No. 18-_____ 

 

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

 

In re UNITED STATES OF AMERICA, et al. 

UNITED STATES OF AMERICA, et al., Petitioners, 

v. 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, 

Respondent, 

and 

KELSEY CASCADIA ROSE JULIANA, et al., Real Parties in Interest.

 

On Petition for a Writ of Mandamus to the United States District Court 

for the District of Oregon (No. 6:15-cv-1517-TC) 

 

PETITION FOR A WRIT OF MANDAMUS REQUESTING A STAY OF 

DISTRICT COURT PROCEEDINGS PENDING SUPREME COURT REVIEW 

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 

 

Counsel for Petitioners 

JEFFREY H. WOOD 

Acting Assistant Attorney General

ERIC GRANT 

Deputy Assistant Attorney General 

ANDREW C. MERGEN 

SOMMER H. ENGELS 

ROBERT J. LUNDMAN 

Attorneys 

Environment and Natural Resources Division 

U.S. Department of Justice 

Post Office Box 7415 

Washington, D.C. 20044 

(202) 514-0943 

eric.grant@usdoj.gov 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 1 of 39
i 

CIRCUIT RULE 27-3 CERTIFICATE 

 Pursuant to Circuit Rule 27-3(a), I hereby certify that to avoid irreparable 

harm to Petitioners United States of America, et al. (the government), relief is needed 

in less than 21 days’ time. 

 1. Regarding Circuit Rule 27-3(a)(1), the government notified both the 

Clerk and counsel for Real Parties in Interest (Plaintiffs) on Thursday, October 11, 

2018 of its intention to file this mandamus petition and emergency motion. The justfinalized petition and motion are being served simultaneously with filing both via 

the district court’s CM/ECF system and via e-mail to the below-stated addresses. 

 2. Regarding Circuit Rule 27-3(a)(3)(i), counsel are as follows: 

Counsel for the Government: 

Eric Grant 

(202) 514-0943 

eric.grant@usdoj.gov 

Andrew C. Mergen 

(202) 514-2813 

andy.mergen@usdoj.gov 

Sommer H. Engels 

(202) 353-7712 

sommer.engels@usdoj.gov 

Robert J. Lundman 

(202) 514-2946 

robert.lundman@usdoj.gov 

Environment and Natural Resources Division 

U.S. Department of Justice 

Post Office Box 7415 

Washington, D.C. 20044 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 2 of 39
ii 

Counsel for Plaintiffs: 

Julia A. Olson 

(415) 786-4825 

JuliaAOlson@gmail.com 

Wild Earth Advocates 

1216 Lincoln Street 

Eugene, Oregon 97401 

Philip L. Gregory 

(650) 278-2957 

pgregory@gregorylawgroup.com 

Gregory Law Group 

1250 Godetia Drive 

Redwood City, California 94062 

Andrea K. Rodgers 

(206) 696-2851 

Andrearodgers42@gmail.com 

Law Offices of Andrea K. Rodgers 

3026 NW Esplanade 

Seattle, Washington 98117 

 3. Regarding Circuit Rule 27-3(a)(3)(ii), the facts showing the existence 

and nature of the claimed emergency are set forth in detail below in the Statement 

of the Case (pp. 3-8) and in Part II of the Argument (pp. 21-23). In brief, the 

government respectfully requests emergency relief in this matter because it faces an 

impending trial that is scheduled to begin on October 29, 2018 and is estimated to 

last approximately 50 trial days. 

 4. Regarding Circuit Rule 27-3(a)(3)(iii), Plaintiffs’ counsel were notified 

of this mandamus petition and emergency motion via an e-mail sent on Thursday, 

October 11. The government’s stay motion in the district, filed in that court on 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 3 of 39
iii 

Friday, October 5th and simultaneously served on Plaintiffs by that court’s CM/ECF 

system, also stated that the government “plans to seek a stay from the Ninth Circuit 

next week,” i.e., this week. ECF No. 361 at 2. Plaintiffs’ counsel are being served 

with the just-finalized petition and motion simultaneously with filing both via the 

district court’s CM/ECF system and via e-mail to the above-stated addresses. 

 5. Regarding Circuit Rule 27-3(a)(3)(4), as noted above, the government 

sought relief from the district court in a stay motion filed on Friday, October 5. 

s/ Eric Grant 

Eric Grant 

Counsel for Petitioners 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 4 of 39
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TABLE OF CONTENTS 

Page 

CIRCUIT RULE 27-3 CERTIFICATE ...................................................................... i

TABLE OF AUTHORITIES .................................................................................... vi

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

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

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

STATEMENT OF THE CASE .................................................................................. 3

ARGUMENT ............................................................................................................. 8

I. The government’s petition is likely to succeed in the 

Supreme Court ................................................................................................. 9

A. Plaintiffs lack standing, and this is not a case or 

controversy within the meaning of Article III ..................................... 10

B. Plaintiffs must challenge specified agency actions or 

inaction under the APA based on the administrative 

record ................................................................................................... 15

C. Plaintiffs’ claims are manifestly without merit ................................... 18

II. The balance of the equities counsels in favor of a stay ................................. 21

A. Without a stay, the government will be irreparably 

harmed ................................................................................................. 21

B. Plaintiffs will not be harmed by a stay ................................................ 23

III. The Court should stay discovery and trial pending resolution of

this petition .................................................................................................... 24

CONCLUSION ........................................................................................................ 24

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 5 of 39
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STATEMENT OF RELATED CASES 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 6 of 39
vi 

TABLE OF AUTHORITIES 

Page 

Cases 

Alec L. ex rel. Loorz v. McCarthy, 

561 Fed. Appx. 7 (D.C. Cir.), 

cert. denied, 135 S. Ct. 774 (2014) ................................................................ 21 

