Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

C. Marie Eckert, OSB No. 883490 

marie.eckert@millernash.com 

Suzanne C. Lacampagne, OSB No. 951705

suzanne.lacampagne@millernash.com 

MILLER NASH GRAHAM & DUNN LLP 

3400 U.S. Bancorp Tower 

111 S.W. Fifth Avenue 

Portland, Oregon 97204 

Telephone: (503) 224-5858 

Facsimile: (503) 224-0155 

Roger R. Martella, Jr. 

rmartella@sidley.com 

Quin M. Sorenson 

qsorenson@sidley.com 

Benjamin E. Tannen 

btannen@sidley.com 

SIDLEY AUSTIN LLP 

1501 K Street, N.W. 

Washington, D.C. 20005 

Telephone: (202) 736-8000 

Facsimile: (202) 736-8711 

Attorneys for Intervenor-Defendants 

 The National Association of Manufacturers 

 American Fuel & Petrochemical Manufacturers 

 American Petroleum Institute 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

KELSEY CASCADIA ROSE JULIANA, et 

al., 

Plaintiffs, 

v. 

UNITED STATES OF AMERICA, et al., 

Defendants. 

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

INTERVENOR-DEFENDANTS’ 

OBJECTIONS TO MAGISTRATE’S 

FINDINGS AND 

RECOMMENDATION 

Request for Oral Argument 

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Page i Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

TABLE OF CONTENTS 

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

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

STATEMENT OF THE CASE ........................................................................................................4

STANDARD OF REVIEW .............................................................................................................6 

ARGUMENT ...................................................................................................................................7 

I. THE COMPLAINT DOES NOT ALLEGE A VALID FEDERAL CAUSE OF ACTION 

OR IMPLICATE A FEDERAL QUESTION SUBJECT TO FEDERAL JURISDICTION 

..............................................................................................................................................9 

A. The “Public Trust Doctrine” Does Not Apply To The Federal Government 

And Cannot Support A Valid Claim For Relief In This Case .................................9 

B. Neither The Due Process Clause Nor The Equal Protection Clause Provide 

The Plaintiffs With A Cognizable Cause Of Action ..............................................16 

C. Any Cause Of Action That Might Have Been Recognized As Supporting 

The Alleged Claims Has Been Displaced By Federal Statute ...............................19 

II. THIS CASE PRESENTS NON-JUSTICIABLE POLITICAL QUESTIONS ..................21 

A. The Claims Implicate Issues That Are Textually Committed To The 

Executive And Legislative Branches .....................................................................22 

B. There Are No Judicially Discoverable Or Manageable Standards For 

Resolving The Claims ............................................................................................24 

C. The Claims Could Not Be Adjudicated Without Expressing Lack Of 

Respect Due To Other Branches Of Government ..................................................26 

III. THE PLAINTIFFS LACK STANDING TO PURSUE THEIR CLAIMS ........................28 

A. The Complaint Does Not Allege Imminent And Particularized Injuries ...............28 

B. The Injuries Alleged In The Complaint Are Neither Fairly Traceable To 

The Defendants Nor Likely Redressable By The Requested Relief ......................31 

CONCLUSION ..............................................................................................................................34 

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Page ii Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Alec L. v. Jackson, 

863 F. Supp. 2d 11 (D.D.C. 2012), aff’d, 561 F. App’x 7 (D.C. Cir. 2014), 

cert. denied, 135 S. Ct. 774 (2014) ....................................................................................3, 5, 8 

Alec L. ex rel. Loorz v. McCarthy, 

561 F. App’x 7 (D.C. Cir. 2014) ..................................................................................3, 5, 8, 11 

Am. Elec. Power Co. v. Connecticut, 

131 S. Ct. 2527 (2011) .......................................................................................2, 19, 20, 25, 26

Ashcroft v. Iqbal, 

129 S. Ct. 1937 (2009) .........................................................................................................6, 32 

Baker v. Carr, 

369 U.S. 186 (1962) .....................................................................................................21, 24, 26 

Barnes v. Chase Home Fin., LLC, 

825 F. Supp. 2d 1057 (D. Or. 2011) ..........................................................................................7 

Bonser-Lain v. Texas Comm’n on Envtl. Quality, 

No. D-1-GN-11-002194, 2012 WL 3164561 (Tex. 201st Dist. Aug. 2, 2012), 

rev’d, 438 S.W.3d 887 (Tex. App. 2014) ................................................................................15 

Bowen v. Massachusetts, 

487 U.S. 879 (1988) .................................................................................................................29 

Brigham Oil & Gas, L.P. v. N.D. Bd. of Univ. & Sch. Lands, 

866 F. Supp. 2d 1082 (D.N.D. 2012) .......................................................................................12 

Bush v. Lucas, 

462 U.S. 367 (1983) .................................................................................................................20 

City of Alameda v. Todd Shipyards Corp., 

635 F. Supp. 1447 (N.D. Cal. 1986) ........................................................................................13 

City of Cleburne v. Cleburne Living Ctr., 

473 U.S. 432 (1985) .................................................................................................................19 

Clegg v. Cult Awareness Network, 

18 F.3d 752 (9th Cir. 1994) .................................................................................................6, 32 

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Page iii Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

Comer v. Murphy Oil USA, Inc., 

839 F. Supp. 2d 849 (S.D. Miss. 2012), aff’d on other grounds, 718 F.3d 460 

(5th Cir. 2013) ..........................................................................................................................32 

Ctr. for Biological Diversity v. Dep’t of Interior, 

563 F.3d 466 (D.C. Cir. 2009) .................................................................................................32 

Davis v. Bandemer, 

478 U.S. 109 (1986) .................................................................................................................18 

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 

489 U.S. 189 (1989) ...........................................................................................................16, 17 

Fed. Election Comm’n v. Akins, 

524 U.S. 11 (1998) ...................................................................................................................31 

Foster v. Wash. Dep’t of Ecology, 

No. 14-2-25295-1, slip op. (Wash. King Cty. Super. Ct. Nov. 19, 2015) ...............................14 

Gibson v. Matthews, 

926 F.2d 532 (6th Cir. 1991) ...................................................................................................19 

Gilligan v. Morgan, 

413 U.S. 1 (1973) .........................................................................................................23, 26, 27 

Gladstone Realtors v. Vill. of Bellwood, 

441 U.S. 91 (1979) ...................................................................................................................30 

Heckler v. Chaney, 

470 U.S. 821 (1985) .................................................................................................................23 

Illinois Cent. R.R. Co. v. Illinois, 

146 U.S. 387 (1892) .........................................................................................11, 14, 15, 16, 20

Jones v. Rose, 

No. CV 00-1795, 2005 WL 2218134 (D. Or. Sept. 9, 2005) ...................................................12 

Kneipp v. Tedder, 

95 F.3d 1199 (3d Cir. 1996).....................................................................................................17 

L.W. v. Grubbs, 

92 F.3d 894 (9th Cir. 1996) ...............................................................................................17, 18 

L.W. v. Grubbs, 

974 F.2d 119 (9th Cir. 1992) .............................................................................................17, 18 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) .........................................................................................28, 29, 30, 31, 32

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Page iv Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

Lujan v. Nat’l Wildlife Fed’n, 

497 U.S. 871 (1990) ...........................................................................................................22, 23 

Massachusetts v. EPA, 

549 U.S. 497 (2007) .....................................................................................................23, 25, 26 

Massachusetts v. Mellon, 

262 U.S. 447 (1923) .................................................................................................................30 

McDonnell Douglas Corp. v. Commodore Bus. Machs., Inc., 

656 F.2d 1309 (9th Cir. 1981) ...................................................................................................7 

Munger v. City of Glasgow Police Dep’t, 

227 F.3d 1082 (9th Cir. 2000) .................................................................................................17 

Native Vill. of Kivalina v. ExxonMobil Corp., 

663 F. Supp. 2d 863 (N.D. Cal. 2009), aff’d on other grounds, 696 F.3d 849 

(9th Cir. 2012) ....................................................................................................................32, 33 

Nixon v. United States, 

506 U.S. 224 (1993) .................................................................................................................21 

North Carolina ex rel. Cooper v. TVA, 

615 F.3d 291 (4th Cir. 2010) .............................................................................................31, 32 

Nunez by Nunez v. City of San Diego, 

114 F.3d 935 (9th Cir. 1997) ...................................................................................................19 

Oregon v. Corvallis Sand & Gravel Co., 

429 U.S. 363 (1977) .................................................................................................................11 

PPL Montana, LLC v. Montana, 

132 S. Ct. 1215 (2012) .........................................................................3, 6, 9, 10, 11, 12, 13, 14 

Penilla v. City of Huntington Park, 

115 F.3d 707 (9th Cir. 1997) ...................................................................................................17 

Pers. Adm’r of Mass. v. Feeney, 

442 U.S. 256 (1979) .................................................................................................................18 

Phillips Petrol. Co. v. Mississippi, 

484 U.S. 469 (1988) .................................................................................................................11 

Ramos v. Town of Vernon, 

353 F.3d 171 (2d Cir. 2003).....................................................................................................19 

Reeves Bros., Inc. v. EPA, 

956 F. Supp. 665 (W.D. Va. 1995) ..........................................................................................23 

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Page v Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

Romer v. Evans, 

517 U.S. 620 (1996) .................................................................................................................18 

Sanders-Reed ex rel. Sanders-Reed v. Martinez, 

350 P.3d 1221 (N.M. Ct. App. 2015).......................................................................................15 

Sansotta v. Town of Nags Head, 

724 F.3d 533 (4th Cir. 2013) ...................................................................................................11 

Seminole Tribe v. Florida, 

517 U.S. 44 (1996) ...................................................................................................................14 

Shively v. Bowlby, 

152 U.S. 1 (1894) .........................................................................................................11, 12, 13 

Sierra Club v. Morton, 

405 U.S. 727 (1972) .................................................................................................................29 

Summers v. Earth Island Inst., 

555 U.S. 488 (2009) .................................................................................................................28 

Tex. Indus., Inc. v. Radcliff Materials, Inc., 

451 U.S. 630 (1981) .................................................................................................................25 

United States v. 1.58 Acres of Land, 

523 F. Supp. 120 (D. Mass. 1981) ...........................................................................................13 

United States v. 32.42 Acres of Land, 

683 F.3d 1030 (9th Cir. 2012) .....................................................................................11, 12, 13 

