Plaintiffs’ Response in Opposition to Motion to Intervene

JULIA A. OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com

WILD EARTH ADVOCATES

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825 

JOSEPH W. COTCHETT 

jcotchett@cpmlegal.com

PHILIP L. GREGORY (pro hac vice) 

pgregory@cpmlegal.com

PAUL N. MCCLOSKEY 

pmccloskey@cpmlegal.com

COTCHETT, PITRE & McCARTHY, LLP

San Francisco Airport Office Center

840 Malcolm Road

Burlingame, CA 94010

Tel: (650) 697-6000

Fax: (650) 697-0577

DANIEL M. GALPERN (OR Bar 061950)

dan.galpern@gmail.com

LAW OFFICES OF DANIEL M. GALPERN

1641 Oak Street

Eugene, OR 97401

Tel: (541) 968-7164

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA;

XIUHTEZCATL TONATIUH M., through 

his Guardian Tamara Roske-Martinez; et al.

Plaintiffs,

v.

The UNITED STATES OF AMERICA; 

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

PLAINTIFFS’ RESPONSE IN OPPOSITION 

TO MOTION TO INTERVENE

Request for Oral Argument
Plaintiffs’ Response in Opposition to Motion to Intervene

BARACK OBAMA, in his official capacity as 

President of the United States; et al., 

Federal Defendants.
Plaintiffs’ Response in Opposition to Motion to Intervene i

TABLE OF CONTENTS

Page

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

LEGAL ARGUMENT ......................................................................................................4

I. THE PETRO ASSOCIATIONS DO NOT MEET THE NINTH CIRCUIT 

INTERVENTION TEST FOR FEDERAL RULE OF CIVIL PROCEDURE 24(A)..4

A. The Petro Associations Do Not Have a Significantly 

Protectable Interest Relating to the Property or Transaction 

Which Is the Subject of this Action..............................................5

B. The Disposition of this Action Will Not Impair or Impede the 

Petro Associations’ Ability to Protect Their Interests .............10

C. The Petro Associations’ Interests Will be Adequately 

Represented by Federal Defendants..........................................12

II. THE PETRO ASSOCIATIONS ARE NOT ENTITLED TO PERMISSIVE 

INTERVENTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 

24(B) ..........................................................................................................15

III. IF INTERVENTION IS GRANTED, THIS COURT SHOULD LIMIT 

INTERVENORS’ PARTICIPATION TO THE REMEDY PHASE OF THIS 

ACTION, TO ISSUES NOT RAISED BY FEDERAL DEFENDANTS, AND TO 

LIMITED BRIEFING....................................................................................18

CONCLUSION................................................................................................................19
Plaintiffs’ Response in Opposition to Motion to Intervene ii

TABLE OF AUTHORITIES

Page(s)

CASES

Arakaki v. Cavetano, 324 F.3d 1078 (9th Cir. 2003)...................................................................................6, 13

Bark v. Northrop, No. 3:13-CV-01267-HZ, 2013 WL 6576306 (D. Or. Dec. 12, 2013)...........................19

California ex rel. Lockyer v. United States, 450 F.3d 436 (9th Cir. 2006).......................................................................................5, 6

Cascadia Wildlands v. BLM, No. 6:12-cv-95-AA, 2012 U.S. Dist. LEXIS 190227 (D. Or. Apr. 25, 2012).................6

Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893 (9th Cir. 2011)...................................................................................12, 13

Ctr. for Biological Diversity v. U.S. EPA, No. 2:13-cv-01866-JLR (W.D. Wash. Feb. 18, 2014) ....................................................3

Ctr. for Biological Diversity v. U.S. EPA, No. C09-0670-JCC (W.D. Wash. Oct. 5, 2009)........................................................3, 16

Dep’t of Fair Emp’t & Housing v. Lucent Techs., Inc., 642 F.3d 728 (9th Cir. 2011).........................................................................................18

Donaldson v. United States, 400 U.S. 517 (1970) ......................................................................................................10

Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998).................................................................................5, 6, 16

Flying J, Inc. v. J.B. Van Hollen, 578 F.3d 569 (7th Cir. 2009)...........................................................................................5

Freedom from Religion Found., Inc. v. Geithner, 

644 F.3d 836 (9th Cir. 2011)..................................................................................passim

Greene v. United States, 996 F.2d 973 (9th Cir. 1993).....................................................................................5, 11

In re Lease Oil Antitrust Litigation, 570 F.3d 244 (5th Cir.2009)............................................................................................5

ManaSota-88, Inc. v. Tidwell, 

896 F.2d 1318 (11th Cir. 1990).......................................................................................9

Mountain Top Condominium Ass'n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361 (3d Cir.1995) ...............................................................................................5
Plaintiffs’ Response in Opposition to Motion to Intervene iii

Perry v. Proposition 8 Official Proponents, 587 F.3d 947 (9th Cir. 2009)...................................................................................16, 17

Portland Audubon Soc’y v. Hodel, 866 F.2d 302 (9th Cir. 1989)...........................................................................................5

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. 

