, I need not

address whether youth or future generations

are suspect classifications for equal protection

purposes.

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Fourth Amendment, the Fifth Amendment, the penumbras of the Bill of Rights,

and the Ninth Amendment. Id. at 152, 93

S.Ct. 705. Similarly, in Obergefell, the

Court’s recognition of a fundamental right

to many was grounded in an understanding of marriage as a right underlying and

supporting other vital liberties. See 135

S.Ct. at 2599 (‘‘[I]t would be contradictory

to recognize a right to privacy with respect

to other matters of family life and not with

respect to the decision to enter the relationship that is at the foundation of the

family in our society.’’ (citation and quotation marks omitted)); id. at 2601 (‘‘[M]arriage is a keystone of our social order.’’).

[48] Exercising my ‘‘reasoned judgment,’’ id. at 2598, I have no doubt that

the right to a climate system capable of

sustaining human life is fundamental to a

free and ordered society. Just as marriage

is the ‘‘foundation of the family,’’ a stable

climate system is quite literally the foundation ‘‘of society, without which there

would be neither civilization nor progress.’’

Id. (quoting Maynard v. Hill, 125 U.S.

190, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888));

cf. Minors Oposa v. Sec’y of the Dep’t of

Envt’l & Natural Res., G.R. No. 101083, 33

I.L.M. 173, 187–88 (S.C., Jul. 30, 1993)

(Phil.) (without ‘‘a balanced and healthful

ecology,’’ future generations ‘‘stand to inherit nothing but parched earth incapable

of sustaining life.’’).

Defendants and intervenors contend

plaintiffs are asserting a right to be free

from pollution or climate change, and that

courts have consistently rejected attempts

to define such rights as fundamental, Defendants and intervenors mischaracterize

the right plaintiffs assert. Plaintiffs do not

object to the government’s role in producing any pollution or in causing any climate

change; rather, they assert the government has caused pollution and climate

change on a catastrophic level, and that if

the government’s actions continue unchecked, they will permanently and irreversibly damage plaintiffs’ property, their

economic livelihood, their recreational opportunities, their health, and ultimately

their (and their children’s) ability to live

long, healthy lives. Echoing Obergefell’s

reasoning, plaintiffs allege a stable climate

system is a necessary condition to exercising other rights to life, liberty, and property.

In framing the fundamental right at issue as the right to a climate system capable of sustaining human life, I intend to

strike a balance and to provide some protection against the constitutionalization of

all environmental claims. On the one hand,

the phrase ‘‘capable of sustaining human

life’’ should not be read to require a plaintiff to allege that governmental action will

result in the extinction of humans as a

species. On the other hand, acknowledgment of this fundamental right does not

transform any minor or even moderate act

that contributes to the warming of the

planet into a constitutional violation. In

this opinion, this Court simply holds that

where a complaint alleges 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.

Plaintiffs have adequately alleged infringement of a fundamental right.

B. ‘‘Danger Creation’’ Challenge to Inaction

[49–52] With limited exceptions, the

Due Process Clause does not impose on

the government an affirmative obligation

to act, even when ‘‘such aid may be neces27a

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sary 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, 109 S.Ct. 998, 103

L.Ed.2d 249 (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’’ 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).

Plaintiffs purport to challenge the government’s failure to limit third-party CO2

emissions pursuant to the danger creation

DeShaney exception.

[53, 54] In the Ninth Circuit, 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 TTT 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).

[55] Plaintiffs allege that ‘‘[a]cting with

full appreciation of the consequences of

their acts, Defendants knowingly caused,

and continue to cause, dangerous interference with our atmosphere and climate system.’’ First Am. Compl. ¶ 85. They allege

this danger stems, ‘‘in substantial part,

[from] Defendants’ historic and continuing

permitting, authorizing, and subsidizing of

fossil fuel extraction, production, transportation, and utilization.’’ Id. ¶ 279. Plaintiffs

allege defendants acted ‘‘with full appreciation’’ of the consequences of their acts, id.

¶¶ 278–79, specifically ‘‘[harm to] Plaintiffs’

dignity, including their capacity to provide

for their basic human needs, safely raise

families, practice their religious and spiritual beliefs, maintain their bodily integrity,

and lead lives with access to clean air,

water, shelter, and food.’’ Id. ¶ 283. In the

face of these risks, plaintiffs allege defendants ‘‘have had longstanding, actual

knowledge of the serious risks of harm and

have failed to take necessary steps to address and ameliorate the known, serious

risk to which they have exposed Plaintiffs.’’

Id. ¶ 285. In sum: plaintiffs allege defendants played a unique and central role in

the creation of our current climate crisis;

that they contributed to the crisis with full

knowledge of the significant and unreasonable risks posed by climate change;8

 and

8. At oral argument, plaintiffs supplied the

Court with a timeline documenting purported

evidence of defendants’ knowledge of climate

change. The timeline, which dates back to

1955, includes the 1988 testimony of Dr.

James Hansen before the Senate Committee

on Energy and Natural Resources. Dr. Hansen, who appears in this lawsuit as a guardian

for his granddaughter and for future generations, testified about rising global temperatures and their relationship to human activity.

First Session on the Greenhouse Effect and

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that the Due Process Clause therefore imposes a special duty on defendants to use

their statutory and regulatory authority to

reduce greenhouse gas emissions. Accepting the allegations of the complaint as

true, plaintiffs have adequately alleged a

danger creation claim.

Defendants argue the DeShaney exceptions are inapplicable when the actor is the

federal government rather than a state

government. It is true that DeShaney was

a section 1983 case and that the Ninth

Circuit cases interpreting the DeShaney

exceptions are also section 1983 cases. But

in DeShaney, the Supreme Court was

mapping the contours of the Due Process

Clause, not section 1983. Defendants have

cited no case or legal principle to justify

limiting DeShaney to the section 1983 context.

Next, defendants contend application of

the DeShaney danger creation exception in

this context would permit plaintiffs to

‘‘raise a substantive due process claim to

challenge virtually any government program’’—for example, to challenge foreign

policy decisions that heighten or exacerbate international tensions, or to health

and safety regulations the plaintiff deems

insufficiently stringent. Fed. Defs.’ Obj. 18.

Defendants fail to recognize that DeShaney imposes rigorous proof requirements.

A plaintiff asserting a danger-creation due

process claim must show (1) the government’s acts created the danger to the

plaintiff; (2) the government knew its acts

caused that danger; and (3) the government with deliberate indifference failed to

act to prevent the alleged harm. These

stringent standards are sufficient safeguards against the flood of litigation concerns raised by defendants—indeed, they

pose a significant challenge for plaintiffs in

this very lawsuit.9

Questions about difficulty of proof, however, must be left for another day. At the

motion to dismiss stage, I am bound to

accept the factual allegations in the complaint as true. Plaintiffs have alleged that

defendants played a significant role in creating the current climate crisis, that defendants acted with full knowledge of the

consequences of their actions, and that

defendants have failed to correct or mitigate the harms they helped create in deliberate indifference to the injuries caused by

climate change. They may therefore proceed with their substantive due process

challenge to defendants’ failure to adequately regulate CO2 emissions.

IV. Public Trust Claims

[56–58] In its broadest sense, the term

‘‘public trust’’ refers to the fundamental

understanding that no government can legitimately abdicate its core sovereign powers. See Stone v. Mississippi, 101 U.S. 814,

820, 25 L.Ed. 1079 (1879) (‘‘[T]he power of

governing is a trust committed by the

people to the government, no part of which

can be granted away.’’) The public trust

doctrine rests on the fundamental principle

that ‘‘[e]very succeeding legislature possesses the same jurisdiction and power

with respect to [the public interest] as its

Global Climate Change Before the Comm. on

Energy & Natural Res., 100th Cong. 39

(1988). He urged legislators to take action to

limit greenhouse gas emissions. Id. at 158. Dr.

Hansen’s testimony was preceded by a statement from Senator Dale Bumpers of Arkansas, who bemoaned, ‘‘We’re not going to have

a lot of political support for this. Nobody

wants to take on the automobile industry.

Nobody wants to take on any of the industries

that produce the things we throw up into the

atmosphere.’’ Id. at 38.

9. There are other barriers to asserting defendants’ hypothetical danger-creation claims.

For example, as discussed in Part I of this

opinion, the political question doctrine sharply limits judicial review of decisions inherently entangled with the conduct of foreign relations.

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predecessors.’’ Newton v. Mahoning Cnty.

Comm’rs, 100 U.S. 548, 559, 25 L.Ed. 710

(1879). The doctrine conceives of certain

powers and obligations—for example, the

police power—as inherent aspects of sovereignty. Id. at 554. Permitting the government to permanently give one of these

powers to another entity runs afoul of the

public trust doctrine because it diminishes

the power of future legislatures to promote

the general welfare.

[59] Plaintiffs’ public trust claims

arise from the particular application of

the public trust doctrine to essential natural resources. With respect to these core

resources, the sovereign’s public trust obligations prevent it from ‘‘depriving a future legislature of the natural resources

necessary to provide for the well-being

and survival of its citizens.’’ Br. of Amici

Curiae Global Catholic Climate Movement

and Leadership Council of Women Religious at 3 (footnote omitted) (doc. 51–1).

Application of the public trust doctrine to

natural resources predates the United

States of America. Its roots are in the

Institutes of Justinian, part of the Corpus

Juris Civilis, the body of Roman law that

is the ‘‘foundation for modern civil law

systems.’’ Timothy G. Kearley, Justice

Fred Blume and the Translation of Justinian’s Code, 99 Law Libr. J. 525, ¶ 1

(2007). The Institutes of Justinian declared ‘‘the following things are by natural

law common to all—the air, running water, the sea, and consequently the seashore.’’ J. Inst. 2.1.1 (J.B. Moyle trans.).

The doctrine made its way to the United

States through the English common law.

See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 284, 117 S.Ct. 2028, 138

L.Ed.2d 438 (1997) (‘‘American law

adopted as its own much of the English

law respecting navigable waters, including

the principle that submerged lands are

held for a public purpose.’’); Phillips Petroleum Co. v. Mississippi, 484 U.S. 469,

473, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988)

(‘‘At common law, the title and dominion

in lands flowed by the tide water were in

the King for the benefit of the nation TTT

Upon the American Revolution, these

rights, charged with a like trust, were

vested in the original States within their

respective borders[.]’’ (quoting Shively v.

Bowlby, 152 U.S. 1, 57, 14 S.Ct. 548, 38

L.Ed. 331 (1894)); Joseph L. Sax, The

Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 475–76 (1970)

(discussing the history of the public trust

doctrine in the United States).

The first court in this country to address

the applicability of the public trust doctrine to natural resources was the New

Jersey Supreme Court, in 1821. The court

explained that public trust assets were

part of a taxonomy of property:

Every thing susceptible of property is

considered as belonging to the nation

that possesses the country, as forming

the entire mass of its wealth. But the

nation does not possess all those things

in the same manner. By very far the

greater part of them are divided among

the individuals of the nation, and become

private property. Those things not divided among the individuals still belong to

the nation, and are called public property. Of these, again, some are reserved

for the necessities of the state, and are

used for the public benefit, and those

are called ‘‘the domain of the crown or

of the republic,’’ others remain common

to all the citizens, who take of them and

use them, each according to his necessities, and according to the laws which

regulate their use, and are called common property. Of this latter kind, according to the writers upon the law of

nature and of nations, and upon the civil

law, are the air, the running water, the

sea, the fish, and the wild beasts.

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Arnold v. Mundy, 6 N.J.L. 1, 71 (N.J.

1821) (emphasis in original).

The seminal United States Supreme

Court case on the public trust is Illinois

Central Railroad Company v. Illinois, 146

U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018

(1892). The Illinois legislature had conveyed to the Illinois Central Railroad

Company title to part of the submerged

lands beneath the harbor of Chicago, with

the intent to give the company control over

the waters above the submerged lands

‘‘against any future exercise of power over

them by the state.’’ Id. at 452, 13 S.Ct. 110,

The Supreme Court held the legislature’s

attempt to give up its title to lands submerged beneath navigable waters was either void on its face or always subject to

revocation. Id. at 453, 13 S.Ct. 110. ‘‘The

state can no more abdicate its trust over

property in which the whole people are

interested, like navigable waters and soils

under them TTT than it can abdicate its

police powers in the administration of government and the preservation of the

peace.’’ Id. In light of the ‘‘immense value’’

the harbor of Chicago carried for the people of Illinois, the ‘‘idea that its legislature

can deprive the state of control over its

bed and waters, and place the same in the

hands of a private corporation’’ could not

‘‘be defended.’’ Id. at 454, 13 S.Ct. 110.

[60, 61] The natural resources trust

operates according to basic trust principles, which impose upon the trustee a fiduciary duty to ‘‘protect the trust property

against damage or destruction.’’ George G.

Bogert et al., Bogert’s Trusts and Trustees, § 582 (2016). The trustee owes this

duty equally to both current and future

beneficiaries of the trust. Restatement

(Second) of Trusts § 183 (1959). In natural

resources cases, the trust property consists of a set of resources important

enough to the people to warrant public

trust protection. See Mary C. Wood, A

Nature’s Trust; Environmental Law for a

New Ecological Age 167–75 (2014). The

government, as trustee, has a fiduciary

duty to protect the trust assets from damage so that current and future trust beneficiaries will be able to enjoy the benefits

of the trust. Id. The public trust doctrine is

generally thought to impose three types of

restrictions on governmental authority:

[F]irst, the property subject to the trust

must not only be used for a public purpose, but it must be held available for

use by the general public; second, the

property may not be sold, even for a fair

cash equivalent; and third, the property

must be maintained for particular types

of uses.

Joseph L. Sax, The Public Trust Doctrine

in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471,

477 (1970).

This lawsuit is part of a wave of recent

environmental cases asserting state and

national governments have abdicated their

responsibilities under the public trust doctrine. See, e.g., Alec L. v. Jackson, 863

F.Supp.2d 11 (D.D.C. 2012); Sanders–

Reed ex rel. Sanders–Reed v. Martinez,

350 P.3d 1221 (N.M. Ct. App. 2015); Kanuk ex rel. Kanuk v. State, Dep’t of Natural Res., 335 P.3d 1088 (Alaska 2014);

Chernaik v. Kitzhaber, 263 Or.App. 463,

328 P.3d 799 (2014). These lawsuits depart

from the ‘‘traditional’’ public trust litigation model, which generally centers on the

second restriction, the prohibition against

alienation of a public trust asset. Instead,

plaintiffs assert defendants have violated

their duties as trustees by nominally retaining control over trust assets while actually allowing their depletion and destruction, effectively violating the first and third

restrictions by excluding the public from

use and enjoyment of public resources.

Defendants and intervenors argue the

public trust doctrine has no application in

this case. They advance four arguments:

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(1) the atmosphere, the central natural

resource at issue in this lawsuit, is not a

public trust asset; (2) the federal government, unlike the states, has no public trust

obligations; (3) any common-law public

trust claims have been displaced by federal

statutes; and (4) even if there is a federal

public trust, plaintiffs lack a right of action

to enforce it. I address each contention in

turn.