United States v. Flores-Villar, 

536 F.3d 990 (9th Cir. 2008) ...................................................................................................19 

United States v. Gaudin, 

28 F.3d 943 (9th Cir. 1994) .....................................................................................................14 

United States v. Mission Rock Co., 

189 U.S. 391 (1903) .................................................................................................9, 14, 15, 16 

United States v. Students Challenging Regulatory Agency Procedures, 

412 U.S. 669 (1973) .................................................................................................................31 

Vieth v. Jubelirer, 

541 U.S. 267 (2004) .................................................................................................................21 

Washington Envtl. Council v. Bellon, 

732 F.3d 1131 (9th Cir. 2013) .................................................................3, 6, 15, 28, 31, 32, 33 

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Page vi Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

Washington v. Davis, 

426 U.S. 229 (1976) .................................................................................................................18 

Webster v. Doe, 

486 U.S. 592 (1988) .................................................................................................................23 

White v. Lee, 

227 F.3d 1214 (9th Cir. 2000) ...................................................................................................6 

Wood v. Ostrander, 

879 F.2d 583 (9th Cir. 1989) ...................................................................................................17 

Wynne v. Town of Great Falls, S.C., 

376 F.3d 292 (4th Cir. 2004) ...................................................................................................14 

Constitution, Statutes and Regulations 

U.S. Const. art. I, § 1......................................................................................................................22 

U.S. Const. art. I, § 8......................................................................................................................22 

U.S. Const. art. II, § 1 ....................................................................................................................22 

U.S. Const. art. IV, § 3 ...................................................................................................................13 

Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, 121 Stat. 1844 .........................27 

Energy Independence and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 

1492..........................................................................................................................................27 

Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 .................................................27 

Energy Security Act of 1980, Pub. L. No. 96-294, 94 Stat. 611 ...................................................27 

Global Change Research Act of 1990, Pub. L. No. 101-606, 104 Stat. 3096 ................................27 

Global Climate Protection Act of 1987, Pub. L. No. 100-204, tit. XI, 101 Stat. 

1331..........................................................................................................................................27 

National Climate Program Act of 1978, Pub. L. No. 95-367, 92 Stat. 601 ...................................26 

15 U.S.C. § 717r ............................................................................................................................29 

28 U.S.C. § 636 ................................................................................................................................7 

42 U.S.C. § 7607 ............................................................................................................................23 

75 Fed. Reg. 31514 (June 3, 2010) ..................................................................................................1 

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Page vii Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

76 Fed. Reg. 57106 (Sept. 15, 2011) ...............................................................................................1 

78 Fed. Reg. 66819 (Nov. 6, 2013)..................................................................................................1 

80 Fed. Reg. 77420 (Dec. 14, 2015) ................................................................................................1 

Rule 

Fed. R. Civ. P. 72 .............................................................................................................................7 

Administrative Order 

Order No. 3041, In re Jordan Cove Energy Project, L.P., 

FE Docket No. 11-127-LNG (U.S. Dep’t of Energy, Dec. 7, 2011) .......................................28 

Other Authorities 

Jean Chemnick, Paris Agreement: Kerry Signs Deal, Calls It a ‘Turning Point’ in 

Climate War, Greenwire (Apr. 22, 2016), available at

http://www.eenews.net/greenwire/2016/04/22/stories/1060036116; ........................................1 

Douglas L. Grant, Underpinnings of the Public Trust Doctrine: Lessons from 

Illinois Central Railroad, 33 Ariz. St. L.J. 849, 870 (2001) ....................................................13 

Federal Climate Change Lawsuit, OUR CHILDREN’S TRUST, available at

http://ourchildrenstrust.org/us/federal-lawsuit (last visited Apr. 28, 2016) ...............................3 

Press Release, Youth Sue the Government to Preserve the Future and Halt 

Climate Change (May 4, 2011), available at

http://ourchildrenstrust.org/sites/default/files/iMatter_Legal_Release_11.05.01

.pdf .............................................................................................................................................3 

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Page 1 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

INTRODUCTION 

In this extraordinary lawsuit, a group of private citizens and organizations asks this Court 

to commandeer the authority of the Office of the President and more than a dozen federal 

cabinet-level agencies and officials, and direct them “to cease their permitting, authorizing, and 

subsidizing of fossil fuels” and take whatever other actions are “necessary” to drastically reduce 

greenhouse gas emissions in the United States to levels these plaintiffs deem acceptable. Doc. 7 

¶¶ 7, 12 (“Compl.”). Those agencies share regulatory and enforcement responsibilities over 

millions of enterprises, across every sector of the economy, and restrictions of the type the 

complaint seeks would have profound consequences for the Nation’s economic development and 

productivity, social policies, security interests, and international standing. They would also, in 

many cases, directly conflict with and undermine the carefully considered regulatory programs 

and policies (and international agreements) already adopted by the federal government to address 

issues relating to greenhouse gas emissions and climate change.1

 

 1

 The federal government has in recent years taken a number of aggressive steps to reduce 

greenhouse gas emissions and address concerns over climate change. Among other programs 

and policies, the Environmental Protection Agency (“EPA”) has imposed new restrictions on 

permissible greenhouse gas emissions levels for industrial and commercial facilities throughout 

the Nation, and required them to implement the “best available control technology” for reducing 

those emissions further. 75 Fed. Reg. 31514 (June 3, 2010). It has also adopted strict limitations 

governing greenhouse gas emissions from new motor vehicles and mandated that fuel sold in this 

country be produced using renewable materials, reducing greenhouse gas and other emissions 

during both production and use, 80 Fed. Reg. 77420 (Dec. 14, 2015); 76 Fed. Reg. 57106 (Sept. 

15, 2011); moreover, all agencies of the Executive Branch have adopted formal plans to address 

issues relating to climate change, pursuant to presidential directive. 78 Fed. Reg. 66819 (Nov. 6, 

2013). And, internationally, the United States and nearly 200 other governments worldwide 

reached a historic agreement—the so-called “Paris Accords,” signed on April 22, 2016—to 

establish defined targets for emissions reductions in each country, with the intent to lower global 

emissions levels and address identified risks of climate change. See Jean Chemnick, Paris 

Agreement: Kerry Signs Deal, Calls It a ‘Turning Point’ in Climate War, Greenwire (Apr. 22, 

2016), available at http://www.eenews.net/greenwire/2016/04/22/stories/1060036116; see also 

infra note 12 (discussing legislative actions to address issues relating to climate change). 

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Page 2 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

Never before has a court in this country recognized such an unprecedented lawsuit, and 

for good reason. These claims openly seek to circumvent the legislative and regulatory 

processes established by statute and our Constitution to use the federal judiciary to compel 

massive technological and economic changes the plaintiffs believe are necessary to address 

climate change, substituting their judgment for that of the Legislative and Executive Branches. 

The plaintiffs would have this Court act essentially as a special master over the Office of the 

President and the many named agencies, monitoring and supervising them (potentially for 

decades) to determine on an ongoing basis whether their efforts are satisfactory and, if not, what 

measures they should or should not take to meet whatever emissions targets are deemed 

“appropriate” in light of changing environmental conditions and economic development in this 

and other countries. Compl. at 4-5, 94. None of the grounds cited in the complaint—the 

common law “public trust” doctrine and several broad constitutional principles—provide the 

plaintiffs with a cause of action to require the federal government to adopt a particular regulatory 

regime, much less one (like that demanded by these plaintiffs) that would directly contravene 

existing regulatory programs and policies as well as numerous legislative mandates, including 

those of the Clean Air Act “designat[ing] an expert agency, ... EPA, as primary regulator of 

greenhouse gas emissions.” Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2539-40 

(2011) (“AEP”). 

The magistrate judge assigned to this case, despite recognizing that the claims “appear[ ] 

to implicate authority of Congress” and “unmanageable issues,” nevertheless recommended that 

motions to dismiss filed by the defendants and supporting intervenors be denied.2

 Doc. 68 at 24 

 2

 Three intervenors—the National Association of Manufacturers, the American Fuel & 

Petrochemical Manufacturers, and the American Petroleum Institute—were previously granted 

leave to intervene as parties in this case in support of the federal defendants. Doc. 50. 

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Page 3 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

(“Rep.”). That recommendation is based on an overly generous reading of the complaint and the 

plaintiffs’ briefs, giving deference to legal arguments that warrant none and crediting factual 

assertions that are on their face entirely speculative, clearly implausible, or sometimes both. It 

also fails to address or reconcile the several cases that have rejected these very arguments in 

analogous circumstances: for example (among others), the Supreme Court’s decision in PPL 

Montana, LLC v. Montana, 132 S. Ct. 1215 (2012), which held that the public trust doctrine is 

not a matter of federal law and cannot apply to the federal government; the Ninth Circuit’s 

decision in Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013), which 

held that individual plaintiffs do not have standing to bring claims challenging the government’s 

alleged failure to regulate sufficiently greenhouse gas emissions; and the D.C. Circuit’s decision 

in Alec L. ex rel. Loorz v. McCarthy, 561 F. App’x 7 (D.C. Cir. 2014), aff’g 863 F. Supp. 2d 11 

(D.D.C. 2012), which dismissed precisely the same type of “public trust” claims when they were 

first brought in a different federal court in 2011 by some of the same counsel, also on behalf of a 

group of ”youth” plaintiffs and environmental organizations.3

 The recommendation, if accepted 

by this Court, would represent a dramatic break with these decisions, creating a direct conflict 

with the Ninth Circuit and the Supreme Court, and a clear split with the D.C. Circuit. 

The recommendation should be rejected, and the claims in this case dismissed. 

 3

 The complaint in Alec L., like this one, included declarations from Dr. James Hansen—who 

in this case is identified not only as a witness but also as “guardian ad litem” for one of the 

plaintiffs and for “future generations.” Compl. at 22, 34. In addition, both cases appear to be 

supported by the same environmental organization, Our Children’s Trust. See Federal Climate 

Change Lawsuit, OUR CHILDREN’S TRUST, available at http://ourchildrenstrust.org/us/federallawsuit (last visited Apr. 28, 2016). That organization also supported the filing, at the same time 

of the filing of the complaint in Alec L., of similar cases and administrative petitions (premised 

on the “public trust” doctrine) in all 50 States. See Press Release, Youth Sue the Government to 

Preserve the Future and Halt Climate Change (May 4, 2011), available at

http://ourchildrenstrust.org/sites/default/files/iMatter_Legal_Release_11.05.01.pdf. The vast 

majority of those cases and petitions have been dismissed or denied. 