U.S. Dep’t of Agric., 

143 Fed. Appx. 751 (9th Cir. 2005) ................................................................................6

Reich v. ABC/York-Estes Corp., 64 F.3d 316 (7th Cir.1995)..............................................................................................5

Sierra Club v. U.S. EPA, 995 F.2d 1478 (9th Cir. 1993)................................................................................passim

So. Cal. Edison Co. v. Lynch,

307 F.3d 794 (9th Cir. 2002)...........................................................................................7

State of Montana v. United States EPA, 

137 F.3d 1135 (9th Cir. 1998).........................................................................................5

Sw. Ctr. for Biological Diversity v. Berg,

268 F.3d 810 (9th Cir. 2001)...........................................................................................6

U.S. v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002)...........................................................................................4

United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002).........................................................................................13

United States v. Oregon, 839 F.2d 635 (9th Cir. 1988).........................................................................................11

Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 

922 F.2d 92 (2d Cir. 1990) ..............................................................................................5

Wilderness Soc’y v. U.S. Forest Serv., 

630 F.3d 1173 (9th Cir. 2011).....................................................................................4, 5

STATUTES

Federal Rule of Civil Procedure

12(b)(6)..........................................................................................................................14

24(a).............................................................................................................................1, 4

24(b)...........................................................................................................................1, 15
Plaintiffs’ Response in Opposition to Motion to Intervene 1

INTRODUCTION

This Court should deny the motion to intervene filed by the American Fuel & 

Petrochemical Manufacturers (“AFPM”), American Petroleum Institute (“API”), and 

National Association of Manufacturers (“NAM”), (collectively the “Petro Associations”

or “Proposed Intervenors”). Proposed Intervenors have not established any significantly 

protectable interests that will be impaired by the disposition of this action and are, 

therefore, not entitled to intervene as of right pursuant to Federal Rule of Civil 

Procedure 24(a). Further, the Petro Associations have failed to overcome the 

presumption of adequate representation by Federal Defendants. For similar reasons, and 

to ensure the efficient and fair resolution of these constitutional claims, this Court should 

not permissively allow the Petro Associations to intervene pursuant to Federal Rule of 

Civil Procedure 24(b).

At the outset, the Petro Associations mischaracterize the Amended Complaint, 

asserting the claims for relief are focused on the federal public trust doctrine. The federal 

public trust doctrine claim is but one of four claims brought by Youth Plaintiffs. The 

Amended Complaint was filed by 21 youth, Dr. James Hansen on behalf of future 

generations, and Earth Guardians, a youth-run, non-profit organization with youth 

members across the country (collectively the “Youth Plaintiffs”). Am. Compl. ¶¶ 16-97.

Youth Plaintiffs challenge Federal Defendants’ aggregate acts, which through their 

exercise of sovereign authority over our country’s atmosphere and fossil fuel resources, 

permit, subsidize, lease, and otherwise allow continued exploitation, production, and 

combustion of fossil fuels, resulting in a knowingly dangerous rise of atmospheric 

carbon dioxide (“CO2”) concentrations to levels unprecedented in human history, and an 

increasingly hazardous destabilization of the climate system during the lifetimes of

Youth Plaintiffs. Am. Compl. ¶ 5. Youth Plaintiffs also challenge approval by the 

Defendant Department of Energy (“DOE”) of the export of liquefied natural gas 

(“LNG”) from the Jordan Cove LNG terminal in Coos Bay, Oregon, and the Energy 
Plaintiffs’ Response in Opposition to Motion to Intervene 2

Policy Act, which mandated that DOE approval. Am. Compl. ¶¶ 1, 105, 107. Youth 

Plaintiffs claim that federal decision and the aggregate acts by Federal Defendants

infringe on their fundamental constitutional rights to due process and equal protection

under the law, as well as their reserved inalienable constitutional rights and rights as 

public trust beneficiaries. Am. Compl. ¶¶ 277-310. 

Youth Plaintiffs seek an order declaring their fundamental rights and the 

infringement thereof, and compelling Federal Defendants to prepare a national emissions 

inventory and plan to reduce atmospheric CO2 so as to remediate Federal Defendants’ 

infringement of Youth Plaintiffs’ rights. Am. Compl., Prayer for Relief. Thus, the 

remedy sought would leave the details of U.S. energy policy and planning in the hands 

of the executive and legislative branches, not the judiciary, while ensuring protection of

the constitutional and public trust rights of Youth Plaintiffs. 

The Petro Associations’ alleged interests appear to be attenuated at best, and exist 

solely at the remedy stage of this case: assuming this Court declares the Youth 

Plaintiffs’ constitutional rights have been infringed and orders a national remedial plan 

by Federal Defendants, Proposed Intervenors assert such a plan would eventually result 

in “dramatic reductions in conventional fossil fuels,” thereby impairing the economic 

expectancy of members of the Petro Associations, whose central business concern is 

producing and selling profitable fossil fuel related products. Moutray Decl. ¶ 17; see 

also Feldman Decl. ¶ 14; Friedman Decl. ¶ 16. The Petro Associations’ allegations are 

not supported by qualified expert testimony or the testimony of a single member of any 

of the three associations. Thus, at this stage, there is no evidence before this Court that 

any court-ordered national remedial plan would necessarily impair any alleged legally 

protectable interests of members of the Petro Associations. 

While Youth Plaintiffs believe that this Court will promptly order a national 

remedial plan, no such plan has been ordered. Further, at this point in the litigation,

neither Youth Plaintiffs, Federal Defendants, the Petro Associations, nor this Court 
Plaintiffs’ Response in Opposition to Motion to Intervene 3

know what measures the national remedial plan will address. The Petro Associations

have no interests in determining whether Youth Plaintiffs have rights vis-à-vis Federal 

Defendants. Thus, Proposed Intervenors’ interests, if legally protectable, would not be

impaired until this Court determines the scope of the constitutional rights, declares a 

violation thereof, and orders a remedial plan consistent with the Court’s ruling. To the 

extent intervention is appropriate, it will be at the remedial phase of this case, and not 

before. 