American Electric Power v. Connecticut, 

564 U.S. 410 (2011)....................................................................................... 20 

Bauman v. U.S. District Court, 

557 F.2d 650 (9th Cir. 1977) ........................................................................... 9 

Cheney v. U.S. District Court, 

542 U.S. 367 (2004)....................................................................................... 15 

DeShaney v. Winnebago County Department of Social Services, 

489 U.S. 189 (1989)....................................................................................... 19 

Drakes Bay Oyster Co. v. Jewell, 

747 F.3d 1073 (9th Cir. 2014) ......................................................................... 8 

Florida Power & Light Co. v. Lorion, 

470 U.S. 729 (1985)....................................................................................... 16 

In re United States, 

875 F.3d 1177 (9th Cir. 2017) ......................................................................... 2 

In re United States, 

884 F.3d 830 (9th Cir. 2018) ....................................................................... 5-6 

In re United States, 

895 F.3d 1101 (9th Cir. 2018) ..................................................................... 6, 9 

Juliana v. United States, 

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

motion to certify appeal denied, 

2017 WL 2483705 (D. Or. June 8, 2017) .............................................. 4, 5, 18 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 7 of 39
Page 

vii 

Lexmark International, Inc. v. Static Control Components, Inc., 

134 S. Ct. 1377 (2014) ................................................................................... 10 

Louisiana Public Service Commission v. FCC, 

476 U.S. 355 (1986)....................................................................................... 13 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992)................................................................................. 10-11 

Lujan v. National Wildlife Federation, 

497 U.S. 871 (1990)....................................................................................... 17 

Missouri v. Jenkins, 

515 U.S. 70 (1995) ......................................................................................... 14 

Moore v. City of East Cleveland, 

431 U.S. 494 (1977)....................................................................................... 18 

Ninilchik Traditional Council v. United States, 

227 F.3d 1186 (9th Cir. 2000) ................................................................. 21-22 

Nken v. Holder, 

556 U.S. 418 (2009)......................................................................................... 8 

Norton v. Southern Utah Wilderness Alliance, 

542 U.S. 55 (2004) ................................................................................... 12, 17 

Obergefell v. Hodges, 

135 S. Ct. 2584 (2015) ................................................................................... 19 

Penilla v. City of Huntington Park, 

115 F.3d 707 (9th Cir. 1997) ......................................................................... 20 

Plaut v. Spendthrift Farm, Inc., 

514 U.S. 211 (1995)....................................................................................... 13 

PPL Montana, LLC v. Montana, 

565 U.S. 576 (2012)....................................................................................... 20 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 8 of 39
Page 

viii 

Tagg Bros. & Moorhead v. United States, 

280 U.S. 420 (1930)....................................................................................... 22 

Unemployment Compensation Commission v. Aragon, 

329 U.S. 143 (1946)....................................................................................... 22 

United States v. 32.42 Acres of Land, 

683 F.3d 1030 (9th Cir. 2012) ....................................................................... 20 

Vermont Agency of Natural Resources v. United States 

ex rel. Stevens, 529 U.S. 765 (2000) ....................................................... 13-14 

Warth v. Seldin, 

422 U.S. 490 (1975)....................................................................................... 11 

Washington Environmental Council v. Bellon, 

732 F.3d 1131 (9th Cir. 2013) ................................................................. 12-13 

Washington v. Glucksberg, 

521 U.S. 702 (1997)................................................................................. 18-19 

Webster v. Doe, 

486 U.S. 592 (1988)....................................................................................... 17 

Western Radio Services Co. v. U.S. Forest Service, 

578 F.3d 1116 (9th Cir. 2009) ....................................................................... 15 

Wood v. Ostrander, 

879 F.2d 583 (9th Cir. 1989) ......................................................................... 20 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 9 of 39
Page 

ix 

Constitution, Statutes, and Court Rules 

United States Constitution 

 art. I, § 1 ......................................................................................................... 22 

 art. II, § 1, cl. 1 ............................................................................................... 22 

 art. II, § 2, cl. 1 ............................................................................................... 14 

 art. II, § 3........................................................................................................ 15 

 art. III ....................................................................................................... 14-15 

 amend. V .......................................................................................................... 4 

Administrative Procedure Act 

 5 U.S.C. § 551 ................................................................................................ 16 

 5 U.S.C. § 701 ................................................................................................ 16 

 5 U.S.C. § 702 .......................................................................................... 15-16 

 5 U.S.C. § 704 .......................................................................................... 15-16 

 5 U.S.C. § 706 .................................................................................... 15-17, 22 

28 U.S.C. § 1292 .................................................................................................... 7, 9 

All Writs Act, 28 U.S.C. § 1651 ................................................................................ 3 

Supreme Court Rule 23.2 ....................................................................................... 2, 9 

Fed. R. App. P. 8 ...................................................................................................... 24 

Fed. R. App. P. 21 ................................................................................................ 3, 24 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 10 of 39
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INTRODUCTION 

 This suit is an attempt to redirect federal environmental and energy policies 

through the courts rather than through the political process. Plaintiffs assert a new 

and unsupported fundamental due process right to certain climate conditions, and 

they seek relief far beyond the authority of the defendant agencies to implement or 

of Article III courts to award. The Supreme Court has stated that the “breadth of 

[Plaintiffs’] claims is striking,” and that “the justiciability of those claims presents 

substantial grounds for difference of opinion.” ECF No. 330-1. The Supreme Court 

directed the district court to “take these concerns into account in assessing the 

burdens of discovery and trial, as well as the desirability of a prompt ruling on the 

Government’s pending dispositive motions.” Id. 

