Petition for a writ of mandamus — In Re United States, et al., Petitioners
Supreme Court briefOct 18, 2018
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No.
In the Supreme Court of the United States
IN RE UNITED STATES OF AMERICA, ET AL., PETITIONERS
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PETITION FOR A WRIT OF MANDAMUS
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JEFFREY H. WOOD
Acting Assistant Attorney
General
JEFFREY B. WALL
EDWIN S. KNEEDLER
Deputy Solicitors General
ERIC GRANT
Deputy Assistant Attorney
General
JONATHAN Y. ELLIS
CHRISTOPHER G. MICHEL
Assistants to the Solicitor
General
ANDREW C. MERGEN
SOMMER H. ENGELS
ROBERT J. LUNDMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
In 2015, plaintiffs—21 minors, an environmental advocacy organization, and a guardian purporting to represent future generations—sued the United States, the
President, eight Executive Branch agencies, and other
federal defendants for depriving them of an asserted
right to “a climate system capable of sustaining human
life” under the Due Process Clause of the Fifth Amendment and related legal theories. As relief, plaintiffs ask
the district court to order the federal defendants to
“move to swiftly phase out CO 2 emissions, as well as
take such other action as necessary to ensure that atmospheric CO 2 is no more concentrated than 350 ppm
by 2100, including to develop a national plan to restore
Earth’s energy balance, and implement that national
plan so as to stabilize the climate system.” After three
years of litigation, trial is set to begin on October 29,
2018. The questions presented are as follows:
1. Whether this suit is justiciable under Article III.
2. Whether this suit should be dismissed for failure
to comply with the requirements of the Administrative
Procedure Act, 5 U.S.C. 551 et seq.
3. Whether this suit should be dismissed because
there is no right to “a climate system capable of sustaining human life” under the Due Process Clause or a publictrust doctrine.
(I)
PARTIES TO THE PROCEEDING
Petitioners (defendants in the district court, and
mandamus petitioners in the court of appeals) are the
United States of America; Donald J. Trump, in his official capacity as the President of the United States; Office of the President of the United States; the Director
of Council on Environmental Quality; Mick Mulvaney,
in his official capacity as the Director of the Office of
Management and Budget; the Director of the Office of
Science and Technology Policy; U.S. Department of Agriculture; Sonny Perdue, in his official capacity as the
Secretary of Agriculture; U.S. Department of Commerce; Wilbur Ross, in his official capacity as the Secretary of Commerce; U.S. Department of Defense;
James N. Mattis, in his official capacity as the Secretary
of Defense; U.S. Department of Energy; Rick Perry, in
his official capacity as the Secretary of Energy; U.S.
Environmental Protection Agency (EPA); Andrew R.
Wheeler, in his official capacity as the Acting Administrator of the EPA; U.S. Department of the Interior;
Ryan Zinke, in his official capacity as the Secretary of
the Interior; U.S. Department of State; Michael R.
Pompeo, in his official capacity as the Secretary of
State; U.S. Department of Transportation; and Elaine
Chao, in her official capacity as the Secretary of Transportation.
Respondent in this Court is the United States District Court for the District of Oregon. Respondents also
On October 15, 2018, the district court dismissed President
Trump from the suit without prejudice. See App., infra, 77a. The
government opposes that relief because the President should be dismissed with prejudice. The President accordingly joins in this petition for a writ of mandamus.
(II)
III
include Kelsey Cascadia Rose Juliana; Xiuhtezcatl Tonatiuh M., through his Guardian Tamara Roske-Martinez;
Alexander Loznak; Jacob Lebel; Zealand B., through
his Guardian Kimberly Pash-Bell; Avery M., through
her Guardian Holly McRae; Sahara V., through her
Guardian Toña Aguilar; Kiran Isaac Oommen; Tia Marie Hatton; Isaac V., through his Guardian Pamela
Vergun; Miko V., through her Guardian Pamela Vergun;
Hazel V., through her Guardian Margo Van Ummersen;
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 nonprofit
organization; and future generations, through their
Guardian Dr. James Hansen (collectively plaintiffs in
the district court, and real parties in interest in the
court of appeals).