The Petro Associations’ interest is contingent upon the occurrence of a train of 

subsequent events. If this Court grants Youth Plaintiffs’ prayer for relief and Federal 

Defendants propose a national remedial plan, at that point, specific members of the Petro 

Associations will be able to provide evidence of their own damage or impairment from

the remedial plan unfolding in response to this Court’s order. Until then, there is no 

immediate harm to any alleged interests of the Petro Associations’ members at this stage

of this litigation, and the Petro Associations have failed to overcome the presumption of 

adequate representation by Federal Defendants. See Ctr. for Biological Diversity v. U.S. 

EPA, No. C09-0670-JCC (W.D. Wash. Oct. 5, 2009) (denying intervention by the 

American Petroleum Institute, the U.S. Chamber of Commerce, the Utility Water Act 

Group, and the Utility Air Regulatory Group) (order attached as Exhibit A to Decl. of 

Julia A. Olson in Support of Youth Plaintiffs’ Opposition to the Petro Associations’ 

Motion to Intervene (“Olson Decl.”)); Ctr. for Biological Diversity v. U.S. EPA, No. 

2:13-cv-01866-JLR (W.D. Wash. Feb. 18, 2014) (denying intervention by the American 

Petroleum Institute and Western States Petroleum Association) (order attached as 

Exhibit B to Olson Decl.). Therefore, intervention should be denied.
Plaintiffs’ Response in Opposition to Motion to Intervene 4

LEGAL ARGUMENT

I. THE PETRO ASSOCIATIONS DO NOT MEET THE NINTH CIRCUIT INTERVENTION 

TEST FOR FEDERAL RULE OF CIVIL PROCEDURE 24(A)

Absent a federal statute granting a right to intervene, a moving party has the 

burden to establish “an interest relating to the property or transaction that is the subject 

of the action” and that it “is so situated that disposing of the action may as a practical 

matter impair or impede the movant’s ability to protect its interest, unless existing 

parties adequately represent that interest.” Fed. R. Civ. P. 24(a). The Ninth Circuit 

applies a four-part test to determine whether a party can intervene as of right pursuant to 

Rule 24(a):

(1) the motion must be timely; (2) the applicant must claim a 

“significantly protectable” interest relating to the property or transaction 

which is the subject of the action; (3) the applicant must be so situated that 

the disposition of the action may as a practical matter impair or impede its 

ability to protect that interest; and (4) the applicant’s interest must be 

inadequately represented by the parties to the action.

Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (quoting 

Sierra Club v. U.S. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993)). The burden is on the 

Petro Associations to demonstrate all four prongs. U.S. v. City of Los Angeles, 288 F.3d 

391, 397 (9th Cir. 2002); Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 

841 (9th Cir. 2011). Although the Petro Associations’ motion to intervene is timely, they 

fail to meet the other three prongs of the Ninth Circuit test to intervene as of right: the 

Petro Associations fail to claim a “significantly protectable” interest relating to the 

“property or transaction which is the subject of the action”; fail to show the disposition 

of this action will not impair or impede their ability to protect their interests; and, finally, 

the Petro Associations fail to show their interests are inadequately represented by the 

parties.
Plaintiffs’ Response in Opposition to Motion to Intervene 5

A. The Petro Associations Do Not Have a Significantly Protectable 

Interest Relating to the Property or Transaction Which Is the Subject 

of this Action

The Ninth Circuit only grants intervention as of right where the litigation will 

have a direct effect on the applicant’s alleged interest. See, e.g. Sierra Club, v. U.S. EPA, 

995 F.2d 1478, 1481-82 (9th Cir. 1993); Portland Audubon Soc’y v. Hodel, 866 F.2d 

302, 309 (9th Cir. 1989). A movant has a significantly protectable interest in an action 

only if “(1) it asserts an interest that is protected under some law, and (2) there is a 

‘relationship’ between its legally protected interest and the plaintiff’s claims.” California 

ex rel. Lockyer v. United States, 450 F.3d 436, 441 (9th Cir. 2006) (quoting Donnelly v. 

Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). “Interest” is not defined by statute, but 

courts have made clear that more than the minimum Article III interest is required, and 

mere “economic interest” is not enough. See State of Montana v. United States EPA, 137 

F.3d 1135, 1142 (9th Cir. 1998) (“a speculative and purely economic interest does not 

create a protectable interest in litigation concerning a statute that regulates 

environmental, not economic, interests”); Flying J, Inc. v. J.B. Van Hollen, 578 F.3d 

569, 571 (7th Cir. 2009) (party’s creditors may have an “economic interest” in the 

outcome but that would not entitle them to intervene); In re Lease Oil Antitrust 

Litigation, 570 F.3d 244, 250-52 (5th Cir.2009); Mountain Top Condominium Ass'n v. 

Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir.1995); Reich v. ABC/YorkEstes Corp., 64 F.3d 316, 322-23 (7th Cir.1995); Greene v. United States, 996 F.2d 973, 

976 (9th Cir. 1993). A movant “demonstrate[s] a sufficient interest for intervention of 

right . . . if ‘it will suffer a practical impairment of its interests as a result of the pending 

litigation.’” Wilderness Soc’y, 630 F.3d at 1180 (quoting California ex rel. Lockyer, 450 

F.3d at 441). An interest that is contingent upon the occurrence of a train of subsequent 

events will not support intervention. Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale 

Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990).

