Kelsey Rose Juliana v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELSEY CASCADIA ROSE JULIANA; No. 18-36082

XIUHTEZCATL TONATIUH M.,

through his Guardian Tamara Roske- D.C. No.

Martinez; ALEXANDER LOZNAK; 6:15-cv-01517-

JACOB LEBEL; ZEALAND B., through AA

his Guardian Kimberly Pash-Bell;

AVERY M., through her Guardian

Holly McRae; SAHARA V., through OPINION

her Guardian Toa Aguilar; KIRAN

I SAAC OOMMEN; TIA MARIE

HATTON; I SAAC 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

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

I NTERIOR; 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.

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 U NITED 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.

4 JULIANA V. UNITED STATES

SUMMARY **

Climate Change / Standing

The panel reversed the district court’s interlocutory

orders in 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.

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

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.

JULIANA V. UNITED STATES 7

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 Plaintiffs-

Appellees.

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 Saint-

Mary-of-the-Woods; Quaker Earthcare Witness; Colorado

8 JULIANA V. UNITED STATES

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

JULIANA V. UNITED STATES 9

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;

10 JULIANA V. UNITED STATES

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.

JULIANA V. UNITED STATES 11

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).

12 JULIANA V. UNITED STATES

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

2The 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.

JULIANA V. UNITED STATES 13

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.

14 JULIANA V. UNITED STATES

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-cv-

01517-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

JULIANA V. UNITED STATES 15

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

16 JULIANA V. UNITED STATES

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.

JULIANA V. UNITED STATES 17

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).

18 JULIANA V. UNITED STATES

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

JULIANA V. UNITED STATES 19

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.

20 JULIANA V. UNITED STATES

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

JULIANA V. UNITED STATES 21

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).

22 JULIANA V. UNITED STATES

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.”).

JULIANA V. UNITED STATES 23

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.

24 JULIANA V. UNITED STATES

“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 hydrogen-

powered 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

JULIANA V. UNITED STATES 25

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.”).

26 JULIANA V. UNITED STATES

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

JULIANA V. UNITED STATES 27

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.

28 JULIANA V. UNITED STATES

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,

JULIANA V. UNITED STATES 29

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

30 JULIANA V. UNITED STATES

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

JULIANA V. UNITED STATES 31

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-of-

powers principle—enforcement of this treaty provision is not committed

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

significant overlap.”).

32 JULIANA V. UNITED STATES

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.

JULIANA V. UNITED STATES 33

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).

34 JULIANA V. UNITED STATES

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 scientists 2 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).

JULIANA V. UNITED STATES 35

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.

36 JULIANA V. UNITED STATES

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,

JULIANA V. UNITED STATES 37

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.

38 JULIANA V. UNITED STATES

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.

JULIANA V. UNITED STATES 39

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

40 JULIANA V. UNITED STATES

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,

JULIANA V. UNITED STATES 41

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.

42 JULIANA V. UNITED STATES

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.

JULIANA V. UNITED STATES 43

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.

44 JULIANA V. UNITED STATES

“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.

JULIANA V. UNITED STATES 45

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

46 JULIANA V. UNITED STATES

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.

....

JULIANA V. UNITED STATES 47

. . . 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

48 JULIANA V. UNITED STATES

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.

8Indeed, 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

JULIANA V. UNITED STATES 49

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.

50 JULIANA V. UNITED STATES

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-of-

powers 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,

JULIANA V. UNITED STATES 51

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

52 JULIANA V. UNITED STATES

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.

JULIANA V. UNITED STATES 53

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.

54 JULIANA V. UNITED STATES

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

JULIANA V. UNITED STATES 55

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.

56 JULIANA V. UNITED STATES

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

JULIANA V. UNITED STATES 57

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).

58 JULIANA V. UNITED STATES

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)

JULIANA V. UNITED STATES 59

(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[.]”).

60 JULIANA V. UNITED STATES

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

JULIANA V. UNITED STATES 61

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

62 JULIANA V. UNITED STATES

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.

JULIANA V. UNITED STATES 63

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

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.

15Dr. 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).