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Statement ...................................................................................... 2
Reasons for granting the petition ............................................. 13
A. The government has a clear and indisputable
right to relief from the district court’s refusal to
dismiss this fundamentally misguided suit ............... 16
1. The district court clearly and indisputably
erred by exercising jurisdiction over the suit ..... 16
2. The district court clearly and indisputably
erred by allowing the claims to proceed
outside the binding framework of the APA ........ 22
3. The district court clearly and indisputably
erred by allowing the claims to proceed on the
merits ...................................................................... 25
B. The government has no other adequate means to
attain relief from a fundamentally misguided and
improper trial ............................................................... 28
C. Mandamus relief is appropriate under the
circumstances ............................................................... 31
Conclusion ................................................................................... 33
Appendix A — District court opinion and order
(Oct. 15, 2018) ............................................... 1a
Appendix B — Court of appeals opinion (July 20, 2018) ...... 78a
Appendix C — District court order (June 29, 2018) ........... 86a
Appendix D — District court order (May 25, 2018) ............ 88a
Appendix E — Court of appeals opinion (Mar. 7, 2018) ..... 91a
Appendix F — District court opinion and order
(Nov. 10, 2016) ......................................... 104a
(V)
VI
TABLE OF AUTHORITIES
Cases:
Page
Abelesz v. OTP Bank, 692 F.3d 638 (7th Cir. 2012) ........... 32
Alec L. ex rel. Loorz v. McCarthy, 561 Fed. Appx. 7
(D.C. Cir. 2014), cert. denied, 135 S. Ct. 774 (2014) .... 5, 28
American Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011).................................................. 18, 19, 26
Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378 (2015) ......................................................... 24
Cheney v. United States Dist. Court, 542 U.S. 367
(2004) ........................................................................... passim
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .......... 17
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332
(2006) ........................................................................ 16, 21, 22
De Beers Consol. Mines v. United States,
325 U.S. 212 (1945).............................................................. 15
Grupo Mexicano de Desarrollo, S.A. v. Alliance
Bond Fund, Inc., 527 U.S. 308 (1999) ............................... 22
Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ................ 21
Juliana v. United States, No. 15-cv-01517,
2017 WL 2483705 (D. Or. June 8, 2017) .............................. 6
Justices of Supreme Court of Puerto Rico, In re,
695 F.2d 17 (1st Cir. 1982) ........................................... 29, 32
Kellogg Brown & Root, Inc., In re, 756 F.3d 754
(D.C. Cir. 2014), cert. denied, 135 S. Ct. 1163
(2015) .............................................................................. 29, 32
Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118 (2014) ..................................................... 17
Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992) ........................................................................ 17, 18, 19
Lujan v. National Wildlife Fed’n, 497 U.S. 871
(1990) .................................................................................... 23
Massachusetts v. EPA, 549 U.S. 497 (2007) ................. 18, 20
VII
Cases—Continued:
Page
Missouri v. Jenkins, 515 U.S. 70 (1995) ............................. 22
National Audubon Soc’y v. Superior Court,
658 P.2d 709 (Cal.), cert. denied, 464 U.S. 977 (1983) ..... 27
Norton v. Southern Utah Wilderness Alliance,
542 U.S. 55 (2004) ......................................................... 23, 24
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ................... 4, 26
PPL Montana, LLC v. Montana, 565 U.S. 576
(2012) ................................................................................ 5, 27
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199
(2015) .................................................................................... 30
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ........ 20
Roe v. Wade, 410 U.S. 113 (1973) ..................................... 4, 27
Roman Catholic Diocese of Albany, New York, Inc.,
In re, 745 F.3d 30 (2d Cir. 2014) ........................................ 32
Schlesinger v. Reservists Comm. to Stop the War,
418 U.S. 208 (1974).............................................................. 17
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) ....... 24
Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26 (1976) ............................................................... 19
Tagg Bros. & Moorhead v. United States,
280 U.S. 420 (1930).............................................................. 30