 The Supreme Court’s directive to issue a “prompt” ruling came more than 70 

days ago. The hearing on the government’s dispositive motions came more than 80 

days ago. And the trial scheduled by the district court is now less than three weeks 

away. Yet the district court has not ruled on the government’s dispositive motions, 

and the court has refused to postpone the trial date. 

 In light of the district court’s failure to act despite the Supreme Court’s 

admonition, and in light of the district court’s failure to halt these proceedings 

despite the Supreme Court’s identification of the serious justiciability concerns with 

the suit, the government will file a petition for writ of mandamus or, in the 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 11 of 39
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alternative, certiorari in the Supreme Court. Because we will ask the Supreme Court 

to issue a stay pending its resolution of that forthcoming petition, we asked the 

district court for a stay one week ago (ECF No. 321) — a request now under 

advisement — and we now ask this Court for a stay as well. See Supreme Court 

Rule 23.2 (“Except in the most extraordinary circumstances, an application for a stay 

will not be entertained unless the relief requested was first sought in the appropriate 

court or courts below or from a judge or judges thereof.”). 

 We seek a stay in this Court through a mandamus petition, because this Court 

has indicated that it lacks jurisdiction to consider a motion for a stay pending 

Supreme Court review after this Court has denied a mandamus petition — as the 

Court did earlier in this case. See In re United States, 875 F.3d 1177, 1178 (9th Cir. 

2017).1

 To ensure that the Supreme Court has adequate time to consider the 

government’s requests for relief before the scheduled trial begins on October 29, the 

government respectfully seeks expedited consideration of this petition. We also ask 

that the Court enter a temporary stay while considering this petition. 

 

1

 The government does not believe that the Court’s decision on this issue was correct. 

A court of appeals has authority to issue a stay pending Supreme Court review of a 

decision denying a mandamus petition. But the cited opinion is binding in present 

circumstances. 

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STATEMENT OF JURISDICTION 

 This Court has authority to issue the requested relief pursuant to the All Writs 

Act, 28 U.S.C. § 1651, and Rule 21 of the Federal Rules of Appellate Procedure. 

STATEMENT OF THE ISSUE 

 Whether this Court should exercise its authority under the All Writs Act, 28 

U.S.C. § 1651, to stay district court proceedings pending Supreme Court review. 

STATEMENT OF THE CASE 

 Plaintiffs are a group of minor children and an organization representing them. 

They brought this action in August 2015 against President Obama (for whom 

President Trump was later substituted), the Executive Office of the President, three 

sub-components within that office, and eight departments and federal agencies for 

allegedly violating their rights under the Constitution and a purported federal public 

trust which, they asserted, conferred on them a substantive right to certain climate 

conditions. See generally ECF No. 7 (amended complaint). Among other relief, 

Plaintiffs ask the district court to order the President and other officials and agencies 

named as defendants to “prepare and implement an enforceable national remedial 

plan to phase out fossil fuel emissions and draw down excess atmospheric CO2.” Id. 

at 94. 

 The government moved to dismiss Plaintiffs’ claims on several grounds, 

including lack of standing, failure to state a cognizable constitutional claim, and 

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failure to state a claim on a public trust theory. ECF No. 27. In November 2016, 

the district court denied that motion, and later declined to certify its order for 

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

motion to certify appeal denied, 2017 WL 2483705 (D. Or. June 8, 2017). The court 

ruled that Plaintiffs had established Article III standing by alleging that they had 

been harmed by the effects of climate change through increased droughts, wildfires, 

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

fossil fuels had caused Plaintiffs’ injuries. The court determined that it could redress 

those injuries by “order[ing] [the government] to cease [its] permitting, authorizing, 

and subsidizing of fossil fuels and, instead, move to swiftly phase out CO2 emissions, 

as well as take such other action necessary to ensure that atmospheric CO2 is no more 

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

Earth’s energy balance, and implement that national plan so as to stabilize the 

climate system.” 217 F. Supp. 3d at 1247-48 (quoting complaint); see also id. at 

1242-48. 

 On the merits, the district court concluded that Plaintiffs had stated a claim 

under the Fifth Amendment’s Due Process Clause and a federal public trust doctrine. 

Id. at 1248-61. The court found in the Fifth Amendment’s protection against the 

deprivation of “life, liberty, or property, without due process of law,” U.S. Const. 

amend. V, a previously unrecognized fundamental right to a “climate system capable 

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of sustaining human life,” and the court determined that Plaintiffs had adequately 

alleged infringement of that fundamental right. 217 F. Supp. 3d at 1250. The court 

further determined that Plaintiffs had adequately stated a claim under a federal public 

trust doctrine, which it held imposes a judicially enforceable prohibition on the 

federal government against “depriving a future legislature of the natural resources 

necessary to provide for the well-being and survival of its citizens.” Id. at 1253 

(quoting amicus brief in support of Plaintiffs). Plaintiffs’ claims under this public 

trust rationale, the court concluded, are also “properly categorized as substantive due 

process claims.” Id. at 1261. 

 The government petitioned this Court for a writ of mandamus to halt these 

deeply flawed proceedings. This Court stayed the litigation for seven-and-a-half 

months but ultimately denied the petition without prejudice. In re United States, 884 

F.3d 830, 838 (9th Cir. 2018). Specifically, the Court “decline[d] to exercise [its] 

discretion to grant mandamus relief at [that] stage of the litigation,” in part because 

no discovery orders had yet been filed. Id. at 835. The Court explained, however, 

that “[c]laims and remedies often are vastly narrowed as litigation proceeds,” and 

that it had “no reason to assume this case will be any different.” Id. at 838. The 

Court also reiterated that the government could continue to “raise and litigate any 

legal objections they have,” including by “seek[ing] protective orders”; moving to 

“dismiss the President as a party”; and seeking “summary judgment on the claims.” 