Although the Petro Associations assert their members have protectable interests 
Plaintiffs’ Response in Opposition to Motion to Intervene 6

that could be affected by this action (primarily an economic expectancy of commercial 

interests in exploiting fossil fuels and using low-cost, subsidized energy produced from 

fossil fuels), none of the interests identified in the Moutray, Friedman, or Feldman 

declarations is protected under law or related to “the property or transaction which is the 

subject of this action.” All of the Petro Associations’ asserted interests are so tenuous, 

generally alleged, and unrelated to the present action that they do not rise to the level of 

a “significantly protectable interest.” For example, none of the members of the Petro 

Associations asserts that they have any permits or contracts that would be directly 

affected by this case. See Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 

(9th Cir. 2001) (finding “[c]ontract rights are traditionally protectable interests”); Sierra 

Club, 995 F.2d at 1482-83 (finding Clean Water Act pollution permits affecting the use 

of real property to be significant protectable interests); Cascadia Wildlands v. BLM, No. 

6:12-cv-95-AA, 2012 U.S. Dist. LEXIS 190227, 5-6 (D. Or. Apr. 25, 2012) (finding a 

legally protected interest where applicant had purchased an interest in timber that was 

the subject of the suit). The Petro Associations’ alleged interests all relate to their

members’ fears of sometime in the future needing to use alternative energy sources,

reshape their fossil-fuel related businesses, or shut down operations. Memo. in Support 

of Mot. to Intervene (“Petro Memo.”) 3. However, “pure economic expectancy is not a 

legally protected interest for the purpose of intervention.” Ranchers Cattlemen Action 

Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 143 Fed. Appx. 751, 

753 (9th Cir. 2005).

The Petro Associations have failed to show their members “will suffer a practical 

impairment of [their] interests as a result of the pending litigation.” California ex rel. 

Lockyer, 450 F.3d at 441. They fail to show the resolution of Youth Plaintiffs’ claims 

“actually will affect” the members of the Petro Associations. Arakaki v. Cavetano, 324 

F.3d 1078, 1084 (9th Cir. 2003) (quoting Donnelly, 159 F.3d at 410).

The purported interests of the Petro Associations’ members are based on 
Plaintiffs’ Response in Opposition to Motion to Intervene 7

speculation. Moutray Decl. ¶ 17 (“these companies will presumably need to find new 

lines of business in order to survive and/or move their operations.”). The Petro 

Associations rely on a chain of events that may or may not occur at some point in the 

future, with no specific connection between the present action and the supposed end 

result. For example, the Petro Associations argue their energy costs will increase in the 

absence of fossil fuels, but they provide no foundation or expert testimony establishing 

that clean and renewable energy cannot be as cost-effective as fossil fuel energy. 

Friedman Decl. ¶¶ 10, 17. President and CEO of API, Jack Gerard, has in fact admitted 

in a press release on the API website that: “The facts are clear . . . By embracing our 

nation’s energy renaissance, we can lower costs, clean the air, and create more jobs here 

at home while providing an example to the world.” Olson Decl. Ex. C. Indeed, Proposed 

Intervenors admit that even with cheap fossil fuel energy, they suffered economic losses 

during the recession, which damage had nothing to do with this case. Moutray Decl. 12.

In the absence of expert testimony by the Petro Associations establishing direct 

economic impact to members’ legally protectable interests from rising energy prices due 

to declining GHG emissions directly resulting from this case, and in light of the contrary 

statements made by API’s President that an energy renaissance (away from GHG 

emissions) would actually lower costs and create more jobs at home, this Court should 

find that the Petro Associations do not have a significantly protectable interest. So. Cal. 

Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (rejecting interests of energy 

purchasers as legally protected interests because “an undifferentiated, generalized 

interest in the outcome of an ongoing action is too porous a foundation on which to 

premise intervention of right”). The Petro Associations, therefore, cannot intervene as of 

right in this case. 

Additionally, the Petro Associations assert: “Plaintiffs’ requested remedy 

apparently provides no opportunity for public input before the court would issue an 

injunction to compel the executive agencies to act.” Petro Memo. 8. They also claim the 
Plaintiffs’ Response in Opposition to Motion to Intervene 8

relief requested by Youth Plaintiffs would deprive members of the Petro Associations of 

their rights under the Administrative Procedure Act (“APA”) to participate in the 

development of a regulatory plan. Petro Memo. 13.

The federal judiciary is not required to seek advisory, public input before ruling 

on questions of constitutional and public trust law and enjoining federal action. This

Court can issue such a decision without the Petro Associations’ participation. The Petro 

Associations are also wrong that their members would lose their ability to be part of the 

public process in the formation of any future regulatory action. The declaratory and 

injunctive relief requested by Youth Plaintiffs will not practically impair any of 

movant’s purported interests, nor deprive movants of their participatory rights under the 

APA or in lobbying Congress. Youth Plaintiffs do not ask this Court to circumvent any 

requirements of the APA. All relief requested relates only to the requirements of Federal 

Defendants in meeting their constitutional and fiduciary obligations to Youth Plaintiffs. 

Proposed Intervenors have not shown why any relief requested by Youth Plaintiffs 

would violate the APA. Moreover, there is no evidence that Youth Plaintiffs’ requested 

relief would infringe upon any proprietary or other interests of the Petro Associations, 

including any permits or contracts held by members of the Petro Associations. Should a 

particular member find itself to be the subject of a future government regulation, the 

appropriate venue to address that issue would be through the administrative rulemaking 

or permitting process, as the Petro Associations frequently do on behalf of their

members.

