FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELSEY CASCADIA ROSE JULIANA;

XIUHTEZCATL TONATIUH M., 

through his Guardian Tamara RoskeMartinez; ALEXANDER LOZNAK;

JACOB LEBEL;ZEALAND B., through 

his Guardian Kimberly Pash-Bell; 

AVERY M., through her Guardian 

Holly McRae; SAHARA V., through 

her Guardian Toa Aguilar; KIRAN 

ISAAC OOMMEN;TIA MARIE 

HATTON;ISAAC V., through his 

Guardian Pamela Vergun; MIKO V., 

through her Guardian Pamel Vergun; 

HAZEL V., through her Guardian 

Margo Van Ummerson; SOPHIE K., 

through her Guardian Dr. James 

Hansen; JAIME B., through her 

Guardian Jamescita Peshlakai; 

JOURNEY Z., through his Guardian 

Erika Schneider; VICTORIA B., 

through her Guardian Daisy 

Calderon; NATHANIEL B., through 

his Guardian Sharon Baring; AJI P., 

through his Guardian Helaina Piper; 

LEVI D., through his Guardian 

Leigh-Ann Draheim; JAYDEN F., 

through her Guardian Cherri Foytlin; 

NICHOLAS V., through his Guardian 

Marie Venner; EARTH GUARDIANS, a 

No. 18-36082

D.C. No.

6:15-cv-01517-

AA

OPINION

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2 JULIANA V. UNITED STATES

nonprofit organization; FUTURE 

GENERATIONS, through their 

Guardian Dr. James Hansen,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA;MARY 

B. NEUMAYR, in her capacity as 

Chairman of Council on 

Environmental Quality; MICK 

MULVANEY, in his official capacity 

as Director of the Office of 

Management and the Budget; 

KELVIN K.DROEGEMEIR, in his 

official capacity as Director of the 

Office of Science and Technology 

Policy; DAN BROUILLETTE, in his 

official capacity as Secretary of 

Energy; U.S.DEPARTMENT OF THE 

INTERIOR;DAVID L.BERNHARDT, in 

his official capacity as Secretary of 

Interior; U.S. DEPARTMENT OF

TRANSPORTATION; ELAINE L. CHAO, 

in her official capacity as Secretary 

of Transportation; UNITED STATES 

DEPARTMENT OF AGRICULTURE;

SONNY PERDUE, in his official 

capacity as Secretary of Agriculture; 

UNITED STATES DEPARTMENT OF 

COMMERCE;WILBUR ROSS, in his 

official capacity as Secretary of 

Commerce; UNITED STATES 

DEPARTMENT OF DEFENSE; MARK T.

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JULIANA V. UNITED STATES 3

ESPER, in his official capacity as 

Secretary of Defense; UNITED 

STATES DEPARTMENT OF STATE;

MICHAEL R.POMPEO, in his official 

capacity as Secretary of State; 

ANDREW WHEELER, in his official

capacity as Administrator of the 

EPA; OFFICE OF THE PRESIDENT OF 

THE UNITED STATES;U.S.

ENVIRONMENTAL PROTECTION 

AGENCY; U.S.DEPARTMENT OF 

ENERGY; DONALD J. TRUMP, in his 

official capacity as President of the 

United States,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted June 4, 2019

Portland, Oregon

Filed January 17, 2020

Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit 

Judges, and Josephine L. Staton,* District Judge.

Opinion by Judge Hurwitz;

Dissent by Judge Staton

* The Honorable Josephine L. Staton, United States District Judge 

for the Central District of California, sitting by designation.

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4 JULIANA V. UNITED STATES

SUMMARY**

Climate Change / Standing

The panel reversed the district court’s interlocutory 

ordersin an action brought by an environmental organization 

and individual plaintiffs against the federal government, 

alleging climate-change related injuries to the plaintiffs 

caused by the federal government continuing to “permit, 

authorize, and subsidize” fossil fuel; and remanded to the 

district court with instructions to dismiss for lack of Article 

III standing.

Some plaintiffs claimed psychological harms, others 

impairment to recreational interests, others exacerbated 

medical conditions, and others damage to property. 

Plaintiffs alleged violations of their constitutional rights, and 

sought declaratory relief and an injunction ordering the 

government to implement a plan to “phase out fossil fuel 

emissions and draw down excess atmospheric [carbon 

dioxide].”

The panel held that: the record left little basis for denying 

that climate change was occurring at an increasingly rapid 

pace; copious expert evidence established that the 

unprecedented rise in atmospheric carbon dioxide levels 

stemmed from fossil fuel combustion and will wreak havoc 

on the Earth’s climate if unchecked; the record conclusively 

established that the federal government has long understood 

the risks of fossil fuel use and increasing carbon dioxide 

emissions; and the record established that the government’s 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.

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JULIANA V. UNITED STATES 5

contribution to climate change was not simply a result of 

inaction.

The panel rejected the government’s argument that 

plaintiffs’ claims must proceed, if at all, under the 

Administrative Procedure Act (“APA”). The panel held that 

because the APA only allows challenges to discrete agency 

decisions, the plaintiffs could not effectively pursue their 

constitutional claims – whatever their merits – under that 

statute.

The panel considered the three requirements for whether 

plaintiffs had Article III standing to pursue their 

constitutional claims. First, the panel held that the district 

court correctly found that plaintiffs claimed concrete and 

particularized injuries. Second, the panel held that the 

district court properly found the Article III causation 

requirement satisfied for purposes of summary judgment 

because there was at least a genuine factual dispute as to 

whether a host of federal policies were a “substantial factor” 

in causing the plaintiffs’ injuries. Third, the panel held that 

plaintiffs’ claimed injuries were not redressable by an 

Article III court. Specifically, the panel held that it was 

beyond the power of an Article III court to order, design, 

supervise, or implement the plaintiffs’ requested remedial 

plan where any effective plan would necessarily require a 

host of complex policy decisions entrusted to the wisdom 

and discretion of the executive and legislative branches.

The panel reluctantly concluded that the plaintiffs’ case 

must be made to the political branches or to the electorate at 

large.

District Judge Staton dissented, and would affirm the 

district court. Judge Staton wrote that plaintiffs brought suit 

to enforce the most basic structural principal embedded in 

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6 JULIANA V. UNITED STATES

our system of liberty: that the Constitution does not condone 

the Nation’s willful destruction. She would hold that 

plaintiffs have standing to challenge the government’s 

conduct, have articulated claims under the Constitution, and 

have presented sufficient evidence to press those claims at 

trial.

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COUNSEL

Jeffrey Bossert Clark (argued), Assistant Attorney General; 

Andrew C. Mergen, Sommer H. Engels, and Robert J. 

Lundman, Attorneys; Eric Grant, Deputy Assistant Attorney 

General; Environment and Natural Resources Division, 

United States Department of Justice, Washington, D.C.; for 

Defendants-Appellants.

Julia A. Olson (argued), Wild Earth Advocates, Eugene, 

Oregon; Philip L. Gregory, Gregory Law Group, Redwood 

City, California; Andrew K. Rodgers, Law Offices of 

Andrea K. Rodgers, Seattle, Washington; for PlaintiffsAppellees.

Theodore Hadzi-Antich and Ryan D. Walters, Texas Public 

Policy Foundation, Austin, Texas, for Amici Curiae Nuckels 

Oil Co., Inc. DBA Merit Oil Company; Libety Packing 

Company, LLC; Western States Trucking Association; and 

National Federation of Independent Business Small 

Business Legal Center.

Richard K. Eichstaedt, University Legal Assistance, 

Spokane, Washington, for Amici Curiae Eco-Justice 

Ministries; Interfaith Moral Action on Climate; General 

Synod of the United Church of Christ; Temple Beth Israel of 

Eugene, Oregon; National Advocacy Center of the Sisters of 

the Good Shepherd; Leadership Counsel of the Sisters 

Servants of the Immaculate Heart of Mary of Monroe, 

Michigan; Sisters of Mercy of the Americas’ Institute 

Leadership Team; GreenFaith; Leadership Team of the 

Sisters of Providence of Saint-Mary-of-the-Woods Indiana; 

Leadership Conference of Women Religious; Climate 

Change Task Force of the Sisters of Providence of SaintMary-of-the-Woods; Quaker Earthcare Witness; Colorado 

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Interfaith Power and Light; and the Congregation of Our 

Lady of Charity of the Good Shepherd, U.S. Provinces.

Dr. Curtis FJ Doebbler, Law Office of Dr. Curtis FJ 

Doebbler, San Antonio, Texas; D. Inder Comar, Comar LLP, 

San Francisco, California; for Amici Curiae International 

Lawyers for International Law.

Wendy B. Jacobs, Director; Shaun A. Goho, Deputy 

Director; Emmett Environmental Law & Policy Clinic, 

Harvard Law School, Cambridge, Massachusetts; for Amici 

Curiae Public Health Experts, Public Health Organizations, 

and Doctors.

David Bookbinder, Niskanen Center, Washington, D.C., for 

Amicus Curiae Niskanen Center.

Courtney B. Johnson, Crag Law Center, Portland, Oregon, 

for Amici Curiae League of Women Voters of the United 

States and League of Women Voters of Oregon.

Oday Salim, Environmental Law & Sustainability Clinic; 

Julian D. Mortensen and David M. Uhlmann, Professors; 

Alexander Chafetz, law student; University of Michigan 

Law School, Ann Arbor, Michigan; for Amicus Curiae 

Sunrise Movement Education Fund.

Zachary B. Corrigan, Food & Water Watch, Inc., 

Washington, D.C., for Amici Curiae Food & Water Watch, 

Inc.; Friends of the Earth – US; and Greenpeace, Inc.

Patti Goldman, Earthjustice, Seattle, Washington; Sarah H. 

Burt, Earthjustice, San Francisco, California; for Amici 

Curiae EarthRights International, Center for Biological 

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Diversity, Defenders of Wildlife, and Union of Concerned 

Scientists.

David Hunter and William John Snape III, American 

University, Washington College of Law, Washington, D.C., 

for Amici Curiae International Environmental Law and 

Environmental Law Alliance Worldwide—US.

Timothy M. Bechtold, Bechtold Law Firm PLLC, Missoula, 

Montana, for Amici Curiae Members of the United States 

Congress.

Rachael Paschal Osborn, Vashon, Washington, for Amici 

Curiae Environmental History Professors.

Thomas J. Beers, Beers Law Offices, Seeley Lake, Montana; 

Irma S. Russell, Professor, and Edward A. Smith, Missouri 

Chair in Law, the Constitution, and Society, University of 

Missouri-Kansas City School of Law, Kansas City, 

Missouri; W. Warren H. Binford Professor or Law & 

Director, Clinical Law Program, Willamette University, 

Salem, Oregon; for Amicus Curiae Zero Hour on Behalf of 

Approximately 32,340 Children and Young People.

Helen H. Kang, Environmental Law and Justice Clinic, 

Golden Gate University School of Law, San Francisco, 

California; James R. May and Erin Daly, Dignity Rights 

Project, Delaware Law School, Wilmington, Delaware; for 

Amici Curiae Law Professors.

Toby J. Marshall, Terrell Marshall Law Group PLLC, 

Seattle, Washington, for Amici Curiae Guayaki Sustainable 

Rainforest Products, Inc.; Royal Blue Organics; Organically 

Grown Company; Bliss Unlimited, LLC, dba Coconut Bliss; 

Hummingbird Wholesale; Aspen Skiing Company, LLC; 

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Protect Our Winters; National Ski Areas Association; 

Snowsports Industries America; and American Sustainable 

Business Council.

Alejandra Núñez and Andres Restrepo, Sierra Club, 

Washington, D.C.; Joanne Spalding, Sierra Club, Oakland, 

California; for Amicus Curiae Sierra Club.

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OPINION

HURWITZ, Circuit Judge:

In the mid-1960s, a popular song warned that we were 

“on the eve of destruction.”1 The plaintiffs in this case have 

presented compelling evidence that climate change has 

brought that eve nearer. A substantial evidentiary record 

documents that the federal government has long promoted 

fossil fuel use despite knowing that it can cause catastrophic 

climate change, and that failure to change existing policy 

may hasten an environmental apocalypse.

The plaintiffs claim that the government has violated 

their constitutional rights, including a claimed right under 

the Due Process Clause of the Fifth Amendment to a 

“climate system capable of sustaining human life.” The 

central issue before us is whether, even assuming such a 

broad constitutional right exists, an Article III court can 

provide the plaintiffs the redress they seek—an order 

requiring the government to develop a plan to “phase out 

fossil fuel emissions and draw down excess atmospheric 

CO2.” Reluctantly, we conclude that such relief is beyond 

our constitutional power. Rather, the plaintiffs’ impressive 

case for redress must be presented to the political branches 

of government.

I.

The plaintiffs are twenty-one young citizens, an 

environmental organization, and a “representative of future 

generations.” Their original complaint named as defendants 

1 Barry McGuire, Eve of Destruction, on Eve of Destruction

(Dunhill Records, 1965).