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Id. at 835-38. The Court added that the government remains free to “seek[] 

mandamus in the future.” Id. at 838. 

 Consistent with this Court’s opinion, the government moved for judgment on 

the pleadings, ECF No. 195, arguing that Plaintiffs’ claims should be dismissed in 

their entirety, and for summary judgment, ECF No. 207, arguing that the district 

court should enter judgment in favor of the government on all of Plaintiffs’ claims. 

The government also moved for a protective order precluding all discovery. ECF 

No. 196. On June 29, 2018, the district court denied the government’s motion for a 

protective order. ECF No. 300. On July 18, 2018, the district court held argument 

on the dispositive motions and took them under advisement. 

 While the two dispositive motions were still pending and after the district 

court had denied the government’s motion for a protective order barring discovery, 

the government sought relief from both this Court and the Supreme Court. ECF 

No. 308-1; ECF No. 321-1. Both courts denied the requested relief without 

prejudice. This Court determined that “[a]bsent a specific discovery order, 

mandamus relief remains premature.” In re United States, 895 F.3d 1101, 1105 (9th 

Cir. 2018). The Supreme Court denied the government’s application “without 

prejudice” because it was “premature.” ECF 330-1. The Court also stated that the 

“breadth of [Plaintiffs’] claims is striking, however, and the justiciability of those 

claims presents substantial grounds for difference of opinion.” Id. It instructed the 

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district court to “take these concerns into account in assessing the burdens of 

discovery and trial, as well as the desirability of a prompt ruling on the Government’s 

pending dispositive motions.” Id. The Supreme Court clearly referenced the 

standard for certification in 28 U.S.C. § 1292(b), which provides: 

When a district judge, in making in a civil action an order not otherwise 

appealable under this section, shall be of the opinion that such order 

involves a controlling question of law as to which there is substantial 

ground for difference of opinion and that an immediate appeal from the 

order may materially advance the ultimate termination of the litigation, 

he shall so state in writing in such order. 

Id. (emphasis added). 

 It has been more than 80 days since the hearing on the government’s 

dispositive motions and more than 70 days since the Supreme Court indicated the 

need for a “prompt ruling” on those motions. As noted above, trial is scheduled to 

begin on October 29th, in less than three weeks’ time. Given the number of claims 

and witnesses, the trial is expected to last approximately 50 days. ECF No. 192; 

ECF No. 191 at 7:22-8:7 (transcript of Apr. 2, 2018 hearing); ECF No. 352 (setting 

first two weeks of trial for October 29-November 2 and November 5-9, 2018). 

Nevertheless, the district has not yet resolved the government’s dispositive motions, 

and has suggested that it has no intention of delaying trial absent an order from a 

higher court. ECF No. 244 at 27:22-25 (transcript of May 10, 2018 hearing) (“Here’s 

— here’s the big picture. October 29, 2018, trial starts unless some higher court says 

no. So from this perspective, October 29, 2018, the trial starts.”). 

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 Given the impending trial date, the government cannot wait any longer to seek 

relief from a higher court. On October 5, 2018, the government asked the district 

court for a stay of any further discovery and of trial pending consideration of the 

government’s forthcoming petition for a writ of mandamus, or in the alternative for 

a writ of certiorari, to be filed in the United States Supreme Court. ECF No. 361 at 

1-2. The district court ordered Plaintiffs to respond by October 11, 2018. ECF 

No. 362. Plaintiffs have responded, ECF No. 364, and so the government’s request 

is now “under advisement” by the district court, ECF No. 362. 

ARGUMENT 

 While this Court’s precedent requires the government to file a new mandamus 

petition rather than a motion for a stay pending the disposition of a certiorari petition 

seeking review of its July 20, 2018, decision denying mandamus, see supra p. 2 & 

n.1, the relief sought by the government is in the nature of a stay pending Supreme 

Court review. Whether to issue a stay turns on four factors: (1) the applicant’s likely 

success on the merits; (2) irreparable injury to the applicant absent a stay; 

(3) substantial injury to the other parties; and (4) the public interest. Nken v. Holder, 

556 U.S. 418, 433-34 (2009). The first two factors are “the most critical.” Id. at 

434. The balance of equities and consideration of the public interest merge when 

the government is a party. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 

(9th Cir. 2014). 

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 While this Court’s mandamus standard differs from the stay standard 

articulated in Nken, see, e.g., Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 

1977); In re United States, 895 F.3d at 1104, the government here is seeking a stay 

pending Supreme Court review, as required by Supreme Court Rule 23.2. The stay 

factors set forth in Nken should therefore govern. In any event, even if the 

mandamus standard applies, the government meets it here. As explained below, this 

entire suit is fundamentally inconsistent with Article III, a trial on Plaintiffs’ claims 

would contravene the APA and separation of powers, the claims are manifestly 

without merit, and the relief sought is beyond the authority of the defendants to 

implement and of any court to order. 

 Now that trial is imminent and the district court has failed to rule on the 

government’s dispositive motions, this Court should enter a stay pending the 

Supreme Court’s review of the government’s mandamus petition. At a minimum, 

the Court should enter a temporary stay pending consideration of this petition. 

I. The government’s petition is likely to succeed in the Supreme Court. 

 The Supreme Court is likely to direct the district court to dismiss this case — 

or at least to stay the impending trial and resolve the government’s dispositive 

motions, with a renewed admonition to certify any denial of those motions for 

interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The government’s success is 

likely because Plaintiffs’ case is deeply flawed for at least three independent reasons: 

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(1) Plaintiffs lack standing, and this is not a case or controversy under Article III; 

(2) Plaintiffs have not identified particular agency action or inaction as required by 

the APA; and (3) Plaintiffs’ claims of a fundamental substantive due process right 

to a particular climate system and a never-before-recognized public trust obligation 

on the federal government are manifestly wrong. 