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Page 4 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

STATEMENT OF THE CASE 

The complaint asserts that the President of the United States and other federal officials 

and agencies—including the Departments of Agriculture, Commerce, Defense, Energy, Interior, 

State, and Transportation, as well as the Environmental Protection Agency—have “abrogated 

[their] duty to preserve and protect the atmosphere” by “authorizing, permitting, and 

incentivizing fossil fuel production, consumption, transportation, and combustion, causing the 

atmospheric [carbon dioxide] concentration to increase.” Compl. ¶¶ 119, 130. It alleges that as 

a result, risks to the worldwide population and to the plaintiffs in this case are increasing. These 

risks, according to the complaint, infringe upon the plaintiffs’ constitutional rights under the Due 

Process Clause, Equal Protection Clause, and Ninth Amendment, and also violate the federal 

government’s responsibilities under the “public trust” doctrine. Id. at 84, 88, 91, 92. 

The plaintiffs ask this Court to find and declare that all of the actions of the federal 

government over the last century relating to greenhouse gas emissions and fossil fuel 

production—including through statutory enactments, regulatory efforts, and international 

agreements dating to 1899 and continuing today—have not been “adequate” to fully address the 

risks of climate change, and that the Office of the President and other named federal officials and 

agencies “have violated and are violating [the p]laintiffs’ fundamental constitutional rights to 

life, liberty, and property.” Id. at 51, 94. It demands as relief for these alleged violations an 

order “enjoin[ing the d]efendants from violating the public trust doctrine” and directing them to 

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

and draw down excess atmospheric [carbon dioxide]” and “to restore Earth’s energy balance.” 

Id. at 5, 94. This “plan”—which would be contrary to existing statutes and without apparent 

congressional oversight—would require the federal government to “cease the[ ] permitting ... of 

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Page 5 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

fossil fuels and ... move to swiftly phase out [carbon dioxide] emissions, as well as take such 

other action as necessary to ensure that atmospheric [carbon dioxide] is no more concentrated 

than 350 [parts per million] by 2100.” Id. ¶ 12 (emphasis omitted). The Court would “[r]etain 

jurisdiction over this action to monitor and enforce [the d]efendants’ compliance with the 

national remedial plan and all associated orders of this Court.” Id. at 94. 

The federal defendants and supporting intervenors filed motions to dismiss. Doc. 20 

(“Intv. Br.”); Doc. 27-1 (“Fed. Br.”). They argued that the claims could not proceed for a 

number of reasons, including (inter alia) that: the claims do not set forth a valid right to relief 

because the “public trust” doctrine does not apply to the federal government, because alleged 

regulatory inaction cannot establish a violation of that doctrine or individual constitutional rights, 

and because the claims have in any case been displaced under the Clean Air Act; the claims 

cannot be adjudicated consistent with the political question doctrine, because they would involve 

the judiciary in making public policy judgments committed to the other branches; and the 

plaintiffs lack standing, because greenhouse gas emissions and the associated risks of climate 

change are both caused by and impact all individuals and all jurisdictions worldwide and cannot 

be plausibly linked to or redressed by actions of the named agencies of the United States. Intv. 

Br at 6-21; Fed. Br. at 7-29. The motions also emphasized that a prior case raising materially 

identical claims against the federal government, under the “public trust” doctrine, had recently 

been dismissed in the D.C. Circuit (a decision the U.S. Supreme Court declined to review) in 

Alec L. v. Jackson, 863 F. Supp. 2d 11 (D.D.C. 2012), aff’d, 561 F. App’x 7 (D.C. Cir. 2014), 

cert. denied, 135 S. Ct. 774 (2014). 

Following a hearing, the magistrate judge recommended that the motions be denied in a 

report issued on April 8, 2016. Rep. at 24. The report acknowledges that never before had such 

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Page 6 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

claims been recognized in the federal judiciary (or any other court), and that the case “appears to 

implicate authority of Congress” and “does implicate some unmanageable issues”; nevertheless, 

it concludes that the claims should not be dismissed because the plaintiffs had asserted in the 

complaint that their rights had been violated and that the Court may craft appropriate relief. Id.

at 13, 14. These assertions, the report states, should be accepted as true “[a]t this stage of the 

proceedings,” even if it is later shown that the allegations do not actually state a claim for relief 

or support the plaintiffs’ standing, or that the case involves a nonjusticiable political question. 

Id. at 8. The report does not mention Alec L. or distinguish it from the instant case, 

notwithstanding its prominence in prior briefing and argument, and it dismisses facially contrary 

holdings of other courts on these issues, including decisions of the Supreme Court and Ninth 

Circuit,4

 as mere dicta or otherwise distinguishable. Id. at 18-21. 

STANDARD OF REVIEW

Dismissal is required when a complaint fails to satisfy the plaintiffs’ burden of pleading 

facts demonstrating that the claims are justiciable and within the jurisdiction of the court, and 

fails to state a valid cause of action for which relief may be granted. E.g., White v. Lee, 227 F.3d 

1214, 1242 (9th Cir. 2000). When ruling on a motion to dismiss, the Court should accept as true 

only those allegations of the complaint that are factual in nature and “facially plausible.” 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-51 (2009). The Court need not and should not accept 

“conclusory” or “legal” allegations, or those inconsistent with governing law or standards. E.g.,

Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). 

 4 See, e.g., PPL Montana, 132 S. Ct. at 1234-35 (“the public trust doctrine remains a matter 

of state law”); Bellon, 732 F.3d at 1143 (“[S]imply saying that the Agencies have failed to curb 

emission of greenhouse gases, which contribute (in some undefined way and to some undefined 

degree) to their injuries, relies on an ‘attenuated chain of conjecture insufficient to support 

standing.’”). 

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Page 7 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

On review of a magistrate judge’s report and recommendation, “the district court is 

charged to make a de novo determination of [any] portion” to which objections are made. 

McDonnell Douglas Corp. v. Commodore Bus. Machs., Inc., 656 F.2d 1309, 1313 (9th Cir. 

1981); see also Barnes v. Chase Home Fin., LLC, 825 F. Supp. 2d 1057, 1059 (D. Or. 2011); 

Fed. R. Civ. P. 72(b)(3). “[T]he court may 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)(C).5

ARGUMENT 

The plaintiffs ask this Court to adjudge whether the federal government’s ongoing 

statutory and regulatory efforts relating to greenhouse gas emissions and fossil fuel production 

over the last century have been “adequate” in light of the asserted risks of climate change and, if 

not, to declare that the government’s failure to act has infringed upon the constitutional due 

process and equal protection rights of these individual plaintiffs and violated its obligations 

under the “public trust” doctrine. Compl. ¶¶ 261, 280, 291, 310. For a remedy, they demand an 

order directing the Office of the President and more than a dozen federal agencies and officials 

“to cease their permitting, authorizing, and subsidizing of fossil fuels” and to take whatever other 

actions are “necessary” to drastically reduce greenhouse gas emissions in the United States to 

levels that are determined by this Court (with the plaintiffs’ input) to be “appropriate” to address 

those risks. Id. ¶¶ 12, 97, 298. They would then have this Court assume ongoing supervisory 

authority over these agencies, acting as a sort of special master, with the power and 

responsibility to determine (potentially for decades) whether any regulations and actions taken 

are “adequate” to address the risks of climate change and, if not, to order the agencies to adopt 

other measures. Id. at 94. 

 5

 The intervenors in this case object to the report and recommendation in its entirety. 

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Page 8 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

These unprecedented claims were dismissed at the pleading stage in the first case in 

which they were brought—a decision affirmed on appeal, Alec L., 863 F. Supp. 2d 11, aff’d, 561 

F. App’x 7—and they should be dismissed here as well. The Supreme Court has held 

unequivocally that the “public trust” doctrine is a matter of state law, with no application to the 

federal government, and decisions of both the Supreme Court and the Ninth Circuit have 

repeatedly admonished that allegations concerning the government’s failure to regulate (or to 

regulate “adequately,” Compl. ¶ 285) cannot give rise to a constitutional due process or equal 

protection claim. Infra Part I. These claims would also necessarily involve the judiciary in 

adjudicating matters of legislative and executive policy regarding the regulation of greenhouse 

gas emissions in light of national economic and other interests, issues committed to the political 

branches, and would have this Court assume and exercise direct control over the Office of the 

President and executive agencies and officials, in plain contravention of the political question 

doctrine. Infra Part II. And the Ninth Circuit recently affirmed in Bellon that claims by 

individual plaintiffs seeking increased regulation of greenhouse gas emissions, in order to 

address alleged risks of climate change, must be dismissed for lack of standing because there is 

no way to plausibly allege a direct link between the challenged emissions and possible future 

impacts or a reasonable probability that a reduction in particular emissions would alleviate those 

impacts. Infra Part III. 

The decisions in PPL Montana and Bellon, and numerous others, squarely foreclose the 

claims in this case. The report’s contrary recommendation appears to be based on the 

assumption that, at the pleading stage of the case, all of the allegations and arguments of the 

plaintiffs should be credited, even if they are “legal” or “conclusory” in nature and regardless of 

their facial plausibility. See Rep. at 6. But no mistake should be made: the conclusions of the 

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Page 9 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

recommendation run directly counter to those decisions and, if accepted, would create a direct 

conflict with binding opinions of the Supreme Court and Ninth Circuit and with the D.C. 

Circuit’s decision in Alec L. (which the recommendation never mentions). The recommendation 

should be rejected, the motions to dismiss granted, and the complaint dismissed. 

I. THE COMPLAINT DOES NOT ALLEGE A VALID FEDERAL CAUSE OF 

ACTION OR IMPLICATE A FEDERAL QUESTION SUBJECT TO FEDERAL 

JURISDICTION. 

Dismissal is warranted, first, because the plaintiffs have not pled a valid cause of action 

within this Court’s jurisdiction. Neither the “public trust” doctrine nor the constitutional 

provisions cited in the complaint can provide these plaintiffs with a claim against the federal 

government to compel adoption of a particular regulatory regime, much less one concerning 

worldwide atmospheric greenhouse gas levels or global climate change. Infra Part I.A. 