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the President, the United States, and federal agencies 

(collectively, “the government”). The operative complaint 

accuses the government of continuing to “permit, authorize, 

and subsidize” fossil fuel use despite long being aware of its 

risks, thereby causing various climate-change related 

injuries to the plaintiffs. Some plaintiffs claim 

psychological harm, others impairment to recreational 

interests, others exacerbated medical conditions, and others 

damage to property. The complaint asserts violations of: 

(1) the plaintiffs’ substantive rights under the Due Process 

Clause of the Fifth Amendment; (2) the plaintiffs’ rights 

under the Fifth Amendment to equal protection of the law; 

(3) the plaintiffs’ rights under the Ninth Amendment; and 

(4) the public trust doctrine. The plaintiffs seek declaratory 

relief and an injunction ordering the government to 

implement a plan to “phase out fossil fuel emissions and 

draw down excess atmospheric [carbon dioxide].”2

The district court denied the government’s motion to 

dismiss, concluding that the plaintiffs had standing to sue, 

raised justiciable questions, and stated a claim for 

infringement of a Fifth Amendment due process right to a 

“climate system capable of sustaining human life.” The 

court defined that right as one to be free from catastrophic 

climate change that “will cause human deaths, shorten 

human lifespans, result in widespread damage to property, 

threaten human food sources, and dramatically alter the 

planet’s ecosystem.” The court also concluded that the 

2 The plaintiffs also assert that section 201 of the Energy Policy Act 

of 1992, Pub. L. No. 102-486, § 201, 106 Stat. 2776, 2866 (codified at 

15 U.S.C. § 717b(c)), which requires expedited authorization for certain 

natural gas imports and exports “without modification or delay,” is 

unconstitutional on its face and as applied. The plaintiffs also challenge 

DOE/FE Order No. 3041, which authorizes exports of liquefied natural 

gas from the proposed Jordan Cove terminal in Coos Bay, Oregon.

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plaintiffs had stated a viable “danger-creation due process 

claim” arising from the government’s failure to regulate 

third-party emissions. Finally, the court held that the 

plaintiffs had stated a public trust claim grounded in the Fifth 

and the Ninth Amendments.

The government unsuccessfully sought a writ of 

mandamus. In re United States, 884 F.3d 830, 837–38 (9th 

Cir. 2018). Shortly thereafter, the Supreme Court denied the 

government’s motion for a stay of proceedings. United 

States v. U.S. Dist. Court for Dist. of Or., 139 S. Ct. 1 (2018). 

Although finding the stay request “premature,” the Court 

noted that the “breadth of respondents’ claims is striking . . .

and the justiciability of those claims presents substantial 

grounds for difference of opinion.” Id.

The government then moved for summary judgment and 

judgment on the pleadings. The district court granted 

summary judgment on the Ninth Amendment claim, 

dismissed the President as a defendant, and dismissed the 

equal protection claim in part.3 But the court otherwise 

denied the government’s motions, again holding that the 

plaintiffs had standing to sue and finding that they had 

presented sufficient evidence to survive summary judgment. 

The court also rejected the government’s argument that the 

plaintiffs’ exclusive remedy was under the Administrative 

Procedure Act (“APA”), 5 U.S.C. § 702 et seq.

The district court initially declined the government’s 

request to certify those orders for interlocutory appeal. But, 

while considering a second mandamus petition from the 

government, we invited the district court to revisit 

3 The court found that age is not a suspect class, but allowed the 

equal protection claim to proceed on a fundamental rights theory.

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certification, noting the Supreme Court’s justiciability 

concerns. United States v. U.S. Dist. Court for the Dist. of 

Or., No. 18-73014, Dkt. 3; see In re United States, 139 S. Ct. 

452, 453 (2018) (reiterating justiciability concerns in 

denying a subsequent stay application from the 

government). The district court then reluctantly certified the 

orders denying the motions for interlocutory appeal under 

28 U.S.C. § 1292(b) and stayed the proceedings, while 

“stand[ing] by its prior rulings . . . as well as its belief that 

this case would be better served by further factual 

development at trial.” Juliana v. United States, No. 6:15-cv01517-AA, 2018 WL 6303774, at *3 (D. Or. Nov. 21, 2018). 

We granted the government’s petition for permission to 

appeal.

II.

The plaintiffs have compiled an extensive record, which

at this stage in the litigation we take in the light most 

favorable to their claims. See Plumhoff v. Rickard, 572 U.S. 

765, 768 (2014). The record leaves little basis for denying 

that climate change is occurring at an increasingly rapid 

pace. It documents that since the dawn of the Industrial Age, 

atmospheric carbon dioxide has skyrocketed to levels not 

seen for almost three million years. For hundreds of 

thousands of years, average carbon concentration fluctuated 

between 180 and 280 parts per million. Today, it is over 

410 parts per million and climbing. Although carbon levels 

rose gradually after the last Ice Age, the most recent surge 

has occurred more than 100 times faster; half of that increase 

has come in the last forty years.

Copious expert evidence establishes that this 

unprecedented rise stems from fossil fuel combustion and 

will wreak havoc on the Earth’s climate if unchecked. 

Temperatures have already risen 0.9 degrees Celsius above 

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pre-industrial levels and may rise more than 6 degrees 

Celsius by the end of the century. The hottest years on 

record all fall within this decade, and each year since 1997 

has been hotter than the previous average. This extreme heat 

is melting polar ice caps and may cause sea levels to rise 15

to 30 feet by 2100. The problem is approaching “the point 

of no return.” Absent some action, the destabilizing climate 

will bury cities, spawn life-threatening natural disasters, and 

jeopardize critical food and water supplies.

The record also conclusively establishes that the federal 

government has long understood the risks of fossil fuel use 

and increasing carbon dioxide emissions. As early as 1965, 

the Johnson Administration cautioned that fossil fuel 

emissions threatened significant changes to climate, global 

temperatures, sea levels, and other stratospheric properties. 

In 1983, an Environmental Protection Agency (“EPA”) 

report projected an increase of 2 degrees Celsius by 2040, 

warning that a “wait and see” carbon emissions policy was 

extremely risky. And, in the 1990s, the EPA implored the 

government to act before it was too late. Nonetheless, by 

2014, U.S. fossil fuel emissions had climbed to 5.4 billion 

metric tons, up substantially from 1965. This growth shows 

no signs of abating. From 2008 to 2017, domestic petroleum 

and natural gas production increased by nearly 60%, and the 

country is now expanding oil and gas extraction four times 

faster than any other nation.

The record also establishes that the government’s 

contribution to climate change is not simply a result of 

inaction. The government affirmatively promotes fossil fuel 

use in a host of ways, including beneficial tax provisions, 

permits for imports and exports, subsidies for domestic and 

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overseas projects, and leases for fuel extraction on federal 

land.4

A.

The government by and large has not disputed the factual 

premises of the plaintiffs’ claims. But it first argues that 

those claims must proceed, if at all, under the APA. We 

reject that argument. The plaintiffs do not claim that any 

individual agency action exceeds statutory authorization or, 

taken alone, is arbitrary and capricious. See 5 U.S.C. 

§ 706(2)(A), (C). Rather, they contend that the totality of 

various government actions contributes to the deprivation of 

constitutionally protected rights. Because the APA only 

allows challenges to discrete agency decisions, see Lujan v. 

Nat’l Wildlife Fed’n, 497 U.S. 871, 890–91 (1990), the 

plaintiffs cannot effectively pursue their constitutional 

claims—whatever their merits—under that statute.

The defendants argue that the APA’s “comprehensive 

remedial scheme” for challenging the constitutionality of 

agency actions implicitly bars the plaintiffs’ freestanding 

constitutional claims. But, even if some constitutional 

challenges to agency action must proceed through the APA, 

forcing all constitutional claims to follow its strictures would 

4 The programs and policies identified by the plaintiffs include: 

(1) the Bureau of Land Management’s authorization of leases for 107 

coal tracts and 95,000 oil and gas wells; (2) the Export-Import Bank’s 

provision of $14.8 billion for overseas petroleum projects; (3) the 

Department of Energy’s approval of over 2 million barrels of crude oil 

imports; (4) the Department of Agriculture’s approval of timber cutting 

on federal land; (5) the undervaluing of royalty rates for federal leasing; 

(6) tax subsidies for purchasing fuel-inefficient sport-utility vehicles; 

(7) the “intangible drilling costs” and “percentage depletion allowance” 

tax code provisions, 26 U.S.C. §§ 263(c), 613; and (8) the government’s 

use of fossil fuels to power its own buildings and vehicles.

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bar plaintiffs from challenging violations of constitutional 

rights in the absence of a discrete agency action that caused 

the violation. See Sierra Club v. Trump, 929 F.3d 670, 694, 

696 (9th Cir. 2019) (stating that plaintiffs could “bring their 

challenge through an equitable action to enjoin 

unconstitutional official conduct, or under the judicial 

review provisions of the [APA]”); Navajo Nation v. Dep’t of 

the Interior, 876 F.3d 1144, 1172 (9th Cir. 2017) (holding 

“that the second sentence of § 702 waives sovereign 

immunity broadly for all causes of action that meet its terms, 

while § 704’s ‘final agency action’ limitation applies only to 

APA claims”). Because denying “any judicial forum for a 

colorable constitutional claim” presents a “serious 

constitutional question,” Congress’s intent through a statute 

to do so must be clear. See Webster v. Doe, 486 U.S. 592, 

603 (1988) (quoting Bowen v. Mich. Acad. of Family 

Physicians, 476 U.S. 667, 681 n.12 (1986)); see also Allen 

v. Milas, 896 F.3d 1094, 1108 (9th Cir. 2018) (“After 

Webster, we have assumed that the courts will be open to 

review of constitutional claims, even if they are closed to 

other claims.”). Nothing in the APA evinces such an intent.5 

Whatever the merits of the plaintiffs’ claims, they may 

proceed independently of the review procedures mandated 

by the APA. See Sierra Club, 929 F.3d at 698–99 (“Any 

constitutional challenge that Plaintiffs may advance under 

the APA would exist regardless of whether they could also 

assert an APA claim . . . . [C]laims challenging agency 

5 The government relies upon Armstrong v. Exceptional Child 

Center, Inc., 575 U.S. 320, 328–29 (2015), and Seminole Tribe of 

Florida v. Florida, 517 U.S. 44, 74–76 (1996), both of which held that 

statutory remedial schemes implicitly barred freestanding equitable 

claims. Neither case, however, involved claims by the plaintiffs that the 

federal government was violating their constitutional rights. See 

Armstrong, 575 U.S. at 323–24 (claiming that state officials had violated 

a federal statute); Seminole Tribe, 517 U.S. at 51–52 (same).

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actions—particularly constitutional claims—may exist 

wholly apart from the APA.”); Navajo Nation, 876 F.3d 

at 1170 (explaining that certain constitutional challenges to 

agency action are “not grounded in the APA”).

B.

The government also argues that the plaintiffs lack 

Article III standing to pursue their constitutional claims. To 

have standing under Article III, a plaintiff must have (1) a 

concrete and particularized injury that (2) is caused by the 

challenged conduct and (3) is likely redressable by a 

favorable judicial decision. See Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 

(2000); Jewel v. NSA, 673 F.3d 902, 908 (9th Cir. 2011). A 

plaintiff need only establish a genuine dispute as to these 

requirements to survive summary judgment. See Cent. Delta 

Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 

2002).

1.

The district court correctly found the injury requirement 

met. At least some plaintiffs claim concrete and 

particularized injuries. Jaime B., for example, claims that 

she was forced to leave her home because of water scarcity, 

separating her from relatives on the Navajo Reservation. See 

Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018) (finding 

separation from relatives to be a concrete injury). Levi D. 

had to evacuate his coastal home multiple times because of 

flooding. See Maya v. Centex Corp., 658 F.3d 1060, 1070–

71 (9th Cir. 2011) (finding diminution in home property 

value to be a concrete injury). These injuries are not simply 

“‘conjectural’ or ‘hypothetical;’” at least some of the 

plaintiffs have presented evidence that climate change is 

affecting them now in concrete ways and will continue to do 

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so unless checked. Lujan v. Defs. of Wildlife, 504 U.S. 555, 

560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 

155 (1990)); cf. Ctr. for Biological Diversity v. U.S. Dep’t of 

Interior, 563 F.3d 466, 478 (D.C. Cir. 2009) (finding no 

standing because plaintiffs could “only aver that any 

significant adverse effects of climate change ‘may’ occur at 

some point in the future”).

The government argues that the plaintiffs’ alleged 

injuries are not particularized because climate change affects 

everyone. But, “it does not matter how many persons have 

been injured” if the plaintiffs’ injuries are “concrete and 

personal.” Massachusetts v. EPA, 549 U.S. 497, 517 (2007) 

(quoting Lujan, 504 U.S. at 581 (Kennedy, J., concurring)); 

see also Novak v. United States, 795 F.3d 1012, 1018 (9th 

Cir. 2015) (“[T]he fact that a harm is widely shared does not 

necessarily render it a generalized grievance.”) (alteration in 

original) (quoting Jewel, 673 F.3d at 909). And, the Article 

III injury requirement is met if only one plaintiff has suffered 

concrete harm. See Hawaii, 138 S. Ct. at 2416; Town of 

Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 

(2017) (“At least one plaintiff must have standing to seek 

each form of relief requested in the complaint. . . . For all 

relief sought, there must be a litigant with standing.”).

2.

The district court also correctly found the Article III

causation requirement satisfied for purposes of summary 

judgment. Causation can be established “even if there are 

multiple links in the chain,” Mendia v. Garcia, 768 F.3d 

1009, 1012 (9th Cir. 2014), as long as the chain is not 

“hypothetical or tenuous,” Maya, 658 F.3d at 1070 (quoting 

Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 849 (9th 

Cir. 2002), amended on denial of reh’g, 312 F.3d 416 (9th 

Cir. 2002)). The causal chain here is sufficiently established. 