A. Plaintiffs lack standing, and this is not a case or controversy

within the meaning of Article III. 

 This litigation is not remotely a “Case” or “Controversy” within the meaning 

of Article III because (1) Plaintiffs lack standing to assert generalized grievances 

against the diffuse effects of climate change that could be asserted by any person in 

the United States, that are not tied to any particular action or inaction by the 

government, and that are not redressable by any order within the authority of a 

federal court; and (2) in any event, Plaintiffs’ attempt to redirect federal 

environmental and energy policies by the Executive Branch and Congress through 

litigation such as this is not the sort of dispute that is within a federal court’s 

constitutional and statutory authority to entertain. 

 As to standing, see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992), Plaintiffs assert generalized grievances, not particularized harms. A 

“generalized grievance” is not a “concrete and particularized” injury sufficient to 

satisfy the first prong of the standing analysis. See, e.g., Lexmark International, Inc. 

v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.3 (2014). The injuries 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 20 of 39
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claimed by Plaintiffs are not particular to them or cognizable for purposes of 

Article III. Rather, they involve the diffuse effects of a generalized phenomenon on 

a global scale. To the extent that climate-related injuries affect Plaintiffs, the effects 

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

States, or throughout the world at large. 

 Plaintiffs also cannot show that the government policies they challenge — 

expressed in broad and undifferentiated terms, rather than directed to discrete agency 

actions — caused their asserted injuries. See Defenders of Wildlife, 504 U.S. at 560. 

Plaintiffs principally complain of the government’s regulation (or lack thereof) of 

private parties not before the district court. When a plaintiff’s alleged harms may 

have been caused directly by the conduct of parties other than the defendants (and 

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

the minimum requirement of Art[icle] III: to establish that, in fact, the asserted 

injury was the consequence of the defendants’ actions, or that prospective relief will 

remove the harm.” Warth v. Seldin, 422 U.S. 490, 504-05 (1975). 

 Plaintiffs cannot make that heightened showing. Among their widely 

scattered objections, for example, Plaintiffs claim that the United States subsidizes 

the fossil fuel industry. ECF No. 7, ¶¶ 171-178. But Plaintiffs cannot establish a 

causal link between the amorphously described policy decisions and the specific 

harms that they allege, as opposed to the independent actions by private persons both 

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within and outside the United States (nor any proof that their harms would be 

redressed by an order against such subsidization). Rather, Plaintiffs offer only 

speculation that, in the absence of such subsidization, third parties in the fossil fuel 

industry would alter their behavior in a manner that would affect Plaintiffs in a 

particularized and concrete way. See Washington Environmental Council v. Bellon, 

732 F.3d 1131, 1142-43 (9th Cir. 2013) (“[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.” (internal quotation marks omitted)). 

 Plaintiffs also cannot establish that it is likely that their asserted injuries could 

be redressed by an order from a federal court. To the extent that Plaintiffs seek to 

compel a defendant agency to exercise the authority and discretion it possesses under 

its organic statute, Plaintiffs have failed to identify any such specific actions or 

inaction, as required to challenge actions or inaction of the Executive Branch, and 

the district court in any event lacks authority to direct an agency to exercise that 

authority and discretion in any particular way. See Norton v. Southern Utah 

Wilderness Alliance, 542 U.S. 55, 63-64 (2004) (SUWA) (discussing historical 

limitations of mandamus remedy). That is all the more so where Plaintiffs seek relief 

without regard to the procedures in the agencies’ organic statutes and the APA that 

afford procedural rights and an opportunity for public participation. 

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 To the extent that Plaintiffs seek action beyond the defendant agencies’ 

existing authority under their organic statutes, the district court lacks authority to 

require agencies to take such actions or to require Congress to enact new laws. See 

Louisiana Public Service Commission v. FCC, 476 U.S. 355, 374 (1986) (“[A]n 

agency literally has no power to act . . . unless and until Congress confers power 

upon it.”). Plaintiffs have not even begun to articulate a remedy that could be 

awarded by a federal court consistent with these limitations on its authority and that 

could move the needle on the complex phenomenon of global climate change, much 

less likely redress their alleged injuries. See Bellon, 732 F.3d at 1147 (finding no 

redressability where plaintiffs failed to establish that the remedies within the district 

court’s authority “would likely reduce the pollution causing Plaintiffs’ injuries”).

 Even if Plaintiffs could somehow establish standing, this suit is not one that 

can be entertained by a federal court consistent with the Constitution. Article III 

vests federal courts created by Congress with the “judicial Power of the United 

States.” The judicial power is “one to render dispositive judgments” in “Cases or 

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

211, 218-19 (1995) (internal quotation marks omitted). It can “come into play only 

in matters that were the traditional concern of the courts at Westminster” and only 

when those matters arise “in ways that to the expert feel of lawyers constituted 

‘Cases’ or ‘Controversies.’ ” Vermont Agency of Natural Resources v. United States 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 23 of 39
14 

ex rel. Stevens, 529 U.S. 765, 774 (2000) (internal quotation marks omitted). As 

such, the “necessary restrictions on [a court’s] jurisdiction and authority contained 

in Article III of the Constitution limit the judiciary’s institutional capacity to 

prescribe palliatives for societal ills.” Missouri v. Jenkins, 515 U.S. 70, 112 (1995) 

(O’Connor, J., concurring).