Moreover, any such claim that might have been recognized has been displaced by federal statute, 

most notably the Clean Air Act, which defines the exclusive process of administrative and 

judicial review by which regulatory action of this sort may be sought. Infra Part I.B. 

A. The “Public Trust Doctrine” Does Not Apply To The Federal Government 

And Cannot Support A Valid Claim For Relief In This Case. 

The “public trust” doctrine is an arcane and rarely used common law doctrine addressing 

state property rights in lands submerged beneath tidal and navigable waterways, restricting a 

state’s ability in certain circumstances to alienate those resources. United States v. Mission Rock 

Co., 189 U.S. 391, 407 (1903). The doctrine does not and cannot apply to the federal 

government, as the Supreme Court held in PPL Montana, 132 S. Ct. at 1235, and it does not and 

cannot support a cause of action to mandate affirmative government regulation of the 

atmosphere, a resource or environment not owned or controlled exclusively by that government, 

Mission Rock, 189 U.S. at 407. It has no application here. 

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Page 10 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

1. Finding otherwise, the report and recommendation concludes that the public trust 

doctrine is not only a state law principle, but also one grounded in the U.S. Constitution and 

binding on the federal government, and it further suggests that the Supreme Court did not hold to 

the contrary—or even address the issue—in PPL Montana. Rep. at 18, 23 n.10. That conclusion 

is belied by PPL Montana itself, as well as other opinions of the Supreme Court, the Ninth 

Circuit, and this Court, and every other court to consider the matter. 

At issue in PPL Montana was whether the State of Montana held title to certain riverbed 

lands, as against claims to the same lands by the United States—which had been leasing the 

lands to a private company (PPL Montana). 132 S. Ct. at 1222. One of the arguments raised by 

Montana was that the “public trust doctrine”—which it described, like the plaintiffs in this case, 

as “embodied in American law,” including the U.S. Constitution and federal statutes, Br. for 

Resp. 20, 24-25, 52-53, 132 S. Ct. 1215 (No. 10-218)—applied to the federal government and 

prohibited the United States from exercising ownership rights over the lands in a way that would 

restrict “public access to the waters above those beds for purposes of navigation, fishing, and 

other recreational uses.” 132 S. Ct. at 1235. The doctrine thus required, Montana argued, that 

title to the lands vest with the State. Id.

The Supreme Court rejected this argument, on grounds that the public trust doctrine does 

not apply to the federal government. Id. While noting that the doctrine is “of ancient origin” 

with “roots trac[ing] to Roman civil law ... [and] English common law,” and that several cases 

have said that under the Constitution, a “State takes title to the navigable waters and their beds in 

trust for the public” upon attaining statehood, the Court explained that “the public trust doctrine 

remains a matter of state law,” whose “contours ... do not depend upon the Constitution.” Id. at 

1234-35 (emphasis added). The opinion cites a number of prior Supreme Court cases that have 

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Page 11 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

discussed the doctrine, including Illinois Central R.R. Co. v. Illinois, 146 U.S. 387 (1892), and 

Shively v. Bowlby, 152 U.S. 1 (1894), and confirms that those decisions were “necessarily a 

statement of [state] law.” 132 S. Ct. at 1235. 

This discussion of the public trust doctrine in PPL Montana was neither dicta nor 

unclear. The Supreme Court held unequivocally that the doctrine is a matter of state law with no 

application to the federal government.6

That is, notably, how every other court to consider the issue has interpreted the Supreme 

Court’s opinion. In United States v. 32.42 Acres of Land, 683 F.3d 1030 (9th Cir. 2012), the 

Ninth Circuit quoted the opinion in rejecting a claim that state lands taken by the United States 

through eminent domain were restricted by the public trust doctrine: “‘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.” Id. at 1038. In Alec L., the D.C. Circuit dismissed precisely the 

same type of public trust claim presented here, stating that PPL Montana “directly and 

categorically rejected any federal constitutional foundation for [the public trust] doctrine, without 

qualification or reservation.” 561 F. App’x at 8. The Fourth Circuit has said the same, citing 

PPL Montana for the proposition that the “[public trust] doctrine is a matter of state law.” 

Sansotta v. Town of Nags Head, 724 F.3d 533, 537 n.3 (4th Cir. 2013). This very Court 

concluded even before PPL Montana that the public trust doctrine has no application to the 

 6

 The public trust doctrine does have a tangential relationship to federal common law, but 

that relationship serves only to underscore its state-law nature. The “equal footing doctrine,” 

which is a part of federal common law, provides that each State, upon admission to the United 

States, obtains the same rights over submerged lands within its borders as did the original 

thirteen states. PPL Montana, 132 S. Ct. at 1228, 1234-35. Once statehood is attained, however, 

the equal footing doctrine “d[oes] not operate after that date,” and the development of the public 

trust doctrine is a matter of state law. Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363, 

371 (1977); see also PPL Montana, 132 S. Ct. at 1228, 1234-35; Phillips Petrol. Co. v. 

Mississippi, 484 U.S. 469, 473-74 (1988). 

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Page 12 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

federal government, citing the “Supreme Court’s repeated and unequivocal holdings” that the 

public trust doctrine is “a matter of state law.” Jones v. Rose, No. CV 00-1795, 2005 WL 

2218134, at *26 (D. Or. Sept. 9, 2005); see also, e.g., Brigham Oil & Gas, L.P. v. N.D. Bd. of 

Univ. & Sch. Lands, 866 F. Supp. 2d 1082, 1088 (D.N.D. 2012) (“The United States Supreme 

Court recently made clear that the public trust doctrine is a matter of state law.”). 

The report argues that neither PPL Montana nor 32.42 Acres addressed the particular 

issue in this case, and thus do not bind this Court, and that in fact the prior opinion of the 

Supreme Court—in Shively v. Bowlby, 152 U.S. 1 (1894)—actually recognized a federal public 

trust doctrine. Rep. at 23 n.10. Not so. In both PPL Montana and 32.42 Acres, the issue of 

whether the federal government was bound by public trust obligations was central to the issue 

under review, and in both cases, the court determined that the doctrine is a “matter of state law,” 

not binding on the federal government. PPL Montana, 132 S. Ct. at 1235; 32.42 Acres of Land, 

683 F.3d at 1038.7

 And Shively, far from suggesting that the federal government’s authority over 

acquired territories is cabined by the public trust doctrine, confirms that the United States 

possesses “entire domain and sovereignty” over those lands with full power to use or alienate the 

property as it sees fit. 152 U.S. at 48. While the United States generally holds territories “in 

trust for the several States to be ultimately created,” a trust obligation to the general public arises 

only when a State is actually formed and admitted into the Union, at which time “title and 

 7

 The Ninth Circuit in 32.42 Acres did not explicitly address a separate aspect of the district 

court’s decision, suggesting that federal “public trust” obligations may apply to certain of the 

lands in dispute, because that issue was not raised by any party on appeal. 683 F.3d at 1039 n.2. 

That suggestion is, however, flatly inconsistent with the Ninth Circuit’s ultimate holding and 

thus cannot be viewed as having any precedential or persuasive force. Cf. Br. for U.S. at 14, 683 

F.3d 1030 (10-56568) (“Decisions of the Supreme Court have also made clear that the public 

trust doctrine is a limit on the authority of states to alienate public trust lands free of the trust .... 

The public trust doctrine is simply not a limit on the authority of the federal government ....”) 

(emphasis in original). 

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Page 13 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

rights ... are governed by the laws of the ... State[ ].” Id. at 57-58. In other words, Shively 

states—as PPL Montana later affirmed—that the public trust doctrine is governed by state law.8

 

Id.; see also Douglas L. Grant, Underpinnings of the Public Trust Doctrine: Lessons from 

Illinois Central Railroad, 33 Ariz. St. L.J. 849, 870 (2001) (“[T]he Supreme Court has 

steadfastly treated the public trust doctrine as a matter of state law not federal law.”). 

In no case in the federal or state judiciary, so far as the report identifies (or research 

discloses), has any court recognized a free-standing federal version of the public trust doctrine of 

the type approved in the report. A few cases have suggested that a State’s public trust 

obligations are conveyed with the land upon condemnation by the United States and thus bind 

the federal government, see City of Alameda v. Todd Shipyards Corp., 635 F. Supp. 1447 (N.D. 

Cal. 1986); United States v. 1.58 Acres of Land, 523 F. Supp. 120 (D. Mass. 1981), but those 

cases do not hold that an independent federal public trust obligation exists and in any event are 

inconsistent with the more recent (post-PPL Montana) decision of the Ninth Circuit in 32.42 

Acres, 683 F.3d at 1038. Nor does the report explain the basis upon which a public trust 

obligation would be imposed upon the federal government: the Constitution says nothing about 

it and indeed, to the contrary, states that “Congress shall have Power to dispose of and make all 

needful Rules and Regulations respecting the Territory or other Property belonging to the United 

States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the 

United States.” U.S. Const. art. IV, § 3. Particularly in light of this background, there is every 

 8

 While the language of Shively itself defeats any argument that it recognized a federal public 

trust doctrine, so too does the simple fact that the opinion is cited approvingly in PPL Montana. 

It is inconceivable that the Supreme Court, in an opinion stating that the public trust doctrine “is 

a matter of state law,” 132 S. Ct. at 1235, would cite a decision that holds the opposite. The only 

reasonable conclusion is that, in fact, Shively also recognizes that the doctrine is a matter of state 

law. 

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Page 14 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

reason to assume that the Supreme Court meant exactly what it said in PPL Montana—“the 

public trust doctrine remains a matter of state law.” 132 S. Ct. at 1235. 

In short, the report’s conclusion that the public trust doctrine arises as a matter of federal 

law, binding on the federal government, contravenes a host of authorities, including PPL 

Montana. Even if there were some doubt over whether prior opinions addressed this particular 

issue, or whether the statements describing the doctrine as a state law matter are actually dicta, 

those statements are precisely the type of “considered dicta” that should be treated as 

authoritative. Wynne v. Town of Great Falls, S.C., 376 F.3d 292, 295 n.3 (4th Cir. 2004); United 

States v. Gaudin, 28 F.3d 943, 956 n.2 (9th Cir. 1994); see also Seminole Tribe v. Florida, 517 

U.S. 44, 67 (1996) (“When an opinion issues for the Court, it is not only the result but also those 

portions of the opinion necessary to that result by which we are bound.”). Because the doctrine 

cannot be found to apply to the federal government under this precedent, it cannot support the 

claims in this case. 