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The plaintiffs’ alleged injuries are caused by carbon 

emissions from fossil fuel production, extraction, and 

transportation. A significant portion of those emissions 

occur in this country; the United States accounted for over 

25% of worldwide emissions from 1850 to 2012, and 

currently accounts for about 15%. See Massachusetts, 

549 U.S. at 524–25 (finding that emissions amounting to 

about 6% of the worldwide total showed cause of alleged 

injury “by any standard”). And, the plaintiffs’ evidence 

shows that federal subsidies and leases have increased those 

emissions. About 25% of fossil fuels extracted in the United 

States come from federal waters and lands, an activity that 

requires authorization from the federal government. See 

30 U.S.C. §§ 181–196 (establishing legal framework 

governing the disposition of fossil fuels on federal land), 

§ 201 (authorizing the Secretary of the Interior to lease land 

for coal mining).

Relying on Washington Environmental Council v. 

Bellon, 732 F.3d 1131, 1141–46 (9th Cir. 2013), the 

government argues that the causal chain is too attenuated 

because it depends in part on the independent actions of third 

parties. Bellon held that the causal chain between local 

agencies’ failure to regulate five oil refineries and the 

plaintiffs’ climate-change related injuries was “too tenuous 

to support standing” because the refineries had a 

“scientifically indiscernible” impact on climate change. Id.

at 1143–44. But the plaintiffs here do not contend that their 

injuries were caused by a few isolated agency decisions. 

Rather, they blame a host of federal policies, from subsidies 

to drilling permits, spanning “over 50 years,” and direct 

actions by the government. There is at least a genuine 

factual dispute as to whether those policies were a 

“substantial factor” in causing the plaintiffs’ injuries. 

Mendia, 768 F.3d at 1013 (quoting Tozzi v. U.S. Dep’t of 

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Health & Human Servs., 271 F.3d 301, 308 (D.C. Cir. 

2001)).

3.

The more difficult question is whether the plaintiffs’ 

claimed injuries are redressable by an Article III court. In 

analyzing that question, we start by stressing what the 

plaintiffs do and do not assert. They do not claim that the 

government has violated a statute or a regulation. They do 

not assert the denial of a procedural right. Nor do they seek 

damages under the Federal Tort Claims Act, 28 U.S.C. 

§ 2671 et seq. Rather, their sole claim is that the government 

has deprived them of a substantive constitutional right to a 

“climate system capable of sustaining human life,” and they 

seek remedial declaratory and injunctive relief.

Reasonable jurists can disagree about whether the 

asserted constitutional right exists. Compare Clean Air 

Council v. United States, 362 F. Supp. 3d 237, 250–53 (E.D. 

Pa. 2019) (finding no constitutional right), with Juliana, 

217 F. Supp. 3d at 1248–50; see also In re United States, 

139 S. Ct. at 453 (reiterating “that the ‘striking’ breadth of 

plaintiffs’ below claims ‘presents substantial grounds for 

difference of opinion’”). In analyzing redressability, 

however, we assume its existence. See M.S. v. Brown, 

902 F.3d 1076, 1083 (9th Cir. 2018). But that merely begins 

our analysis, because “not all meritorious legal claims are 

redressable in federal court.” Id. To establish Article III 

redressability, the plaintiffs must show that the relief they 

seek is both (1) substantially likely to redress their injuries; 

and (2) within the district court’s power to award. Id. 

Redress need not be guaranteed, but it must be more than 

“merely speculative.” Id. (quoting Lujan, 504 U.S. at 561).

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The plaintiffs first seek a declaration that the

government is violating the Constitution. But that relief 

alone is not substantially likely to mitigate the plaintiffs’ 

asserted concrete injuries. A declaration, although 

undoubtedly likely to benefit the plaintiffs psychologically, 

is unlikely by itself to remediate their alleged injuries absent 

further court action. See Clean Air Council, 362 F. Supp. 3d 

at 246, 249; Steel Co. v. Citizens for a Better Env’t, 523 U.S. 

83, 107 (1998) (“By the mere bringing of his suit, every

plaintiff demonstrates his belief that a favorable judgment 

will make him happier. But although a suitor may derive 

great comfort and joy from the fact that the United States 

Treasury is not cheated, that a wrongdoer gets his just 

deserts, or that the Nation’s laws are faithfully enforced, that 

psychic satisfaction is not an acceptable Article III remedy 

because it does not redress a cognizable Article III injury.”); 

see also Friends of the Earth, 528 U.S. at 185 (“[A] plaintiff 

must demonstrate standing separately for each form of relief 

sought.”).

The crux of the plaintiffs’ requested remedy is an 

injunction requiring the government not only to cease 

permitting, authorizing, and subsidizing fossil fuel use, but 

also to prepare a plan subject to judicial approval to draw 

down harmful emissions. The plaintiffs thus seek not only 

to enjoin the Executive from exercising discretionary 

authority expressly granted by Congress, see, e.g., 30 U.S.C. 

§ 201 (authorizing the Secretary of the Interior to lease land 

for coal mining), but also to enjoin Congress from exercising 

power expressly granted by the Constitution over public 

lands, see U.S. Const. art. IV, § 3, cl. 2 (“The 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.”).

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As an initial matter, we note that although the plaintiffs 

contended at oral argument that they challenge only 

affirmative activities by the government, an order simply 

enjoining those activities will not, according to their own 

experts’ opinions, suffice to stop catastrophic climate change 

or even ameliorate their injuries.6 The plaintiffs’ experts 

opine that the federal government’s leases and subsidies 

have contributed to global carbon emissions. But they do 

not show that even the total elimination of the challenged 

programs would halt the growth of carbon dioxide levels in 

the atmosphere, let alone decrease that growth. Nor does any 

expert contend that elimination of the challenged pro-carbon 

fuels programs would by itself prevent further injury to the 

plaintiffs. Rather, the record shows that many of the 

emissions causing climate change happened decades ago or 

come from foreign and non-governmental sources.

Indeed, the plaintiffs’ experts make plain that reducing 

the global consequences of climate change demands much 

more than cessation of the government’s promotion of fossil 

fuels. Rather, these experts opine that such a result calls for 

no less than a fundamental transformation of this country’s 

energy system, if not that of the industrialized world. One 

expert opines that atmospheric carbon reductions must come 

“largely via reforestation,” and include rapid and immediate 

decreases in emissions from many sources. “[L]eisurely 

reductions of one of two percent per year,” he explains, “will 

not suffice.” Another expert has opined that although the 

required emissions reductions are “technically feasible,” 

they can be achieved only through a comprehensive plan for 

“nearly complete decarbonization” that includes both an 

“unprecedently rapid build out” of renewable energy and a 

6 The operative complaint, however, also seems to challenge the 

government’s inaction.

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“sustained commitment to infrastructure transformation over 

decades.” And, that commitment, another expert 

emphasizes, must include everything from energy efficient 

lighting to improved public transportation to hydrogenpowered aircraft.

The plaintiffs concede that their requested relief will not 

alone solve global climate change, but they assert that their 

“injuries would be to some extent ameliorated.” Relying on 

Massachusetts v. EPA, the district court apparently found the 

redressability requirement satisfied because the requested 

relief would likely slow or reduce emissions. See 549 U.S. 

at 525–26. That case, however, involved a procedural right 

that the State of Massachusetts was allowed to assert 

“without meeting all the normal standards for 

redressability;” in that context, the Court found 

redressability because “there [was] some possibility that the 

requested relief [would] prompt the injury-causing party to 

reconsider the decision that allegedly harmed the litigant.” 

Id. at 517–18, 525–26 (quoting Lujan, 504 U.S. at 572 n.7). 

The plaintiffs here do not assert a procedural right, but rather 

a substantive due process claim.7

7 The dissent reads Massachusetts to hold that “a perceptible 

reduction in the advance of climate change is sufficient to redress a 

plaintiff’s climate change-induced harms.” Diss. at 47. But 

Massachusetts “permitted a State to challenge EPA’s refusal to regulate 

greenhouse gas emissions,” Am. Elec. Power Co., Inc. v. Connecticut, 

564 U.S. 410, 420 (2011), finding that as a sovereign it was “entitled to 

special solicitude in [the] standing analysis,” Ariz. State Legislature v. 

Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 n.10 (2015) 

(quoting Massachusetts, 549 U.S. at 520). Here, in contrast, the 

plaintiffs are not sovereigns, and a substantive right, not a procedural 

one, is at issue. See Massachusetts, 549 U.S. at 517–21, 525–26; see 

also Lujan, 504 U.S. at 572 n.7 (“There is this much truth to the assertion 

that ‘procedural rights’ are special: The person who has been accorded a 

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We are therefore skeptical that the first redressability 

prong is satisfied. But even assuming that it is, the plaintiffs 

do not surmount the remaining hurdle—establishing that the 

specific relief they seek is within the power of an Article III 

court. There is much to recommend the adoption of a 

comprehensive scheme to decrease fossil fuel emissions and 

combat climate change, both as a policy matter in general 

and a matter of national survival in particular. But it is 

beyond the power of an Article III court to order, design, 

supervise, or implement the plaintiffs’ requested remedial 

plan. As the opinions of their experts make plain, any 

effective plan would necessarily require a host of complex 

policy decisions entrusted, for better or worse, to the wisdom 

and discretion of the executive and legislative branches. See 

Brown, 902 F.3d at 1086 (finding the plaintiff’s requested 

declaration requiring the government to issue driver cards 

“incompatible with democratic principles embedded in the 

structure of the Constitution”). These decisions range, for 

example, from determining how much to invest in public 

transit to how quickly to transition to renewable energy, and 

plainly require consideration of “competing social, political, 

and economic forces,” which must be made by the People’s 

“elected representatives, rather than by federal judges 

interpreting the basic charter of Government for the entire 

country.” Collins v. City of Harker Heights, 503 U.S. 115, 

128–29 (1992); see Lujan, 504 U.S. at 559–60 

(“[S]eparation of powers depends largely upon common 

understanding of what activities are appropriate to 

legislatures, to executives, and to courts.”).

procedural right to protect his concrete interests can assert that right 

without meeting all the normal standards for redressability and 

immediacy.”).

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The plaintiffs argue that the district court need not itself 

make policy decisions, because if their general request for a 

remedial plan is granted, the political branches can decide 

what policies will best “phase out fossil fuel emissions and 

draw down excess atmospheric CO2.” To be sure, in some 

circumstances, courts may order broad injunctive relief 

while leaving the “details of implementation” to the 

government’s discretion. Brown v. Plata, 563 U.S. 493, 

537–38 (2011). But, even under such a scenario, the 

plaintiffs’ request for a remedial plan would subsequently 

require the judiciary to pass judgment on the sufficiency of 

the government’s response to the order, which necessarily 

would entail a broad range of policymaking. And inevitably, 

this kind of plan will demand action not only by the 

Executive, but also by Congress. Absent court intervention, 

the political branches might conclude—however 

inappropriately in the plaintiffs’ view—that economic or 

defense considerations called for continuation of the very 

programs challenged in this suit, or a less robust approach to 

addressing climate change than the plaintiffs believe is 

necessary. “But we cannot substitute our own assessment

for the Executive’s [or Legislature’s] predictive judgments 

on such matters, all of which ‘are delicate, complex, and 

involve large elements of prophecy.’” Hawaii, 138 S. Ct. 

at 2421 (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. 

Corp., 333 U.S. 103, 111 (1948)). And, given the 

complexity and long-lasting nature of global climate change, 

the court would be required to supervise the government’s 

compliance with any suggested plan for many decades. See 

Nat. Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1300 

(9th Cir. 1992) (“Injunctive relief could involve 

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extraordinary supervision by this court. . . . [and] may be 

inappropriate where it requires constant supervision.”).8

As the Supreme Court recently explained, “a 

constitutional directive or legal standards” must guide the 

courts’ exercise of equitable power. Rucho v. Common 

Cause, 139 S. Ct. 2484, 2508 (2019). Rucho found partisan 

gerrymandering claims presented political questions beyond 

the reach of Article III courts. Id. at 2506–07. The Court 

did not deny extreme partisan gerrymandering can violate 

the Constitution. See id. at 2506; id. at 2514–15 (Kagan, J., 

dissenting). But, it concluded that there was no “limited and 

precise” standard discernible in the Constitution for 

redressing the asserted violation. Id. at 2500. The Court 

8 However belatedly, the political branches are currently debating 

such action. Many resolutions and plans have been introduced in 

Congress, ranging from discrete measures to encourage clean energy 

innovation to the “Green New Deal” and comprehensive proposals for 

taxing carbon and transitioning all sectors of the economy away from 

fossil fuels. See, e.g., H.R. Res. 109, 116th Cong. (2019); S.J. Res. 8, 

116th Cong. (2019); Enhancing Fossil Fuel Energy Carbon Technology 

Act, S. 1201, 116th Cong. (2019); Climate Action Now Act, H.R. 9, 

116th Cong. (2019); Methane Waste Prevention Act, H.R. 2711, 116th 

Cong. (2019); Clean Energy Standard Act, S. 1359, 116th Cong. (2019); 

National Climate Bank Act, S. 2057, 116th Cong. (2019); Carbon 

Pollution Transparency Act, S. 1745, 116th Cong. (2019); Leading 

Infrastructure for Tomorrow’s America Act, H.R. 2741, 116th Cong. 