A. Scope of Public Trust Assets

[62] The complaint alleges defendants

violated their duties as trustees by failing

to protect the atmosphere, water, seas,

seashores, and wildlife. First Am. Compl.

¶ 309. Defendants and intervenors argue

plaintiffs’ public trust claims fail because

the complaint focuses on harm to the atmosphere, which is not a public trust asset.

I conclude that it is not necessary at this

stage to determine whether the atmosphere is a public trust asset because

plaintiffs have alleged violations of the

public trust doctrine in connection with the

territorial sea.10

[63, 64] The federal government holds

title to the submerged lands between three

and twelve miles from the coastlines of the

United States. See Restatement (Third) of

The Foreign Relations Law of the United

States § 511(a) (1987) (international law

permits a nation to claim as its territorial

sea an area up to twelve miles from its

10. To be clear, today’s opinion should not be

taken to suggest that the atmosphere is not a

public trust asset. The Institutes of Justinian

included the air in the list of assets ‘‘by natural law common to all.’’ J. Inst. 2.1.1 (J.B.

Moyle trans.). The New Jersey Supreme Court

in Arnold similarly included air in its list of

‘‘common property.’’ 6 N.J.L. at 71. Even

Supreme Court case law suggests the atmosphere may properly be deemed part of the

public trust res. See United States v. Causby,

328 U.S. 256, 261, 66 S.Ct. 1062, 90 L.Ed.

1206 (1946) (holding that private rights to

airspace have ‘‘no place in the modern

world’’ because recognition of such claims

would ‘‘transfer into private ownership that to

which only the public has a just claim.’’) The

dearth of litigation focusing on atmosphere

may reflect the limited state of scientific

knowledge rather than signal a determination

that the air is outside the scope of the public

trust. See Mary C. Wood, Atmospheric Trust

Litigation Across the World, in Fiduciary Duty

and the Atmospheric Trust 113 (Ken Coghill

et al. Eds. 2012) (hypothesizing that the atmosphere does not appear in early public trust

case law because air was long thought to be

indestructible and incapable of privatization).

Even if the atmosphere was not always considered a public trust asset, some courts have

concluded the doctrine should ‘‘be molded

and extended to meet changing conditions

and needs of the public it was created to

benefit.’’ Matthews v. Bay Head Improvement

Ass’n, 95 N.J. 306, 471 A.2d 355, 365 (1984)

(citation and quotation marks omitted). Just

last year, Judge Hollis Hill reasoned that it

‘‘misses the point’’ to mechanically rely on

what has been identified as a public trust

asset in the past because ‘‘[t]he navigable

waters and the atmosphere are intertwined

and to argue a separation of the two, or to

argue that [greenhouse gas] emissions do not

affect navigable waters is nonsensical.’’ Foster

v. Wash. Dep’t of Ecology, No. 14–2–25295–1,

slip op. at 8, 2015 WL 7721362 (Wash. King

Cnty. Super. Ct. Nov. 19, 2015). At least one

state court has held in recent years that ‘‘the

concept of public natural resources includes

not only state-owned lands, waterways, and

mineral reserves, but also resources that implicate the public interest, such as ambient

air, surface and ground water, wild flora, and

fauna (including fish) that are outside the

scope of purely private property.’’ Robinson

Twp., Wash. Cnty., Pa. v. Pennsylvania, 623

Pa. 564, 83 A.3d 901, 955 (Pa. Sup. Ct. 2013).

The Supreme Court arguably endorsed this

pragmatic approach to the identification of

trust assets in Illinois Central, where it held,

contrary to English common law, that lakes

and rivers unaffected by the ebb and flow of

the tide could be navigable waters within the

meaning of the public trust doctrine. 146 U.S.

at 436, 13 S.Ct. 110 (English rule for determining navigability would not work in the

United States, which contains ‘‘rivers [that]

are navigable for great distances above the

flow of the tide—indeed, for hundreds of

miles’’).

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coast); Presidential Proclamation of Dec.

27, 1988, No. 5928, 3 C.F.R. § 547 (1989)

(President Reagan expanding United

States’ claim from three-mile territorial

sea to twelve-mile territorial sea); 43

U.S.C. § 1312 (seaward boundary of a

coastal state is ‘‘a line three geographical

miles distant from its coast line’’). Time

and again, the Supreme Court has held

that the public trust doctrine applies to

‘‘lands beneath tidal waters.’’ See Phillips

Petroleum Co., 484 U.S. at 474, 108 S.Ct.

791 (discussing Shively, 152 U.S. at 57, 14

S.Ct. 548 and Knight v. U.S. Land Ass’n,

142 U.S. 161, 183, 12 S.Ct. 258, 35 L.Ed.

974 (1891)); Alabama v. Texas, 347 U.S.

272, 278, 74 S.Ct. 481, 98 L.Ed. 689 (1954)

(Black, J., dissenting) (‘‘In ocean waters

bordering our country, if nowhere else,

day-to-day national power—complete, undivided, flexible, and immediately available—is an essential attribute of federal

sovereignty.’’); id. at 282, 74 S.Ct. 481

(Douglas, J., dissenting) (‘‘Thus we are

dealing here with incidents of national sovereignty TTTT The authority over [the sea]

can no more be abdicated than any of the

other great powers of the Federal Government. It is to be exercised for the benefit

of the whole.’’); see also Joseph L. Sax,

The Public Trust Doctrine in Natural Resource Law; Effective Judicial Intervention, 68 Mich. L. Rev. 471, 556 (1970)

(public trust law covers ‘‘that aspect of the

public domain below the low-water mark

on the margin of the sea and the great

lakes, the waters over those lands, and the

waters within rivers and streams of any

consequence’’). Because a number of plaintiffs’ injuries relate to the effects of ocean

acidification and rising ocean temperatures,11 they have adequately alleged harm

to public trust assets.

B. Applicability of Public Trust to the

Federal Government

[65] Defendants and intervenors contend that in the United States, the public

trust doctrine applies only to the states

and not to the federal government. This

argument rests primarily on a passing

statement in PPL Montana, LLC v. Montana, 565 U.S. 576, 132 S.Ct. 1215, 182

L.Ed.2d 77 (2012). A close examination of

that case reveals that it cannot fairly be

read to foreclose application of the public

trust doctrine to assets owned by the federal government.

PPL Montana was not a public trust

case. Its central concern was the equal

footing doctrine. PPL Montana, LLC used

three rivers flowing through the state of

Montana for hydroelectric projects. Id. at

580, 132 S.Ct. 1215. Montana sought rent

for the use of the riverbeds, arguing it had

gained title to the rivers pursuant to the

equal footing doctrine when it became a

state in 1889. Id. The Montana Supreme

Court granted summary judgment on title

to Montana, On writ of certiorari to the

United States Supreme Court, review

hinged on whether the rivers in question

were ‘‘navigable’’ in 1889, because the ‘‘title consequences of the equal-footing doctrine’’ are that ‘‘[u]pon statehood, the State

gains title within its borders to the beds of

11. See, e.g., First Am. Compl. ¶ 16 (‘‘An important part of Kelsey’s diet includes food

that comes from the marine waters and freshwater rivers, including salmon, cod, tuna,

clams, mussels, and crab.’’); id. ¶ 27 (‘‘Other

food sources for Alex, including crab and

seafood, are negatively impacted by ocean

acidification, warming, and sea level rise

caused by Defendants.’’); id. ¶ 33 (‘‘Ocean

acidification caused by Defendants has already begun to adversely impact shellfish

along the coast, and is predicted to take its

toll on crab, mussels, and all shelled seafood.’’); id. ¶ 45 (‘‘On the Oregon coast, Sahara enjoys climbing rocks and sand dunes,

swimming, and tidepooling to see marine life.

Sahara’s enjoyment of these activities is being

increasingly harmed in the future by sea level

rise, greater erosion, enhanced ocean acidification, and increased water temperatures.’’).

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waters then navigable (or tidally influenced TTT)[.]’’ Id. at 589–90, 132 S.Ct. 1215.

The Court reversed and remanded, holding that the Montana courts had applied

the wrong methodology for determining

navigability.

In addition to its main argument that

the rivers were navigable, Montana argued

that denying it title to the riverbeds in

dispute would ‘‘undermine the public trust

doctrine.’’ Id. at 601, 132 S.Ct. 1215. The

Supreme Court rejected this argument in

short order:

Unlike the equal-footing doctrine, TTT

which is the constitutional foundation for

the navigability rule of riverbed title, the

public trust doctrine remains a matter of

state law, subject as well to the federal

power to regulate vessels and navigation

under the Commerce Clause and admiralty power. While equal-footing cases

have noted that the State takes title to

the navigable waters and their beds in

trust for the public, the contours of that

public trust do not depend upon the

Constitution. Under accepted principles

of federalism, the States retain residual

power to determine the scope of the

public trust over waters within their

borders, while federal law determines

riverbed title under the equal-footing

doctrine.

Id. at 603, 132 S.Ct. 1215 (citations omitted).

Defendants and intervenors take the

phrase ‘‘the public trust doctrine remains a

matter of state law,’’ and interpret it in

isolation to foreclose all federal public

trust claims. That is not a plausible interpretation of PPL Montana. The Court was

simply stating that federal law, not state

law, determined whether Montana has title

to the riverbeds, and that if Montana had

title, state law would define the scope of

Montana’s public trust obligations. PPL

Montana said nothing at all about the

viability of federal public trust claims with

respect to federally-owned trust assets.

In a string citation, PPL Montana cited

Coeur d’Alene, 521 U.S. at 285, 117 S.Ct.

2028, and Appleby v. City of New York,

271 U.S. 364, 395, 46 S.Ct. 569, 70 L.Ed.

992 (1926), for the proposition that Illinois

Central ‘‘was necessarily a statement of

Illinois law.’’ 132 S.Ct. at 1235. That statement is not surprising given the nature of

the public trust doctrine. Public trust obligations are inherent aspects of sovereignty; it follows that any case applying the

public trust doctrine to a particular state is

necessarily a statement of that state’s law

rather than a statement of the law of

another sovereign. In Coeur d’Alene, the

Supreme Court explained that even though

Illinois Central interpreted Illinois law, its

central tenets could be applied broadly (for

example, to Idaho) because it ‘‘invoked the

principle in American law recognizing the

weighty public interests in submerged

lands.’’ 521 U.S. at 285, 117 S.Ct. 2028. The

Court then detailed how the American

public trust doctrine, which has diverged

from the English public trust doctrine in

important ways, has developed as ‘‘a natural outgrowth of the perceived public character of submerged lands, a perception

which underlies and informs the principle

that these lands are tied in a unique way

to sovereignty.’’ Id. at 286, 117 S.Ct. 2028.

There is no reason why the central tenets

of Illinois Central should apply to another

state, but not to the federal government.

Defendants and intervenors also contend

recognizing a federal public trust claim is

contrary to United States v. 32.42 Acres of

Land, More or Less, Located in San Diego

County, California, 683 F.3d 1030, 1038

(9th Cir. 2012), which repeated PPL Montana’s statement that ‘‘the public trust

doctrine remains a matter of state law’’ in

concluding that the federal government’s

eminent domain powers trumped any

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state-law public trust concerns. That case

did not foreclose a federal public trust

claim, however, because the Ninth Circuit

expressly declined to address the viability

of the federal public trust the district court

imposed on the federal government after it

ruled the land could be taken pursuant to

eminent domain. Id. at 1033 & 1039 n. 2.

In 2012, the federal district court for the

District of Columbia held the public trust

doctrine does not apply to the federal government. Alec L. was substantially similar

to the instant action: five youth plaintiffs

and two environmental advocacy organizations sued a variety of heads of federal

agencies, alleging the defendants had

‘‘wasted and failed to preserve and protect

the atmosphere Public Trust asset.’’ 863

F.Supp.2d at 12. The court dismissed the

suit with prejudice, holding the plaintiffs’

federal public trust claims were foreclosed

by PPL Montana’s statement that ‘‘the

public trust doctrine remains a matter of

state law.’’ Id. at 15 (quoting PPL Montana, 565 U.S. at 603, 132 S.Ct. 1215). The

court also relied on the D.C. Circuit’s observation that ‘‘ ‘[i]n this country the public

trust doctrine has developed almost exclusively as a matter of state law.’ ’’ Id. (quoting District of Columbia v. Air Florida,

Inc., 750 F.2d 1077, 1082 (D.C. Cir. 1984)).

In an unpublished memorandum decision,

the D.C. Circuit affirmed, holding that

‘‘[t]he Supreme Court in PPL Montana

TTT directly and categorically rejected any

federal constitutional foundation for that

doctrine, without qualification or reservation.’’ Alec L. ex rel. Loorz v. McCarthy,

561 Fed.Appx. 7, 8 (D.C. Cir. 2014).

I am not persuaded by the reasoning of

the Alec L. courts. As explained above, a

close reading of PPL Montana reveals

that it says nothing about the viability of

federal public trust claims. And in Air

Florida, the D.C. Circuit emphasized that

‘‘we imply no opinion regarding either the

applicability of the public trust doctrine to

the federal government or the appropriateness of using the doctrine to afford trustees a means for recovering from tortfeasors the cost of restoring public waters to

their pre-injury condition.’’ 750 F.2d at

1084.

Two federal courts—the district courts

for the Northern District of California and

the District of Massachusetts—have concluded the public trust doctrine applies to

the federal government. The decisions,

from the 1980s, concerned the federal government’s acquisition of various stateowned public trust assets—for example,

submerged land beneath navigable rivers

or tidelands—through the power of eminent domain. The courts held that the

federal government has no public trust

obligations under state law, but does take

the land subject to a federal public trust.

As one court explained, ‘‘[t]he trust is of

such a nature that it can be held only by

the sovereign, and can only be destroyed

by the destruction of the sovereign.’’ United States v. 1.58 Acres of Land Situated in

the City of Boston, Suffolk Cnty., Mass.,

523 F.Supp. 120, 124 (D. Mass. 1981).

Through eminent domain, the federal government ‘‘may take property TTT in ‘full

fee simple’ insofar as no other principal

may hold a greater right to such land, It

must be recognized, however, that the federal government is as restricted as the

Commonwealth in its ability to abdicate to

private individuals’’ its title to the land. Id.

at 124–25. In other words, ‘‘[b]y condemnation, the United States simply acquires the

land subject to the public trust as though

no party had held an interest in the land

before.’’ City of Alameda v. Todd Shipyards Corp., 635 F.Supp. 1447, 1450 (N.D.

Cal. 1986). 32.42 Acres of Land is wholly

consistent with these opinions; in that

case, the Ninth Circuit held that when the

federal government condemns state land,

it takes title free and clear of any state

public trust obligations—and that to hold

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otherwise would violate the Supremacy

Clause by subjugating the federal eminent

domain power to state public trust law, 683

F.3d at 1038. As noted, however, the court

said nothing about the lower court’s determination that the condemned tidelands had

been taken subject to a federal public

trust. 32.42 Acres of Land, 683 F.3d at

1033 & 1039 n.2.

I am persuaded that the City of Alameda and 1.58 Acres of Land courts were

correct. Their decisions rested on the history of the public trust doctrine and the

public trust’s unique relationship to sovereignty. I can think of no reason why the

public trust doctrine, which came to this

country through the Roman and English

roots of our civil law system, would apply

to the states but not to the federal government.