In 2014, the Petro Associations incurred $26.45 million in lobbying expenditures; 

in 2015, the Petro Associations have thus far incurred $23.91 million in lobbying 

expenditures. Olson Decl. Ex. D. Such lobbying activity has ensured these Federal 

Defendants are well aware of the concerns and interests of the Petro Associations and 

their members. The Petro Associations admit they have incredible influence on both the 

legislative and executive branches of the federal government and their lobbying efforts 
Plaintiffs’ Response in Opposition to Motion to Intervene 9

have led to a national policy in line with their beliefs and desires. See Olson Decl. Ex. E

(NAM President and CEO stating, “[w]e helped force the EPA to delay its ozone and 

Boiler MACT rules that would cost manufacturers billions, make it even harder to create 

jobs in the US and threaten to wipe out entire industries in our country altogether.”). The 

Petro Associations have ample opportunity to ensure their members’ voices are heard by 

Federal Defendants, and will continue to be so. If Federal Defendants are required to 

develop a remedial plan pursuant to an order of this Court, the Petro Associations will 

not lose any opportunity to ensure their members’ voices will be heard.

The Petro Associations point to Sierra Club v. EPA as support for their position

that their asserted interests are significantly protectable. Petro Memo. 12. Despite citing 

selectively to dicta purporting to support their position, Sierra Club v. EPA does not 

stand for such a proposition. In Sierra Club v. EPA, the City of Phoenix sought to 

intervene in a case where a plaintiff was suing an agency of the federal government 

under the citizen suit provision of the Clean Water Act. Sierra Club, 995 F.2d at 1480.

The relief sought required the federal agency to alter the terms of two specific permits 

issued to the City of Phoenix. Id. The Ninth Circuit ultimately found the City of Phoenix 

had a significantly protectable interest because it held the federal permits that the 

plaintiff was directly seeking to alter in its action against the federal agency. Id. at 1482-

83. In the instant case, there is no evidence that such federal permits are at issue and the 

Petro Associations cite to no real property owned by members that would suffer a 

change in use resulting directly from this litigation. The relief sought by Youth 

Plaintiffs, in contrast to Sierra Club, does not have any direct impact on the Petro 

Associations or their members because Plaintiffs have not asked this Court to shut down, 

regulate, or limit the emissions of any particular industry. The Eleventh Circuit rejected 

a similar argument by Florida Electric Power Coordinating Group in ManaSota-88, Inc. 

v. Tidwell, 896 F.2d 1318 (11th Cir. 1990):

Although [the applicant intervenor] contends that the relief requested 
Plaintiffs’ Response in Opposition to Motion to Intervene 10

could have a profound impact upon the environmental obligations of its 

member electric utilities, such a generalized grievance does not impart to 

[the applicant intervenor] the kind of legally protectable interest in the . . . 

litigation necessary to support intervention as of right.

Id. at 1322. 

In Sierra Club, the court also discussed the genesis of the protectable interest 

doctrine and traced it to the U.S. Supreme Court decision in Donaldson v. United States, 

400 U.S. 517 (1970). Sierra Club, 995 F.2d at 1482. In Donaldson, an individual sought 

to intervene in a case enforcing a summons to acquire tax information about the 

proposed intervenor from the proposed intervenor’s employer. Donaldson, 400 U.S. at 

518-21. The Supreme Court found, although the proposed intervenor had an interest in 

the tax information retained by the employer, it was not a protectable interest because 

the records belonged to the employer, not to the proposed intervenor. Id. at 530-31.

Because the proposed intervenor did not have a protectable interest in the tax records, 

the individual could not intervene as of right. Id. In the instant case, as in Donaldson, the 

Petro Associations do not establish a significantly protectable interest in the subject 

matter of the action. The subject matter of this action is Federal Defendants’ 

constitutional and public trust obligations towards Youth Plaintiffs’ rights to life, liberty, 

property, and public trust resources and the specific and aggregate acts of Federal 

Defendants that infringe on those rights. Accordingly, the Petro Associations should not 

be able to intervene as of right.

B. The Disposition of this Action Will Not Impair or Impede the Petro 

Associations’ Ability to Protect Their Interests

Youth Plaintiffs maintain the Petro Associations do not have a significantly 

protectable interest sufficient to establish intervention as of right. However, even were 

this Court to find that the Petro Associations hold such an interest, the Petro 

Associations’ ability to protect those interests will not be impaired or impeded by the 

disposition of this action. As discussed in Section I-A above, any potential impacts on 

interests held by the Petro Associations members as a result of Plaintiffs’ requested 
Plaintiffs’ Response in Opposition to Motion to Intervene 11

relief are too tenuous, speculative, and indirect to give the Petro Associations the ability 

to intervene as of right. This tenuousness is exemplified by the Petro Associations’ 

inability to state the specific property interest that would be harmed by this action or the 

specific amounts of such economic injury. Additionally, the declaratory and injunctive 

relief sought by Plaintiffs is directed solely at Federal Defendants, and will not directly 

impact any interests of the Petro Associations’ members.

The Petro Associations’ own argument fails to meet the standard it developed and 

urged this Court to adopt. To satisfy the “impaired interest” prong of the intervention as 

of right test, the Petro Associations define the applicable standard as one where “the 

relief sought by the Plaintiffs would have direct, immediate, and harmful impact on a 

third party’s interests . . . .” Petro Memo. 14. As discussed in Section I-A above, even if 

Youth Plaintiffs obtain all of their requested relief, the Petro Associations still will not 

have met their evidentiary burden that the relief would have a “direct, immediate, or 

harmful impact” on the Petro Associations’ interests.