2. These claims could not proceed in any event, however, because the allegations of 

the complaint do not state a valid cause of action under any version of the public trust doctrine. 

That doctrine in its common-law form, applies only to a specific and limited set of natural 

resources within a State’s jurisdiction—most specifically, lands submerged beneath tidal and 

navigable waterways—and serves only to restrict the government’s ability to transfer title in 

those resources or otherwise alienate them. Mission Rock, 189 U.S. at 407; Ill. Cent., 146 U.S. at 

453. 

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Page 15 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

No case has ever upheld the novel version of the common law public trust doctrine 

asserted by the plaintiffs here.9

 They would have the doctrine apply to the atmosphere, a blanket 

of layers of gases across the Earth’s surface that is both used and affected by all nations on the 

planet. See, e.g., Bellon, 732 F.3d at 1143. Nothing could be more different than the traditional 

type of “resource,” a physical asset within the boundaries and control of a single jurisdiction, that 

would be covered by the public trust doctrine. See, e.g., Mission Rock, 189 U.S. at 407. The 

plaintiffs would also apply the doctrine to impose an affirmative duty upon governments to adopt 

a particular regulatory regime for the trust resource. This is, again, contrary to a long line of 

cases that have consistently understood the doctrine as limiting the powers of government over 

trust resources—in particular, a government’s authority to alienate or transfer title in the 

resource—and not as imposing affirmative regulatory obligations. See, e.g., Ill. Cent., 146 U.S. 

at 453. 

The report does not appear to disagree with this characterization of the public trust 

doctrine, but it nevertheless concludes that the claims in this case may proceed, apparently 

because the alleged impacts of climate change may affect navigable waters of Oregon. Rep. at 

21, 23. But, as described above, the public trust doctrine prohibits a government from taking 

affirmative regulatory action that itself alienates a resource or precludes its enjoyment. See, e.g., 

Mission Rock, 189 U.S. at 407. The federal government in this case is not alleged to have taken 

any affirmative action that alienates any waters of the United States or precludes their use; 

 9

 A review of state court cases which allegedly assert that the atmosphere can be a public 

trust resource reveals that all of those cases rely on specific state constitutional or statutory 

provisions that expand the public trust doctrine beyond its historical bounds. See, e.g., Foster v. 

Wash. Dep’t of Ecology, No. 14-2-25295-1, slip op. at 8 (Wash. King Cty. Super. Ct. Nov. 19, 

2015); Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221, 1225 (N.M. Ct. App. 

2015); Bonser-Lain v. Texas Comm’n on Envtl. Quality, No. D-1-GN-11-002194, 2012 WL 

3164561 (Tex. 201st Dist. Aug. 2, 2012), rev’d, 438 S.W.3d 887 (Tex. App. 2014). 

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Page 16 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

rather, the government is alleged generally to have failed to take action to reduce greenhouse gas 

emissions in the United States, which in turn is alleged to have impacted the global atmosphere, 

which in turn is alleged to have increased the risks of certain climatological events that might in 

turn affect certain waters of the United States in the future. This alleged chain of events, even if 

accepted as true (which it should not be, as there is no way to plausibly allege a direct link 

between greenhouse gas emissions from one jurisdiction and future impacts of climate change), 

is insufficient to trigger the public trust doctrine, because the doctrine is implicated only by 

government actions—not inaction—and only when the government action itself alienates a 

natural resource directly (e.g., through a sale of the asset, Ill. Cent., 146 U.S. at 453). Mission 

Rock, 189 U.S. at 407. Whatever impacts might occur to the waters of the United States under 

the complaint’s scenario, those impacts are not the result of direct, affirmative actions of the 

United States and therefore cannot support a public trust claim. 

There is, thus, no basis for a public trust claim, even if one assumes (contrary to 

governing precedent) that a federal version of the doctrine exists. That claim should therefore be 

dismissed. 

B. Neither The Due Process Clause Nor The Equal Protection Clause Provide 

The Plaintiffs With A Cognizable Cause Of Action. 

The other claims raised by the plaintiffs fare no better. Those claims, citing 

constitutional due process and equal protection principles, fail because they do not challenge any 

government action that allegedly infringes on the plaintiffs’ individual rights but, rather, seek to 

compel affirmative government action. 

1. It is well-settled that the Due Process Clause cannot be used to compel 

government officials to act and does not “confer [any] affirmative right to governmental aid, 

even where such aid may be necessary to secure life, liberty, or property interests.” DeShaney v. 

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Page 17 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). The only “exception” to this 

principle, commonly known as the “danger creation” exception, applies when there is 

“affirmative conduct on the part of the [S]tate in placing the plaintiff in danger.” L.W. v. Grubbs, 

974 F.2d 119, 121 (9th Cir. 1992). While the State need not take the individual into formal 

“custody,” it must exercise some form of control or authority over the individual and then, with 

“deliberate indifference,” place him or her in an imminently dangerous situation created by the 

government’s actions. L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996); Penilla v. City of 

Huntington Park, 115 F.3d 707, 709 (9th Cir. 1997); Kneipp v. Tedder, 95 F.3d 1199, 1209 (3d 

Cir. 1996), cited with approval in, Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 

1086-87 (9th Cir. 2000); Wood v. Ostrander, 879 F.2d 583, 588-90 (9th Cir. 1989). 

These circumstances are not present here. The complaint does not and cannot allege that 

the federal government itself “created” climate change through its greenhouse gas emissions, that 

the federal government has intentionally acted to “create” climate change, or that any 

government official has exercised any control or authority over the plaintiffs to place them in 

imminent danger—must less with “deliberate indifference” to their safety. Rather, the complaint 

alleges that the federal government has failed historically to take sufficient measures to regulate 

greenhouse gas emissions from sources throughout the country, and as a result of these emissions 

and others from around the world (over the last century or more), global atmospheric greenhouse 

gas concentrations have reached levels that these plaintiffs deem dangerous and that will, in the 

upcoming century, contribute to risks and harms from climate change. Compl. at 4-5. With no 

allegation of an exercise of control over the plaintiffs or creation of an imminent danger by the 

government, no due process claim can lie. 

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Page 18 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

The report does not identify any allegations that would satisfy this standard, but rather 

suggests that the due process claim may proceed because the government’s actions and inaction 

relating to the regulation of greenhouse gas emissions (as described in the complaint) might be 

deemed to constitute “deliberate indifference ... to plaintiffs’ safety” and to “shock[ ] the 

conscience.” Rep. at 16, 17. That is not the standard to be applied, however. The government 

must take some affirmative action against the plaintiff that places the individual in a danger 

created by the government. E.g., Grubbs, 974 F.2d at 121. Only in those circumstances, and 

then only if the government exhibited “deliberate indifference” in doing so, can the “danger 

creation” exception apply. Grubbs, 92 F.3d at 900. Because that standard has not been met and 

could not be met in this case, the due process claim should be dismissed. 

 2. An equal protection claim also requires affirmative, purposeful conduct by the 

government. Such a claim may proceed only if there has been an intentional “classification” by 

government, created with the “purpose to discriminate,” that results in disparate treatment of 

similarly situated individuals. E.g., Romer v. Evans, 517 U.S. 620, 632 (1996); Pers. Adm’r of 

Mass. v. Feeney, 442 U.S. 256, 272 (1979); Washington v. Davis, 426 U.S. 229, 245-47 (1976). 

Neither a “classification” nor a “purpose to discriminate” has been alleged, or could be 

shown, in this case. The most that can be said is that, according to the complaint, the 

government has regulated (or failed to regulate) in a manner that disparately affects “youth” and 

“future generations.” Compl. ¶ 294. Allegations of disparate impact are, however, insufficient 

to state an equal protection claim under long-settled law. See, e.g., Washington, 426 U.S. at 245-

47 (citing cases); see also, e.g., Davis v. Bandemer, 478 U.S. 109, 127 (1986). 

The report does not say anything to the contrary, but nevertheless appears to allow the 

equal protection claim to proceed because “the complaint does allege discrimination against a 

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Page 19 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

class of younger individuals with respect to a fundamental right protected by substantive due 

process.” Rep. at 15 n.8. Even ignoring that the report does not identify any actual 

“fundamental right” that may be implicated and that other courts have expressly rejected the 

proposition that “youth” is a protected class,10 the fact remains that the complaint does not and 

could not allege that any of the governmental actions challenged in this case classified “youth” 

differently from other groups, or were taken with an intent to discriminate against “youth” as a 

class. Indeed, the plaintiffs’ principal argument is not that the government acted improperly, but 

that it failed to act. These allegations cannot support an equal protection claim.11 

C. Any Cause Of Action That Might Have Been Recognized As Supporting The 

Alleged Claims Has Been Displaced By Federal Statute. 

The claims in this case could not proceed, even if they otherwise might have stated 

cognizable violations of the public trust doctrine or constitutional provisions, because Congress 

has displaced any such cause of action by statute. When Congress enacts a federal statute that 

“speak[s] directly to [the] question” previously addressed by a non-statutory cause of action, the 

cause of action is displaced and can no longer be recognized. AEP, 131 S. Ct. at 2537. The 

Supreme Court addressed the specific issue presented here in AEP—whether the Clean Air Act 

 10 See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 472 n.24 (1985) 

(Marshall, J. concurring in part) (“I am not aware of any suggestion that legislation affecting 

[minors] be viewed with the suspicion of heightened scrutiny”); United States v. Flores-Villar, 

536 F.3d 990, 998 (9th Cir. 2008) (“[A]ge is not a suspect class”); Nunez by Nunez v. City of San 

Diego, 114 F.3d 935, 944, 946 (9th Cir. 1997) (holding that “age is not a suspect classification” 

in the context of analyzing juvenile curfew ordinance, but applying strict scrutiny due to 

fundamental rights involved); Ramos v. Town of Vernon, 353 F.3d 171, 172, 180, 181 (2d Cir. 

2003) (applying intermediate scrutiny to juvenile curfew ordinance, but also holding that “[w]e 

do not conclude that youth are a suspect class”). 

11 The complaint also alleged a claim under the Ninth Amendment, see Compl. at 54, but the 

plaintiffs appear to have abandoned that claim, as they did not raise or defend it in their previous 

briefs or at argument before the magistrate judge. That is entirely appropriate, as it is wellsettled that the Ninth Amendment “does not confer substantive rights” and cannot support an 

independent cause of action. Gibson v. Matthews, 926 F.2d 532, 544 (6th Cir. 1991). 