Defendants’ final argument is that recognition of a federal public trust doctrine

cannot be reconciled With Kleppe v. New

Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285,

49 L.Ed.2d 34 (1976), in which the Supreme Court stated that ‘‘[t]he power over

public land’’ entrusted to Congress by the

Property Clause of the United States Constitution is ‘‘without limitations.’’ Again,

defendants take the Supreme Court’s

statement out of context. In Kleppe, New

Mexico challenged the federal government’s authority to regulate and protect

wild horses and burros, arguing that the

Constitution granted Congress only the

power to ‘‘dispose of and make incidental

rules regarding the use of federal property’’ and ‘‘the power to protect’’ the federal

property itself, i.e., the land but not animals living on it. 426 U.S. at 536, 96 S.Ct.

2285. The Supreme Court rejected New

Mexico’s attempt to limit Congress’s power

to regulate wildlife living on federal lands.

It is in that context that the Court stated

the ‘‘power over public land’’ was ‘‘without

limitations.’’ Id. at 539, 96 S.Ct. 2285. Indeed, in the very same sentence the Supreme Court acknowledged that ‘‘the

furthest reaches of the power granted by

the Property Clause have not yet been

definitively resolved[.]’’ Id. The Supreme

Court in Kleppe simply did not have before

it the question whether the Constitution

grants the federal government unlimited

authority to do whatever it wants with any

parcel of federal land, regardless of whether its actions violate individual constitutional rights or run afoul of public trust

obligations.

The federal government, like the states,

holds public assets—at a minimum, the

territorial seas—in trust for the people.

Plaintiffs’ federal public trust claims are

cognizable in federal court.

C. Displacement of Public Trust Claims

Defendants and intervenors next argue

that any common-law public trust claims

have been displaced by a variety of acts of

Congress, including the Clean Air Act and

the Clean Water Act. For this proposition,

they rely on American Electric Power

Company, Inc. v. Connecticut, 564 U.S.

410, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011)

(‘‘AEP’’). In AEP, the plaintiffs sued five

power companies, alleging the companies’

CO2 emissions were a public nuisance under federal common law. Id. at 415, 131

S.Ct. 2527. The Supreme Court held the

nuisance claim could not proceed because

‘‘the Clean Air Act and the EPA actions it

authorizes displace any federal common

law right to seek abatement of carbondioxide emissions from fossil-fuel fired

power plants.’’ Id. at 424, 131 S.Ct. 2527.

Defendants and intervenors contend

that AEP controls the displacement analysis. The district court in Alec L. agreed

with them.12 The court relied heavily on

AEP’s statement that the Clean Air Act

displaces ‘‘ ‘any federal common law

right’ ’’ to challenge CO2 emissions, and

12. The D.C. Circuit did not address the dis- placement question on appeal.

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also discussed at length the AEP court’s

concerns that authorizing a judicial order

setting CO2 emissions limits would require

federal judges to make decisions involving

competing policy interests—decisions an

‘‘expert agency ‘is surely better equipped

to [make] than individual district judges

issuing ad hoc, case-by-case injunctions.’ ’’

Alec L., 863 F.Supp.2d at 16 (quoting

AEP, 564 U.S. at 424, 428, 131 S.Ct. 2527).

I am not persuaded by the Alec L.

court’s reasoning regarding displacement.

In AEP, the Court did not have public

trust claims before it and so it had no

cause to consider the differences between

public trust claims and other types of

claims. Public trust claims are unique because they concern inherent attributes of

sovereignty. The public trust imposes on

the government an obligation to protect

the res of the trust. A defining feature of

that obligation is that it cannot be legislated away, Because of the nature of public

trust claims, a displacement analysis simply does not apply.

The interplay between Congress’s decision to grant regulatory authority to various federal agencies and the authority of

the courts to adjudicate public trust claims

raises weightier concerns. Those concerns

go to whether this case presents a nonjusticiable political question, and have been

addressed in Section I of this opinion.

D. Enforceability of Public Trust Obligations in Federal Court

As a final challenge to plaintiffs’ public

trust claims, defendants contend that even

if the public trust doctrine applies to the

federal government, plaintiffs lack a cause

of action to enforce the public trust obligations. Relatedly, defendants argue that

creation of a right of action to permit

plaintiffs to assert their claims in federal

court would be an exercise in federal common law-making subject to the same statutory displacement arguments outlined

above.

In order to evaluate the merits of these

arguments, I must first locate the source

of plaintiffs’ public trust claims. I conclude

plaintiffs’ public trust rights both predated

the Constitution and are secured by it. See

Gerald Tones & Nathan Bellinger, The

Public Trust: The Law’s DNA, 4 Wake

Forest J. L. & Pol’y 281, 288–94 (2014).

The public trust doctrine defines inherent aspects of sovereignty. The Social Contract theory, which heavily influenced

Thomas Jefferson and other Founding Fathers, provides that people possess certain

inalienable lights and that governments

were established by consent of the governed for the purpose of securing those

rights.13 Accordingly, the Declaration of

13. The Founding Fathers were also influenced by intergenerational considerations.

They believed the inalienable rights to life,

liberty, and property were rooted in a philosophy of intergenerational equity. Thomas Jefferson, for example, thought that each generation had the obligation to pass the natural

estate undiminished to future generations. See

Br. of Amicus Curiae John Davidson at 21–25

(doc. 60). In a 1789 letter to James Madison,

Jefferson wrote that ‘‘no man can, by natural

right, oblige lands he occupied TTT to the

payments of debts contracted by him. For if

he could, he might, during his own life, eat up

the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to than the living,

which would be the reverse of our principle.

What is true of every member of the society

individually is true of them all collectively,

since the rights of the whole can be no more

than the sum of the rights of the individuals.’’

Letter from Thomas Jefferson to James Madison, Sept. 6, 1789, in The Founders’ Constitution (Philip B. Kurland & Ralph Lerner, eds.)

(1986), available at press-pubs.uchicago.edu/founders/documents/vlch2s23.html

(last visited Nov. 7, 2016). Although I find it

unnecessary today to address the standing of

future generations or the merits of plaintiffs’

argument that youth and posterity are suspect

classifications, I am mindful of the intergen37a

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Independence and the Constitution did not

create the rights to life, liberty, or the

pursuit of happiness—the documents are,

instead, vehicles for protecting and promoting those already-existing rights. Cf.

Robinson Twp., 83 A.3d at 948 (plurality

opinion) (rights expressed in the public

trust provision of Pennsylvania Constitution are ‘‘preserved rather than created’’

by that document); Minors Oposa, 33

I.L.M. at 187 (the right of future generations to a ‘‘balanced and healthful ecology’’

is so basic that it ‘‘need not even be written in the Constitution for [it is] assumed

to exist from the inception of humankind’’).

Governments, in turn, possess certain powers that permit them to safeguard the

rights of the people; these powers are

inherent in the authority to govern and

cannot be sold or bargained away. One

example is the police power. Stone, 101

U.S. at 817. Another is the status as trustee pursuant to the public trust doctrine.

Illinois Central, 146 U.S. at 459–60, 13

S.Ct. 110.

[66] Although the public trust predates

the Constitution, plaintiffs’ right of action

to enforce the government’s obligations as

trustee arises from the Constitution. I

agree with Judge Coffin that plaintiffs’

public trust claims are properly categorized as substantive due process claims. As

explained, the Due Process Clause’s substantive component safeguards fundamental rights that are ‘‘implicit in the concept

of ordered liberty’’ or ‘‘deeply rooted in

this Nation’s history and tradition,’’ McDonald, 561 U.S. at 761, 767, 130 S.Ct.

3020 (internal citations, quotations, and

emphasis omitted). Plaintiffs’ public trust

rights, related as they are to inherent aspects of sovereignty and the consent of the

governed from which the United States’

authority derives, satisfy both tests. Because the public trust is not enumerated in

the Constitution, substantive due process

protection also derives from the Ninth

Amendment. See U.S. Const. amend. IX

(‘‘The enumeration in the Constitution, of

certain rights, shall not be construed to

deny or disparage others retained by the

people.’’); Raich v. Gonzales, 500 F.3d 850,

861–66 (9th Cir. 2007) (considering whether the right to use medical marijuana was

a fundamental right safeguarded by the

Ninth Amendment and the Fifth Amendment’s substantive due process clause).

But it is the Fifth Amendment that provides the right of action.

Plaintiffs’ claims rest ‘‘directly on the

Due Process Clause of the Fifth Amendment.’’ Davis, 442 U.S. at 243, 99 S.Ct.

2264 (1979); see also Carlson v. Green, 446

U.S. 14, 18, 100 S.Ct. 1468, 64 L.Ed.2d 15

(1980) (‘‘[T]he victims of a constitutional

violation by a federal agent have a right to

recover damages against the official in federal court despite the absence of any statute conferring such a right.’’) They may,

therefore, be asserted in federal court.

CONCLUSION

Throughout their objections, defendants

and intervenors attempt to subject a lawsuit alleging constitutional injuries to case

law governing statutory and common-law

environmental claims. They are correct

that plaintiffs likely could not obtain the

relief they seek through citizen suits

brought under the Clean Air Act, the

Clean Water Act, or other environmental

laws. But that argument misses the point.

This action is of a different order than the

typical environmental case. It alleges that

defendants’ actions and inactions—whether or not they violate any specific statutory

duty—have so profoundly damaged our

home planet that they threaten plaintiffs’

fundamental constitutional rights to life

and liberty.

erational dimensions of the public trust doc- trine in issuing this opinion.

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A deep resistance to change runs

through defendants’ and intervenors’ arguments for dismissal: they contend a decision recognizing plaintiffs’ standing to sue,

deeming the controversy justiciable, and

recognizing a federal public trust and a

fundamental right to climate system capable of sustaining human life would be unprecedented, as though that alone requires

its dismissal. This lawsuit may be groundbreaking, but that fact does not alter the

legal standards governing the motions to

dismiss. Indeed, the seriousness of plaintiffs’ allegations underscores how vitally

important it is for this Court to apply

those standards carefully and correctly.

Federal courts too often have been cautious and overly deferential in the arena of

environmental law, and the world has suffered for it. As Judge Goodwin recently

wrote,

The current state of affairs TTT reveals a wholesale failure of the legal

system to protect humanity from the

collapse of finite natural resources by

the uncontrolled pursuit of short-term

profitsTTTT [T]he modern judiciary has

enfeebled itself to the point that law

enforcement can rarely be accomplished

by taking environmental predators to

courtTTTT

The third branch can, and should, take

another long and careful look at the

barriers to litigation created by modern

doctrines of subject-matter jurisdiction

and deference to the legislative and administrative branches of government.

Alfred T. Goodwin, A Wake–Up Call for

Judges, 2015 Wis. L. Rev. 785, 785–86, 788

(2015).

Judge Goodwin is no stranger to highly

politicized legal disputes. Nearly fifty

years ago, he authored the landmark opinion that secured Oregon’s ocean beaches

for public use. Private landowners wanted

to construct fences and otherwise keep

private the beaches in front of their properties; they brought suit to challenge an

Oregon state law requiring public access to

all dry sand beaches. State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671, 672–

73 (1969). Writing for five of the six members of the Oregon Supreme Court, thenJustice Goodwin rooted his determination

the beaches were public property in a concept from English common law:

Because so much of our law is the

product of legislation, we sometimes lose

sight of the importance of custom as a

source of law in our society. It seems

particularly appropriate in the case at

bar to look to an ancient and accepted

custom in this state as the source of a

rule of law. The rule in this case, based

upon custom, is salutary in confirming a

public right, and at the same time it

takes from no man anything which he

has a legitimate reason to regard as

exclusively his.14

Id. at 678.

In an argument with strong echoes in

defendants’ and intervenors’ objections

here, the plaintiff private property owner

contended it was ‘‘constitutionally impermissible TTT to dredge up an inapplicable,

ancient English doctrine that has been universally rejected in modern America.’’ Kathryn A. Straten, Oregon’s Beaches: A

Birthright Preserved 65 (Or. State Parks

& Recreation 1977). The Oregon Supreme

Court was not persuaded by this call to

judicial conservatism. Because of the application of an ancient doctrine, Oregon’s

14. The sixth justice concurred in the judgment. He found the English rule of custom

useful by analogy, but would have held the

beaches were public property pursuant to the

public trust doctrine. Hay, 462 P.2d at 679

(Denecke, J., concurring) (‘‘These rights of the

public in tidelands and in the beds of navigable streams have been called ‘jus publicum’

and we have consistently and recently reaffirmed their existence.’’).

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beaches remain open to the public now and

forever.

‘‘A strong and independent judiciary is

the cornerstone of our liberties.’’ These

words, spoken by Oregon Senator Mark O.

Hatfield, are etched into the walls of the

Portland United States courthouse for the

District of Oregon. The words appear on

the first floor, a daily reminder that it is

‘‘emphatically the province and duty of the

judicial department to say what the law

is.’’ Marbury, 5 U.S. at 177. Even when a

case implicates hotly contested political issues, the judiciary must not shrink from

its role as a coequal branch of government.

I ADOPT Judge Coffin’s Findings &

Recommendation (doc. 68), as elaborated

in this opinion, Defendants’ Motion to Dismiss (doc. 27) and Intervenors’ Motion to

Dismiss (doc. 19) are DENIED.

IT IS SO ORDERED.

ORDER and FINDINGS &

RECOMMENDATION

Coffin, Magistrate Judge:

The motions before the court are directed against a relatively unprecedented lawsuit that, in essence, seeks relief from

government action and inaction that allegedly results in carbon pollution of the atmosphere, climate destabilization, and

ocean acidification. The government action and inaction allegedly threatens catastrophic consequences which have already

began and will progressively worsen in the

near future.

Plaintiffs include a group of younger

individuals (aged 8–19) who assert concrete harm from excessive carbon emissions. Also among the plaintiffs are associations of activists who assert they are

beneficiaries of a federal public trust which

is being harmed by allegedly substantial

impairment and alienation of public trust

resources through ongoing actions to allow

fossil fuel exploitation. Finally, plaintiff

Dr. James Hansen participates as a guardian for plaintiff ‘‘future generations.’’

Plaintiffs are suing the United States

and various government officials and agencies because, they assert, the government

has known for decades that carbon dioxide

(CO2) pollution has been causing catastrophic climate change and has failed to

take necessary action to curtail fossil fuel

emissions. Moreover, plaintiffs allege that

the government and its agencies have taken action or failed to take action that has

resulted in increased carbon pollution

through fossil fuel extraction, production,

consumption, transportation, and exportation. Plaintiffs assert that a reduction of

global CO2 concentrations to less than 350

parts per million is possible, but action

must be taken immediately to prevent further ocean acidification and ocean warming. Plaintiffs allege the current actions

and omissions of defendants make it extremely difficult for plaintiffs to protect

their vital natural systems and a livable

world. Consequently, plaintiffs seek immediate action to restore energy balance

and implementation of a plan to put the

nation on a trajectory (that if adhered to

by other major emitters) will reduce atmospheric CO2 concentrations to no more

than 350 parts per million by 2100.