(2019); Buy Clean Transparency Act, S. 1864, 116th Cong. (2019); 

Carbon Capture Modernization Act, H.R. 1796, 116th Cong. (2019); 

Challenges & Prizes for Climate Act, H.R. 3100, 116th Cong. (2019);

Energy Innovation and Carbon Dividend Act, H.R. 763, 116th Cong.

(2019); Climate Risk Disclosure Act, S. 2075, 116th Cong. (2019);

Clean Energy for America Act, S. 1288, 116th Cong. (2019). The 

proposed legislation, consistent with the opinions of the plaintiffs’ 

experts, envisions that tackling this global problem involves the exercise 

of discretion, trade-offs, international cooperation, private-sector 

partnerships, and other value judgments ill-suited for an Article III court.

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rejected the plaintiffs’ proposed standard because unlike the 

one-person, one-vote rule in vote dilution cases, it was not 

“relatively easy to administer as a matter of math.” Id. 

at 2501.

Rucho reaffirmed that redressability questions implicate 

the separation of powers, noting that federal courts “have no 

commission to allocate political power and influence” 

without standards to guide in the exercise of such authority. 

See id. at 2506–07, 2508. Absent those standards, federal 

judicial power could be “unlimited in scope and duration,” 

and would inject “the unelected and politically 

unaccountable branch of the Federal Government [into] 

assuming such an extraordinary and unprecedented role.” 

Id. at 2507; see also Lexmark Int’l, Inc. v. Static Control 

Components, Inc., 572 U.S. 118, 125 (2014) (noting the 

“separation-of-powers principles underlying” standing 

doctrine); Brown, 902 F.3d at 1087 (stating that “in the 

context of Article III standing, . . . federal courts must 

respect their ‘proper—and properly limited—role . . . in a 

democratic society’” (quoting Gill v. Whitford, 138 S. Ct. 

1916, 1929 (2018)). Because “it is axiomatic that ‘the 

Constitution contemplates that democracy is the appropriate 

process for change,’” Brown, 902 F.3d at 1087 (quoting 

Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015)), some 

questions—even those existential in nature—are the 

province of the political branches. The Court found in 

Rucho that a proposed standard involving a mathematical 

comparison to a baseline election map is too difficult for the 

judiciary to manage. See 139 S. Ct. at 2500–02. It is 

impossible to reach a different conclusion here.

The plaintiffs’ experts opine that atmospheric carbon 

levels of 350 parts per million are necessary to stabilize the 

global climate. But, even accepting those opinions as valid, 

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they do not suggest how an order from this Court can achieve 

that level, other than by ordering the government to develop 

a plan. Although the plaintiffs’ invitation to get the ball 

rolling by simply ordering the promulgation of a plan is 

beguiling, it ignores that an Article III court will thereafter 

be required to determine whether the plan is sufficient to 

remediate the claimed constitutional violation of the 

plaintiffs’ right to a “climate system capable of sustaining 

human life.” We doubt that any such plan can be supervised 

or enforced by an Article III court. And, in the end, any plan 

is only as good as the court’s power to enforce it.

C.

Our dissenting colleague quite correctly notes the gravity 

of the plaintiffs’ evidence; we differ only as to whether an 

Article III court can provide their requested redress. In 

suggesting that we can, the dissent reframes the plaintiffs’ 

claimed constitutional right variously as an entitlement to 

“the country’s perpetuity,” Diss. at 35–37, 39, or as one to 

freedom from “the amount of fossil-fuel emissions that will 

irreparably devastate our Nation,” id. at 57. But if such 

broad constitutional rights exist, we doubt that the plaintiffs 

would have Article III standing to enforce them. Their 

alleged individual injuries do not flow from a violation of 

these claimed rights. Indeed, any injury from the dissolution 

of the Republic would be felt by all citizens equally, and thus 

would not constitute the kind of discrete and particularized 

injury necessary for Article III standing. See Friends of the 

Earth, 528 U.S. at 180–81. A suit for a violation of these 

reframed rights, like one for a violation of the Guarantee 

Clause, would also plainly be nonjusticiable. See, e.g.,

Rucho, 139 S. Ct. at 2506 (“This Court has several times 

concluded, however, that the Guarantee Clause does not 

provide the basis for a justiciable claim.”) (citing Pac. States 

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Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 149 (1912)); Luther 

v. Borden, 48 U.S. 1, 36–37, 39 (1849).

More importantly, the dissent offers no metrics for 

judicial determination of the level of climate change that 

would cause “the willful dissolution of the Republic,” Diss. 

at 40, nor for measuring a constitutionally acceptable 

“perceptible reduction in the advance of climate change,” id.

at 47. Contrary to the dissent, we cannot find Article III 

redressability requirements satisfied simply because a court 

order might “postpone[] the day when remedial measures 

become insufficiently effective.” Id. at 46; see Brown, 

902 F.3d at 1083 (“If, however, a favorable judicial decision 

would not require the defendant to redress the plaintiff’s 

claimed injury, the plaintiff cannot demonstrate 

redressability[.]”). Indeed, as the dissent recognizes, a 

guarantee against government conduct that might threaten 

the Union—whether from political gerrymandering, nuclear 

proliferation, Executive misconduct, or climate change—has 

traditionally been viewed by Article III courts as “not 

separately enforceable.” Id. at 39. Nor has the Supreme 

Court recognized “the perpetuity principle” as a basis for 

interjecting the judicial branch into the policy-making 

purview of the political branches. See id. at 42.

Contrary to the dissent, we do not “throw up [our] hands” 

by concluding that the plaintiffs’ claims are nonjusticiable. 

Id. at 33. Rather, we recognize that “Article III protects 

liberty not only through its role in implementing the 

separation of powers, but also by specifying the defining 

characteristics of Article III judges.” Stern v. Marshall, 

564 U.S. 462, 483 (2011). Not every problem posing a 

threat—even a clear and present danger—to the American 

Experiment can be solved by federal judges. As Judge 

Cardozo once aptly warned, a judicial commission does not 

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confer the power of “a knight-errant, roaming at will in 

pursuit of his own ideal of beauty or of goodness;” rather, 

we are bound “to exercise a discretion informed by tradition, 

methodized by analogy, disciplined by system.’” Benjamin 

N. Cardozo, The Nature of the Judicial Process 141 (1921).9

The dissent correctly notes that the political branches of 

government have to date been largely deaf to the pleas of the 

plaintiffs and other similarly situated individuals. But, 

although inaction by the Executive and Congress may affect 

the form of judicial relief ordered when there is Article III 

standing, it cannot bring otherwise nonjusticiable claims 

within the province of federal courts. See Rucho, 139 S. Ct. 

at 2507–08; Gill, 138 S. Ct. at 1929 (“‘Failure of political 

will does not justify unconstitutional remedies.’ . . . Our 

power as judges . . . rests not on the default of politically 

accountable officers, but is instead grounded in and limited 

by the necessity of resolving, according to legal principles, a 

plaintiff’s particular claim of legal right.” (quoting Clinton 

v. City of New York, 524 U.S. 417, 449 (1998) (Kennedy, J., 

concurring))); Brown, 902 F.3d at 1087 (“The absence of a 

law, however, has never been held to constitute a 

‘substantive result’ subject to judicial review[.]”).

The plaintiffs have made a compelling case that action is 

needed; it will be increasingly difficult in light of that record 

9 Contrary to the dissent, we do not find this to be a political 

question, although that doctrine’s factors often overlap with 

redressability concerns. Diss. at 51–61; Republic of Marshall Islands v. 

United States, 865 F.3d 1187, 1192 (9th Cir. 2017) (“Whether examined 

under the . . . the redressability prong of standing, or the political 

question doctrine, the analysis stems from the same separation-ofpowers principle—enforcement of this treaty provision is not committed 

to the judicial branch. Although these are distinct doctrines . . . there is 

significant overlap.”).

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for the political branches to deny that climate change is 

occurring, that the government has had a role in causing it, 

and that our elected officials have a moral responsibility to 

seek solutions. We do not dispute that the broad judicial 

relief the plaintiffs seek could well goad the political 

branches into action. Diss. at 45–46, 49–50, 57–61. We 

reluctantly conclude, however, that the plaintiffs’ case must 

be made to the political branches or to the electorate at large, 

the latter of which can change the composition of the 

political branches through the ballot box. That the other 

branches may have abdicated their responsibility to 

remediate the problem does not confer on Article III courts, 

no matter how well-intentioned, the ability to step into their 

shoes.

III.

For the reasons above, we reverse the certified orders of 

the district court and remand this case to the district court 

with instructions to dismiss for lack of Article III standing.10

REVERSED.

STATON, District Judge, dissenting:

In these proceedings, the government accepts as fact that 

the United States has reached a tipping point crying out for 

a concerted response—yet presses ahead toward calamity. It 

is as if an asteroid were barreling toward Earth and the 

government decided to shut down our only defenses. 

10 The plaintiffs’ motion for an injunction pending appeal, Dkt. 21, 

is DENIED. Their motions for judicial notice, Dkts. 134, 149, are 

GRANTED.

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Seeking to quash this suit, the government bluntly insists that 

it has the absolute and unreviewable power to destroy the 

Nation.

My colleagues throw up their hands, concluding that this 

case presents nothing fit for the Judiciary. On a fundamental 

point, we agree: No case can singlehandedly prevent the 

catastrophic effects of climate change predicted by the 

government and scientists. But a federal court need not 

manage all of the delicate foreign relations and regulatory 

minutiae implicated by climate change to offer real relief, 

and the mere fact that this suit cannot alone halt climate 

change does not mean that it presents no claim suitable for 

judicial resolution.

Plaintiffs bring suit to enforce the most basic structural 

principle embedded in our system of ordered liberty: that 

the Constitution does not condone the Nation’s willful 

destruction. So viewed, plaintiffs’ claims adhere to a 

judicially administrable standard. And considering plaintiffs 

seek no less than to forestall the Nation’s demise, even a 

partial and temporary reprieve would constitute meaningful 

redress. Such relief, much like the desegregation orders and 

statewide prison injunctions the Supreme Court has 

sanctioned, would vindicate plaintiffs’ constitutional rights 

without exceeding the Judiciary’s province. For these 

reasons, I respectfully dissent.1

1 I agree with the majority that plaintiffs need not bring their claims 

under the APA. See Franklin v. Massachusetts, 505 U.S. 788, 801 

(1992); Webster v. Doe, 486 U.S. 592, 603–04 (1988).

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I.

As the majority recognizes, and the government does not 

contest, carbon dioxide (“CO2”) and other greenhouse gas 

(“GHG”) emissions created by burning fossil fuels are 

devastating the planet. Maj. Op. at 14–15. According to one 

of plaintiffs’ experts, the inevitable result, absent immediate 

action, is “an inhospitable future . . . marked by rising seas, 

coastal city functionality loss, mass migrations, resource 

wars, food shortages, heat waves, mega-storms, soil 

depletion and desiccation, freshwater shortage, public health 

system collapse, and the extinction of increasing numbers of 

species.” Even government scientists2 project that, given 

current warming trends, sea levels will rise two feet by 2050, 

nearly four feet by 2070, over eight feet by 2100, 18 feet by 

2150, and over 31 feet by 2200. To put that in perspective, 

a three-foot sea level rise will make two million American 

homes uninhabitable; a rise of approximately 20 feet will 

result in the total loss of Miami, New Orleans, and other 

coastal cities. So, as described by plaintiffs’ experts, the 

injuries experienced by plaintiffs are the first small wave in 

an oncoming tsunami—now visible on the horizon of the 

not-so-distant future—that will destroy the United States as 

we currently know it.

What sets this harm apart from all others is not just its 

magnitude, but its irreversibility. The devastation might 

look and feel somewhat different if future generations could 

simply pick up the pieces and restore the Nation. But 

plaintiffs’ experts speak of a certain level of global warming 

as “locking in” this catastrophic damage. Put more starkly 

by plaintiffs’ expert, Dr. Harold R. Wanless, “[a]tmospheric 

2 NOAA, Technical Rep. NOS CO-OPS 083, Global and Regional 

Sea Level Rise Scenarios for the United States 23 (Jan. 2017).

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warming will continue for some 30 years after we stop 

putting more greenhouse gasses into the atmosphere. But 

that warmed atmosphere will continue warming the ocean 

for centuries, and the accumulating heat in the oceans will 

persist for millennia” (emphasis added). Indeed, another of 

plaintiffs’ experts echoes, “[t]he fact that GHGs dissipate 

very slowly from the atmosphere . . . and that the costs of 

taking CO2 out of the atmosphere through non-biological 

carbon capture and storage are very high means that the 

consequences of GHG emissions should be viewed as

effectively irreversible” (emphasis added). In other words, 

“[g]iven the self-reinforcing nature of climate change,” the 

tipping point may well have arrived, and we may be rapidly 

approaching the point of no return.

Despite countless studies over the last half century 

warning of the catastrophic consequences of anthropogenic 

greenhouse gas emissions, many of which the government 

conducted, the government not only failed to act but also 

“affirmatively promote[d] fossil fuel use in a host of ways.” 

Maj. Op. at 15. According to plaintiffs’ evidence, our nation 

is crumbling—at our government’s own hand—into a 

wasteland. In short, the government has directly facilitated 

an existential crisis to the country’s perpetuity.3

II.

In tossing this suit for want of standing, the majority 

concedes that the children and young adults who brought suit 

have presented enough to proceed to trial on the first two 

aspects of the inquiry (injury in fact and traceability). But 

3 My asteroid analogy would therefore be more accurate if I posited 

a scenario in which the government itself accelerated the asteroid 

towards the earth before shutting down our defenses.