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Page 20 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

precludes non-statutory claims purportedly based in federal law seeking “curtailment of 

greenhouse gas emissions because of their contribution to global warming”—and held 

unambiguously “that the Clean Air Act and the EPA actions it authorizes” displace such claims. 

Id. Any applicable right of action that might have been recognized has, for this reason, been 

displaced. 

The plaintiffs argued previously that their claims are not displaced, even though they 

address the same subject matter as the claims in AEP, either because public trust and 

constitutional claims “cannot be displaced by statute,” or because the Clean Air Act does not 

provide them an opportunity to secure all of the relief they are seeking here. Doc. 33 at 3, 7-8 

(“Pl. Intv. Opp.”). Neither point is correct. To be sure, Congress cannot “displace the 

Constitution,” id., but Congress certainly can—and often does—displace rights of action created 

by the federal courts, including those intended to remedy a constitutional violation, e.g., Bush v. 

Lucas, 462 U.S. 367 (1983), and the Supreme Court has said that any “public trust” rights are 

“subject always to the paramount right of [C]ongress,” Ill. Cent., 146 U.S. at 435. Likewise, a 

statute need not offer the same avenue for adjudication or an equivalent remedial scheme in 

order to displace a common law constitutional (or public trust) claim; rather, whenever a statute 

“speaks directly” to the issues addressed by the claim and provides a mechanism to address those 

issues, AEP, 131 S. Ct. at 2537, the claim is displaced, even if the relief available under the 

statute is “not as effective as [a common law] remedy” and would not “fully compensate [the 

plaintiff] for the [alleged] harm,” Bush, 462 U.S. at 372-73, 385-86. 

The report does not accept or reject, or address, this argument. It is, however, a threshold 

issue governing the viability of the plaintiffs’ claims, and (as described above) stands as one 

more reason why these claims cannot proceed. 

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Page 21 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

II. THIS CASE PRESENTS NON-JUSTICIABLE POLITICAL QUESTIONS. 

These claims are also, independently, subject to dismissal under the political question 

doctrine. That doctrine bars adjudication of issues that: (i) are “textually . . . commit[ted]” to 

another branch by the Constitution; (ii) are not subject to “judicially discoverable and 

manageable standards”; or (iii) could not be resolved without “expressing lack of the respect due 

coordinate branches of government.” Baker v. Carr, 369 U.S. 186, 217 (1962). The claims in 

this case implicate all of these concerns, as explained below. 

The report and recommendation does not address these issues in significant detail, but 

instead suggests that the political question doctrine does not apply in the first instance because 

the claims allege violations of “individual right[s].” Rep. at 13. That position (previously 

advocated by the plaintiffs, Pl. Intv. Opp. at 16) is plainly incorrect. The justiciability limitations 

imposed by the political question doctrine flow from Article III of the Constitution and therefore 

apply to all causes presented to the federal judiciary, whatever the title appended to the claim or 

its asserted basis. Baker, 369 U.S. at 214-16. There has been no case cited, and to counsel’s 

knowledge none exists, for the proposition that public trust or constitutional claims are somehow 

exempt from the political question doctrine if they allege violations of “individual rights.” Quite 

the opposite, numerous cases hold directly to the contrary, finding claims asserting that the 

plaintiff’s “individual” constitutional rights to be barred by the political question doctrine. E.g., 

Vieth v. Jubelirer, 541 U.S. 267, 271, 292 (2004) (plurality); Nixon v. United States, 506 U.S. 

224, 226, 238 (1993). 

However framed, a claim presents a non-justiciable political question if, upon a 

“discriminating inquiry into the precise facts and posture of the [case],” Baker, 369 U.S. at 217, 

its adjudication would require the court to address an issue that should be reserved for the 

representative branches. That is the situation here. 

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Page 22 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

A. The Claims Implicate Issues That Are Textually Committed To The 

Executive And Legislative Branches. 

Adjudication of the plaintiffs’ claims would, without doubt, involve the judiciary in 

issues that are committed by the text of the Constitution to the coordinate branches of 

government. The complaint asks this Court to direct agencies of the Executive Branch—as well 

as the President—to promulgate specific regulations to achieve a particular goal, without regard 

to their own expert determinations regarding the need for or suitability of those regulations and 

without regard to statutory prerequisites and directives enacted by Congress. Compl. ¶¶ 1, 12. 

The Court would, in essence, be commandeering these agencies and placing them under its 

exclusive control for these purposes—issuing an order directing them to develop and implement 

“a national plan to restore Earth’s energy balance . . . [and] stabilize the climate system” under 

which they would be required to take all actions that are “necessary” to ensure that “atmospheric 

[carbon dioxide] is no more concentrated than 350 [parts per million] by 2100.” Id. The Court 

would then “[r]etain jurisdiction” over the President and Executive Branch “to monitor and 

enforce [their] compliance with the national remedial plan and all associated orders of this 

Court,” potentially until 2100. Id. at 94. 

There could hardly be a clearer violation of the constitutional principle of separation of 

powers. The Constitution by its terms commits legislative power—in particular, authority “[t]o 

regulate Commerce”—to Congress, U.S. Const. art. I, §§ 1, 8, and executive power to the 

President, see U.S. Const. art. II, § 1. The political branches, which are ultimately responsible to 

the public, determine the need for and set regulatory standards. There is simply no basis and no 

allowance in the Constitution for a court to control or supervise the internal operations of 

agencies, much less the Office of the President, or direct their regulatory discretion in the 

absence of any statute authorizing such judicial intervention. See, e.g., Lujan v. Nat’l Wildlife 

Case 6:15-cv-01517-TC Document 73 Filed 05/02/16 Page 30 of 43
 

Page 23 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

Fed’n, 497 U.S. 871, 891 (1990); Webster v. Doe, 486 U.S. 592, 601 (1988); Heckler v. Chaney, 

470 U.S. 821, 829 (1985); see also Gilligan v. Morgan, 413 U.S. 1, 5-7 (1973) (rejecting as nonjusticiable claims that would require the judiciary to craft particular “standards” for 

governmental operations and monitor compliance thereafter). Providing the relief sought by the 

plaintiffs would require the Court to exercise legislative and executive power denied to the 

judiciary by the Constitution. 

The report, although acknowledging that the case “appears to implicate authority of the 

Congress,” suggests that this concern is obviated by the fact that the defendants in this case are 

executive agencies, which have in prior cases been subject to court orders directing them to 

“craft regulations” and to redress constitutional violations. Rep. at 13. But this ignores that, 

unlike the claims here, none of those cases involved the court in the formation of legislative or 

executive policy. Cases challenging an agency’s failure to regulate are brought pursuant to 

express statutory procedures and require a court to assess only whether the agency has satisfied 

affirmative congressional directives, e.g., Massachusetts v. EPA, 549 U.S. 497 (2007) (petition 

for review of rulemaking decision by EPA, brought in the D.C. Circuit pursuant to the Clean Air 

Act, 42 U.S.C. § 7607(b)(1)); likewise, cases alleging that an agency violated a plaintiff’s 

constitutional rights are brought in response to affirmative actions of the agency that impact the 

plaintiff in some way and require a court to assess only whether the agency’s action exceeded the 

limits imposed by the Constitution, e.g., Reeves Bros., Inc. v. EPA, 956 F. Supp. 665 (W.D. Va. 

1995). Neither type of case implicates political question concerns because in neither is the 

judiciary instructing the other branches how legislative and executive authority should be 

exercised, but rather the court is adjudicating only whether that authority is being exercised 

consistent with statutory and constitutional requirements. 

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Page 24 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

This case is the precise contrast. These claims are not brought pursuant to any statutory 

authorization and would require this Court to adjudge how various federal agencies should have 

exercised—and how they should exercise—their authority over issues relating to greenhouse gas 

emissions and climate change. Compl. at 4-5. There is simply no way for the Court to address 

these claims without intruding into spheres of authority reserved by the Constitution to the other 

branches. 

B. There Are No Judicially Discoverable Or Manageable Standards For 

Resolving The Claims. 

These claims are also non-justiciable because there are no “judicially discoverable and 

manageable standards” for resolving them. Baker, 369 U.S. at 217. The complaint asks the 

Court to declare that the regulations and policies of the federal government relating to 

greenhouse gas emissions over the past 50 years or more have not been “adequate” and to order 

the defendants to develop an “appropriate response to the climate crisis” by “prepar[ing] and 

implement[ing] ... an enforceable national remedial plan to phase out fossil fuel emissions and 

draw down excess atmospheric [carbon dioxide] so as to stabilize the climate system.” Compl. 

at 49, 94. To address these issues, however, the Court would need not only to resolve the 

scientific likelihood of the various risks of climate change, and their likely impact on the Nation, 

but also to weigh those risks against the possible benefits of emissions-producing activities (in 

the past and future) and associated reduction measures and then make a comparative judgment to 

determine which industries, sectors, and nations should have been required, and should now be 

required, to reduce their emissions and by how much. In particular, among other issues, the 

plaintiffs’ requested relief would require the Court to determine whether the plaintiffs’ goal of 

reducing atmospheric greenhouse gas levels to 350 parts per million is an appropriate target, or if 

the targeted level should be lower or higher, and then decide the nature and timing of any 

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Page 25 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

required emissions reductions and how they should be implemented. A court could not make 

these determinations without relying on “ad hoc” policy judgments of the type prohibited by the 

political question doctrine. AEP, 131 S. Ct. at 2539-40 (stating that greenhouse gas emissions 

regulations “cannot be prescribed in a vacuum” but must take account of “competing interests” 

relating to “national or international policy”). 

The Supreme Court has made this very point in prior cases. In Massachusetts v. EPA, for 

example, after holding that the Clean Air Act authorized EPA to consider whether to regulate 

greenhouse gas emissions under certain circumstances, the Court refused to address whether the 

agency should actually exercise that discretion on grounds that it would implicate “policy 

judgments” that the federal judiciary has “neither the expertise nor the authority to evaluate.” 