Plaintiffs assert the actions and omissions of defendants that increased CO2

emissions ‘‘shock the conscience,’’ and are

infringing the plaintiffs’ right to life and

liberty in violation of their substantive due

process rights. Plaintiffs also allege defendants have violated plaintiffs’ equal protection rights embedded in the Fifth

Amendment by denying them protections

afforded to previous generations and by

favoring short term economic interests of

certain citizens. Plaintiffs further allege

defendants’ acts and omissions violate the

implicit right, via the Ninth Amendment,

to a stable climate and an ocean and atmo40a

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sphere free from dangerous levels of CO2.

Finally, plaintiffs allege defendants have

violated a public trust doctrine, secured by

the Ninth Amendment, by denying future

generations essential natural resources.

Through this action, plaintiffs ask the

court to:

1. Declare that Defendants have violated and are violating Plaintiffs’ fundamental constitutional rights to life, liberty, and property by substantially

causing or contributing to a dangerous

concentration of CO2 in the atmosphere,

and that, in so doing, Defendants dangerously interfere with a stable climate

system required by our nation and

Plaintiffs alike;

2. Enjoin Defendants from further violations of the Constitution underlying

each claim for relief;

3. Declare the Energy Policy Act, Section 201, to be unconstitutional on its

face;

4. Declare DOE/FE Order No. 3041,

granting long-term multi-contract authorization to Jordan Cove Energy for

LNG exports from its Coos Bay terminal, to be unconstitutional as applied and

set it aside;

5. Declare Defendants’ public trust violations and enjoin Defendants from violating the public trust doctrine underlying each claim for relief;

6. Order Defendants to prepare a consumption-based inventory of U.S. CO2

emissions;

7. Order Defendants to prepare and

implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric

CO2 so as to stabilize the climate system

and protect the vital resources on which

Plaintiffs now and in the future will depend TTT

First Amended Complaint (# 7) at 94.

Plaintiffs also seek to have this court retain jurisdiction over this action to monitor

and enforce defendants’ compliance with a

national remedial plan and associated orders requiring the above.

In essence, plaintiffs assert a novel theory somewhere between a civil rights action

and NEPA/Clean Air Act/Clean Water Act

suit to force the government to take action

to reduce harmful pollution. Although,

plaintiffs, for the most part, do not challenge a specific agency action and urge the

court to order government-wide action for

the benefit of the earth and mankind, they

also seek ‘‘other relief as the Court deems

just and proper.’’ Id.

The court has previously granted the

National Association of Manufacturers

(NAM), American Fuel & Petrochemical

Manufacturers (AFPM), and American Petroleum Institute (API) motion to intervene in this action. These organizations

represent various entities in the coal, oil,

and gas industry, including businesses that

extract, refine, and use such energy

sources. The intervenors move to dismiss

the amended complaint. The government

similarly moves to dismiss all claims.1

Movants assert plaintiffs lack standing

to bring this suit, raise non-justiciable political questions, and they fail to state a

constitutional claim. In addition, the movants assert the public trust doctrine does

not provide a cognizable federal cause of

action.

A. Standing

Plaintiffs must demonstrate standing for

each claim they seek to press and for each

form of relief sought. DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct.

1854, 164 L.Ed.2d 589 (2006). At the

1. The government also moves to strike various exhibits to declarations and declarations

submitted by plaintiffs in opposition to the

motion to dismiss. This recommendation is

made without resort to these materials. Accordingly, the motion to strike is denied.

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pleading stage, general factual allegations

of injury resulting from the defendant’s

conduct may suffice. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561, 112 S.Ct.

2130, 119 L.Ed.2d 351 (1992). For Article

III standing, plaintiffs must satisfy three

‘‘irreducible constitutional minimum’’ requirements: (1) they suffered an injury in

fact that is concrete, particularized, and

actual or imminent; (2) the injury is fairly

traceable to the challenged conduct; and

(3) the injury is likely to be redressed by a

favorable court decision. Id. at 560–61,

112 S.Ct. 2130.

1. Concrete, Particularized, Imminent

Injury

Plaintiffs allege that climate change endangers humanity and nature and is a

consequence of human caused or influenced green house gases, primarily CO2,

derived from the combustion of fossil fuels.

First Amended Complaint (FAC)(# 7) at

¶ 202. Plaintiffs allege because CO2 persists in the atmosphere, future emissions

will lead to severe impacts on children and

future generations and the current level of

CO2 has already taken our country into the

‘‘danger zone.’’ Id. At 206–07. Plaintiffs

aver emissions must be rapidly and systematically reduced in order to avoid

crossing the tipping points that set in motion disastrous, irrevocable impacts to human civilization and nature. Id. At 208.

According to plaintiffs it will be nearly

impossible for them to adapt to all of the

current climate change impacts in the

quick time-frame in which they will occur

and that, therefore, ‘‘the survival and wellbeing of plaintiffs is significantly threatened by climate destabilization.’’ Id. at

¶ 208, ¶ 211. Plaintiffs further allege that

climate change is ‘‘already damaging human and natural systems, causing loss of

life and pressing species to extinction.’’

Id. at ¶ 213. Plaintiffs allege specifics regarding global changes that also lead to

local harm such as: disintegration of both

the West and East Antarctic ice sheets

with concomitant sea level rise damaging

coastal regions; changing rainfall and atmospheric conditions affecting water and

heat distribution causing severe storm

surges, floods, hurricanes, droughts, insect

infestation, reduced crop yields, increased

invasive vegetation, and fires; ocean acidification damaging sea life; increase in allergies, asthma, cancer, and other diseases;

and harm to national security causing destabilization in various regions of the world.

Id. at ¶¶ 213–241.

However, plaintiffs also assert injuries

that are personal in nature such as: jeopardy to family farms resulting from the

planned Jordan Cove gas line,2

 increased

temperatures, and wildfires (FAC at

¶¶ 31–34, 23–30); lost recreational opportunities (e.g., FAC at ¶¶ 28–29, 31–34);

and harm to family dwellings from superstorms (e.g., FAC at ¶ 71–72),3

 etc. See,

2. Following oral argument on the motions,

the Federal Energy Regulatory Commission

denied applications to locate the Jordan Cove

Energy Project in Coos Bay, Oregon and its

associated pipeline. The decision, balancing

the need of the project against adverse impacts on landowners and the environment

appears to be primarily based on a lack of

current market need from natural gas customers in Asia. The applicants, Veresen Inc.

and the Williams Partners, are free to reapply

in the future and the Commission will reconsider the planned pipeline if they can demonstrate a market need for liquified natural gas.

In addition, the applicants plan to file a request to rehear the decision. For purposes of

the motion to dismiss, the court takes as true

the allegations of an imminent threat from the

proposed project.

3. Plaintiff Victoria B’s allegations(in addition

to other plaintiffs) raise another issue not

addressed in the motions to dismiss regarding

this court’s jurisdiction to address harms arising outside of the district from action and

inaction by various government agencies that

often also arise outside of the District of Oregon. See, e.g., FAC at ¶ 72–73 (damage to

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Memorandum of Plaintiffs in Opposition to

Federal Defendants’ Motion to Dismiss

(# 41) at pp. 29–33. While the personal

harms are a consequence of the alleged

broader harms, noted above, that does not

discount the concrete harms already suffered by individual plaintiffs or likely to be

suffered by these plaintiffs in particular in

the future. See Federal Election Com’n v.

Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141

L.Ed.2d 10 (1998):

Often the fact that an interest is abstract and the fact that it is widely

shared go hand in hand. But their association is not invariable, and where a

harm is concrete, though widely shared,

the Court has found ‘‘injury in fact.’’

See Public Citizen [v. U.S. Dept. of Justice], 491 U.S. [at 440,] 449–50, 109 S.Ct.

at [2558,] 2564–2565[, 105 L.Ed.2d 377

(1989) ] (‘‘The fact that other citizens or

groups of citizens might make the same

complaint after unsuccessfully demanding disclosure TTT does not lessen [their]

asserted injury’’). Thus the fact that a

political forum may be more readily

available where an injury is widely

shared (while counseling against, say,

interpreting a statute as conferring

standing) 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.’’ This conclusion seems

particularly obvious where (to use a

hypothetical example) large numbers of

individuals suffer the same common-law

injury (say, a widespread mass tort), or

where large numbers of voters suffer

interference with voting rights conferred

by law. C.f. Lujan, supra, at 572, 112

S.Ct. at 2142–2143: Shaw v. Hunt, 517

U.S. 899, 905, 116 S.Ct. 1894, 1900–1901,

135 L.Ed.2d 207 (1996).

The court must accept the allegations as

true and those allegations plausibly allege

harm, though widespread, that is concrete.

[67] Of course, federal courts are not

forums in which to air generalized grievances about the conduct of government.

See Flast v. Cohen, 392 U.S. 83, 106, 88

S.Ct. 1942, 20 L.Ed.2d 947 (1968). The

constitutional limits on standing eliminate

claims in which a plaintiff has failed to

make out a case or controversy between

himself and the defendant. In order to

satisfy Art. III, a plaintiff must show that

he personally has suffered some actual or

threatened injury as a result of the putatively illegal conduct of the defendant.

Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98

S.Ct. 2620, 57 L.Ed.2d 595 (1978).

Even when a case falls within these

constitutional boundaries, a plaintiff may

still lack standing under the prudential

principles by which the judiciary seeks

to avoid deciding questions of broad social import where no individual rights

would be vindicated and to limit access

to the federal courts to those litigants

best suited to assert a particular claim.

For example, a litigant normally must

assert an injury that is peculiar to himself or to a distinct group of which he is

a part, rather than one ‘‘shared in substantially equal measure by all or a large

class of citizens.’’ Warth v. Seldin, 422

U.S. at 499, 95 S.Ct. at 2205. He also

must assert his own legal interests rather than those of third parties, [footnote

omitted] Ibid. Accord, Arlington Heights

v. Metropolitan Housing Dev. Corp., supra, 429 U.S. at 263, 97 S.Ct. at 561.

home and school in New York as a result of

superstorm Sandy). While such allegations

highlight the unwieldy nature of the case, the

allegations establish that CO2 emissions cross

geographic boundaries and cause harm within the district and outside the district from

many of the same sources regulated by the

defendants.

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Gladstone Realtors v. Village of Bellwood,

441 U.S. 91, 99–100, 99 S.Ct. 1601, 60

L.Ed.2d 66 (1979).

Given the allegations of direct or threatened direct harm, albeit shared by most of

the population or future population, the

court should be loath to decline standing to

persons suffering an alleged concrete injury of a constitutional magnitude. See U.S.

v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687, 93 S.Ct.

2405, 37 L.Ed.2d 254 (1973):

standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which

we relied in Sierra Club demonstrated

the patent fact that persons across the

Nation could be adversely affected by

major governmental actions. See, e.g.,

Environmental Defense Fund v. Hardin,

138 U.S.App.D.C. 391, 428 F.2d 1093,

1097 [ (D.C. Cir. 1970) ] (interests of

consumers affected by decision of Secretary of Agriculture refusing to suspend

registration of certain pesticides containing DDT); Reade v. Ewing, 205 F.2d

630, 631–632 [ (2d Cir. 1953) ] (interests

of consumers of oleomargarine in fair

labeling of product regulated by Federal

Security Administration). To deny

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.

We cannot accept that conclusion.

While the FAC identifies numerous climatic, meteorologic, and political harms

that the Earth and its inhabitants will

suffer as a result of the government’s action and failure to act with respect to CO2

emissions, the plaintiffs differentiate the

impacts by alleging greater harm to youth

and future generations.4

 At this stage of

the proceedings, the allegations, which

must be taken as true, establish action/inaction that injures plaintiffs in a concrete

and personal way.

The debate about climate change and its

impact has been before various political

bodies for some time now. Plaintiffs give

this debate justiciability by asserting

harms that befall or will befall them personally and to a greater extent than older

segments of society. It may be that eventually the alleged harms, assuming the correctness of plaintiffs’ analysis of the impacts of global climate change, will befall

all of us. But the intractability of the

debates before Congress and state legislatures and the alleged valuing of short term

economic interest despite the cost to human life, necessitates a need for the courts

to evaluate the constitutional parameters

of the action or inaction taken by the

government. This is especially true when

such harms have an alleged disparate impact on a discrete class of society.

To reiterate, at this stage of the proceedings the court must accept the allegations of concrete particularized harm or

imminent threat of such harm as true.

The question then becomes whether the

alleged harm is traceable to defendants’

conduct and whether the court can redress

such harm.

2. Causation

As noted above, there must be a causal

connection between the injury and the conduct of which plaintiffs complained. In

other words, the injury has to be 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. Simon v. Eastern Ky.

Welfare Rights Organization, 426 U.S. 26,

4. The plaintiffs essentially allege that the defendants have ‘‘discounted’’ emissions so as to

pass on more severe impacts to younger and

future generations to allow the present (and

older) generations to reap the economic benefits of higher carbon emissions.

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41–42, 96 S.Ct. 1917, 48 L.Ed.2d 450

(1976).

At the pleading stage, general factual

allegations of injury resulting from the

defendants’ conduct may suffice because

the court must presume that general allegations embrace those specific facts that

are necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555,

561, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992). The government asserts that the

association between the complained of

conduct (such as subsidizing the fossil fuel

industry, favorable revenue code provisions, allowing transport of fossil fuels,

and authorizing fossil fuel combustion in

the energy/refinery/transportation/manufacturing sectors) and the associated

greenhouse gas emissions that ultimately

cause the harm is tenuous and filled with

countless intervening actions by unidentified third parties. However, as alleged,

without the complained of conduct, the

third parties would not be able to engage

as extensively in the activities that allegedly cause climate change and the resulting harm.

To survive a motion to dismiss for lack

of constitutional standing, plaintiffs must

establish a line of causation between defendants’ action and their alleged harm

that is more than attenuated. Allen v.

Wright, 468 U.S. 737, 757, 104 S.Ct. 3315,

82 L.Ed.2d 556 (1984). A causal chain

does not fail simply because it has several

links, provided those links are not hypothetical or tenuous and remain plausible.

Nat’l Audubon Soc., Inc. v. Davis, 307 F.3d

835, 849 (9th Cir.2002). In cases where a

chain of causation involves numerous third

parties whose independent decisions collectively have a significant effect on plaintiffs’

injuries, the causal chain may be too weak

to support standing at the pleading stage.

See Allen, 468 U.S. at 759, 104 S.Ct. 3315.

But here, there is an alleged strong link

between all the supposedly independent

and numerous third party decisions given

the government’s regulation of CO2 emissions. See, e.g., 42 U.S.C. § 7409 (providing the EPA the authority to regulate

national ambient air quality standards for

the attainment and maintenance of the

public health); Massachusetts v. EPA, 549

U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248

(2007) (EPA has power to regulate greenhouse gas emissions). If the allegations in

the complaint are to be believed, the failure to regulate the emissions has resulted

in a danger of constitutional proportions to

the public health. Presumably, sweeping

regulations by this agency (the EPA) alone

could result in curtailing of major CO2

producing activities by not just the defendant agencies, but by the purported independent third parties as well.5

 At this

pleading stage, the court need not sort out

the necessity or propriety of all the various

agencies and individuals to participate as

defendants, at least with respect to issues

of standing. For now, it is sufficient that

EPA’s action/inaction with respect to the

regulation of greenhouse gases allegedly

results in the numerous instances of emissions that purportedly cause or will cause

the plaintiffs harm. Assuming lack of

EPA or other government action to reduce

emissions, the analysis turns to redressability.