 Plaintiffs’ suit is not remotely such a case or controversy cognizable under 

Article III. Plaintiffs ask the district court to review and assess the entirety of the 

Executive Branch’s programs and policies relating to climate change — including 

actions that the Executive Branch has not taken, and even ones that are beyond the 

authority of Executive Branch agencies to take — and then to pass upon the 

comprehensive constitutionality of all of those policies, programs, and inaction in 

the aggregate. See, e.g., ECF No. 7, ¶¶ 277-310. And Plaintiffs ask the district court

to do so under the Due Process Clause, a provision designed to protect discrete and 

personal individual rights, not to furnish a vehicle to require an affirmative judicial 

restructuring of the operations of the Executive Branch and the United States 

Government at large with respect to broad policies affecting all persons throughout 

the country. No federal court has ever purported to use the “judicial power” to 

perform such a review — and for good reason: the Constitution commits the power 

to oversee the Executive Branch, draw on its expertise, and formulate policy 

programs to the President, not to Article III courts. See U.S. Const. art. II, § 2, cl. 1; 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 24 of 39
15 

id. art. II, § 3; cf. Cheney v. U.S. District Court, 542 U.S. 367, 385 (2004). And it 

commits to Congress the power to alter the authority conferred by the organic 

statutes under which Executive Branch agencies operate. 

B. Plaintiffs must challenge specified agency actions or inaction 

under the APA based on the administrative record. 

 Even if this suit could proceed within the boundaries of Article III, it would 

have to be targeted at specifically identified agency actions or alleged failures to act, 

and review would have to be based on the administrative record for those actions. 

The APA provides that a “person suffering legal wrong because of agency action, or 

adversely affected or aggrieved by agency action within the meaning of a relevant 

statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Review is 

presumptively limited to “final agency action,” id. § 704, and the statute authorizes 

a reviewing court to “hold unlawful and set aside agency action” that is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law” or 

“contrary to constitutional right, power, privilege, or immunity,” id. § 706(2), and to 

“compel agency action unlawfully withheld or unreasonably delayed,” id. § 706(1). 

In so authorizing, the APA provides a “comprehensive remedial scheme” for 

“persons adversely affected by agency action” or alleged failure to act with respect 

to regulatory requirements and standards, permitting, and other administrative 

measures. Western Radio Services Co. v. U.S. Forest Service, 578 F.3d 1116, 1122-

23 (9th Cir. 2009). 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 25 of 39
16 

 Plaintiffs allege that a large number of (mostly unspecified) “agency 

action[s]” and inaction are “contrary to constitutional right.” 5 U.S.C. §§ 702, 706. 

They allege, in various forms, that the government has “knowingly endangered 

plaintiffs’ health and welfare by approving and promoting fossil fuel development, 

including exploration, extraction, production, transportation, importation, 

exportation, and combustion, and by subsidizing and promoting this fossil fuel 

exploitation.” ECF No. 7, ¶ 280. Plaintiffs allege that the government has done so 

through a series of broad and unspecified agency actions: the leasing of lands for 

mineral development; the permitting of oil and gas wells, coal mines, pipelines, and 

power plants; the development of management plans for federal lands; and the 

implementation of rulemakings that govern mineral development, to name a few. 

See, e.g., id. ¶¶ 5, 7, 12, 163, 292, 298, 305. Each of the individual agency decisions 

encompassed by Plaintiffs’ challenge — each lease, each permit, each rulemaking, 

each management plan — is a separate “agency action.” 5 U.S.C. §§ 551(13), 701, 

702, 704, 706. Plaintiffs’ claims are therefore reviewable, if at all, only under the 

APA and on the basis of the administrative record for each of those specific actions. 

See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985) (“The task 

of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. 

§ 706, to the agency decision based on the record the agency presents to the 

reviewing court.”). 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 26 of 39
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 Plaintiffs’ claims cannot proceed under the APA, however, because the Act 

allows only for challenges to “circumscribed, discrete” final agency action, not the 

sort of “broad programmatic attack” on agency policies that Plaintiffs assert here. 

SUWA, 542 U.S. at 62, 64; accord Lujan v. National Wildlife Federation, 497 U.S. 

871, 891 (1990). Plaintiffs expressly cast their claims as a challenge to “affirmative 

aggregate actions” by the numerous defendant agencies that “permitted, encouraged, 

and otherwise enabled continued exploitation, production, and combustion of fossil 

fuels.” ECF No. 7, ¶¶ 1, 5. But the Supreme Court has explained that only “discrete 

agency action” may be challenged under the APA, SUWA, 542 U.S. at 64, and 

“aggregate actions” are the antithesis of “discrete” ones. 

 There is nothing talismanic about Plaintiffs’ assertion of constitutional claims. 

Section 706 of the APA expressly states that judicial review extends to alleged 

constitutional violations: “The reviewing court shall . . . hold unlawful and set aside 

agency action, findings, and conclusions found to be . . . contrary to constitutional

right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B) (emphasis added); see 

also Webster v. Doe, 486 U.S. 592, 603-04 (1988) (holding that Due Process Clause 

and Equal Protection Clause claims may proceed under the APA’s provisions for 

judicial review). 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 27 of 39
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C. Plaintiffs’ claims are manifestly without merit. 

 Finally, even if a court could reach the merits of Plaintiffs’ constitutional 

theories, they plainly fail. In denying the government’s motion to dismiss, the 

district court concluded that Plaintiffs stated two related claims based on substantive 

due process: (1) a previously unidentified judicially enforceable fundamental right 

to “a climate system capable of sustaining human life”; and (2) a federal public trust 

doctrine to the same effect. See supra pp. 4-5. Both of these claims are manifestly 

wrong. 

 The Supreme Court has instructed courts considering novel due process 

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

this field, lest the liberty protected by the Due Process Clause be subtly transformed” 

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

arena of public debate and legislative action.” Washington v. Glucksberg, 521 U.S. 