549 U.S. at 533-34. Likewise, in AEP, the Court refused to address the “appropriate amount of 

regulation in any particular greenhouse gas-producing sector” because that inquiry, “as with 

other questions of national or international policy,” would require balancing a number of 

“competing interests,” including among other things “the environmental benefit potentially 

achievable, our Nation’s energy needs and the possibility of economic disruption.” 131 S. Ct. at 

2539-40. Only the legislative and executive branches have the capacity and authority under our 

Constitution to assess and weigh these questions of “high policy” and decide whether 

regulations, such as those the plaintiffs seek, are appropriate. Tex. Indus., Inc. v. Radcliff 

Materials, Inc., 451 U.S. 630, 647 (1981). 

The report acknowledges at the outset that the complaint’s “request for relief does 

implicate some unmanageable issues,” but then suggests that this problem can be avoided by 

restricting the scope of any relief ultimately entered—perhaps to an order that “only direct[s] the 

EPA to adopt standards that prevent the alleged constitutional harm[s].” Rep. at 14. But the 

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Page 26 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

problem here is not only the relief requested; it is the claims themselves. The adjudication of 

these claims on the merits would require the Court to address and adjudge whether the federal 

government’s past regulation of greenhouse gas emissions was “adequate” to protect against the 

risks of climate change. Compl. ¶ 261. That assessment itself (and any resulting declaration) 

would be guided not by any defined or established standard but would necessarily depend on 

policy considerations. In addition, even ignoring these concerns, relief of the type proposed in 

the recommendation—directing EPA and multiple other agencies to adopt regulations, without 

dictating precisely what those regulations should be—would not obviate the political question, as 

the decision of whether to regulate is in many ways more dependent on policy judgments than 

the decision of how to do so. Massachusetts, 549 U.S. at 533-34; see also Gilligan, 413 U.S. at 

5-7 (rejecting as non-justiciable claims that would require the judiciary to craft particular 

“standards” for governmental operations and monitor compliance thereafter). However the 

claims are characterized, and whatever the relief ultimately available, the claims implicate policy 

considerations that are fundamentally ill-suited for judicial resolution. 

C. The Claims Could Not Be Adjudicated Without Expressing Lack Of Respect 

Due To Other Branches Of Government. 

These claims are non-justiciable for the additional reason that they cannot be adjudicated 

without “expressing lack of the respect due” other branches of government. Baker, 369 U.S. at 

217. Congress and executive agencies have taken a wide range of steps to assess and address the 

potential impacts and risks of climate change. In particular, in the Clean Air Act, the Supreme 

Court has said, Congress “designated an expert agency, ... EPA, as best suited to serve as 

primary regulator of greenhouse gas emissions.” AEP, 131 S. Ct. at 2539-40.12 

 12 Congressional efforts to consider and address issues relating to climate change stretch back 

to at least the 1970s. See, e.g., National Climate Program Act of 1978, Pub. L. No. 95-367, 92 

Stat. 601 (establishing a “national climate program,” with the purpose of improving 

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Page 27 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

The plaintiffs ask this Court to substitute its judgment for that of the Legislative and 

Executive Branches. They would, in essence, have the court tell those branches how to legislate 

and how to regulate. The complaint specifically requests that the court “[r]etain jurisdiction over 

this action,” potentially until 2100, in order to ensure that the named agencies follow their 

obligations under the approved recovery plan. Compl. at 94. It is hard to imagine how the 

judiciary could show a greater “lack of respect” for the political branches than by issuing an 

order that supersedes their considered judgment concerning matters within their constitutional 

authority and further subjects them to potentially decades of continuing supervision by a single 

federal judge. See Gilligan, 413 U.S. at 5-8 (claims calling upon court “to assume continuing 

regulatory jurisdiction” over governmental department constitute non-justiciable political 

questions). 

The report does not address this aspect of the political question doctrine, or offer any 

reason why the claims in this case could be adjudicated consistent with its limitations. And, to 

be sure, there is none. “[A]llowing courts to oversee legislative or executive action,” as would 

the claims in this case, “would significantly alter the allocation of power ... away from a 

 

understanding of global climate change through research and international cooperation); Energy 

Policy Act of 1992, Pub. L. No. 102-486, tit. XVI, § 1601, 106 Stat. 2776, 2999 (mandating 

further study and regulatory action regarding the impact of greenhouse gas emissions and climate 

change); Global Change Research Act of 1990, Pub. L. No. 101-606, 104 Stat. 3096 (same); 

Energy Security Act of 1980, Pub. L. No. 96-294, tit. VII, § 711, 94 Stat. 611, 774-75 (same); 

Global Climate Protection Act of 1987, Pub. L. No. 100-204, tit. XI, § 1002, 101 Stat. 1331, 

1408 (directing executive officials to coordinate international negotiations concerning global 

climate change); Energy Independence and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 

1492 (establishing nationwide greenhouse gas reduction targets to be satisfied through modified 

biofuel production methods and increased fuel efficiency standards on cars and certain trucks); 

Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, tit. II, 121 Stat. 1844, 2128 

(2007) (directing EPA to “develop and publish a ... rule ... to require mandatory reporting of 

greenhouse gas emissions above appropriate thresholds in all sectors of the economy of the 

United States”). Efforts by the Executive Branch relating to greenhouse gas emissions and 

climate change have been similarly comprehensive. See supra note 1. 

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Page 28 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

democratic form of government.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) 

(internal quotation marks omitted).13 

III. THE PLAINTIFFS LACK STANDING TO PURSUE THEIR CLAIMS. 

The claims also cannot proceed because the plaintiffs lack standing under Article III. To 

satisfy the “irreducible constitutional minimum of standing,” a plaintiff must plead facts showing 

an “injury in fact” that is “imminent” and “particularized,” “fairly traceable to the challenged 

action of the defendant,” and “likely ... redress[able] by a favorable decision.” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (alterations and internal quotation marks 

omitted). The Ninth Circuit recently held that this standard cannot be met by plaintiffs seeking 

reductions in greenhouse gas emissions to address the risks of climate change, as they cannot 

show a plausible link between the challenged emissions and an imminent injury-in-fact that 

might be remedied through a court order. Bellon, 732 F.3d at 1139-40. That holding applies 

directly to this case and requires dismissal of the claims. 

A. The Complaint Does Not Allege Imminent And Particularized Injuries. 

The allegations in the complaint, first, fail to satisfy the “core” constitutional requirement 

of an injury that is “imminent” and “particularized.” Most of the adverse impacts alleged are to 

the environment or the public generally, rather than the plaintiffs personally, e.g., Compl. at 26, 

 13 The justiciability problems associated with this claim are all the more pronounced because 

many of the agency operations at issue here relate to foreign relations or national defense, fields 

that the Constitution plainly commits to the political branches. E.g., Compl. ¶¶ 121, 123. The 

complaint requests, for example, that the Court declare invalid and void an order authorizing 

exports of liquefied natural gas to foreign nations, as well as the statute under which 

authorization was permitted. Id. at 94. But that order was issued in accordance with this 

country’s obligations under free trade agreements with those foreign nations. See Order No. 

3041 at 10-11, In re Jordan Cove Energy Project, L.P., FE Docket No. 11-127-LNG (U.S. Dep’t 

of Energy, Dec. 7, 2011). The complaint thus asks the judiciary to abrogate agreements that 

were negotiated and approved by the United States and foreign governments—which have not 

been (and could not be) challenged in this case. 

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Page 29 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

29, 32, 72, 76-77 (alleging harms to forests and glaciers, “infrastructure” and “ecosystem,” and 

“human civilization”), or concern events in the past, e.g., id. at 24, 31 (discussing past 

experiences of the plaintiffs and their families), which could not support claims for prospective 

injunctive relief. See Lujan, 504 U.S. at 563 (“Past exposure to illegal conduct does not in itself 

show a present case or controversy regarding injunctive relief ....”). Other asserted harms are to 

the interests for which the plaintiffs advocate, see, e.g., Compl. ¶¶ 30, 91, not actual injuries to 

the plaintiffs themselves, and are likewise inadequate. Sierra Club v. Morton, 405 U.S. 727, 740 

(1972). And many of the allegations—including those relating to the Jordan Cove export 

facility, on which the complaint focuses but which is not operational and has actually been 

denied permitting approval, Rep. at 5 n.2—concern speculative events or injuries that have not 

and may never occur, which are for that reason not ripe for review. See, e.g., Compl. ¶¶ 19, 22, 

34, 46, 58, 63 (discussing the possibility that emissions-producing activities will occur or that the 

plaintiffs will visit or reside in areas that may be affected by climate change).14 Indeed, rather 

than seeking to redress “imminent” or “actual” harms, the complaint acknowledges that its 

purpose is to produce changes to the atmosphere in the future, not until 2100, and to protect the 

interests of “future generations” not before this Court. Id. ¶ 97. 

The fundamental deficiency of these allegations is reflected in the fact that they are not in 

any way limited, or “particularized,” Lujan, 504 U.S. at 560-61, as to these plaintiffs. The 

complaint asserts that the plaintiffs have standing to sue because they may in the future 

 14 In addition, any challenge to the Department of Energy’s approval of Jordan Cove exports 

could be made only within the context of those proceedings—not here. It appears from the 

complaint that the plaintiffs did in fact raise such a challenge in certain proceedings before the 

Department of Energy but were denied relief, Compl. ¶ 96, and this case thus represents a 

collateral attack on the agency’s decision—which is flatly contrary to settled principles of 

administrative law, see, e.g., Bowen v. Massachusetts, 487 U.S. 879, 903 (1988), and federal 

statutes conferring jurisdiction over many such claims in the federal courts of appeals, see, e.g.,

15 U.S.C. § 717r (D.C. Circuit). 

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Page 30 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

experience effects of climate change, and it identifies as those effects nearly every 

climatological, economic, epidemiological, meteorological, and political occurrence on the 

planet, including “[t]he melting of mountain glaciers,” “rising sea levels,” “biodiversity 

[losses],” “extreme weather events” including floods and droughts, “decreased tourism revenue,” 

geopolitical changes such “regional instability” and “terrorism,” as well as essentially all known 

medical conditions—“allergies, asthma, cancer, cardiovascular disease, stroke, heat-related 

morbidity and mortality, food-borne diseases, injuries, toxic exposures, mental health and stress 

disorders, and neurological diseases and disorders.” Compl. ¶¶ 121, 219, 226, 227, 235, 237, 

239, 240. 