5. The court is aware that there are administrative procedures to petition EPA to make

rules and that a denial of that decision is

reviewable by the courts. The plaintiffs have

apparently not sought such rulemaking to

limit CO2 emissions, but the court does have

jurisdiction to address alleged constitutional

violations by government agencies and to provide equitable relief. C.f. Reeves Brothers,

Inc. v. EPA, 956 F.Supp. 665 (W.D.Va.1995)

(CERCLA general prohibition against federal

court jurisdiction over challenges to remedial

actions did not bar constitutional challenges

to actions of EPA).

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3. Redressability of the Injury

At this stage of the proceedings, the

court’s job is not to determine whether

increased greenhouse gases have impacted

the climate and will have dire consequences for future generations. The issue

is whether the court can fashion a remedy

to address that alleged harm should plaintiffs prove it. Redressability does not require certainty, but it does require a substantial likelihood that the injury will be

redressed by a favorable judicial decision.

Wolfson v. Brammer, 616 F.3d 1045, 1056

(9th Cir.2010).

Assuming plaintiffs are correct that the

United States is responsible for about 25%

of the global CO2 emissions, the court cannot say, without the record being developed, that it is speculation to posit that a

court order to undertake regulation of

greenhouse gas emissions to protect the

public health will not effectively redress

the alleged resulting harm. The impact is

an issue for the experts to present to the

court after the case moves beyond the

pleading stage. And although this court

has no authority outside of its jurisdiction,

it is worth noting that a Dutch court, on

June 24, 2015, did order a reduction of

greenhouse gas emissions nationwide by at

least 25% by 2020. See Urgenda Foundation v. The State of The Netherlands, The

Hague District Court, Chamber for Commercial Affairs, Case No. C/09/456689/HA

ZA 13–1396 (June 24, 2015) (http://

deeplink.rechtspraak.n1/uitspraak?id=

ECLI:NL:RBDHA:2015:7196) (rejecting

arguments that a reduction of Netherlands’ emissions would be ineffectual in

light of other nations’ practices, observing

that ‘‘The state should not hide behind the

argument that the solution to the global

climate problem does not depend solely on

Dutch efforts. Any reduction of emissions

contributes to the prevention of dangerous

climate change and as a developed country

the Netherlands should take the lead in

this.’’). Thus, regulation by this country,

in combination with regulation already being undertaken by other countries, may

very well have sufficient impact to redress

the alleged harms. The effect may or may

not be scientifically indiscernible, but that

is an issue better resolved at summary

judgment or trial rather than on a motion

to dismiss. See Washington Environmental Council v. Bellon, 732 F.3d 1131, 1142–

43 (9th Cir.2013) (deciding at the summary

judgment stage that numerous greenhouse

gas sources inside and outside the U.S.

contribute to the effect and that the nexus

between the state’s refinery emissions and

localized impacts was too scientifically uncertain). Plaintiffs allege that expert evidence will show that the effect resulting

from a court order for the government to

take action to deter fossil fuel production

and regulate emissions will have a discernible impact on the alleged constitutional

harms likely to befall plaintiffs if the court

does nothing.

At this stage, the court will not dismiss

the premise that an order to regulate, per

EPA’s statutory authority to regulate CO2,

will result in that impact. The allegations

establish that, for instance, the EPA’s failure to regulate impacts the younger population within this district and it may very

well be that an order to act to protect the

public health as directed will address that

harm.6

 Given the complexities of the allegations and the need for expert opinion to

establish the harm associated with government action and the extent to which a

court order can limit that harm, the issue

may be better addressed at the summary

judgment stage.

In sum, for the above reasons, the court

should decline to dismiss the case for a

lack of standing.

6. Plaintiffs allege that ‘events, omissions, and

harms giving rise to the claims herein arise in

substantial part in this judicial district.‘ (FAC

at ¶ 15)

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B. Political Question

Closely related to the standing issue, is

the issue of non-justiciable political questions. As plaintiffs note, ‘‘Standing is just

the obverse of political question. If a litigant claims that an individual right has

been invaded, the lawsuit by definition

does not involve a political question.’’

Plaintiffs’ Memorandum in Opposition to

Intervenors’ Motion to Dismiss (# 56) at p.

16, n. 12 (citing Howard Fink & Mark

Tushnet, Federal Jurisdiction: Policy and

Practice 231 (2d ed.1987).

It is apparent that several formulations

which vary slightly according to the settings in which the questions arise may

describe a political question, although

each has one or more elements which

identify it as essentially a function of

the separation of powers. Prominent

on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate

political department; or a lack of judicially discoverable and manageable

standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for

nonjudicial discretion; or the impossibility of a court’s undertaking independent

resolution without expressing lack of

the respect due coordinate branches of

government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality

of embarrassment from multifarious

pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct.

691, 7 L.Ed.2d 663 (1962).

While on the surface this case appears

to implicate authority of the Congress,

courts can order agencies delegated that

authority (via Congress) to craft regulations, to engage in such process. Some

defendant agencies have undertaken regulation of greenhouse gases allegedly exercising their discretion to prioritize relatively cheap energy over deleterious impacts

to the environment. While courts cannot

intervene to assert ‘‘better’’ policy, see,

e.g., Massachusetts v. E.P.A., 549 U.S. at

533, 127 S.Ct. 1438 (once EPA has responded to a petition for rulemaking, its

reasons for action or inaction must conform to the authorizing statute), they can

address constitutional violations by government agencies and provide equitable

relief. C.f. Reeves Brothers, Inc. v. EPA,

956 F.Supp. 665 (W.D.Va. 1995) (CERCLA general prohibition against federal

court jurisdiction over challenges to remedial actions did not bar constitutional challenges to actions of EPA). The complaint

does raise issues of whether government

action/inaction violates the Constitution

and these are issues committed to the

courts rather than either of the political

branches.

As implied above, the amended complaint’s broad request for relief does implicate some unmanageable issues, but that

does not bar the case completely. As also

noted, at a minimum, the EPA is charged

with regulating greenhouse gas emissions

to protect the public health. While the

efficacy of any proposed regulations is perhaps beyond the expertise of the court, it

can evaluate the competing experts on either side of the issues and direct the EPA

to take a hard look at the best available

scientific evidence. The court need not

dictate any regulations, only direct the

EPA to adopt standards that prevent the

alleged constitutional harm to the youth

and future generation plaintiffs, should

plaintiffs prevail in demonstrating such is

possible.7

 Again, it is too early in the

7. Although not the route plaintiffs have ex- pressly chosen in the prayer for remedies,

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proceedings to determine whether the issue can be resolved without expressing

lack of respect due to the executive branch

in conducting its rule-making authority

delegated it by Congress. The motion to

dismiss, on this basis, should be denied at

this time.

Turning to the next issue, plaintiffs’

standing and the lack of political questions

require a valid constitutional claim.

C. Valid Constitutional Claim

Defendants argue that there is no constitutional right to be free from CO2 emissions, that the complaint fails to allege a

classification appropriate for an equal protection claim, that the Ninth Amendment

does not provide any substantive rights,

and that the plaintiffs have failed to allege

an otherwise complete lack of any rational

basis for the purported aggregate action/inaction taken by defendants. However, at this stage of the proceedings, defendants take an overly simplistic approach in

construing the constitutional claims raised

by plaintiffs. The complaint does not assert a right to be free from CO2 emissions.8

 Plaintiffs assert that the defendants’ action/inaction with respect to their

obligations regarding regulating environmental pollutants has violated their substantive due process rights and has done

so in favor of older generations.

The Fifth Amendment provides in part

that ‘‘no person shall TTT be deprived of

life, liberty, or property, without due process of law.’’ U.S. Const. amend. V.

[68] Courts must employ caution and

restraint when employing substantive due

process protections to government action.

See Moore v. City of East Cleveland, Ohio,

431 U.S. 494, 502, 97 S.Ct. 1932, 52

L.Ed.2d 531 (1977). However, courts must

not abandon substantive due process

rights either. Id. Accordingly, substantive

due process rights are limited by careful

respect for the teachings of history and

recognition of the basic values that underlie our society. Id. at 503, 97 S.Ct. 1932.

Therefore, only official conduct that

‘‘shocks the conscience’’ is cognizable as a

due process violation. Porter v. Osborn,

546 F.3d 1131, 1137 (9th Cir.2008).

Generally, the Due Process Clause limits

the government’s power to act, but does

not guarantee certain minimal levels of

safety and security. DeShaney v. Winnebago County Dept. of Social Services, 489

U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d

249 (1989). The language of the Due Process Clause does not impose an affirmative

obligation on the government to ensure

that those interests do not come to harm

through other means. Id. However, there

is an exception where government action

creates the danger. See L.W. v. Grubbs,

974 F.2d 119, 121–22 (9th Cir.1992). In

such cases, deliberate indifference may

suffice to establish a due process violation.

See L.W. v. Grubbs, 92 F.3d 894, 896 (9th

Cir.1996). Deliberate indifference requires creation of a dangerous situation

with actual knowledge or willful ignorance

of impending harm. Id. at 900. Plaintiffs

they have asked for ‘‘other relief [deemed]

just and proper’’ and, the court can compel

EPA to perform nondiscretionary acts or

duties. 42 U.S.C. § 7604(a)(2); see, e.g., Sierra Club v. Thomas, 828 F.2d 783, 787–92

(D.C.Cir.1987). The court’s authority in this

regard demonstrates that simply ordering an

agency to take action delegated it by Congress

in order to avoid constitutional harms does

implicate justiciability and negates a finding

that the issue is committed solely to another

branch of government.

8. Plaintiffs do, however, assert that future

generations are a suspect class. The court

should decline to create a new separate suspect class based on posterity. Nonetheless,

the complaint does allege discrimination

against a class of younger individuals with

respect to a fundamental right protected by

substantive due process.

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1272 217 FEDERAL SUPPLEMENT, 3d SERIES

allege that the defendants’ action in this

case has created a life-threatening situation and that defendants have willfully ignored long-standing and overwhelming scientific evidence of that impending harm to

the young and future generations.

The government argues that the complaint fails to allege a clear and present

danger of imminent harm, an overt government act that proximately causes the

dangerous situation, deliberate indifference on the part of the government to

plaintiffs’ safety, or subsequent physical

harm or loss of life. For purposes of a

motion to dismiss, plaintiffs need only

plead government action, or failure to act

where it has a duty to do so, which creates

a threat of imminent harm, and the government’s deliberate indifference to that

threat of harm.

In this case, the government has allegedly taken action through subsidies, regulations, etc. that creates massive CO2

emissions, and has failed to limit such

emissions despite a duty to do so. Plaintiffs further allege they are prevented any

means of escape from the resulting climate

that threatens their property, health, and

even existence. As noted above, the EPA

has a duty to regulate CO2 emissions for

the benefit of the public health and plaintiffs allege a deliberate indifference to the

purported catastrophic risk to their health

and well-being. Whether such action, or

inaction in the face of a duty to act, shocks

the conscience cannot be determined on a

motion to dismiss, which is focused solely

on the plaintiffs’ complaint and is bereft of

any evidentiary record.9

 Accordingly, the

court should decline to dismiss the complaint for failure to allege a substantive

due process claim.

D. Public Trust Doctrine

Similarly, the court should decline to

dismiss any notions in the amended complaint that the Due Process Clause also

provides a substantive right under the

public trust doctrine. As noted above, the

Due Process Clause specially protects

those fundamental rights and liberties

which are, objectively, ‘‘deeply rooted in

this Nation’s history and tradition,’’ Moore,

431 U.S. at 503, 97 S.Ct. 1932; Snyder v.

Massachusetts, 291 U.S. 97, 105, 54 S.Ct.

330, 78 L.Ed. 674 (1934) (‘‘so rooted in the

traditions and conscience of our people as

to be ranked as fundamental’’), and ‘‘implicit in the concept of ordered liberty,’’

such that ‘‘neither liberty nor justice would

exist if they were sacrificed,’’ Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct.

149, 82 L.Ed. 288 (1937).

Defendants argue that the Supreme

Court and the Ninth Circuit have already

foreclosed on the possibility of an independent cause of action under the doctrine

against the federal government by a private individual. See PPL Montana, LLC

v. Montana, 565 U.S. 576, 132 S.Ct. 1215,

1235, 182 L.Ed.2d 77 (2012) (the public

trust doctrine remains a matter of state

law); U.S. v. 32.42 Acres of Land. More or

Less. Located in San Diego County, Cal.,

683 F.3d 1030, 1038 (9th Cir.2012) (While

the equal-footing doctrine is grounded in

the Constitution, ‘‘the public trust doctrine

remains a matter of state law’’).

However, the cases cited by defendants

are distinguishable. In PPL Montana.

LLC, the Supreme Court essentially held

that the State of Montana did not hold title

to riverbeds under segments of river that

were non-navigable at the time of statehood. Under the equal footing doctrine,

9. For example, discovery may produce evidence regarding when defendants and intervenors were aware of the harmful effects of

CO2 emissions and whether the public was

purposely misled about those effects, which

evidence would be relevant to the ‘‘shocks the

conscience’’ standard.

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JULIANA v. U.S. 1273

Cite as 217 F.Supp.3d 1224 (D.Or. 2016)

which is embedded in the Constitution, a

State takes title to all riverbeds of navigable rivers upon statehood. In response to

the State of Montana’s argument that ‘‘denying the State title to the riverbeds here

in dispute will undermine the public trust

doctrine,’’ the Court observed:

While equal-footing cases have noted

that the State takes title to the navigable waters and their beds in trust for the

public, see Shively, 152 U.S. at 49, 15–

17, 24, 46, 14 S.Ct. 548, the contours of

that public trust do not depend upon the

Constitution. Under accepted principles

of federalism, the States retain residual

power to determine the scope of the

public trust over waters within their

borders, while federal law determines

riverbed title under the equal-footing

doctrine.

PPL Montana, LLC, 132 S.Ct. at 1235.

In other words, Montana’s argument essentially was an attempt to conflate the

equal footing doctrine with the public trust

doctrine resulting in the State having title

to even non-navigable riverbeds pursuant

to the latter doctrine. The Court merely

rejected this contention as ‘‘apples and

oranges,’’ pointing out that the equal footing doctrine requires that a State take title

to riverbeds of navigable rivers upon

statehood, and that thereafter state law

determines the scope of the public trust

over such waters. The question whether

the United States has public trust obligations for waters over which it alone has

sovereignty (e.g., the territorial seas of its

coastline) was simply not presented to or

decided by the Court in PPL Montana,

LLC.