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the majority provides two-and-a-half reasons for concluding 

that plaintiffs’ injuries are not redressable. After detailing 

its “skeptic[ism]” that the relief sought could “suffice to stop 

catastrophic climate change or even ameliorate [plaintiffs’] 

injuries[,]” Maj. Op. at 23–25, the majority concludes that, 

at any rate, a court would lack any power to award it. In the 

majority’s view, the relief sought is too great and 

unsusceptible to a judicially administrable standard.

To explain why I disagree, I first step back to define the 

interest at issue. While standing operates as a threshold issue 

distinct from the merits of the claim, “it often turns on the 

nature and source of the claim asserted.” Warth v. Seldin, 

422 U.S. 490, 500 (1975). And, unlike the majority, I 

believe the government has more than just a nebulous “moral 

responsibility” to preserve the Nation. Maj. Op. at 31–32.

A.

The Constitution protects the right to “life, liberty, and 

property, to free speech, a free press, [and] freedom of 

worship and assembly.” W. Virginia State Bd. of Educ. v. 

Barnette, 319 U.S. 624, 638 (1943). Through “reasoned 

judgment,” the Supreme Court has recognized that the Due 

Process Clause, enshrined in the Fifth and Fourteenth 

Amendments, also safeguards certain “interests of the person 

so fundamental that the [government] must accord them its 

respect.” Obergefell v. Hodges, 135 S. Ct. 2584, 2598 

(2015). These include the right to marry, Loving v. Virginia, 

388 U.S. 1, 12 (1967), to maintain a family and rear children, 

M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996), and to pursue an 

occupation of one’s choosing, Schware v. Bd. of Bar Exam., 

353 U.S. 232, 238–39 (1957). As fundamental rights, these 

“may not be submitted to vote; they depend on the outcome 

of no elections.” Lucas v. Forty-Fourth Gen. Assembly, 

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377 U.S. 713, 736 (1964) (quoting Barnette, 319 U.S. 

at 638).

Some rights serve as the necessary predicate for others; 

their fundamentality therefore derives, at least in part, from 

the necessity to preserve other fundamental constitutional 

protections. Cf., e.g., Timbs v. Indiana, 139 S. Ct. 682, 689 

(2019) (deeming a right fundamental because its deprivation 

would “undermine other constitutional liberties”). For 

example, the right to vote “is of the essence of a democratic 

society, and any restrictions on that right strike at the heart 

of representative government.” Reynolds v. Sims, 377 U.S. 

533, 555 (1964). Because it is “preservative of all rights,” 

the Supreme Court has long regarded suffrage “as a 

fundamental political right.” Yick Wo v. Hopkins, 118 U.S. 

356, 370 (1886). This holds true even though the right to 

vote receives imperfect express protection in the 

Constitution itself: While several amendments proscribe the 

denial or abridgement of suffrage based on certain 

characteristics, the Constitution does not guarantee the right 

to vote ab initio. See U.S. Const. amends. XV, XIX, XXIV, 

XXVI; cf. U.S. Const. art. I, § 4, cl. 1.

Much like the right to vote, the perpetuity of the 

Republic occupies a central role in our constitutional 

structure as a “guardian of all other rights,” Plyler v. Doe, 

457 U.S. 202, 217 n.15 (1982). “Civil liberties, as 

guaranteed by the Constitution, imply the existence of an 

organized society . . . .” Cox v. New Hampshire, 312 U.S. 

569, 574 (1941); see also The Ku Klux Cases, 110 U.S. 651, 

657–68 (1884). And, of course, in our system, that 

organized society consists of the Union. Without it, all the 

liberties protected by the Constitution to live the good life 

are meaningless.

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This observation is hardly novel. After securing 

independence, George Washington recognized that “the 

destiny of unborn millions” rested on the fate of the new 

Nation, cautioning that “whatever measures have a tendency 

to dissolve the Union, or contribute to violate or lessen the 

Sovereign Authority, ought to be considered as hostile to the 

Liberty and Independency of America[.]” President George 

Washington, Circular Letter of Farewell to the Army (June 

8, 1783). Without the Republic’s preservation, Washington 

warned, “there is a natural and necessary progression, from 

the extreme of anarchy to the extreme of Tyranny; and that 

arbitrary power is most easily established on the ruins of 

Liberty abused to licentiousness.” Id.

When the Articles of the Confederation proved ill-fitting 

to the task of safeguarding the Union, the framers formed the 

Constitutional Convention with “the great object” of 

“preserv[ing] and perpetuat[ing]” the Union, for they 

believed that “the prosperity of America depended on its 

Union.” The Federalist No. 2, at 19 (John Jay) (E. H. Scott 

ed., 1898); see also Letter from James Madison to Thomas 

Jefferson (Oct. 24, 1787)4 (“It appeared to be the sincere and 

unanimous wish of the Convention to cherish and preserve 

the Union of the States.”). In pressing New York to ratify 

the Constitution, Alexander Hamilton spoke of the gravity 

of the occasion: “The subject speaks its own importance; 

comprehending in its consequences nothing less than the 

existence of the Union, the safety and welfare of the parts of 

which it is composed—the fate of an empire, in many 

respects the most interesting in the world.” The Federalist 

No. 1, at 11 (Alexander Hamilton) (E. H. Scott ed., 1898). 

In light of this animating principle, it is fitting that the 

4 Available at https://founders.archives.gov/documents/Jefferson/0

1-12-02-0274.

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Preamble declares that the Constitution is intended to secure 

“the Blessings of Liberty” not just for one generation, but for 

all future generations—our “Posterity.”

The Constitution’s structure reflects this perpetuity 

principle. See Alden v. Maine, 527 U.S. 706, 713 (1999) 

(examining how “[v]arious textual provisions of the 

Constitution assume” a structural principle). In taking the 

Presidential Oath, the Executive must vow to “preserve, 

protect and defend the Constitution of the United States,” 

U.S. Const. art. II, § 1, cl. 8, and the Take Care Clause 

obliges the President to “take Care that the Laws be 

faithfully executed,” U.S. Const. art. II, § 3. Likewise, 

though generally not separately enforceable, Article IV, 

Section 4 provides that the “United States shall guarantee to 

every State in this Union a Republican Form of Government, 

and shall protect each of them against Invasion; and . . .

against domestic Violence.” U.S. Const. art. IV, § 4; see 

also New York v. United States, 505 U.S. 144, 184–85 

(1992).

Less than a century after the country’s founding, the 

perpetuity principle undergirding the Constitution met its 

greatest challenge. Faced with the South’s secession, 

President Lincoln reaffirmed that the Constitution did not 

countenance its own destruction. “[T]he Union of these 

States is perpetual[,]” he reasoned in his First Inaugural 

Address, because “[p]erpetuity is implied, if not expressed, 

in the fundamental law of all national governments. It is safe 

to assert that no government proper ever had a provision in 

its organic law for its own termination.” President Abraham 

Lincoln, First Inaugural Address (Mar. 4, 1861). In 

justifying this constitutional principle, Lincoln drew from 

history, observing that “[t]he Union is much older than the 

Constitution.” Id. He reminded his fellow citizens, “one of 

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the declared objects for ordaining and establishing the 

Constitution was ‘to form a more perfect Union.’” Id.

(emphasis added) (quoting U.S. Const. pmbl.). While 

secession manifested the existential threat most apparently 

contemplated by the Founders—political dissolution of the 

Union—the underlying principle applies equally to its 

physical destruction.

This perpetuity principle does not amount to “a right to 

live in a contaminant-free, healthy environment.” Guertin v. 

Michigan, 912 F.3d 907, 922 (6th Cir. 2019). To be sure, 

the stakes can be quite high in environmental disputes, as 

pollution causes tens of thousands of premature deaths each 

year, not to mention disability and diminished quality of

life.5 Many abhor living in a polluted environment, and 

some pay with their lives. But mine-run environmental 

concerns “involve a host of policy choices that must be made 

by . . . elected representatives, rather than by federal judges 

interpreting the basic charter of government[.]” Collins v. 

City of Harker Heights, 503 U.S. 115, 129 (1992). The 

perpetuity principle is not an environmental right at all, and 

it does not task the courts with determining the optimal level 

of environmental regulation; rather, it prohibits only the 

willful dissolution of the Republic.6

5 See, e.g., Andrew L. Goodkind et al., Fine-Scale Damage 

Estimates of Particulate Matter Air Pollution Reveal Opportunities for 

Location-Specific Mitigation of Emissions, in 116 Proceedings of the 

National Academy of Sciences 8775, 8779 (2019) (estimating that fine 

particulate matter caused 107,000 premature deaths in 2011).

6 Unwilling to acknowledge that the very nature of the climate crisis 

places this case in a category of one, the government argues that “the 

Constitution does not provide judicial remedies for every social and 

economic ill.” For support, the government cites Lindsey v. Normet, 

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That the principle is structural and implicit in our 

constitutional system does not render it any less enforceable. 

To the contrary, our Supreme Court has recognized that 

“[t]here are many [] constitutional doctrines that are not 

spelled out in the Constitution” but are nonetheless 

enforceable as “historically rooted principle[s] embedded in 

the text and structure of the Constitution.” Franchise Tax 

Bd. of California v. Hyatt, 139 S. Ct. 1485, 1498–99 (2019). 

For instance, the Constitution does not in express terms 

provide for judicial review, Marbury v. Madison, 5 U.S. 137, 

176–77 (1803); sovereign immunity (outside of the Eleventh 

Amendment’s explicit restriction), Alden, 527 U.S. at 735–

36; the anticommandeering doctrine, Murphy v. NCAA, 138 

S. Ct. 1461, 1477 (2018); or the regimented tiers of scrutiny 

applicable to many constitutional rights, see, e.g., Turner 

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–42 (1994). Yet 

these doctrines, as well as many other implicit principles, 

have become firmly entrenched in our constitutional 

landscape. And, in an otherwise justiciable case, a private 

litigant may seek to vindicate such structural principles, for 

they “protect the individual as well” as the Nation. See Bond 

v. United States, 564 U.S. 211, 222, 225–26 (2011); INS. v. 

Chadha, 462 U.S. 919, 935–36 (1983).

In Hyatt, for instance, the Supreme Court held that a state 

could not be sued in another state’s courts without its 

consent. Although nothing in the text of the Constitution 

expressly forbids such suits, the Court concluded that they 

405 U.S. 56, 74 (1972), which held Oregon’s wrongful detainer statute 

governing landlord/tenant disputes constitutional. The perpetuity 

principle, however, cabins the right and avoids any slippery slope. While 

the principle’s goal is to preserve the most fundamental individual rights 

to life, liberty, and property, it is not triggered absent an existential threat 

to the country arising from a “point of no return” that is, at least in part, 

of the government’s own making.

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contravened “the ‘implicit ordering of relationships within 

the federal system necessary to make the Constitution a 

workable governing charter and to give each provision 

within that document the full effect intended by the 

Framers.’” Hyatt, 139 S. Ct. at 1492 (quoting Nevada v. 

Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting)). 

So too here.

Nor can the perpetuity principle be rejected simply 

because the Court has not yet had occasion to enforce it as a 

limitation on government conduct. Only over time, as the 

Nation confronts new challenges, are constitutional 

principles tested. For instance, courts did not recognize the 

anticommandeering doctrine until the 1970s because 

“[f]ederal commandeering of state governments [was] such 

a novel phenomenon.” Printz v. United States, 521 U.S. 898, 

925 (1997). And the Court did not recognize that cell-site 

data fell within the Fourth Amendment until 2018. In so 

holding, the Court rejected “a ‘mechanical interpretation’ of 

the Fourth Amendment” because “technology has enhanced 

the Government’s capacity to encroach upon areas normally 

guarded from inquisitive eyes[.]” Carpenter v. United 

States, 138 S. Ct. 2206, 2214 (2018). Thus, it should come 

as no surprise that the Constitution’s commitment to 

perpetuity only now faces judicial scrutiny, for never before 

has the United States confronted an existential threat that has 

not only gone unremedied but is actively backed by the 

government.

The mere fact that we have alternative means to enforce 

a principle, such as voting, does not diminish its 

constitutional stature. Americans can vindicate federalism, 

separation of powers, equal protection, and voting rights 

through the ballot box as well, but that does not mean these 

constitutional guarantees are not independently enforceable. 

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By its very nature, the Constitution “withdraw[s] certain 

subjects from the vicissitudes of political controversy, to 

place them beyond the reach of majorities and officials and 

to establish them as legal principles to be applied by the 

courts.” Barnette, 319 U.S. at 638. When fundamental 

rights are at stake, individuals “need not await legislative 

action.” Obergefell, 135 S. Ct. at 2605.

Indeed, in this sui generis circumstance, waiting is not 

an option. Those alive today are at perhaps the singular point 

in history where society (1) is scientifically aware of the 

impending climate crisis, and (2) can avoid the point of no 

return. And while democracy affords citizens the right “to 

debate so they can learn and decide and then, through the 

political process, act in concert to try to shape the course of 

their own times[,]” id. (quoting Schuette v. Coalition to 

Defend Affirmative Action, 572 U.S. 291, 312 (2014)), that 

process cannot override the laws of nature. Or, more 

colloquially, we can’t shut the stable door after the horse has 

bolted.