This is plainly not a valid theory of standing. The risks and harms alleged in the 

complaint, if accepted as true, would impact each and every person on the planet, and for that 

reason, if those allegations are deemed sufficient to confer standing on these plaintiffs, they 

could likewise support standing for anyone or everyone to bring the same types of claims in this 

Court or any other in the country, seeking to force adoption of regulations that in their own view 

are reasonably warranted. These are precisely the sort of non-particularized risks and harms, 

affecting “society” in general that the Supreme Court has characterized as a “generalized 

grievance” insufficient to confer standing. Lujan, 504 U.S. at 573-74; Gladstone Realtors v. Vill. 

of Bellwood, 441 U.S. 91, 111-14 (1979); see also Massachusetts v. Mellon, 262 U.S. 447, 487 

(1923) (“If one [citizen] may champion and litigate such a cause, then every other [citizen] may 

do the same.”). 

The report suggests that the asserted impacts of climate change, even if they will 

allegedly be suffered by the entirety of “Earth and its inhabitants,” are not generalized because 

according to the complaint, they will “befall the [youth plaintiffs and future generations] ... to a 

Case 6:15-cv-01517-TC Document 73 Filed 05/02/16 Page 38 of 43
 

Page 31 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

greater extent than older segments of society.” Rep. at 8. But this point is irrelevant to the 

standing analysis. Whatever differences might exist in the way these and other parties may in 

the future experience any alleged effects of climate change, the essential legal injury asserted 

here is not to the plaintiffs themselves but to the global environment, and the interests asserted in 

the complaint in addressing that injury are shared equally by each and every citizen. It is thus 

the archetypal example of an “abstract” and “generalized grievance” that cannot support 

standing. See Lujan, 504 U.S. at 573-74; see also Fed. Election Comm’n v. Akins, 524 U.S. 11, 

23-24 (1998); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 

669, 687-689 (1973). 

B. The Injuries Alleged In The Complaint Are Neither Fairly Traceable To The 

Defendants Nor Likely Redressable By The Requested Relief. 

The plaintiffs also cannot show that their injuries are “fairly traceable” to these 

defendants or “likely redressable” by the requested relief. There is simply no way to determine 

whether and how emissions of greenhouse gases from regulated sources within the United States 

will impact global atmospheric levels in the future, given that such emissions arise from all 

jurisdictions around the planet and a majority of emissions are from sources outside the United 

States, which would not and could not be reached by a decree in this case. See, e.g., North 

Carolina ex rel. Cooper v. TVA, 615 F.3d 291, 302 (4th Cir. 2010). The Ninth Circuit made 

precisely this point in Bellon, holding that the plaintiffs lacked standing to challenge the federal 

government’s alleged failure to adequately regulate greenhouse gas emissions: “simply saying 

that the Agencies have failed to curb emission of greenhouse gases, which contribute (in some 

undefined way and to some undefined degree) to their injuries, relies on an ‘attenuated chain of 

conjecture insufficient to support standing.’” 732 F.3d at 1142-1143 (quoting Salmon Spawning 

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Page 32 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

& Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1228 (9th Cir. 2008)). That language, and the 

Court’s holding, apply equally here. 

There is indeed no basis to believe that reductions ordered here would lead to any overall 

reduction, much less the reduction allegedly needed to achieve the plaintiffs’ goal of 350 parts 

per million carbon dioxide globally, or prevent, or even slow, the ongoing global warming effect 

that the plaintiffs allege. To the contrary, it is just as possible that greenhouse gas emissions in 

other nations would increase if severe limits were imposed in the United States, thereby negating 

the purported benefit achieved by the emissions reductions sought in this case. See, e.g., Bellon, 

732 F.3d at 1143; North Carolina, 615 F.3d at 302. Other decisions, including (again) Bellon 

have held that claims seeking reductions in greenhouse gas emissions must be dismissed for 

precisely this reason. E.g., Bellon, 732 F.3d at 1143; Comer v. Murphy Oil USA, Inc., 839 F. 

Supp. 2d 849, 857-62 (S.D. Miss. 2012), aff’d on other grounds, 718 F.3d 460 (5th Cir. 2013); 

Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 879-80 (N.D. Cal. 2009), 

aff’d on other grounds, 696 F.3d 849 (9th Cir. 2012); Ctr. for Biological Diversity v. Dep’t of 

Interior, 563 F.3d 466, 478-79 (D.C. Cir. 2009) (rejecting similar causation theory). 

Notwithstanding the Ninth Circuit’s decision in Bellon, and a host of similar holdings in 

other “climate change” cases, the report and recommendation defers to the allegations of the 

complaint, concluding (in essence) that causation and redressability have been established 

because the complaint alleges that they have been. Rep. at 10, 11. It is well-settled, however, 

that a court need not and should not accept “legal” or “conclusory” allegations of this type but 

must, particularly with respect to standing, conduct a rigorous assessment of the complaint to 

determine whether a plausible showing of causation and redressability can be made. Lujan, 504 

U.S. at 560-61; see also, e.g., Iqbal, 556 U.S. at 667; Clegg, 18 F.3d at 754-55. That is not the 

Case 6:15-cv-01517-TC Document 73 Filed 05/02/16 Page 40 of 43
 

Page 33 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

case here. All of the factual allegations of the complaint can be accepted as true—that 

greenhouse gas emissions result in changes to the global atmosphere and environment, that those 

changes produce widespread adverse climatological impacts, and that these plaintiffs will be 

exposed to these impacts—and, yet, the plaintiffs still do not and cannot establish causation and 

redressability. That is because, as the Ninth Circuit said in Bellon, greenhouse gas emissions are 

and will continue to be emitted by sources worldwide, aggregating in the global atmosphere to 

produce effects worldwide, and it is for that reason impossible to prove that a reduction of 

emissions from certain sources or one jurisdiction (e.g., the United States) will eliminate or 

alleviate any of the risks to which certain areas or individuals (e.g., these plaintiffs) will be 

exposed. 732 F.3d at 1143. The deficiency with the complaint at this stage is, in other words, 

not a lack of evidence—which might be remedied through discovery—but rather a lack of facial 

plausibility. See, e.g., Kivalina, 663 F. Supp. 2d at 879-82. 

The complaint must, in short, be dismissed because the plaintiffs have not and cannot 

satisfy the “irreducible constitutional minimum” requirements for Article III standing. A number 

of prior cases, including Bellon and Massachusetts, recognize that individual plaintiffs cannot 

establish causation or redressability between greenhouse gas emissions and risks of climate 

change. Bellon, 732 F.3d at 1147. Those decisions are binding here.15 

 15 It should go without saying that a single opinion of a Dutch district-level court—the only 

authority cited in the report and recommendation in support of causation and redressability, Rep. 

11 (citing Urgenda v. The State of the Netherlands)—does not in any sense overrule or override 

the binding decisions in Bellon and Massachusetts, or counsel a different result from the 

unanimous holdings of courts in the United States, applying United States law. 

Case 6:15-cv-01517-TC Document 73 Filed 05/02/16 Page 41 of 43
 

Page 34 Intervenor-Defendants’ Objections to Magistrate’s Findings and Recommendation 

CONCLUSION

 For these reasons, the Court should reject the findings and recommendation of the 

magistrate judge, and dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) and 

(b)(6). 

 DATED this 2nd day of May, 2016. 

 MILLER NASH GRAHAM & DUNN LLP 

 

 /s/ C. Marie Eckert 

C. Marie Eckert, OSB No. 883490 

marie.eckert@millernash.com 

Suzanne C. Lacampagne, OSB No. 951705 

suzanne.lacampagne@millernash.com 

3400 U.S. Bancorp Tower 

111 S.W. Fifth Avenue 

Portland, Oregon 97204 

Telephone: (503) 224-5858 

SIDLEY AUSTIN LLP 

/s/ Roger R. Martella, Jr.____ 

Roger R. Martella, Jr. 

rmartella@sidley.com 

Quin M. Sorenson 

qsorenson@sidley.com 

Benjamin E. Tannen btannen@sidley.com 

1501 K Street, N.W. 

Washington, D.C. 20005 

Telephone: (202) 736-8000 

Attorneys for Intervenor-Defendants 

The National Association of Manufacturers, 

American Fuel & Petrochemical Manufacturers, 

and American Petroleum Institute

Case 6:15-cv-01517-TC Document 73 Filed 05/02/16 Page 42 of 43
Page 1 Certificate of Service 

I hereby certify that I served the foregoing Intervenor-Defendants' Objections to 

Magistrate's Findings and Recommendation on: 

Julia A. Olson 

Wild Earth Advocates 

1216 Lincoln Street 

Eugene, Oregon 97401 

E-mail: juliaaolson@gmail.com 

Attorney for Plaintiffs 

Daniel M. Galpern

Law Offices of Daniel M. Galpern 

1641 Oak Street 

Eugene, Oregon 97401 

E-mail: dan.galpern@gmail.com 

Attorney for Plaintiffs 

Philip L. Gregory 

Cotchett, Pitre & McCarthy, LLP 

840 Malcolm Road 

Burlingame, California 94010 

E-mail: pgregory@cpmlegal.com 

Attorney for Plaintiffs 

Sean C. Duffy

United States Department of Justice 

Environment & Natural Resources Division 

Natural Resources Section 

P.O. Box 7611 

Washington, D.C. 20044 

E-mail: sean.c.duffy@usdoj.gov 

Attorney for Defendants 

Charles M. Tebbutt

Law Offices of Charles M. Tebbutt, P.C. 

941 Lawrence 

Eugene, Oregon 97401 

E-mail: charlie@tebbuttlaw.com 

Attorney for Amici Curiae Global Catholic 

Climate Movement and Leadership Council 

of Women Religious

Michelle A. Blackwell

Blackwell Law PC 

P.O. Box 10326 

Eugene, Oregon 97440 

E-mail: mblackwell@blackwell.law 

Attorney for Amicus Curiae John Davidson

by the following indicated method on the date set forth below: 

 CM/ECF system transmission. 

DATED this 2nd day of May, 2016. 

/s/ C. Marie Eckert 

C. Marie Eckert, P.C. 

Oregon State Bar No. 883490 

Of Attorneys for Intervenor-Defendants The 

National Association of Manufacturers, 

American Fuel & Petrochemical 

Manufacturers, and American Petroleum 

Institute

Case 6:15-cv-01517-TC Document 73 Filed 05/02/16 Page 43 of 43