The seminal case for the public trust

doctrine is Illinois Cent. R. Co. v. State of

Illinois, 146 U.S. 387, 13 S.Ct. 110, 36

L.Ed. 1018 (1892) which likewise implicated an equal footing question and in which

the Court noted:

That the state holds the title to the

lands under the navigable waters of

Lake Michigan, within its limits, in the

same manner that the state holds title to

soils under tide water, by the common

law, we have already shown; and that

title necessarily carries with it control

over the waters above them, whenever

the lands are subjected to use. But it is

a title different in character from that

which the state holds in lands intended

for sale. It is different from the title

which the United States hold in the public lands which are open to pre-emption

and sale. It is a title held in trust for

the people of the state, that they may

enjoy the navigation of the waters, carry

on commerce over them, and have liberty of fishing therein, freed from the

obstruction or interference of private

parties.

Id. at 452, 13 S.Ct. 110.

Once the State obtains sovereignty over

navigable riverbeds, the United States has

ceded all its title and thus the public trust

doctrine governing the State’s disposition

of such lands ‘‘remains a matter of state

law.’’ PPL Montana, LLC, 132 S.Ct. at

1235.

Likewise, in U.S. v. 32.42 Acres of Land,

More or Less, Located in San Diego County, Cal., the Ninth Circuit dealt with a case

wherein the federal government exercised

its powers of eminent domain to acquire

San Diego Port District tidelands (for use

by the United States Navy) which had

been transferred to the State of California

under the equal footing doctrine in 1850

when California was admitted to the Union. In response to the California Lands

Commission argument that the public trust

doctrine restricted the ability of both federal and State governments to alienate

public trust lands free of the public trust,

the Ninth Circuit held:

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1274 217 FEDERAL SUPPLEMENT, 3d SERIES

While the equal-footing doctrine is

grounded in the Constitution, ‘‘the public

trust doctrine remains a matter of state

law,’’ the contours of which are determined by the states, not by the United

States Constitution. PPL Montana, 565

U.S. 576, 132 S.Ct. 1215 at 1235, 182

L.Ed.2d 77. Holding that California’s

public trust interest in the Property survives the federal government’s attempt

to condemn it would subjugate the federal government’s eminent domain power to California’s state law public trust

doctrine. See [U.S. v. ]Carmack, 329

U.S. at[230, ]240–42, 67 S.Ct. 252[, 91

L.Ed. 209 (1946) ]; United States v.

11.037 Acres of Land, 685 F.Supp. 214,

217 (N.D.Cal.1988) (holding that California’s public trust is extinguished by

United States’ declaration of taking because state law public trust is trumped

by federal power). The Supremacy

Clause prevents this outcome. U.S.

Const., art. VI, cl. 2.

U.S. v. 32.42 Acres of Land, More or Less,

Located in San Diego County, Cal., 683

F.3d at 1038.

I also note that in the 32.42 Acres case

the district court had specifically found,

over the government’s objection, that a

portion of the land acquired by the United

States within the tidelands (4.88 acres) was

acquired subject to its own federal trust.

See Order dated April 28, 2006(# 24) at p.

11 in United States v. 32.42 Acres of Land,

Case No. 05–cv–1137–DMS, (S.D.Cal. April

28, 2006) (emphases added). The government did not cross-appeal this part of the

district court’s order and it was not disturbed or addressed by the Ninth Circuit.

This case is different in that it does not

at all implicate the equal footing doctrine

or public trust obligations of the State of

Oregon. The public trust doctrine invoked

instead is directed against the United

States and its unique sovereign interests

over the territorial ocean waters and atmosphere of the nation.

The doctrine is deeply rooted in our

nation’s history and indeed predates it.

See, e.g., Shively v. Bowlby, 152 U.S. 1, 14

S.Ct. 548, 38 L.Ed. 331 (1894) (recounting

the American history of the doctrine). As

observed in Shively :

At common law, the title and the dominion in lands flowed by the tide were

in the king for the benefit of the nation.

Upon the settlement of the colonies, like

rights passed to the grantees in the

royal charters, in trust for the communities to be established. Upon the American Revolution, these rights, charged

with a like trust, were vested in the

original states within their respective

borders, subject to the rights surrendered by the constitution to the United

States.

Upon the acquisition of a territory by

the United States, whether by cession

from one of the states, or by treaty with

a foreign country, or by discovery and

settlement, the same title and dominion

passed to the United States, for the

benefit of the whole people, and in trust

for the several states to be ultimately

created out of the territory.

The new states admitted into the Union since the adoption of the constitution

have the same rights as the original

states in the tide waters, and in the

lands under them, within their respective jurisdictions. The title and rights

of riparian or littoral proprietors in the

soil below high-water mark, therefore,

are governed by the laws of the several

states, subject to the rights granted to

the United States by the Constitution.

Id. at 57–58, 14 S.Ct. 548.

While the scope of the public trust doctrine may only reach the low water mark

on the regions of the sea and great lakes,

the water over those lands, and the waters

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JULIANA v. U.S. 1275

Cite as 217 F.Supp.3d 1224 (D.Or. 2016)

and streams of any consequence, see, e.g.,

The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L.Rev. 471, 556 (1970), the

complaint touches upon protected areas

(territorial ocean waters at a minimum)

impacted by the government’s alleged conduct and harm to many plaintiffs given the

alleged sea level rise, ocean acidification,

and atmosphere change.

What emerges from an analysis of the

public trust doctrine is that it is rare to

find instances where the United States

retains vestiges of trust obligations once

territories become states and title vests in

the newly formed state pursuant to the

equal footing doctrine of the Constitution.

Some guidance is found, however, in those

cases wherein the United States has reacquired tidelands through eminent domain from the State. One such case is

United States v. 32.42 Acres of Land, supra. Another is City of Alameda v. Todd

Shipyards Corp., 635 F.Supp. 1447

(N.D.Cal.1986), wherein the court squarely

held that ‘‘The United States may not abdicate the role of trustee for the public

when it acquires land by condemnation.’’

Id. at 1450. See also United States v. 1.58

Acres of Land Situated in City of Boston,

Suffolk County, Com. of Mass., 523

F.Supp. 120, 124–25 (D.Mass.1981):

we hold that the federal government

may take property below the low water

mark in ‘‘full fee simple’’ insofar as no

other principal may hold a greater right

to such land. It must be recognized,

however, that the federal government is

as restricted as the Commonwealth in

its ability to abdicate to private individuals its sovereign jus publicum in the

land. So restricted, neither the Commonwealth’s nor the federal government’s trust responsibilities are destroyed by virtue of this taking, since

neither government has the power to

destroy the trust or to destroy the other

sovereign.

The court’s intervention in this area may

seemingly touch upon powers committed

to Congress under Article IV, § 3, C1. 2

(Congress shall have the power to dispose

and make all needful rules and regulations

respecting the territory and other property of the United States). In addition, it is

not for the courts to say how the trust in

resources and the territory shall be administered, that is for Congress to determine.

State of Alabama v. State of Texas, 347

U.S. 272, 273, 74 S.Ct. 481, 98 L.Ed. 689

(1954) (citing United States v. California,

332 U.S. 19, 27, 67 S.Ct. 1658, 91 L.Ed.

1889 (1947) (‘‘the constitutional power of

Congress under Article IV, § 3, C1. 2 is

without limitation.’’). However, even defendant Department of the Interior has

recognized limits on government control

over the territorial sea. See United States

Department of Justice, Office of Legal

Counsel, Memorandum Opinion for the Solicitor Department of the Interior, Administration of Coral Reef Resources in the

Northwest Hawaiian Islands, 2000 WL

34475732 at *7 (September 15, 2000) (the

public trust doctrine, which the Court did

not address in Alabama, might limit in

some ways the extent of the Government’s

control over the territorial sea). The Department further noted that doctrine does

grant the government power to exercise

dominion over that area to protect it and

its resources for public enjoyment and noted the government’s role as public trustee.

Id. And, as noted above, courts have noted

and restricted the federal government’s

actions with respect to tidelands based on

the federal public trust. United States v.

32.42 Acres of Land, Case No. 05–cv–

1137–DMS, supra ; City of Alameda v.

Todd Shipyards Corp., 635 F.Supp. 1447,

supra.

At the hearing on defendants and intervenors’ motions to dismiss, the court their

queried counsel whether, hypothetically,

Congress could alienate the territorial wa52a

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1276 217 FEDERAL SUPPLEMENT, 3d SERIES

ters of the United States off the West

Coast to a private corporation, or whether

that would implicate a public trust issue

under the Constitution. Both parties suggested Congress could cede the territorial

waters to a private corporation, and that

PPL Montana, LLC, forecloses any argument that the public trust doctrine applies

to the federal government.

As explained above, I cannot read PPL

Montana, LLC, given the context of the

argument being addressed by the Courts

to have such a sweeping and profound

effect.10 Nor can I imagine that our coastal sea waters could possibly be privatized

without implicating principles that reflect

core values of our Constitution and the

very essence of the purpose of our nation’s

government.

When combined with the EPA’s duty to

protect the public health from airborne

pollutants and the government’s public

trust duties deeply ingrained in this country’s history, the allegations in the complaint state, for purposes of a motion to

dismiss, a substantive due process claim.

At this stage of the proceedings, the court

cannot say that the public trust doctrine

does not provide at least some substantive

due process protections for some plaintiffs

within the navigable water areas of Oregon. Accordingly, the court should not

dismiss any claims under the public trust

doctrine to that extent.

The nascent nature of these proceedings

dictate further development of the record

before the court can adjudicate whether

any claims or parties should not survive

for trial. Accordingly, the court should

deny the motions to dismiss.

CONCLUSION

For the reasons stated above, the intervenors’ motion to dismiss (# 19) and the

government’s motion to dismiss (# 27)

should be denied. The government’s motion to strike (# 58) is denied.

This recommendation is not an order

that is immediately appealable to the

Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1),

Federal Rules of Appellate Procedure,

should not be filed until entry of the district court’s judgment or appealable order.

The parties shall have fourteen (14) days

from the date of service of a copy of this

recommendation within which to file specific written objections with the court.

Thereafter, the parties shall have fourteen

(14) days within which to file a response to

the objections. Failure to timely file objections to any factual determination of the

Magistrate Judge will be considered as a

waiver of a party’s right to de novo consideration of the factual issues and will constitute a waiver of a party’s right to appellate

review of the findings of fact in an order or

judgment entered pursuant to this recommendation.

,

10. In Shively, which the Court cited in its

PPL Montana, LLC decision, expressly held

that ‘‘[u]pon the acquisition of a territory by

the United States, whether by cession from

one of the states, or by treaty with a foreign

country, or by discovery and settlement, the

same title and dominion passed to the United

States, for the benefit of the whole people,

and in trust for the several states to be ultimately created out of the territory. Shively,

152 U.S. at 57, 14 S.Ct. 548. Thus, a federal

public trust doctrine was recognized in Shively, and PPL Montana. LLC did not overrule

this precedent.

53a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 95 of 111
LAB/MOATT 

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: UNITED STATES OF AMERICA; et 

al.

______________________________ 

UNITED STATES OF AMERICA; et al., 

Petitioners, 

 v. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON, 

EUGENE, 

Respondent, 

KELSEY CASCADIA ROSE JULIANA; et 

al., 

Real Parties in Interest.

No. 17-71692 

D.C. No. 

6:15-cv-01517-TC-AA 

District of Oregon, 

Eugene 

ORDER

Before: GOODWIN, KOZINSKI, and BERZON, Circuit Judges.

The Court stays district court proceedings, temporarily, pending further 

order from this court. See Ninth Circuit Gen. Ord. 6.8(a).

The petition for a writ of mandamus and all other pending motions will be 

addressed by separate order.

FILED

JUL 25 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 Case: 17-71692, 07/25/2017, ID: 10521149, DktEntry: 7, Page 1 of 1

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830 884 FEDERAL REPORTER, 3d SERIES

by the post-appeal restitution proceedings.’’ Because we reverse the district

court’s restitution award to PSM, the district court’s rationale for denying Defendants’ motion to retax is undermined, at

least in part. Accordingly, we vacate the

district court’s denial and remand for further consideration in light of today’s opinion.

III.

For the reasons set forth above:

1. In No. 15-55026 & 15-55087, we reverse the district court’s December 17,

2014, order with respect to the order’s

award of $1.1 million in restitution to

PSM.9

 We dismiss as moot PSM’s appeal

of the district court’s denial of prejudgment interest. We affirm the December 17

order in all other respects, including as to

the issue of QSA rescission.

2. In No. 15-55941, we reverse the district court’s May 19, 2015, order awarding

attorneys’ fees to Defendants. In No. 15-

55943, Defendants’ appeal of the district

court’s reduction of the lodestar fee

amount is dismissed as moot.

3. In No. 15-56184, because we reverse

PSM’s restitution award, we vacate the

district court’s July 14, 2015, order denying Defendants’ motion to retax costs and

remand for reconsideration in light of the

changed circumstances.

4. In each of these five appeals, each

party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in

part, VACATED and REMANDED in

part, and DISMISSED in part.

,

IN RE UNITED STATES of America,

United States of America; Christy Goldfuss, in her official capacity as Director of the Council on Environmental Quality; Mick Mulvaney, in his

official capacity as Director of the

Office of Management and Budget;

John Holdren, Dr., in his official capacity as Director of the Office of

Science and Technology Policy; Rick

Perry, in his official capacity as Secretary of Energy; U.S. Department of

the Interior; Ryan Zinke, in his official capacity as Secretary of Interior;

U.S. Department of Transportation;

Elaine Chao, in her official capacity

as Secretary of Transportation; U.S.

Department of Agriculture; Sonny

Perdue, in his official capacity as Secretary of Agriculture; U.S. Department of Commerce; Wilbur Ross, in

his official capacity as Secretary of

Commerce; U.S. Department of Defense; Jim Mattis, in his official capacity as Secretary of Defense; U.S.

Department of State; Office of the

President of the United States; U.S.

Environmental Protection Agency;

U.S. Department of Energy; Donald J.

Trump, in his official capacity as

President of the United States; The

National Association of Manufacturers; American Fuel & Petrochemical

Manufacturers; American Petroleum

Institute, Petitioners,

v.

United States District Court for the

District of Oregon, Eugene,

Respondent,

9. We recognize that, in awarding PSM a

$700,000 offset, the district court also required PSM to return the account receivable

to BAIC. This $700,000 formed a part of the

award to PSM that we now reverse, and so

we also reverse that aspect of the district

court’s order that required PSM to return the

receivable to BAIC.

55a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 97 of 111
IN RE U.S. 831

Cite as 884 F.3d 830 (9th Cir. 2018)

Kelsey Cascadia Rose Juliana; Xiuhtezcatl Tonatiuh M., through his

Guardian Tamara Roske–Martinez;

Alexander Loznak; Jacob Lebel; Zealand B., through his Guardian Kimberly Pash-Bell; Avery M., through

her Guardian Holly McRae; Sahara

V., through her Guardian Toa Aguilar; Kiran Isaac Oommen; Tia Marie

Hatton; Isaac V., through his Guardian Pamela Vergun; Miko V., through

her Guardian Pamela Vergun; Hazel

V., through her Guardian Margo Van

Ummersen; Sophie K., through her

Guardian Dr. James Hansen; Jaime

B., through her Guardian Jamescita

Peshlakai; Journey Z., through his

Guardian Erika Schneider; Victoria

B., through her Guardian Daisy Calderon; Nathaniel B., through his

Guardian Sharon Baring; Aji P.,

through his Guardian Helaina Piper;

Levi D., through his Guardian LeighAnn Draheim; Jayden F., through her

Guardian Cherri Foytlin; Nicholas V.,

through his Guardian Marie Venner;

Earth Guardians, a nonprofit organization; Future Generations, through

their Guardian Dr. James Hansen,

Real Parties in Interest.