As the last fifty years have made clear, telling plaintiffs 

that they must vindicate their right to a habitable United 

States through the political branches will rightfully be 

perceived as telling them they have no recourse. The 

political branches must often realize constitutional 

principles, but in a justiciable case or controversy, courts 

serve as the ultimate backstop. To this issue, I turn next.

B.

Of course, “it is not the role of courts, but that of the 

political branches, to shape the institutions of government in 

such fashion as to comply with the laws and the 

Constitution.” Lewis v. Casey, 518 U.S. 343, 349 (1996). 

So federal courts are not free to address every grievance. 

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“Whether a party has a sufficient stake in an otherwise 

justiciable controversy to obtain judicial resolution of that 

controversy is what has traditionally been referred to as the 

question of standing to sue.” Sierra Club v. Morton, 405 

U.S. 727, 731–32 (1972). Standing is “a doctrine rooted in 

the traditional understanding of a case or controversy,” 

developed to “ensure that federal courts do not exceed their 

authority as it has been traditionally understood.” Spokeo, 

Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

A case is fit for judicial determination only if the plaintiff 

has: “(1) suffered an injury in fact, (2) that is fairly traceable 

to the challenged conduct of the defendant, and (3) that is 

likely to be redressed by a favorable judicial decision.” Id. 

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 

(1992); then citing Friends of the Earth, Inc. v. Laidlaw 

Envtl. Serv. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). As 

to the first two elements, my colleagues and I agree: 

Plaintiffs present adequate evidence at this pre-trial stage to 

show particularized, concrete injuries to legally-protected 

interests, and they present further evidence to raise genuine 

disputes as to whether those injuries—at least in substantial 

part—are fairly traceable to the government’s conduct at 

issue. See Maj. Op. at 18–21. Because I find that plaintiffs 

have also established the third prong for standing, 

redressability, I conclude that plaintiffs’ legal stake in this 

action suffices to invoke the adjudicative powers of the 

federal bench.

1.

“Redressability” concerns whether a federal court is 

capable of vindicating a plaintiff’s legal rights. I agree with 

the majority that our ability to provide redress is animated 

by two inquiries, one of efficacy and one of power. Maj. Op. 

at 21 (citing M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 

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2018)). First, as a causal matter, is a court order likely to 

actually remediate the plaintiffs’ injury? If so, does the 

judiciary have the constitutional authority to levy such an 

order? Id.

Addressing the first question, my colleagues are

skeptical that curtailing the government’s facilitation of 

fossil-fuel extraction and combustion will ameliorate the 

plaintiffs’ harms. See Maj. Op. at 22–25. I am not, as the 

nature of the injury at stake informs the effectiveness of the 

remedy. See Warth, 422 U.S. at 500.

As described above, the right at issue is not to be entirely 

free from any climate change. Rather, plaintiffs have a 

constitutional right to be free from irreversible and 

catastrophic climate change. Plaintiffs have begun to feel 

certain concrete manifestations of this violation, ripening 

their case for litigation, but such prefatory harms are just the 

first barbs of an ongoing injury flowing from an ongoing

violation of plaintiffs’ rights. The bulk of the injury is yet to 

come. Therefore, practical redressability is not measured by

our ability to stop climate change in its tracks and 

immediately undo the injuries that plaintiffs suffer today—

an admittedly tall order; it is instead measured by our ability 

to curb by some meaningful degree what the record shows 

to be an otherwise inevitable march to the point of no return. 

Hence, the injury at issue is not climate change writ large; it 

is climate change beyond the threshold point of no return. 

As we approach that threshold, the significance of every 

emissions reduction is magnified.

The majority portrays any relief we can offer as just a 

drop in the bucket. See Maj. Op. at 22–25. In a previous 

generation, perhaps that characterization would carry the day 

and we would hold ourselves impotent to address plaintiffs’ 

injuries. But we are perilously close to an overflowing 

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bucket. These final drops matter. A lot. Properly framed, a 

court order—even one that merely postpones the day when 

remedial measures become insufficiently effective—would 

likely have a real impact on preventing the impending 

cataclysm. Accordingly, I conclude that the court could do 

something to help the plaintiffs before us.

And “something” is all that standing requires. In 

Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme 

Court explicitly held that a non-negligible reduction in 

emissions—there, by regulating vehicles emissions—

satisfied the redressability requirement of Article III 

standing:

While it may be true that regulating 

motor-vehicle emissions will not by itself

reverse global warming, it by no means 

follows that we lack jurisdiction to decide 

whether EPA has a duty to take steps to slow

or reduce it. Because of the enormity of the 

potential consequences associated with 

manmade climate change, the fact that the 

effectiveness of a remedy might be delayed 

during the (relatively short) time it takes for 

a new motor-vehicle fleet to replace an older 

one is essentially irrelevant. Nor is it 

dispositive that developing countries such as 

China and India are poised to increase 

greenhouse gas emissions substantially over 

the next century: A reduction in domestic 

emissions would slow the pace of global 

emissions increases, no matter what happens 

elsewhere.

. . . .

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. . . The risk of catastrophic harm, though 

remote, is nevertheless real.

Id. at 525–26 (internal citation omitted).

In other words, under Article III, a perceptible reduction 

in the advance of climate change is sufficient to redress a 

plaintiff’s climate change-induced harms. Full stop. The 

majority dismisses this precedent because Massachusetts v. 

EPA involved a procedural harm, whereas plaintiffs here 

assert a purely substantive right. Maj. Op. at 24. But this 

difference in posture does not affect the outcome.

While the redressability requirement is relaxed in the 

procedural context, that does not mean (1) we must engage 

in a similarly relaxed analysis whenever we invoke 

Massachusetts v. EPA or (2) we cannot rely on 

Massachusetts v. EPA’s substantive examination of the 

relationship between government action and the course of 

climate change. Accordingly, here, we do not consider the 

likelihood that plaintiffs will prevail in any newly-awarded 

agency procedure, nor whether granting access to that 

procedure will redress plaintiffs’ injury. Cf. Massachusetts 

v. EPA, 549 U.S. at 517–18; Lujan, 504 U.S. at 572 n.7. 

Rather, we assume plaintiffs will prevail—removing the 

procedural link from the causal chain—and we resume our 

traditional analysis to determine whether the desired 

outcome would in fact redress plaintiffs’ harms.7 In 

7 The presence of a procedural right is more critical when 

determining whether the first and second elements of standing are 

present. This is especially true where Congress has “define[d] injuries 

and articulate[d] chains of causation that will give rise to a case or 

controversy where none existed before” by conferring procedural rights 

that give certain persons a “stake” in an injury that is otherwise not their 

own. Spokeo, 136 S. Ct. at 1549 (quoting Lujan, 504 U.S. at 580 

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Massachusetts v. EPA, the remaining substantive inquiry 

was whether reducing emissions from fossil-fuel 

combustion would likely ameliorate climate change-induced 

injuries despite the global nature of climate change 

(regardless of whether renewed procedures were themselves 

likely to mandate such lessening). The Supreme Court 

unambiguously answered that question in the affirmative. 

That holding squarely applies to the instant facts,8 rendering 

the absence of a procedural right here irrelevant.9

(Kennedy, J., concurring)). But who seeks to vindicate an injury is 

irrelevant to the question of whether a court has the tools to relieve that 

injury.

8 Indeed, the majority has already acknowledged as much in finding 

plaintiffs’ injuries traceable to the government’s misconduct because the 

traceability and redressability inquiries are largely coextensive. See Maj. 

Op. at 19–21; see also Wash. Envtl. Council v. Bellon, 732 F.3d 1131,

1146 (2013)(“The Supreme Court has clarified that the ‘fairly traceable’ 

and ‘redressability’ components for standing overlap and are ‘two facets 

of a single causation requirement.’ The two are distinct insofar as 

causality examines the connection between the alleged misconduct and 

injury, whereas redressability analyzes the connection between the 

alleged injury and requested judicial relief.”) (internal citation omitted). 

Here, where the requested relief is simply to stop the ongoing 

misconduct, the inquiries are nearly identical. Cf. Allen v. Wright, 468 

U.S. 737, 753 n.19 (1984) (“[I]t is important to keep the inquiries 

separate” where “the relief requested goes well beyond the violation of 

law alleged.”), abrogated on other grounds by Lexmark Int’l, Inc. v. 

Static Control Components, Inc., 572 U.S. 118 (2014); see also infra Part 

II.B.3.

9 Nor am I persuaded that Massachusetts v. EPA is distinguishable 

because of the relaxed standing requirements and “special solicitude” in 

cases brought by a state against the United States. Massachusetts v. EPA, 

549 U.S. at 517–20. When Massachusetts v. EPA was decided, more 

than a decade ago, there was uncertainty and skepticism as to whether an 

individual could state a sufficiently definite climate change-induced 

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2.

The majority laments that it cannot step into the shoes of

the political branches, see Maj. Op. at 32, but appears ready 

to yield even if those branches walk the Nation over a cliff. 

This deference-to-a-fault promotes separation of powers to 

the detriment of our countervailing constitutional mandate to 

intervene where the political branches run afoul of our 

foundational principles. Our tripartite system of government 

is often and aptly described as one of “checks and balances.” 

The doctrine of standing preserves balance among the 

branches by keeping separate questions of general 

governance and those of specific legal entitlement. But the 

doctrine of judicial review compels federal courts to fashion 

and effectuate relief to right legal wrongs, even when—as 

frequently happens—it requires that we instruct the other 

branches as to the constitutional limitations on their power. 

Indeed, sometimes “the [judicial and governance] roles 

briefly and partially coincide when a court, in granting relief 

against actual harm that has been suffered, . . . orders the 

alteration of an institutional organization or procedure that 

causes the harm.” Lewis, 518 U.S. at 350; cf. Valley Forge 

Christian Coll. v. Ams. United for Separation of Church & 

State, Inc., 454 U.S. 464, 474 (1982) (“Proper regard for the 

harm based on gradually warming air temperatures and rising seas. But 

the Supreme Court sidestepped such questions of the concreteness of the 

plaintiffs’ injuries by finding that “[Massachusetts’s] stake in the 

outcome of this case is sufficiently concrete to warrant the exercise of 

federal judicial power.” Id. at 519. Here and now, the plaintiffs submit 

undisputed scientific evidence that their distinct and discrete injuries are 

caused by climate change brought about by emissions from fossil-fuel 

combustion. They need not rely on the “special solicitude,” id. at 520, 

of a state to be heard. Regardless, any distinction would go to the 

concreteness or particularity of plaintiffs’ injuries and not to the issue of 

redressability. 

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complex nature of our constitutional structure requires 

neither that the Judicial Branch shrink from a confrontation 

with the other two coequal branches of the Federal 

Government, nor that it hospitably accept for adjudication 

claims of constitutional violation by other branches of 

government where the claimant has not suffered cognizable 

injury.”). In my view, this Court must confront and 

reconcile this tension before deciding that thorny questions 

of standing preclude review in this case. And faithful 

application of our history and precedents reveals that a 

failure to do so leads to the wrong result.

Taking the long (but essential) way around, I begin first 

by acknowledging explicitly what the majority does not 

mention: our history plainly establishes an ambient 

presumption of judicial review to which separation-ofpowers concerns provide a rebuttal under limited 

circumstances. Few would contest that “[i]t is emphatically 

the province and duty of the judicial department” to curb acts 

of the political branches that contravene those fundamental 

tenets of American life so dear as to be constitutionalized

and thus removed from political whims. See Marbury, 

5 U.S. at 177–78. This presumptive authority entails 

commensurate power to grant appropriate redress, as 

recognized in Marbury, “which effectively place[s] upon 

those who would deny the existence of an effective legal 

remedy the burden of showing why their case was special.” 

Ziglar v. Abbasi, 137 S. Ct. 1843, 1874 (2017) (Breyer, J., 

dissenting). That is, “there must be something ‘peculiar’ 

(i.e., special) about a case that warrants ‘excluding the 

injured party from legal redress and placing it within that 

class of cases which come under the description of damnum 

absque injuria—a loss without an injury.’” Id. (cleaned up) 

(quoting Marbury, 5 U.S. at 163–64). In sum, although it is 

the plaintiffs’ burden to establish injury in fact, causation, 

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and redressability, it is the government’s burden to establish 

why this otherwise-justiciable controversy implicates 

grander separation-of-powers concerns not already captured 

by those requirements. We do not otherwise abdicate our 

duty to enforce constitutional rights.

Without explicitly laying this groundwork, the majority 

nonetheless suggests that this case is “special”—and beyond 

our redress—because plaintiffs’ requested relief requires 

(1) the messy business of evaluating competing policy 

considerations to steer the government away from fossil 

fuels and (2) the intimidating task of supervising 

implementation over many years, if not decades. See Maj. 

Op. at 25–27. I admit these are daunting tasks, but we are 

constitutionally empowered to undertake them. There is no 

justiciability exception for cases of great complexity and 

magnitude.

3.

I readily concede that courts must on occasion refrain

from answering those questions that are truly reserved for 

the political branches, even where core constitutional 

precepts are implicated. This deference is known as the 

“political question doctrine,” and its applicability is 

governed by a well-worn multifactor test that counsels 

judicial deference where there is:

[1] a textually demonstrable constitutional 

commitment of the issue to a coordinate 

political department; or [2] a lack of 

judicially discoverable and manageable 

standards for resolving it; or [3] the 

impossibility of deciding without an initial 

policy determination of a kind clearly for 

nonjudicial discretion; or [4] the 

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impossibility of a court’s undertaking 

independent resolution without expressing 

lack of the respect due coordinate branches of 

government; or [5] an unusual need for 

unquestioning adherence to a political 

decision already made; or [6] the potentiality 

of embarrassment from multifarious 

pronouncements by various departments on 

one question.