The Petro Associations must show the required impairment is present by 

establishing the pending action could result in factual or legal determinations that would 

have a stare decisis effect on the intervenor’s interest or available remedies in other 

litigation. United States v. Oregon, 839 F.2d 635, 638-39 (9th Cir. 1988); Greene v. 

United States, 996 F.2d 973, 977-78 (9th Cir. 1993). In this case, any factual or legal 

determinations will not have such a limiting effect on the Petro Associations or their

members. A decision addressing whether Youth Plaintiffs’ fundamental constitutional 

and public trust rights exist and are being violated by Federal Defendants and what 

obligations the federal government has to protect those rights will, in no way, have 

“direct, immediate and harmful impacts” on the Petro Associations’ interests.

Furthermore, any significantly protectable interests by the Petro Associations will not be 

impaired as a result of a stare decisis effect on future litigation involving the Petro 

Associations. The Petro Associations failed to meet their burden of proving such harm.
Plaintiffs’ Response in Opposition to Motion to Intervene 12

Youth Plaintiffs’ request an order that Federal Defendants develop and implement

a plan to reduce atmospheric CO2 and stabilize the climate system on which they 

depend. This requested injunctive relief does not require any specific action either by or 

against the Petro Associations or its members. The requested injunctive relief seeks to 

direct Federal Defendants to decide how to meet its constitutional and public trust 

obligations and does not direct Federal Defendants to isolate or discriminate against any 

one business or industry in meeting its obligations. Additionally, there is no evidence 

before this Court of any specific permits held by the Petro Associations or its members 

at issue in this case. Because the Petro Associations do not have a proprietary interest in 

this case, their interests cannot be impaired by its resolution.

C. The Petro Associations’ Interests Will be Adequately Represented by 

Federal Defendants

Although the Petro Associations failed to present evidence of any significantly 

protectable interests that would entitle them to intervene as of right, any purported

interests would be adequately represented by Federal Defendants. The Petro 

Associations have the same ultimate objective as Federal Defendants: to have this case 

dismissed and prevent this Court from granting Youth Plaintiffs their requested relief.

Therefore, it should be presumed Federal Defendants will adequately represent the Petro 

Associations’ interests. Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 

F.3d 893, 898 (9th Cir. 2011).

The Petro Associations rely primarily on D.C. Circuit cases to argue inadequate 

representation. The Ninth Circuit has articulated three factors that must be examined 

when deciding whether a defendant adequately represents the interests of a proposed 

intervenor: 

(1) whether the interest of a present party is such that it will undoubtedly 

make all of a proposed intervenor’s arguments; (2) whether the present 

party is capable and willing to make such arguments; and (3) whether a 
Plaintiffs’ Response in Opposition to Motion to Intervene 13

proposed intervenor would offer any necessary elements to the proceeding 

that other parties would neglect. 

Citizens for Balanced Use, 647 F.3d at 898 (quoting Arakaki v. Cavetano, 324 F.3d 

1078, 1086 (9th Cir. 2003)). Furthermore, “[i]f an applicant for intervention and an 

existing party share the same ultimate objective, a presumption of adequacy of 

representation arises.” Citizens for Balanced Use, 647 F.3d at 898 (emphasis added). If a 

government actor and the proposed intervenor are on the same side, there is a 

presumption of adequacy of representation. United States v. City of Los Angeles, 288 

F.3d 391, 401 (9th Cir. 2002). Such a presumption arises “when the government is 

acting on behalf of a constituency that it represents” and not in a situation where it acts 

as an employer. Id. To overcome such a presumption, the proposed intervenor must 

make “a ‘very compelling showing to the contrary’” or “it will be presumed that the 

state adequately represents its citizens.” Arakaki, 324 F.3d at 1086 (quoting 7C Wright, 

Miller & Kane, § 1909, at 332). If the proposed intervenor and a party to the lawsuit 

“share the same ultimate objective, differences in litigation strategy do not normally 

justify intervention.” Id.

The Ninth Circuit upheld a determination that the federal government adequately 

represented the interests of a private party in a case involving the interpretation of law.

Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 841-43 (9th Cir. 2011).

In so ruling, the Ninth Circuit noted that, where “the federal defendants have 

demonstrated that their ultimate objective is to uphold” a law and a proposed 

intervenor’s objective is the same, then the federal government will adequately represent 

the latter’s interests. Id. at 841.

This situation is identical. Federal Defendants seek to negate Youth Plaintiffs’ 

standing, uphold the Energy Policy Act, and deny application of the Constitution and the 

public trust doctrine to Youth Plaintiffs’ claims, as well as disallow Youth Plaintiffs 

their requested relief. The ultimate objectives of the Petro Associations thus mirror those 
Plaintiffs’ Response in Opposition to Motion to Intervene 14

of Federal Defendants. Furthermore, here, the Petro Associations’ contribution to the 

defense would be duplicative and not well-informed. For instance, in their proposed 

Motion to Dismiss, the Petro Associations characterize Youth Plaintiffs’ case as solely a 

public trust case, and virtually ignore three of Youth Plaintiffs’ claims under the Fifth 

and Ninth Amendments of the U.S. Constitution. Petro Associations’ Memo in Support 

of Mot. to Dismiss 2-11. In contrast, Federal Defendants seek to dismiss under Fed. R. 

Civ. P. 12(b)(6) each of Youth Plaintiffs’ four claims for relief.

As in Freedom from Religion Foundation, Federal Defendants will adequately 

represent the Petro Associations’ interests. As the Petro Associations have previously 

stated, they have successfully managed through lobbying and financial contributions to 

help create U.S. policy consistent with the interests of their members. Olson Decl. Exs. 