No. 17-71692

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted December 11,

2017 San Francisco, California

Filed March 7, 2018

Background: Environmental activists

who were too young to vote, and purported

guardian for future generations, brought

action for declaratory and injunctive relief

against United States, President, and various Executive Branch officials and agencies, alleging that greenhouse gas emissions from carbon dioxide, produced by

burning fossil fuels, were destabilizing climate system, and asserting violations of

substantive due process and defendants’

obligation to hold natural resources in public trust. Industry associations intervened.

After the United States District Court for

the District of Oregon, No. 6:15-cv-01517-

TC-AA, Ann L. Aiken, J., 217 F.Supp.3d

1224, denied defendants’ and intervenors’

motions to dismiss, government defendants

filed petition for writ of mandamus requiring district court to dismiss case.

Holding: The Court of Appeals, Thomas,

Chief Judge, held that mandamus relief

requiring district court to dismiss action

was not warranted.

Petition denied.

1. Mandamus O1, 26, 28

Writ of mandamus is drastic and extraordinary remedy reserved for really extraordinary causes, and only exceptional

circumstances amounting to judicial usurpation of power or clear abuse of discretion will justify invocation of this extraordinary remedy.

2. Mandamus O1

In considering whether to grant writ

of mandamus requiring district court to

take action, court should consider: (1)

whether petitioner has no other means,

such as direct appeal, to obtain desired

relief; (2) whether petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether district court’s

order is clearly erroneous as matter of

law; (4) whether district court’s order is oft

repeated error or manifests persistent disregard of federal rules; and (5) whether

district court’s order raises new and important problems or issues of first impression.

3. Mandamus O3(11), 11, 32

Federal agencies and officials were

not entitled to mandamus relief requiring

56a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 98 of 111
832 884 FEDERAL REPORTER, 3d SERIES

district court to dismiss action alleging

that government policies enabling carbon

dioxide emissions from burning of fossil

fuels contributed to climate change, in violation of plaintiffs’ constitutional rights, despite government’s contention that mandamus was only means of obtaining relief

from potentially burdensome discovery

and of avoiding violation of separation of

powers, where district court had not issued

any discovery orders, plaintiffs had not

filed any motions to compel discovery, any

merits errors were correctable through ordinary course of litigation, there was no

controlling authority on theories asserted

by plaintiffs, and there was no oft-repeated

error in case.

4. Mandamus O4(1)

Writ of mandamus may not be used as

substitute for appeal even though hardship

may result from delay and perhaps unnecessary trial.

5. Mandamus O3(11), 32

Mandamus relief to avoid burdensome

or improper discovery is inappropriate

where party has never sought relief before

district court to resolve discovery dispute.

6. Mandamus O4(1)

For mandamus petitioner to show that

it will be damaged or prejudiced in any

way not correctable on appeal, it must

demonstrate some burden other than mere

cost and delay that are regrettable, yet

normal, features of legal system.

7. Mandamus O4(1)

Prejudice serious enough to warrant

mandamus relief includes situations in

which one’s claim will obviously be moot by

time appeal is possible, or in which one will

not have ability to appeal.

8. Mandamus O1

Absence of controlling precedent

weighs strongly against finding of clear

error for mandamus purposes.

Appeal from the United States District

Court for the District of Oregon, Ann L.

Aiken, District Judge, Presiding, D.C. No.

6:15-cv-01517-TC-AA

Eric Grant (argued), Deputy Assistant

Attorney General; Andrew C. Mergen,

David C. Shilton, and Robert J. Lundman,

Appellate Section; Jeffrey H. Wood, Acting

Assistant Attorney General; Environment

& Natural Resources Division, United

States Department of Justice, Washington,

D.C.; for Petitioners.

Julia Ann Olson (argued), Wild Earth

Advocates, Eugene, Oregon; Philip L.

Gregory, Cotchett Pitre & McCarthy LLP,

Burlingame, California; for Real Parties in

Interest.

William John Snape III and David

Hunter, American University, Washington

College of Law, Washington, D.C., for Amici Curiae Center for International Environmental Law and Environmental Law

Alliance Worldwide—US.

David Bookbinder, Niskanen Center,

Washington, D.C., for Amicus Curiae Niskanen Center.

Courtney B. Johnson, Crag Law Center,

Portland, Oregon, for Amici Curiae

League of Women Voters of the United

States and League of Women Voters of

Oregon.

Sarah H. Burt, Earthjustice, San Francisco, California; Patti Goldman, Earthjustice, Seattle, Washington; for Amicus Curiae EarthRights International, Center for

Biological Diversity, Defenders of Wildlife,

and Union of Concerned Scientists.

James R. May and Erin Daly, Dignity

Rights Project, Widener University, Delaware Law School, Wilmington, Delaware;

Rachael Paschal Osborn, Vashon, Washington; for Amici Curiae Law Professors.

57a

Case 6:15-cv-01517-TC Document 321-1 Filed 07/17/18 Page 99 of 111
IN RE U.S. 833

Cite as 884 F.3d 830 (9th Cir. 2018)

Joanne Spalding, Sierra Club, Oakland,

California; Alejandra Nunez and Andres  ̃

Restrepo, Sierra Club, Washington, D.C.;

for Amicus Curiae Sierra Club.

Charles M. Tebbutt, Law Offices of

Charles M. Tebbutt P.C., Eugene, Oregon,

for Amici Curiae Global Catholic Climate

Movement; Leadership Conference of

Women Religious; Interfaith Power and

Light; The Sisters of Mercy of the Americas’ Institute Leadership Team; Sisters of

Mercy Northeast Leadership Team; Interfaith Moral Action on Climate; Franciscan

Action Network; The National Religious

Coalition for Creation Care and Interfaith

Oceans; The Faith Alliance for Climate

Solutions; Eco-Justice Ministries; San

Francisco Zen Center; The Shalom Center; GreenFaith; The Office of Apostolic

Action & Advocacy; Christian life Community-USA; and Quaker Earthcare Witness.

Zachary B. Corrigan, Food & Water

Watch Inc., Washington, D.C., for Amici

Curiae Food & Water Watch Inc., Friends

of the Earth—US, and Greenpeace Inc.

Before: Sidney R. Thomas, Chief Judge,

and Marsha S. Berzon and Michelle T.

Friedland, Circuit Judges.*

OPINION

THOMAS, Chief Judge:

In this petition for a writ of mandamus,

the defendants ask us to direct the district

court to dismiss a case seeking various

environmental remedies. The defendants

argue that allowing the case to proceed

will result in burdensome discovery obligations on the federal government that will

threaten the separation of powers. We

have jurisdiction over this petition pursuant to the All Writs Act, 28 U.S.C. § 1651.

Because the defendants have not met the

high bar for mandamus relief, we deny the

petition.

I

Twenty-one young plaintiffs brought suit

against the United States, the President,

and various Executive Branch officials and

agencies, alleging that the defendants have

contributed to climate change in violation

of the plaintiffs’ constitutional rights. They

allege that the defendants have known for

decades that carbon dioxide emissions

from the burning of fossil fuels destabilize

the climate. The plaintiffs aver that the

defendants have nevertheless enabled and

continue to enable, through various government policies, the burning of fossil fuels, allowing atmospheric carbon dioxide

concentrations to reach historically unprecedented levels. They allege that climate

change is injuring them and will continue

to injure them. The plaintiffs claim that, in

light of these facts, the defendants have

violated their constitutional rights.

The defendants moved to dismiss the

suit for lack of jurisdiction and for failure

to state a claim. The district court denied

the motion. The court held that the plaintiffs plausibly alleged that they have Article III standing, did not raise non-justiciable political questions, and asserted

plausible claims under the Due Process

Clause of the Fifth Amendment.

The defendants moved the district court

to stay the litigation and to certify its

order for interlocutory appeal pursuant to

28 U.S.C. § 1292(b). The district court denied the motions. Anticipating burdensome

discovery, the defendants petitioned this

Court for a writ of mandamus and requested a stay of the litigation. In their petition,

* Following the retirement of Judge Kozinski,

Judge Friedland was randomly drawn to replace him on the panel. She has read the

briefs, reviewed the record, and watched a

video recording of the oral argument held on

December 11, 2017.

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834 884 FEDERAL REPORTER, 3d SERIES

the defendants ask that we direct the district court to dismiss the case. We granted

the request for a stay and now consider

the petition.

II

[1, 2] ‘‘The writ of mandamus is a drastic and extraordinary remedy reserved for

really extraordinary causes.’’ In re Van

Dusen, 654 F.3d 838, 840 (9th Cir. 2011)

(quoting Ex parte Fahey, 332 U.S. 258,

259–60, 67 S.Ct. 1558, 91 L.Ed. 2041

(1947) ) (internal quotation marks omitted).

‘‘[O]nly exceptional circumstances amounting to a judicial usurpation of power or a

clear abuse of discretion will justify the

invocation of this extraordinary remedy.’’

Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380,

124 S.Ct. 2576, 159 L.Ed.2d 459 (2004)

(internal quotation marks and citations

omitted). In considering whether to grant

a writ of mandamus, we are guided by the

five factors identified in Bauman v. U.S.

Dist. Ct., 557 F.2d 650 (9th Cir. 1977):

(1) whether the petitioner has no other

means, such as a direct appeal, to

obtain the desired relief;

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

correctable on appeal;

(3) whether the district court’s order is

clearly erroneous as a matter of law;

(4) whether the district court’s order is

an oft repeated error or manifests a

persistent disregard of the federal

rules; and

(5) whether the district court’s order

raises new and important problems

or issues of first impression.

Perry v. Schwarzenegger, 591 F.3d 1147,

1156 (9th Cir. 2010) (citing Bauman, 557

F.2d at 654–55). ‘‘All factors are not relevant in every case and the factors may

point in different directions in any one

case.’’ Christensen v. U.S. Dist. Ct., 844

F.2d 694, 697 (9th Cir. 1988).

III

[3] The defendants do not satisfy the

Bauman factors at this stage of the litigation. The issues that the defendants raise

on mandamus are better addressed

through the ordinary course of litigation.

We therefore decline to exercise our discretion to grant mandamus relief. See San

Jose Mercury News, Inc. v. U.S. Dist. Ct.,

187 F.3d 1096, 1099 (9th Cir. 1999) (‘‘Mandamus review is at bottom discretionary—

even where [all] the Bauman factors are

satisfied, the court may deny the petition.’’).

A

[4] The first Bauman factor is whether the petitioner will ‘‘ha[ve] no other

means TTT to obtain the desired relief.’’

Perry, 591 F.3d at 1156. This factor ensures that a writ of mandamus will not ‘‘be

used as a substitute for appeal even

though hardship may result from delay

and perhaps unnecessary trial.’’ Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct.

234, 13 L.Ed.2d 152 (1964) (internal citation omitted). Here, the defendants argue

that mandamus is their only means of obtaining relief from potentially burdensome

discovery.

The defendants’ argument fails because

the district court has not issued a single

discovery order, nor have the plaintiffs

filed a single motion seeking to compel

discovery. Rather, the parties have employed the usual meet-and-confer process

of resolving discovery disputes. See Fed.

R. Civ. P. 37(a)(1). Indeed, both sides have

submitted declarations attesting that they

have thus far resolved a number of discovery disputes without either side asking the

district court for an order. Indeed, the

plaintiffs have withdrawn a number of re59a

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IN RE U.S. 835

Cite as 884 F.3d 830 (9th Cir. 2018)

quests for production. The defendants rely

on informal communications as to the

scope of discovery—in particular, the

plaintiffs’ litigation hold and demand letter—but the plaintiffs have clarified that

these communications were not discovery

requests.

If a specific discovery dispute arises, the

defendants can challenge that specific discovery request on the basis of privilege or

relevance. See McDaniel v. U.S. Dist. Ct.,

127 F.3d 886, 888–89 (9th Cir. 1997) (per

curiam) (holding that mandamus ‘‘is not

the State’s only adequate means of relief’’

from burdensome discovery because, ‘‘as

discovery proceeds, the State is not foreclosed from making routine challenges to

specific discovery requests on the basis of

privilege or relevance’’). In addition, the

defendants can seek protective orders, as

appropriate, under Federal Rule of Civil

Procedure 26(c).

[5] Mandamus relief is inappropriate

where the party has never sought relief

before the district court to resolve a discovery dispute. As we have noted, ‘‘courts

of appeals cannot afford to become involved with the daily details of discovery.’’

In re Anonymous Online Speakers, 661

F.3d 1168, 1173 (9th Cir. 2011) (quoting

Perry, 591 F.3d at 1157). Rather, we have

only granted mandamus relief to review

discovery orders in exceptional circumstances. Id. And neither we nor the Supreme Court have ever done so before a

party has filed a motion for a protective

order in the district court or prior to the

issuance of a discovery order by the district court. The defendants will have ample

remedies if they believe a specific discovery request from the plaintiffs is too broad

or burdensome. Absent any discovery order from the district court, or even any

attempt to seek one, however, the defendants have not shown that they have no

other means of obtaining relief from burdensome or otherwise improper discovery.

The defendants rely on two cases in

which a writ of mandamus issued because

of alleged discovery burdens: Cheney, and

Credit Suisse v. U.S. Dist. Ct., 130 F.3d

1342 (9th Cir. 1997). In both cases, the

district courts had issued orders compelling document production. Cheney, 542

U.S. at 376, 379, 124 S.Ct. 2576 (defendant

moved for a protective order, but district

court issued order allowing discovery to

proceed); Credit Suisse, 130 F.3d at 1346

(district court issued order compelling defendants to respond to discovery requests).1

Absent any district court order concerning discovery, mandamus relief is inappropriate. If the defendants become aggrieved

by a future discovery order, they can seek

mandamus relief as to that order. But

their current request for mandamus relief

is entirely premature. The defendants have

not satisfied the first Bauman factor.

B

[6, 7] The second Bauman factor is

whether the petitioner ‘‘will be damaged or

prejudiced in any way not correctable on

appeal.’’ Perry, 591 F.3d at 1156. To satisfy this factor, the defendants ‘‘must demonstrate some burden TTT other than the

mere cost and delay that are the regretta1. The defendants also raised, via a letter filed

after argument, the Supreme Court’s recent

summary disposition in an appeal challenging

a discovery order. See In re United States, –––

U.S. ––––, 138 S.Ct. 443, 199 L.Ed.2d 351

(2017). When the government filed a petition

for mandamus in that case, the district court

had compelled the government to complete

the administrative record over the government’s opposition that the administrative record was already complete and had deferred

ruling on the defendants’ earlier motion to

dismiss. Neither circumstance exists here.