Unemployment Comp. Comm’n v. Aragon,
329 U.S. 143 (1946).............................................................. 31
United States, In re, 875 F.3d 1177 (9th Cir. 2017) ........... 12
United States v. Carlo Bianchi & Co., 373 U.S. 709
(1963) .................................................................................... 31
United States v. U.S. Dist. Court, No. 18A65,
2018 WL 3615551 (July 30, 2018) ............................. passim
United States Alkali Exp. Ass’n v. United States,
325 U.S. 196 (1945).............................................................. 15
Vermont Agency of Natural Res. v. United States
ex rel. Stevens, 529 U.S. 765 (2000) ................................... 21
VIII
Cases—Continued:
Page
Warth v. Seldin, 422 U.S. 490 (1975) ................................... 18
Washington v. Glucksberg, 521 U.S. 702 (1997) ........... 25, 26
Washington Envtl. Council v. Bellon, 732 F.3d 1131
(9th Cir. 2013) ...................................................................... 19
Webster v. Doe, 486 U.S. 592 (1988) ..................................... 23
Western Radio Servs. Co. v. United States Forest
Serv., 578 F.3d 1116 (9th Cir. 2009), cert. denied,
559 U.S. 1106 (2010)............................................................ 23
Wilkie v. Robbins, 551 U.S. 537 (2007) ................................ 23
Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) ............. 30
Constitution and statutes:
U.S. Const.:
Art. I, § 1 .......................................................................... 31
Art. I, § 1, Cl. 1 ................................................................ 31
Art. III ..................................................................... passim
§ 1 ............................................................................... 20
Amend. V ............................................................................ 4
Due Process Clause ................................. 2, 4, 6, 13, 25
Amend. IX .......................................................................... 3
Administrative Procedure Act, 5 U.S.C. 551 et seq.............. 7
5 U.S.C. 702 ................................................................ 22, 23
5 U.S.C. 706(1) ................................................................. 23
5 U.S.C. 706(2)(A)-(B) ..................................................... 23
5 U.S.C. 706(2)(B) ............................................................ 23
Clean Air Act, 42 U.S.C. 7607(b)(1) ..................................... 22
28 U.S.C. 1254(1) ................................................................... 15
28 U.S.C. 1291 ........................................................................ 28
28 U.S.C. 1292(b) ......................................................... 6, 13, 28
28 U.S.C. 1651 ........................................................................ 15
IX
Miscellaneous:
Page
16 Charles Alan Wright et al., Federal Practice and
Procedure (3d ed. 2005 & Supp. 2018) ........................ 29, 32
In the Supreme Court of the United States
No.
IN RE UNITED STATES OF AMERICA, ET AL., PETITIONERS
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PETITION FOR A WRIT OF MANDAMUS
The Solicitor General, on behalf of the United States
and the other federal defendants, respectfully petitions
for a writ of mandamus to the United States District
Court for the District of Oregon. In the alternative, the
Solicitor General respectfully requests that the Court
treat this petition as a petition for a writ of certiorari to
review the judgment of the United States Court of Appeals for the Ninth Circuit, or as a petition for a commonlaw writ of certiorari to review the district court’s decisions on the government’s dispositive motions.
OPINIONS BELOW
The opinion of the district court denying a motion for
judgment on the pleadings and a motion for summary
judgment (App., infra, 1a-77a) is not published in the
Federal Supplement but is available at 2018 WL 4997032.
The opinions of the court of appeals denying petitions
for a writ of mandamus (App., infra, 78a-85a, 91a-103a)
are reported at 895 F.3d 1101 and 884 F.3d 830. The opinion of the district court denying a motion to dismiss (App.,
infra, 104a-200a) is reported at 217 F. Supp. 3d 1224.
(1)
2
JURISDICTION
The jurisdiction of this Court is invoked under
28 U.S.C. 1651. In the alternative, the jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1). The judgment of the court of appeals was entered on July 20, 2018.
STATEMENT
1. This suit was filed in 2015 by 21 minor children, a
“tribe of young activists, artists and musicians from
across the globe” known as Earth Guardians, and “Future
Generations” of humans “by and through their” selfappointed guardian, Dr. James Hansen. Am. Compl.
¶¶ 91-92; see id. ¶¶ 16-90. The plaintiffs (respondents
here) sued President Obama, eight Cabinet-level departments and agencies, and various other federal
agencies and officials. Id. ¶¶ 98-128. President Trump
and officials in his administration were later substituted
for President Obama and officials in his administration.