D, E. Clearly, Federal Defendants and the Petro Associations have, for a long time,

operated on the same side of this issue. The federal government does not need the Petro 

Associations’ financial resources to further buttress Federal Defendants’ defense of this 

case.

Because the objectives and defenses of Federal Defendants and the Petro 

Associations are identical, all three prongs of the “adequate representation” test support 

the conclusion that Federal Defendants adequately represent the interests of the Petro 

Associations:

• Federal Defendants are making the Petro Associations’ arguments; 

• Federal Defendants are capable and willing to make such arguments; and 

• The Petro Associations will not add any necessary elements to the 

proceeding that Federal Defendants would neglect.

Allowing the Petro Associations to argue the same legal issues only complicates this 

litigation and diminishes the ability of this Court to efficiently and effectively resolve 

the issues presented by this action.
Plaintiffs’ Response in Opposition to Motion to Intervene 15

The Petro Associations argue their disagreement with the federal government on 

existing regulatory programs affecting GHG emissions establishes that their interests are 

not coterminous with Federal Defendants. Whether or not the Petro Associations and 

Federal Defendants agree on all existing regulations is not the test in this Circuit. The 

question before this Court is whether their positions are aligned in this litigation and 

whether Federal Defendants will adequately represent their interests in this litigation, 

not in other regulatory processes. The Petro Associations have not made a “compelling 

showing” to overcome the presumption that Federal Defendants do not adequately 

represent their interests. Federal Defendants will argue this case adequately. Indeed, the 

motion to dismiss filed by the Federal Government shows that it will thoroughly

challenge the justiciability of the claims and attempt to have the case dismissed in full.

Therefore, this Court should not grant intervenor status as a matter of right to the Petro 

Associations. 

II. THE PETRO ASSOCIATIONS ARE NOT ENTITLED TO PERMISSIVE INTERVENTION 

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24(B)

The Petro Associations should not be granted permissive intervention pursuant to 

Fed. R. Civ. P. 24(b). Rule 24(b) provides in relevant part: “[o]n timely motion, the 

court may permit anyone to intervene who . . . has a claim or defense that shares with the 

main action a common question of law or fact.” Fed. R. Civ. P. 24(b). The Ninth Circuit 

has “often stated that permissive intervention requires (1) an independent ground for 

jurisdiction; (2) a timely motion; and (3) a common question of law and fact between the 

movant’s claim or defense and the main action.” Freedom from Religion Found., 644 

F.3d at 843 (citation omitted). Additionally, “[w]here a putative intervenor has met these 

requirements, the court may also consider other factors in the exercise of its discretion, 

including ‘the nature and extent of the intervenors’ interest’ and ‘whether the 

intervenors’ interests are adequately represented by other parties’ . . . [and] ‘whether the 

intervention will unduly delay or prejudice the adjudication of the original parties’ 
Plaintiffs’ Response in Opposition to Motion to Intervene 16

rights.’” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009)

(citation omitted). Even where the threshold requirements are met, courts can exercise 

discretion in deciding whether intervention should be allowed. See, e.g., Donnelly, 159 

F.3d at 412.

Intervention by the Petro Associations would unduly complicate this litigation, 

open the door to countless corporate intervenors who claim an interest in fossil fuels or 

fossil fuel emissions,

1 and burden the proceeding with briefing that misconstrues the 

claims brought by Youth Plaintiffs. As demonstrated above, the Petro Associations do

not have any interests that will be directly affected by the resolution of this case. The 

due process and equal protection claims of Youth Plaintiffs apply only against 

government actors, and the fiduciary obligation of the trustee under the public trust 

doctrine pertains only to the federal government. Interpreting the constitutional rights of 

Youth Plaintiffs and the duties of Federal Defendants will not have any direct impact on 

the Petro Associations or their members. The Petro Associations summarily contend that 

they “possess legally protectable interests in their members’ economic interests and legal 

rights in current and future contracts and transactions subject to Plaintiffs’ challenge.” 

Petro Memo. 18. However, they have submitted no evidence of any legal rights in any 

current contracts or transactions that would be directly and adversely impacted by this 

litigation. Thus, there is no independent basis for jurisdiction. Most importantly, an

order in Youth Plaintiffs’ favor will not preclude the Petro Associations from lobbying 

and participating in regulatory processes, or in defending their interests or rights in 

future contracts, if any, that in theory might secondarily be impacted.

2

 1

 As Judge Coughenour recognized in his order denying intervention in Ctr. for 

Biological Diversity v. EPA, No. C09-0670-JCC, at *6 (W.D. Wash. Oct. 5, 2009), “[i]f 

the Court were to allow intervention by every permit-holder who could discharge into 

one of Washington's rivers that eventually flows into the sea, this suit would balloon out 

of control.”

2

 The Petro Associations argue that U.S. facilities must “be able to 

maximize production from their current operations” because “[d]omestic petrochemical 

manufacturers must compete internationally with foreign companies that enjoy 
Plaintiffs’ Response in Opposition to Motion to Intervene 17

The Amended Complaint does not allege private parties, such as the Petro 

Associations, have any constitutional or public trust fiduciary obligations to Youth 

Plaintiffs. It is not proper for a private party to be a defendant in such an action. While 

the behavior of a private party may impact a fundamental right or a public trust resource, 

the Amended Complaint alleges the federal government holds the ultimate 

responsibility.