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836 884 FEDERAL REPORTER, 3d SERIES

ble, yet normal, features of our imperfect

legal system.’’ DeGeorge v. U.S. Dist. Ct.,

219 F.3d 930, 935 (9th Cir. 2000) (alteration in original) (quoting Calderon v. U.S.

Dist. Ct., 163 F.3d 530, 535 (9th Cir. 1998)

(en banc) ). Prejudice serious enough to

warrant mandamus relief ‘‘includes situations in which one’s ‘claim will obviously be

moot by the time an appeal is possible,’ or

in which one ‘will not have the ability to

appeal.’ ’’ Id. (quoting Calderon, 163 F.3d

at 535).

The defendants argue that holding a

trial on the plaintiffs’ claims and allowing

the district court potentially to grant relief

would threaten the separation of powers.

We are not persuaded that simply allowing

the usual legal processes to go forward will

have that effect in a way not correctable

on appellate review.

First, to the extent the defendants argue

that the President himself has been named

as a defendant 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. See United States v. U.S. Dist. Ct.,

384 F.3d 1202, 1205 (9th Cir. 2004) (explaining that there is no injustice from

declining to consider a new issue on mandamus review because a petitioner may

still be able to raise the issue below). Nor

has any formal discovery been sought

against the President.

To the extent that the defendants are

arguing that executive branch officials and

agencies in general should not be burdened by this lawsuit, Congress has not

exempted the government from the normal

rules of appellate procedure, which anticipate that sometimes defendants will incur

burdens of litigating cases that lack merit

but still must wait for the normal appeals

process to contest rulings against them.

The United States is a defendant in close

to one-fifth of the civil cases filed in federal court.2

 The government cannot satisfy

the burden requirement for mandamus

simply because it, or its officials or agencies, is a defendant.

Distilled to its essence, the defendants’

argument is that it is a burden to defend

against the plaintiffs’ claims, which they

contend are too broad to be legally sustainable. That well may be. But, as noted,

litigation burdens are part of our legal

system, and the defendants still have the

usual remedies before the district court for

nonmeritorious litigation, for example,

seeking summary judgment on the claims.

And if relief is not forthcoming, any legal

error can be remedied on appeal. ‘‘The

first two criteria articulated in Bauman

are designed to insure that mandamus,

rather than some other form of relief, is

the appropriate remedy.’’ In re Cement

Antitrust Litig. (MDL No. 296), 688 F.2d

1297, 1301 (9th Cir. 1982), aff’d sub nom.

Arizona v. U.S. Dist. Ct., 459 U.S. 1191,

103 S.Ct. 1173, 75 L.Ed.2d 425 (1983)

(mem.). Because the merits errors now

asserted are correctable through the ordinary course of litigation, the defendants

have not satisfied the second Bauman factor.

C

The third Bauman factor is whether the

district court’s order ‘‘is clearly erroneous

as a matter of law.’’ Perry, 591 F.3d at

1156. Our review of this factor ‘‘is significantly deferential and [this factor] is not

2. See U.S. Courts, Federal Judicial Caseload

Statistics 2017, http://www.uscourts.gov/

statistics-reports/federal-judicial-caseloadstatistics-2017 (last visited Feb. 14, 2018) (The

United States was a defendant in 56,987 of

the 292,076 civil cases filed in federal court in

the 12-month period ending March 31,

2017.).

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IN RE U.S. 837

Cite as 884 F.3d 830 (9th Cir. 2018)

met unless the reviewing court is left with

a definite and firm conviction that a mistake has been committed.’’ In re Bundy,

840 F.3d 1034, 1041 (9th Cir. 2016) (quoting In re United States, 791 F.3d 945, 955

(9th Cir. 2015) ).

[8] ‘‘The absence of controlling precedent weighs strongly against a finding of

clear error [for mandamus purposes].’’ In

re Van Dusen, 654 F.3d 838, 845 (9th Cir.

2011). Here, the defendants concede that

there is no controlling Ninth Circuit authority on any of the theories asserted by

the plaintiffs. Indeed, the defendants

strongly argue that the theories are unprecedented. Thus, the absence of controlling precedent in this case weighs strongly

against a finding of clear error. Id.

We also underscore that this case is at a

very early stage, and that the defendants

have ample opportunity to raise legal challenges to decisions made by the district

court on a more fully developed record,

including decisions as to whether to focus

the litigation on specific governmental decisions and orders. Once the litigation proceeds, the defendants will have ample opportunity to raise and litigate any legal

objections they have.

However, absent controlling precedent,

we 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.

D

The fourth Bauman factor is whether

the district court’s order is ‘‘an oft repeated error or manifests a persistent disregard of the federal rules.’’ Perry, 591

F.3d at 1156. Absent controlling authority,

there is no ‘‘oft-repeated error’’ in this

case, In re Swift Transp. Co., 830 F.3d at

917, and the defendants do not contend

that the district court violated any federal

rule. The defendants do not satisfy the

fourth factor.

E

The final factor is whether the district

court’s order ‘‘raises new and important

problems or issues of first impression.’’

Perry, 591 F.3d at 1156. In general, we

have relied upon this factor when there is

a ‘‘novel and important question’’ that

‘‘may repeatedly evade review.’’ Id. at

1159; see also In re Cement Antitrust Litig., 688 F.2d at 1304–05 (‘‘[A]n important

question of first impression will evade review unless it is considered under our supervisory mandamus authority. Moreover,

that question may continue to evade review in other cases as well.’’).

There is little doubt that the legal theories asserted in this case raise issues of

first impression. But the district court’s

order denying a motion to dismiss on the

pleadings—which is all that has happened

thus far—does not present the possibility

that those issues will evade appellate review. The defendants have not satisfied the

fifth Bauman factor.

IV

There is enduring value in the orderly

administration of litigation by the trial

courts, free of needless appellate interference. In turn, appellate review is aided by

a developed record and full consideration

of issues by the trial courts. If appellate

review could be invoked whenever a district court denied a motion to dismiss, we

would be quickly overwhelmed with such

requests, and the resolution of cases would

be unnecessarily delayed.

We are mindful that some of the plaintiffs’ claims as currently pleaded are quite

broad, and some of the remedies the plaintiffs seek may not be available as redress.

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However, the district court needs to consider those issues further in the first instance. Claims and remedies often are

vastly narrowed as litigation proceeds; we

have no reason to assume this case will be

any different. Nor would the defendants be

precluded from reasserting a challenge to

standing, particularly as to redressability,

once the record is more fully developed, or

from seeking mandamus in the future, if

circumstances justify it. And the defendants retain the option of asking the district court to certify orders for interlocutory appeal of later rulings, pursuant to 28

U.S.C. § 1292(b).

Because petitioners have not satisfied

the Bauman factors, we deny the petition

without prejudice. Absent any discovery

order, the mandamus petition is premature

insofar as it is premised on a fear of

burdensome discovery. The issues pertaining to the merits of this case can be resolved by the district court, in a future

appeal, or, if extraordinary circumstances

later present themselves, by mandamus

relief. For these reasons, we decline to

exercise our discretion to grant mandamus

relief at this stage of the litigation.

PETITION DENIED WITHOUT

PREJUDICE.

,

Lonnie Craig PATTERSON,

Plaintiff–Appellant,

v.

CITY OF YUBA CITY, Defendant–

Appellee.

No. 16-16001

United States Court of Appeals,

Ninth Circuit.

Filed March 7, 2018

Background: Arrestee brought action

against city asserting a § 1983 claim of

unlawful seizure under the Fourth Amendment, as well as state law claims of negligent infliction of emotional distress and

false arrest/false imprisonment. The United States District Court for the Eastern

District of California, D.C. No. 2:12-cv01350-MCE-CKD, Morrison C. England,

Jr., J., 2016 WL 3126052, granted summary judgment to city, and arrestee appealed.

Holding: The Court of Appeals held that

it was appropriate to certify question to

California Supreme Court as to whether

finding of probable cause to arrest at preliminary hearing precluded false arrest

claim under California law.

Question certified.

1. False Imprisonment O13

Under California law, probable cause

to arrest is an affirmative defense to a

claim of false arrest. U.S. Const. Amend.

4.

2. Federal Courts O3107

It was appropriate for Court of Appeals to certify question to California Supreme Court as to whether a finding of

probable cause to arrest at a preliminary

hearing precluded a false arrest claim under California law; the answer of the question was dispositive of arrestee’s appeal of

district court’s grant of summary judgment to city on arrestee’s claim of false

arrest and imprisonment, no controlling

California precedent answered the question, California Courts of Appeal had split

on the issue, and resolving the question

would likely require diligent and thoughtful parsing of California’s issue preclusion

requirements, a magistrate judge’s powers

and obligations at a preliminary hearing,

and a criminal defendant’s ability to ade63a

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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KELSEY CASCADE ROSE JULIANA; et al., 

Plaintiffs, 

v. 

The UNITED STATES OF AMERICA; et al., 

Defendants. 

COFFIN, Magistrate Judge: 

6:15-cv-1517-TC 

ORDER 

Before the court is defendants' motion for a protective order and for a stay of discovery. 

( # 196). In essence, defendants' motion is based on the assertion that "Plaintiffs claim must proceed 

under the [Administrative Procedure Act] APA" and APA claims must be reviewed solely on the 

Administrative record. Thus "AP A plaintiffs are ... not entitled to discovery .... " Defendants' Motion 

For A Protective Order And For A Stay Of Discovery (#196) at p. 10. 

But the plaintiffs' complaint does not contain an APA claim. No such claim is pleaded, and 

the defendants have no ability to edit the complaint to cobble the claim into one of their choosing 

Page 1 - ORDER 

Case 6:15-cv-01517-TC Document 212 Filed 05/25/18 Page 1 of 3

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to derail discovery. The plaintiffs' claims in this case, which have survived previous efforts by the 

defendants to dismiss, are claims based on alleged violations of their constitutional rights. As to 

these claims, the court has denied the defendants' earlier motion to dismiss, an order which 

defendants challenged through writ of mandamus to the Ninth Circuit, which was denied. The Ninth 

Circuit further noted the case should proceed through discovery and the normal process of trial and 

the development of a record before any appellate review would be appropriate. 

The defendants' motion for a protective order and stay is simply a recasting of their position 

that the plaintiffs' claims should all be dismissed and the District Court should revisit its previous 

ruling to the contrary. 

Beyond whatever procedural impediments exist to the government's efforts to reconstruct its 

motion to dismiss under a different theory, this court is not at all persuaded by their argument that 

the AP A is the sole avenue of relief for the plaintiffs for the asserted violations of their constitutional 

rights. 

Indeed, the District Court has already rejected this very argument in its Order denying 

defendants' motion to dismiss: 

Plaintiffs could have brought a lawsuit predicated on technical regulatory violations, 

but they chose a different path. As masters of their complaint, they have elected to 

assert constitutional rather than statutory claims. Every day, federal courts apply the 

legal standards governing due process claims to new sets of facts. The facts in this 

case, though novel, are amenable to those well-established standards. 

Order dated November 10, 2017 (#83) at p. 13. 

In sum, defendants' efforts to transform plaintiffs' constitutional claims into an AP A case to 

bar discovery is unavailing. 

Finally, the defendants argue that the separation of powers doctrine justifies an order barring 

Page 2 - ORDER 

Case 6:15-cv-01517-TC Document 212 Filed 05/25/18 Page 2 of 3

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or staying all discovery in this case based on wholly hypothetical scenarios that may implicate 

matters of privilege during the discovery process. Under such rationale, the government could avoid 

all discovery in any litigation in which it is named as a defendant simply by asserting hypothetical 

discovery requests that a litigant might make during the litigation. Should a specific discovery 

request arise during discovery in this case that implicates a claim of privilege the government wishes 

to assert, the government may file a motion for a protective order directed at any such specific 

request. None has arisen so far in this particular case that the parties have been unable to resolve in 

the meet and confer process that the court is aware of. 

The motion for a protective order and stay of all discovery is hereby denied. 

CONCLUSION 

For the reasons stated above, defendants' motion for a protective order and stay (#196) is 

denied. 

DATED this & day of May 2018. 

Page 3 - ORDER 

Case 6:15-cv-01517-TC Document 212 Filed 05/25/18 Page 3 of 3

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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

KELSEY CASCADIA ROSE JULIANA, 

et al., 

Plaintiffs, 

v. 

THE UNITED STATES OF AMERICA, 

et al., 

Defendants. 

AIKEN, District Judge. 

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

ORDER 

On May 9, 2018, Defendants filed a Motion for Protective Order and Motion for Stay of 

All Discovery. ECF No. 196. On May 25, 2018, Magistrate Judge Coffin denied Defendants' 

motion. 1 ECF No. 212. Defendants have filed Objections to Judge Coffin's Order, ECF No. 

215, Plaintiffs have filed their Response, ECF No. 242, and the matter is now before this Comt. 

In accordance with Rule 72(a), "[w]hen a pretrial matter not dispositive ofa paity's claim 

or defense is referred to a magistrate judge to hear and decide, the magistrate judge must 

promptly conduct the required proceedings and, when appropriate, issue a written order stating 

the decision." Fed. R. Civ. P. 72(a). The standard of review for an order with objections is 

"clearly erroneous" or "contrary to law." 28 U.S.C. § 636(b)(l)(A); Fed. R. Civ. P. 72(a). 

1 Defendants complain, inter alia, that Judge Coffin denied their motion without allowing them the opportunity to 

file a reply. The Local Rules of the District of Oregon do not permit replies in support of discovery motions. LR 

26-3(c) ("Unless otherwise directed by the Court, a movant may not file a reply supporting a discovery motion."). 

The timing of Judge Coffin's ruling was therefore appropriate. 

Page I -OPINION & ORDER 

Case 6:15-cv-01517-TC Document 300 Filed 06/29/18 Page 1 of 2

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The Comt has carefully reviewed Judge Coffin's order in light of Defendants' objections. 

The Comt concludes that the order is not clearly erroneous or contrary to law. Accordingly, the 

Court AFFIRMS Magistrate Judge Coffin's Order, ECF No. 212, denying Defendants' Motion 

for Protective Order and Stay of All Discovery, ECF No.196. The Court declines to cettify this 

decision for interlocutory appeal under 28 U.S.C. § 1292(b). 

7 c;tf> 

";,'°ORDERED ""d DATED.;,~ 73:i..~ 

ANN AIKEN 

United States District Judge 

Page 2 -OPINION & ORDER 

Case 6:15-cv-01517-TC Document 300 Filed 06/29/18 Page 2 of 2

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UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

In re: UNITED STATES OF AMERICA;

et al.,

______________________________

UNITED STATES OF AMERICA; et al.,

Petitioners,

 v.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON,

EUGENE,

Respondent,

KELSEY CASCADIA ROSE JULIANA;

et al.,

Real Parties in Interest.

No. 18-71928

D.C. No. 6:15-cv-01517-TC

District of Oregon, 

Eugene

ORDER

Before: THOMAS, Chief Judge, and BERZON and FRIEDLAND, Circuit Judges.

Petitioners’ emergency motion for a stay of discovery and trial is DENIED. 

The panel will rule on the petition for writ of mandamus on an expedited basis.

FILED

JUL 16 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 Case: 18-71928, 07/16/2018, ID: 10943144, DktEntry: 9, Page 1 of 1

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