Baker v. Carr, 369 U.S. 186, 217 (1962); see also Zivotofsky 

ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195–201 (2012) 

(discussing and applying Baker factors); Vieth v. Jubelirer, 

541 U.S. 267, 277–90 (2004) (same); Nixon v. United States, 

506 U.S. 224, 228–38 (1993) (same); Chadha, 462 U.S. 

at 940–43 (same).10 In some sense, these factors are 

frontloaded in significance. “We have characterized the first 

three factors as ‘constitutional limitations of a court’s 

jurisdiction’ and the other three factors as ‘prudential 

considerations.’” Republic of Marshall Islands v. United 

States, 865 F.3d 1187, 1200 (9th Cir. 2017) (quoting Corrie 

10 The political question doctrine was first conceived in Marbury. 

See Marbury, 5 U.S. at 165–66 (“By the constitution of the United States, 

the President is invested with certain important political powers, in the 

exercise of which he is to use his own discretion, and is accountable only 

to his country in his political character, and to his own conscience.”). 

The modern incarnation of the doctrine has existed relatively unaltered 

since its exposition in Baker in 1962. Although the majority disclaims 

the applicability of the political question doctrine, see Maj. Op. at 31, 

n.9, the opinion’s references to the lack of discernable standards and its 

reliance on Rucho v. Common Cause, 139 S. Ct. 2484 (2019), as a basis 

for finding this case nonjusticiable blur any meaningful distinction 

between the doctrines of standing and political question.

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v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir. 2007)).11 

Moreover, “we have recognized that the first two are likely 

the most important.” Marshall Islands, 865 F.3d at 1200 

(citing Alperin v. Vatican Bank, 410 F.3d 532, 545 (9th Cir. 

2005)). Yet, we have also recognized that the inquiry is 

highly case-specific, the factors “often collaps[e] into one 

another[,]” and any one factor of sufficient weight is enough 

to render a case unfit for judicial determination. See

Marshall Islands, 865 F.3d at 1200 (first alteration in 

original) (quoting Alperin, 410 F.3d at 544). Regardless of 

any intra-factor flexibility and flow, however, there is a clear 

mandate to apply the political question doctrine both 

shrewdly and sparingly.

Unless one of these formulations is 

inextricable from the case at bar, there should 

be no dismissal for non-justiciability on the 

ground of a political question’s presence. 

The doctrine of which we treat is one of 

‘political questions,’ not one of ‘political 

cases.’ The courts cannot reject as ‘no law 

suit’ a bona fide controversy as to whether 

11 The six Baker factors have been characterized as “reflect[ing] 

three distinct justifications for withholding judgment on the merits of a 

dispute.” Zivotofsky v. Clinton, 566 U.S. at 203 (Sotomayor, J., 

concurring). Under the first Baker factor, “abstention is warranted 

because the court lacks authority to resolve” “issue[s] whose resolution 

is textually committed to a coordinate political department[.]” Id. Under 

the second and third factors, abstention is warranted in “circumstances 

in which a dispute calls for decisionmaking beyond courts’ 

competence[.]” Id. Under the final three factors, abstention is warranted 

where “prudence . . . counsel[s] against a court’s resolution of an issue 

presented.” Id. at 204.

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some action denominated ‘political’ exceeds 

constitutional authority.

Baker, 369 U.S. at 217; see also Corrie, 503 F.3d at 982 

(“We will not find a political question ‘merely because [a] 

decision may have significant political overtones.’”) 

(quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y,

478U.S. 221, 230 (1986)). Rather, when detecting the 

presence of a “political question,” courts must make a 

“discriminating inquiry into the precise facts and posture of 

the particular case” and refrain from “resolution by any 

semantic cataloguing.” Baker, 369 U.S. at 217. 

Here, confronted by difficult questions on the 

constitutionality of policy, the majority creates a minefield 

of politics en route to concluding that we cannot adjudicate 

this suit. And the majority’s map for navigating that 

minefield is Rucho v. Common Cause, 139 S. Ct. 2484 

(2019), an inapposite case about gerrymandering. My 

colleagues conclude that climate change is too political for 

the judiciary to touch by likening it to the process of political 

representatives drawing political maps to elect other political 

representatives. I vehemently disagree.

The government does not address on appeal the district 

judge’s reasoning that the first, third, fourth, fifth and sixth 

Baker factors do not apply here. Neither does the majority 

rely on any of these factors in its analysis. In relevant part, 

I find the opinion below both thorough and well-reasoned, 

and I adopt its conclusions. I note, however, that the absence 

of the first Baker factor—whether the Constitution textually 

delegates the relevant subject matter to another branch—is 

especially conspicuous. As the district judge described, 

courts invoke this factor only where the Constitution makes 

an unambiguous commitment of responsibility to one branch 

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of government. Very few cases turn on this factor, and

almost all that do pertain to two areas of constitutional 

authority: foreign policy and legislative proceedings. See, 

e.g., Marshall Islands, 865 F.3d at 1200–01 (treaty 

enforcement); Corrie, 503 F.3d at 983 (military aid); Nixon, 

506 U.S. at 234 (impeachment proceedings); see also Davis 

v. Passman, 442 U.S. 228, 235 n.11 (1979) (“[J]udicial 

review of congressional employment decisions is 

constitutionally limited only by the reach of the Speech or 

Debate Clause[,] . . . [which is] a paradigm example of a

textually demonstrable constitutional commitment of [an] 

issue to a coordinate political department.”) (internal 

quotation marks omitted); Zivotofsky ex rel. Zivotofsky v. 

Kerry, 135 S. Ct. 2076, 2086 (2015) (“The text and structure 

of the Constitution grant the President the power to 

recognize foreign nations and governments.”).

Since this matter has been under submission, the 

Supreme Court cordoned off an additional area from judicial 

review based in part on a textual commitment to another 

branch: partisan gerrymandering. See Rucho, 139 S. Ct. at 

2494–96.12 Obviously, the Constitution does not explicitly 

address climate change. But neither does climate change 

implicitly fall within a recognized political-question area. 

As the district judge described, the questions of energy 

12 Rucho does not turn exclusively on the first Baker factor and

acknowledges that there are some areas of districting that courts may 

police, notwithstanding the Elections Clause’s “assign[ment] to state 

legislatures the power to prescribe the ‘Times, Places and Manner of 

holding Elections’ for Members of Congress, while giving Congress the 

power to ‘make or alter’ any such regulations.” Rucho, 139 S. Ct.

at 2495. Instead, Rucho holds that a combination of the text (as 

illuminated by historical practice) and absence of clear judicial standards 

precludes judicial review of excessively partisan gerrymanders. See 

infra Part II.B.4.

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policy at stake here may have rippling effects on foreign 

policy considerations, but that is not enough to wholly 

exempt the subject matter from our review. See Juliana v. 

United States, 217 F. Supp. 3d 1224, 1238 (D. Or. 2016)

(“[U]nlike the decisions to go to war, take action to keep a 

particular foreign leader in power, or give aid to another 

country, climate change policy is not inherently, or even 

primarily, a foreign policy decision.”); see also Baker,

369 U.S. at 211 (“[I]t is error to suppose that every case or 

controversy which touches foreign relations lies beyond 

judicial cognizance.”).

Without endorsement from the constitutional text, the 

majority’s theory is grounded exclusively in the second 

Baker factor: a (supposed) lack of clear judicial standards 

for shaping relief. Relying heavily on Rucho, the majority 

contends that we cannot formulate standards (1) to determine 

what relief “is sufficient to remediate the claimed 

constitutional violation” or (2) to “supervise[] or enforce[]” 

such relief. Maj. Op. at 29.

The first point is a red herring. Plaintiffs submit ample 

evidence that there is a discernable “tipping point” at which 

the government’s conduct turns from facilitating mere 

pollution to inducing an unstoppable cataclysm in violation 

of plaintiffs’ rights. Indeed, the majority itself cites 

plaintiffs’ evidence that “atmospheric carbon levels of 

350 parts per million are necessary to stabilize the climate.” 

Id. at 24. This clear line stands in stark contrast to Rucho, 

which held that—even assuming an excessively partisan 

gerrymander was unconstitutional—no standards exist by 

which to determine when a rights violation has even 

occurred. There, “[t]he central problem [wa]s not 

determining whether a jurisdiction has engaged in partisan 

gerrymandering. It [wa]s determining when political 

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gerrymandering has gone too far.” Rucho, 139 S. Ct. at 2497 

(internal quotation marks omitted); see also id. at 2498 

(“[T]he question is one of degree: How to provide a standard 

for deciding how much partisan dominance is too much.”) 

(internal quotation marks omitted); id. at 2499 (“If federal 

courts are to . . . adjudicat[e] partisan gerrymandering 

claims, they must be armed with a standard that can reliably 

differentiate unconstitutional from constitutional political 

gerrymandering.”) (internal quotation marks and citation 

omitted).

Here, the right at issue is fundamentally one of a 

discernable standard: the amount of fossil-fuel emissions 

that will irreparably devastate our Nation. That amount can 

be established by scientific evidence like that proffered by 

the plaintiffs. Moreover, we need not definitively determine 

that standard today. Rather, we need conclude only that 

plaintiffs have submitted sufficient evidence to create a 

genuine dispute as to whether such an amount can possibly 

be determined as a matter of scientific fact. Plaintiffs easily 

clear this bar. Of course, plaintiffs will have to carry their 

burden of proof to establish this fact in order to prevail at 

trial, but that issue is not before us. We must not get ahead 

of ourselves.

The procedural posture of this case also informs the

question of oversight and enforcement. It appears the 

majority’s real concerns lie not in the judiciary’s ability to 

draw a line between lawful and unlawful conduct, but in our 

ability to equitably walk the government back from that line 

without wholly subverting the authority of our coequal 

branches. My colleagues take great issue with plaintiffs’ 

request for a “plan” to reduce fossil-fuel emissions. I am not 

so concerned. At this stage, we need not promise plaintiffs 

the moon (or, more apropos, the earth in a habitable state). 

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For purposes of standing, we need hold only that the trial 

court could fashion some sort of meaningful relief should 

plaintiffs prevail on the merits.13

Nor would any such remedial “plan” necessarily require 

the courts to muck around in policymaking to an 

impermissible degree; the scope and number of policies a 

court would have to reform to provide relief is irrelevant to 

the second Baker factor, which asks only if there are 

judicially discernable standards to guide that reformation. 

Indeed, our history is no stranger to widespread, 

programmatic changes in government functions ushered in 

by the judiciary’s commitment to requiring adherence to the 

Constitution. Upholding the Constitution’s prohibition on 

cruel and unusual punishment, for example, the Court 

ordered the overhaul of prisons in the Nation’s most 

populous state. See Brown v. Plata, 563 U.S. 493, 511 

(2011) (“Courts may not allow constitutional violations to 

continue simply because a remedy would involve intrusion 

into the realm of prison administration.”) And in its finest 

hour, the Court mandated the racial integration of every 

public school—state and federal—in the Nation, vindicating 

the Constitution’s guarantee of equal protection under the 

law.14 See Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 

13 It is possible, of course, that the district court ultimately concludes 

that it is unable to provide meaningful redress based on the facts proved 

at trial, but trial has not yet occurred. Our present occasion is to decide 

only whether plaintiffs have raised a genuine dispute as to the judiciary’s 

ability to provide meaningful redress under any subset of the facts at 

issue today. See Maj. Op. at 18 (citing Cent. Delta Water Agency v. 

United States, 306 F.3d 938, 947 (9th Cir. 2002)).

14 In contrast, we are haunted by the days we declined to curtail the 

government’s approval of invidious discrimination in public life, see 

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) 

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(1954); Bolling v. Sharpe, 347 U.S. 497 (1954). In the 

school desegregation cases, the Supreme Court was 

explicitly unconcerned with the fact that crafting relief 

would require individualized review of thousands of state 

and local policies that facilitated segregation. Rather, a 

unanimous Court held that the judiciary could work to 

dissemble segregation over time while remaining cognizant 

of the many public interests at stake:

To effectuate [the plaintiffs’] interest[s] may 

call for elimination of a variety of obstacles 

in making the transition to school systems 

operated in accordance with the 

constitutional principles set forth in [Brown 

I]. Courts of equity may properly take into 

account the public interest in the elimination 

of such obstacles in a systematic and 

effective manner. But it should go without 

saying that the vitality of these constitutional 

principles cannot be allowed to yield simply 

because of disagreement with them.

. . . [T]he courts may find that additional 

time is necessary to carry out the ruling in an 

effective manner. The burden rests upon the 

defendants to establish that such time is 

necessary in the public interest and is 

consistent with good faith compliance at the 

(“[T]he judgment this day rendered will, in time, prove to be quite as 

pernicious as the decision made by this tribunal in the Dred Scott Case.”),

and neglected to free thousands of innocents prejudicially interned by 

their own government without cause, see Trump v. Hawaii, 138 S. Ct. 

2392, 2423 (2018) (“Korematsu was gravely wrong the day it was 

decided[.]”).

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earliest practicable date. To that end, the 

courts may consider problems related to 

administration, arising from the physical 

condition of the school plant, the school 

transportation system, personnel, revision of 

school districts and attendance areas into 

compact units to achieve a system of 

determining admission to the public schools 

on a nonracial basis, and revision of local 

laws and regulations which may be necessary 

in solving the foregoing problems.

Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 300–01 

(1955).

As we are all too aware, it took decades to even partially 

realize Brown’s promise, but the slow churn of constitutional 

vindication did not dissuade the Brown Court, and it should 

not dissuade us here. Plaintiffs’ request for a “plan” is 

neither novel nor judicially incognizable. Rather, consistent 

with our historical practices, their request is a recognition 

that remedying decades of institutionalized violations may 

take some time. Here, too, decelerating from our path 

toward cataclysm will undoubtedly require “elimination of a 

variety of obstacles.” Those obstacles may be great in 

number, novelty, and magnitude, but there is no indication 

that they are devoid of discernable standards. Busing 

mandates, facilities allocation, and district-drawing were all 

“complex policy decisions” faced by post-Brown trial 

courts, see Maj. Op. at 25, and I have no doubt that 

disentangling the government from promotion of fossil fuels 

will take an equally deft judicial hand. Mere complexity, 

however, does not put the issue out of the courts’ reach. 

Neither the government nor the majority has articulated why 

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the courts could not weigh scientific and prudential 

considerations—as we often do—to put the government on 

a path to constitutional compliance.

The majority also expresses concern that any remedial 

plan would require us to compel “the adoption of a 

comprehensive scheme to decrease fossil fuel emissions and 

combat climate change[.]” Id. at 25. Even if the operative 

complaint is fairly read as requesting an affirmative scheme 

to address all drivers of climate change, however caused, see 

id. at 23 n.6., such an overbroad request does not doom our 

ability to redress those drivers implicated by the conduct at 

issue here. Courts routinely grant plaintiffs less than the full 

gamut of requested relief, and our inability to compel 

legislation that addresses emissions beyond the scope of this 

case—such as those purely in the private sphere or within 

the control of foreign governments—speaks nothing to our 

ability to enjoin the government from exercising its 

discretion in violation of plaintiffs’ constitutional rights.

4.

In sum, resolution of this action requires answers only to 

scientific questions, not political ones. And plaintiffs have 

put forth sufficient evidence demonstrating their entitlement 

to have those questions addressed at trial in a court of law.

As discussed above, the majority reaches the opposite 

conclusion not by marching purposefully through the Baker 

factors, which carve out a narrow set of nonjusticiable 

political cases, but instead by broadly invoking Rucho in a 

manner that would cull from our dockets any case that 

presents administrative issues “too difficult for the judiciary 

to manage.” Maj. Op. at 28. That simply is not the test. 

Difficult questions are not necessarily political questions 

and, beyond reaching the wrong conclusion in this case, the 

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majority’s application of Rucho threatens to eviscerate 

judicial review in a swath of complicated but plainly 

apolitical contexts.

Rucho’s limitations should be apparent on the face of 

that opinion. Rucho addresses the political process itself, 

namely whether the metastasis of partisan politics has 

unconstitutionally invaded the drawing of political districts 

within states. Indeed, the Rucho opinion characterizes the 

issue before it as a request for the Court to reallocate political 

power between the major parties. Rucho, 139 S. Ct. at 2502, 

2507, 2508. Baker factors aside, Rucho surely confronts 

fundamentally “political” questions in the common sense of 

the term. Nothing about climate change, however, is 

inherently political. The majority is correct that redressing 

climate change will require consideration of scientific, 

economic, energy, and other policy factors. But that 

endeavor does not implicate the way we elect 

representatives, assign governmental powers, or otherwise 

structure our polity.

Regardless, we do not limit our jurisdiction based on 

common parlance. Instead, legal and constitutional 

principles define the ambit of our authority. In the present 

case, the Baker factors provide the relevant guide and further 

distinguish Rucho. As noted above, Rucho’s holding that 

policing partisan gerrymandering is beyond the courts’ 

competence rests heavily on the first Baker factor, i.e., the 

textual and historical delegation of electoral-district drawing 

to state legislatures. The Rucho Court decided it could not 

discern mathematical standards to navigate a way out of that 

particular political thicket. It did not, however, hold that 

mathematical (or scientific) difficulties in creating 

appropriate standards divest jurisdiction in any context. 

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Such an expansive reading of Rucho would permit the 

“political question” exception to swallow the rule.

Global warming is certainly an imposing conundrum, 

but so are diversity in higher education, the intersection 

between prenatal life and maternal health, the role of religion 

in civic society, and many other social concerns. Cf. Regents 

of the Univ. of Cal. v. Bakke, 438 U.S. 265, 360 (1978) 

(“[T]he line between honest and thoughtful appraisal of the 

effects of past discrimination and paternalistic stereotyping 

is not so clear[.]”); Planned Parenthood of Se. Pa. v. Casey, 

505 U.S. 833, 871 (1992) (stating that Roe v. Wade, 410 U.S. 

113 (1973), involved the “difficult question” of determining 

the “weight to be given [the] state interest” in light of the 

“strength of the woman’s [privacy] interest”); Am. Legion v. 

Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019) 

(Kavanaugh, J., concurring) (noting that determining the 

constitutionality of a large cross’s presence on public land 

was “difficult because it represents a clash of genuine and 

important interests”). These issues may not have been 

considered within the purview of the judicial branch had the 

Court imported wholesale Rucho’s “manageable standards” 

analysis even in the absence of Rucho’s inherently political

underpinnings. Beyond the outcome of the instant case, I 

fear that the majority’s holding strikes a powerful blow to 

our ability to hear important cases of widespread concern.

III.

To be sure, unless there is a constitutional violation, 

courts should allow the democratic and political processes to 

perform their functions. And while all would now readily 

agree that the 91 years between the Emancipation 

Proclamation and the decision in Brown v. Board was too 

long, determining when a court must step in to protect 

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-1, Page 63 of 64

(63 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 63 of 91
64 JULIANA V. UNITED STATES

fundamental rights is not an exact science. In this case, my 

colleagues say that time is “never”; I say it is now.

Were we addressing a matter of social injustice, one 

might sincerely lament any delay, but take solace that “the 

arc of the moral universe is long, but it bends towards 

justice.”15 The denial of an individual, constitutional right—

though grievous and harmful—can be corrected in the 

future, even if it takes 91 years. And that possibility 

provides hope for future generations.

Where is the hope in today’s decision? Plaintiffs’ claims

are based on science, specifically, an impending point of no 

return. If plaintiffs’ fears, backed by the government’s own 

studies, prove true, history will not judge us kindly. When 

the seas envelop our coastal cities, fires and droughts haunt 

our interiors, and storms ravage everything between, those 

remaining will ask: Why did so many do so little?

I would hold that plaintiffs have standing to challenge 

the government’s conduct, have articulated claims under the 

Constitution, and have presented sufficient evidence to press 

those claims at trial. I would therefore affirm the district 

court.

With respect, I dissent.

15 Dr. Martin Luther King, Jr., Remaining Awake Through a Great 

Revolution, Address at the National Cathedral, Washington, D.C. (Mar. 

31, 1968). In coining this language, Dr. King was inspired by an 1853 

sermon by abolitionist Theodore Parker. See Theodore Parker, Of 

Justice and the Conscience, in Ten Sermons of Religion 84–85 (Boston, 

Crosby, Nichols & Co. 1853).

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-1, Page 64 of 64

(64 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 64 of 91


	
 


	




		




 
	
 
		




	

	
	


	

	
	


	 
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 6 of 23

(70 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 70 of 91
	
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 7 of 23

(71 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 71 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 8 of 23

(72 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 72 of 91
	

	
	
	

	

			

	

	


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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 9 of 23

(73 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 73 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 10 of 23

(74 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 74 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 11 of 23

(75 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 75 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 12 of 23

(76 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 76 of 91
			

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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 13 of 23

(77 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 77 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 14 of 23

(78 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 78 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 15 of 23

(79 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 79 of 91
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cited in Juliana v. USA 

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Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 16 of 23

(80 of 91)

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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 17 of 23

(81 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 81 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 18 of 23

(82 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 82 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 19 of 23

(83 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 83 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 20 of 23

(84 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 84 of 91
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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 21 of 23

(85 of 91)

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cited in Juliana v. USA 

No. 18-36082 archived on January 14, 2020

Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 22 of 23

(86 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 86 of 91
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cited in Juliana v. USA 

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Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-2, Page 23 of 23

(87 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 87 of 91
Post Judgment Form - Rev. 12/2018 1

United States Court of Appeals for the Ninth Circuit

Office of the Clerk

95 Seventh Street

San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment

• This Court has filed and entered the attached judgment in your case.

Fed. R. App. P. 36. Please note the filed date on the attached

decision because all of the dates described below run from that date,

not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)

• The mandate will issue 7 days after the expiration of the time for

filing a petition for rehearing or 7 days from the denial of a petition

for rehearing, unless the Court directs otherwise. To file a motion to

stay the mandate, file it electronically via the appellate ECF system

or, if you are a pro se litigant or an attorney with an exemption from

using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)

Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing):

• A party should seek panel rehearing only if one or more of the following

grounds exist:

► A material point of fact or law was overlooked in the decision;

► A change in the law occurred after the case was submitted which

appears to have been overlooked by the panel; or

► An apparent conflict with another decision of the Court was not

addressed in the opinion.

• Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc)

• A party should seek en banc rehearing only if one or more of the following

grounds exist:

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(88 of 91)

Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 88 of 91
Post Judgment Form - Rev. 12/2018 2

► Consideration by the full Court is necessary to secure or maintain

uniformity of the Court’s decisions; or

► The proceeding involves a question of exceptional importance; or

► The opinion directly conflicts with an existing opinion by another

court of appeals or the Supreme Court and substantially affects a

rule of national application in which there is an overriding need for

national uniformity.

(2) Deadlines for Filing:

• A petition for rehearing may be filed within 14 days after entry of

judgment. Fed. R. App. P. 40(a)(1).

• If the United States or an agency or officer thereof is a party in a civil case,

the time for filing a petition for rehearing is 45 days after entry of judgment.

Fed. R. App. P. 40(a)(1).

• If the mandate has issued, the petition for rehearing should be

accompanied by a motion to recall the mandate.

• See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the

due date).

• An order to publish a previously unpublished memorandumdisposition

extends the time to file a petition for rehearing to 14 days after the date of

the order of publication or, in all civil cases in which the United States or an

agency or officer thereof is a party, 45 days after the date of the order of

publication. 9th Cir. R. 40-2.

(3) Statement of Counsel

• A petition should contain an introduction stating that, in counsel’s

judgment, one or more of the situations described in the “purpose” section

above exist. The points to be raised must be stated clearly.

(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))

• The petition shall not exceed 15 pages unless it complies with the

alternative length limitations of 4,200 words or 390 lines of text.

• The petition must be accompanied by a copy of the panel’s decision being

challenged.

• An answer, when ordered by the Court, shall comply with the same length

limitations as the petition.

• If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a

petition for panel rehearing or for rehearing en banc need not comply with

Fed. R. App. P. 32.

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Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 89 of 91
Post Judgment Form - Rev. 12/2018 3

• The petition or answer must be accompanied by a Certificate of Compliance

found at Form 11, available on our website at www.ca9.uscourts.gov under

Forms.

• You may file a petition electronically via the appellate ECF system. No paper copies are

required unless the Court orders otherwise. If you are a pro se litigant or an attorney

exempted from using the appellate ECF system, file one original petition on paper. No

additional paper copies are required unless the Court orders otherwise.

Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)

• The Bill of Costs must be filed within 14 days after entry of judgment.

• See Form 10 for additional information, available on our website at

www.ca9.uscourts.gov under Forms.

Attorneys Fees

• Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees

applications.

• All relevant forms are available on our website at www.ca9.uscourts.gov under Forms

or by telephoning (415) 355-7806.

Petition for a Writ of Certiorari

• Please refer to the Rules of the United States Supreme Court at

www.supremecourt.gov

Counsel Listing in Published Opinions

• Please check counsel listing on the attached decision.

• If there are any errors in a published opinion, please send a letter in writing

within 10 days to:

► Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan, MN 55123

(Attn: Jean Green, Senior Publications Coordinator);

► and electronically file a copy of the letter via the appellate ECF system by using

“File Correspondence to Court,” or if you are an attorney exempted from using

the appellate ECF system, mail the Court one copy of the letter.

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Case 6:15-cv-01517-AA Document 459 Filed 01/17/20 Page 90 of 91
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

Form 10. Bill of Costs

Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf

9th Cir. Case Number(s)

Case Name

The Clerk is requested to award costs to (party name(s)): 

I swear under penalty of perjury that the copies for which costs are requested were 

actually and necessarily produced, and that the requested costs were actually 

expended.

Signature Date

(use “s/[typed name]” to sign electronically-filed documents)

COST TAXABLE REQUESTED 

(each column must be completed)

DOCUMENTS / FEE PAID No. of 

Copies

Pages per 

Copy Cost per Page TOTAL 

COST

Excerpts of Record* $ $

Principal Brief(s) (Opening Brief; Answering 

Brief; 1st, 2nd , and/or 3rd Brief on Cross-Appeal; 

Intervenor Brief)

$ $

Reply Brief / Cross-Appeal Reply Brief $ $

Supplemental Brief(s) $ $

Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee $

TOTAL: $

*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) + 

Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as: 

No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10); 

TOTAL: 4 x 500 x $.10 = $200.

Feedback or questions about this form? Email us at forms@ca9.uscourts.gov

Form 10 Rev. 12/01/2018

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