Because the Petro Associations do not claim to, and do not, have a legal interest 

in Youth Plaintiffs’ rights to life, liberty and property, or in their public trust resources, 

or in the Jordan Cove LNG export permit, the Petro Associations do not have a 

“question of law or fact in common” with the present action. Freedom from Religion 

Found., 644 F.3d at 843. The Petro Associations do not seek to file a counterclaim that 

might have a “question of law or fact in common” with the present action. Id. Further, 

the Petro Associations do not argue that their interests in interpreting the Constitution or 

the public trust doctrine are inadequately represented by Federal Defendants. See Perry, 

587 F.3d at 955. They simply wish to prevent Youth Plaintiffs from holding Federal 

Defendants responsible for infringing Youth Plaintiffs’ constitutional rights and from 

meeting their fiduciary obligations under the public trust doctrine. Such a motive only 

hinders the pursuit of justice, restricts the only forum Youth Plaintiffs have to redress 

wrongs committed against them, unduly complicates the present action, and ultimately 

delays a final decision on this matter.

 

significant competitive advantages,” which include “direct and indirect government 

subsidies.” Friedman Decl. ¶ 11; see also Petro Memo. 15. However, even in these 

unsupported statements about the “significant competitive advantages” enjoyed by 

foreign companies, the Petro Associations grossly overstate the vulnerability of domestic 

petrochemical manufacturers. In fact, it is the United States, not any foreign nation, that 

is by far the largest provider of energy subsidies. For example, according to the 

International Monetary Fund, in 2011, the United States was responsible for $502 billion 

in energy subsidies, as compared with China coming in second with $279 billion, and 

Russia coming in third at $116 billion. International Monetary Fund, Energy Subsidy 

Reform: Lessons and Implications 13 (2013), available at 

http://www.imf.org/external/np/pp/eng/2013/012813.pdf.
Plaintiffs’ Response in Opposition to Motion to Intervene 18

Even if this Court finds the Petro Associations meet the three-part test for 

permissive intervention, this Court should exercise its discretion to deny the Petro 

Associations’ motion to intervene. The Petro Associations have not demonstrated a 

legitimate interest in this action. Additionally, the Petro Associations’ interests are 

adequately represented by Federal Defendants. As discussed above, the ultimate 

objective of both Proposed Intervenors and Federal Defendants is the same: to prevent 

Youth Plaintiffs from realizing their requested relief.

The Petro Associations and Federal Defendants have raised common legal 

arguments in their briefs. Allowing intervention will not effectively administer this 

dispute. Based on motion practice in this action to date, the addition of the Petro 

Associations as an intervenor would only complicate the litigation with repetitious and 

ill-informed briefing. Youth Plaintiffs have a right to a timely, efficient, and fair hearing 

of their legal issues, which relate solely to harm caused by the actions (or inactions) of 

Federal Defendants. Intervention will make this case unnecessarily complex, unwieldy, 

and prolonged, particularly as other associations and entities seek to intervene. In order 

to ensure a fair and efficient resolution to the present action, this Court should not 

permissively grant the Petro Associations’ motion to intervene. 

III. IF INTERVENTION IS GRANTED, THIS COURT SHOULD LIMIT INTERVENORS’

PARTICIPATION TO THE REMEDY PHASE OF THIS ACTION, TO ISSUES NOT 

RAISED BY FEDERAL DEFENDANTS, AND TO LIMITED BRIEFING.

Youth Plaintiffs are strongly opposed to allowing the Petro Associations to 

intervene either as of right or permissively. If this Court allows the Petro Associations to 

intervene, this Court should exercise its ability to limit intervention to the remedial 

phase of this action and to issues not raised by Federal Defendants. See Dep’t of Fair 

Emp’t & Housing v. Lucent Techs., Inc., 642 F.3d 728, 741 (9th Cir. 2011). 

In addition, this Court should place limitations on intervenors to preclude their

conducting any discovery, to file briefs of no more than 25 pages, and to comply with a

staged briefing schedule set by the court, where Federal Defendants file first and the 
Plaintiffs’ Response in Opposition to Motion to Intervene 19

Petro Associations must not duplicate any arguments made by the government. See Bark 

v. Northrop, No. 3:13-CV-01267-HZ, 2013 WL 6576306, at *1 (D. Or. Dec. 12, 2013)

(imposing similar limitations on intervention). 

In the alternative, the Petro Associations will have the opportunity to seek leave 

of court to file an amicus brief so that they may have a voice in the matter without 

unreasonably complicating the litigation by attaining intervenor status.

CONCLUSION

The Petro Associations do not have significantly protectable interests, their 

interests will not be impaired by a decision of this Court, and Federal Defendants will 

adequately represent the Petro Associations’ interests. For the foregoing reasons, Youth 

Plaintiffs respectfully request that this Court deny the motion to intervene of the Petro 

Associations.

Respectfully submitted this 30th day of November, 2015, 

s/ Julia A. Olson

JULIA OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com 

WILD EARTH ADVOCATES 

1216 Lincoln St. 

Eugene, OR 97401 

Tel: (415) 786-4825 

PHILIP L. GREGORY (applicant pro hac vice) 

pgregory@cpmlegal.com 

COTCHETT, PITRE & McCARTHY, LLP 

San Francisco Airport Office Center 

840 Malcolm Road 

Burlingame, CA 94010 

Tel: (650) 697-6000 

Fax: (650) 697-0577 

DANIEL M. GALPERN (OR Bar 061950) 

dan.galpern@gmail.com 

LAW OFFICES OF DANIEL M. GALPERN 

1641 Oak Street 

Eugene, OR 97401 Tel: (541) 968-7164 

Attorneys for Plaintiffs