702, 720 (1997). The Court has “regularly observed that the Due Process Clause 

specially protects those fundamental rights and liberties which are, objectively, 

‘deeply rooted in this Nation’s history and tradition.’ ” Id. at 720-21 (quoting Moore 

v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)). The district

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

capable of sustaining human life,” 217 F. Supp. 3d at 1249-50, bears no resemblance 

to the sort of distinctly personal rights and liberties protected by the Due Process 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 28 of 39
19 

Clause, has no basis in this Nation’s history or tradition, and threatens to wrest 

fundamental policy issues of energy development and environmental regulation 

from “the arena of public debate and legislative action,” Glucksberg, 521 U.S. at 720 

— and from the agency processes that Congress has prescribed for considering and 

implementing regulatory policies by the Executive — into the supervision of the 

federal courts — indeed, here, into a single district court, in a suit brought by a few 

individuals with one perspective. 

 In no other case has a court found a fundamental right remotely comparable 

to a right to a particular “climate system” or to other aspects of the physical 

environment. Although the district court relied on the recognition of a fundamental 

right to same-sex marriage in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), it is 

obvious that there is no relationship between a personal and circumscribed right to 

same-sex marriage and the alleged right to a climate system capable of sustaining 

human life that apparently would run to every individual in the United States. 

 Plaintiffs’ state-created danger theory, ECF No. 7, ¶¶ 280-289, is equally 

flawed. As a general matter, the Due Process Clause “is phrased as a limitation on 

the State’s power to act, not as a guarantee of certain minimal levels of safety and 

security.” DeShaney v. Winnebago County Department of Social Services, 489 U.S. 

189, 195 (1989). The Due Process Clause thus imposes no affirmative duty to 

protect a person who is not in state custody, and the limited exception recognized by 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 29 of 39
20 

this Court (involving circumstances in which a governmental body has control over 

a particular individual’s person and places him in imminent peril) has no application 

here. See, e.g., Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997); 

Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989). 

 Plaintiffs’ public trust claim fares no better. Plaintiffs attempt to invoke that 

rationale to impose judicially enforceable, extra-statutory obligations on the federal 

government’s regulation of the fossil fuel industry and its alleged effects on the 

atmosphere. But Plaintiffs fail to identify a single decision applying a public trust 

doctrine in this novel manner. Even if such a non-constitutional doctrine could ever 

limit a sovereign’s regulation of private parties, Plaintiffs’ claim is unavailing 

because, as the Supreme Court and this Court have “repeatedly recognized,” any 

such doctrine is purely a matter of state law and pertains only to a state’s sovereign 

duties and power. United States v. 32.42 Acres of Land, 683 F.3d 1030, 1038 (9th 

Cir. 2012); see also, e.g., PPL Montana, LLC v. Montana, 565 U.S. 576, 603 (2012) 

(“[T]he public trust doctrine remains a matter of state law.”). Moreover, even if a 

common law public trust doctrine could ever constrain the federal government’s 

protection of the atmosphere, it has been displaced by the Clean Air Act. That Act 

defines the scope of EPA’s duties to regulate greenhouse gas emissions and the 

extent to which federal courts may enforce those duties. See American Electric 

Power v. Connecticut, 564 U.S. 410, 424 (2011). Indeed, the D.C. Circuit rejected 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 30 of 39
21 

a nearly identical public trust claim as “insubstantial, implausible, [and] completely 

devoid of merit” in a recent suit brought by Plaintiffs’ counsel. Alec L. ex rel. Loorz 

v. McCarthy, 561 Fed. Appx. 7 (D.C. Cir.), cert. denied, 135 S. Ct. 774 (2014). 

 The Supreme Court is likely to accept at least one of these arguments and 

ultimately grant the government relief that would obviate the impending trial. 

Therefore, the government is likely to succeed on its petition to the Supreme Court. 

II. The balance of the equities counsels in favor of a stay. 

 The remaining stay factors also weigh strongly in favor of staying further 

discovery and trial pending the government’s forthcoming petition to the Supreme 

Court. 

A. Without a stay, the government will be irreparably harmed. 

 Absent a stay, the government will be forced to proceed with a 50-day trial 

that is fundamentally inconsistent with Article III and the separation of powers under 

the Constitution, as well as with procedures Congress has prescribed in agencies’ 

organic statutes and the APA for agencies to consider factual and legal issues 

concerning major policy and for the courts to review their determinations. Trial 

would force the government to address climate-change policy not in APA 

rulemakings and other agency actions authorized by statutes such as the Clean Air 

Act, but in a single trial court in Oregon. These injuries would be caused by the trial 

itself, and so they could not be remedied on appeal. See Ninilchik Traditional 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 31 of 39
22 

Council v. United States, 227 F.3d 1186, 1194 (9th Cir. 2000) (explaining that APA 

judicial review provisions “function[] as a default judicial review standard”). 

 That is improper. Plaintiffs’ efforts to require the defendant agencies to 

develop and implement a comprehensive, government-wide energy policy outside 

of the congressionally-prescribed statutory framework runs roughshod over 

fundamental separation of powers principles. It violates the vesting of “legislative 

Power” in the Congress, U.S. Const. art. I, § 1, and to the extent it seeks to require 

the President and executive agencies to develop and implement such policies, it 

violates the Constitution’s vesting of “executive Power . . . in a President of the 

United States,” id., art. II, § 1, cl. 1. 

 The APA limits judicial review to the administrative record of action taken 

within the scope of an agency’s authority. 5 U.S.C. § 706. As the Supreme Court 

recognized, even before enactment of the APA, permitting an agency’s “finding to 

be attacked or supported in court by new evidence” as Plaintiffs seek to do here, 

improperly “substitute[s] the court for an administrative tribunal.” Tagg Bros. & 

Moorhead v. United States, 280 U.S. 420, 444 (1930). That would allow this Court 

to “usurp[] the agency’s function.” Unemployment Compensation Commission v. 

Aragon, 329 U.S. 143, 155 (1946). Yet no part of Plaintiffs’ claims purports to 

challenge governmental action under the APA. Absent a stay, the government will 

be forced to prepare for and endure a 50-day trial concerning Plaintiffs’ efforts to 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 32 of 39
23 

obtain a decree by a federal court concerning various factual and predictive matters 

and conceivable regulatory measures in a suit against the President and numerous 

Executive officials and agencies without regard to the substantive and procedural 

measures that Congress has provided for agencies to participate in such matters. No 

court has authority to enter such a decree or to conduct proceedings directed to such 

a decree — all the while violating its obligations under the APA and transgressing 

the separation of powers under the Constitution. 

B. Plaintiffs will not be harmed by a stay. 

 On the other side of the balance, Plaintiffs can make no credible claim that a 

relatively brief stay to decide the government’s mandamus petition will cause them 

irreparable harm. Plaintiffs’ alleged injuries stem from the cumulative effects of 

CO2 emissions, hundreds of years in the making. See ECF No. 274-1 at 8 (expert 

report of James E. Hansen). As one of Plaintiffs’ own experts recognizes, climate 

change “is not something that can be stopped in the near term.” ECF No. 275, ¶ 18 

(declaration of Harold R. Wanless); see also ECF No. 262-1 at 2 (expert report of 

Eric Rignot) (“It is not clear how much of this sea level rise can be avoided by 

slowing down climate warming or even cooling the planet again.”). A brief stay to 

allow the Supreme Court to consider whether this suit is a permissible and 

appropriate means to address climate change will not appreciably harm Plaintiffs. 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 33 of 39
24 

III. The Court should stay discovery and trial pending resolution of

this petition. 

 At a minimum, given the impending trial date, the government asks this Court 

to stay all discovery and trial while it considers this mandamus petition. See 9th Cir. 

General Order 6.8a (providing that the motions panel “may also issue a stay or 

injunction pending further consideration of the application”).2

 The government will 

file its petition for a writ of mandamus or, in the alternative for a writ of certiorari, 

in the Supreme Court by Wednesday, October 17. Such a filing is necessary to give 

the Supreme Court ample time to consider the petition before the October 29 trial 

date, and also to comply with the deadline to file a petition for a writ of certiorari 

seeking review of this Court’s July 2018 decision denying the government’s prior 

mandamus petition. 

CONCLUSION 

 For the foregoing reasons, this Court should issue a writ of mandamus to stay 

district court proceedings, specifically including the trial scheduled for Monday, 

October 29, pending the resolution of the government’s forthcoming petition in the 

Supreme Court. 

 

2

 Although Federal Rule of Appellate Procedure 8(a)(1) does not expressly refer to 

a stay pending review of a petition for a writ of mandamus under Rule 21, the 

government has nevertheless asked the district court for a stay pending resolution of 

this petition for mandamus. See supra p. 8. 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 34 of 39
25 

 Dated: October 12, 2018. 

Respectfully submitted, 

s/ Eric Grant 

JEFFREY H. WOOD 

Acting Assistant Attorney General

ERIC GRANT 

Deputy Assistant Attorney General

ANDREW C. MERGEN 

SOMMER H. ENGELS 

ROBERT J. LUNDMAN 

Attorneys 

Environment and Natural Resources Division 

U.S. Department of Justice 

Counsel for Petitioners 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 35 of 39
STATEMENT OF RELATED CASES 

There are two related cases within the meaning of Circuit Rule 28-2.6, 

namely, the government’s prior petitions for a writ of mandamus: In re United 

States, 884 F.3d 830 (9th Cir. 2018) (No. 17-71692); and In re United States, 895 

F.3d 1102, 1105 (9th Cir. 2018) (No. 18-71928). 

 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 36 of 39
CERTIFICATE OF COMPLIANCE 

 I certify that this petition complies with the length limits permitted by Circuit 

Rules 21-2(c) and 32-3(2), i.e., 8,400 words. The petition is 5,921 words, excluding 

the portions exempted by Federal Rule of Appellate Procedure 32(f). The petition’s 

type size and type face comply with Federal Rule of Appellate Procedure 32(a)(5) 

and (6). 

s/ Eric Grant 

Eric Grant 

Counsel for Petitioners 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 37 of 39
CERTIFICATE OF SERVICE 

 I hereby certify that on October 12, 2018, I electronically filed the foregoing 

petition with the Clerk of the Court for the United States Court of Appeals for the 

Ninth Circuit by using the appellate CM/ECF system. 

On this date, a notice of filing of this petition, including the petition itself, will 

be lodged in the district court in the underlying matter, and service in compliance 

with Federal Rule of Appellate Procedure 21(a)(1) will be accomplished through the 

district court’s CM/ECF system. All counsel in this case are participants in the 

district court’s CM/ECF system. In addition, a courtesy copy of the foregoing brief 

has been provided via e-mail to the following counsel: 

Julia A. Olson 

JuliaAOlson@gmail.com 

Wild Earth Advocates 

1216 Lincoln Street 

Eugene, Oregon 97401 

Philip L. Gregory 

pgregory@gregorylawgroup.com 

Gregory Law Group 

1250 Godetia Drive 

Redwood City, California 94062 

Daniel M. Galpern 

Dan.Galpern@gmail.com 

Law Offices of Daniel M. Galpern 

1641 Oak Street 

Eugene, Oregon 97401 

 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 38 of 39
Andrea K. Rodgers 

Andrearodgers42@gmail.com 

Law Offices of Andrea K. Rodgers 

3026 NW Esplanade 

Seattle, Washington 98117 

s/ Eric Grant 

Eric Grant 

Counsel for Petitioners 

Case 6:15-cv-01517-AA Document 365-1 Filed 10/12/18 Page 39 of 39