Respondents allege that petitioners—and their predecessors in government dating back more than 50 years
to President Lyndon Johnson’s administration—have
“known of the unusually dangerous risks of harm to human life, liberty, and property that would be caused by
continued fossil fuel burning,” and have “willfully ignored this impending harm.” Am. Compl. ¶ 5. Because
the federal government has “permitted, encouraged,
and otherwise enabled continued exploitation, production, and combustion of fossil fuels,” respondents allege
that petitioners have “deliberately allowed atmospheric
CO2 concentrations to escalate to levels unprecedented
in human history, resulting in a dangerous destabilizing
climate system.” Ibid.
Respondents allege that petitioners’ “aggregate actions and deliberate omissions” have violated their
3
“substantive Fifth Amendment rights” because petitioners “directly caused atmospheric CO 2 to rise to levels that dangerously interfere with a stable climate system.” Am. Compl. ¶¶ 279, 281. Respondents further allege that petitioners have violated (1) their rights under
the equal protection principles of the Due Process
Clause by “causing irreversible climate change” and
thereby failing to provide respondents “the same protection of fundamental rights afforded to prior and present generations,” id. ¶ 292; (2) their “right to be sustained by our country’s vital natural systems, including
our climate system,” which they contend is protected by
the Ninth Amendment, id. ¶ 303; and (3) their rights under a supposed federal “public trust doctrine,” ibid.
Respondents seek to prove these asserted constitutional violations through a bench trial. As relief, respondents ask the district court to order the federal
government to “cease [its] permitting, authorizing, and
subsidizing of fossil fuels and, instead, move to swiftly
phase out CO2 emissions,” and to “take such other action as necessary to ensure that atmospheric CO 2 is no
more concentrated than 350 ppm by 2100, including to
develop a national plan to restore Earth’s energy balance, and implement that national plan so as to stabilize
the climate system.” Am. Compl. ¶ 12 (emphasis omitted). To ensure “compliance with the national remedial
plan,” respondents ask the court to “[r]etain jurisdiction” indefinitely. Id. at 94.
2. In November 2015, the government moved to dismiss the complaint for lack of jurisdiction and failure to
state a claim. D. Ct. Doc. 27 (Nov. 17, 2015). The district court denied that motion. App., infra, 104a-200a.
While recognizing that “[t]his is no ordinary lawsuit,”
4
the court found that respondents had adequately alleged the elements of Article III standing and had
stated a claim on the merits. Id. at 106a.
With respect to standing, the district court concluded that respondents had adequately alleged injuries
in the form of increased droughts, wildfires, flooding,
and other effects of climate change, and that those injuries were caused by the government’s regulation of (and
failure to further regulate) fossil fuels. App., infra,
125a-134a. The court further concluded that it could redress respondents’ alleged injuries by granting the relief sought, including ordering the federal government
“to cease [its] permitting, authorizing, and subsidizing
of fossil fuels and, instead, move to swiftly phase out
CO2 emissions” and to “take such other action necessary
to ensure that atmospheric CO2 is no more concentrated
than 350 ppm by 2100, including to develop a national
plan to restore Earth’s energy balance, and implement
that national plan so as to stabilize the climate system.”
Id. at 137a (citation omitted); see id. at 134a-137a.
On the merits, the district court concluded that respondents had stated a claim under the Fifth Amendment’s Due Process Clause. App., infra, 137a-147a. Relying primarily on this Court’s decision in Obergefell v.
Hodges, 135 S. Ct. 2584 (2015), as well as Roe v. Wade,
410 U.S. 113 (1973), and a 1993 decision from the Supreme Court of the Philippines, the district court found
in the Fifth Amendment’s protection against the deprivation of “life, liberty, or property, without due process
of law,” U.S. Const. Amend. V, a previously unrecognized “fundamental right * * * to a climate system capable of sustaining human life.” App., infra, 142a; see
id. at 140a-142a.
5
The district court further determined that respondents had adequately stated a claim under a federal publictrust theory. App., infra, 147a-167a. The court acknowledged this Court’s statement that “the public trust doctrine remains a matter of state law,” PPL Montana,
LLC v. Montana, 565 U.S. 576, 603 (2012), as well as the
D.C. Circuit’s rejection of a federal public-trust doctrine, see Alec L. ex rel. Loorz v. McCarthy, 561 Fed.
Appx. 7, 8 (per curiam), cert. denied, 135 S. Ct. 774
(2014). But the court nevertheless concluded that a
public-trust doctrine imposes a judicially enforceable
prohibition on the federal government against “depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens.” App., infra, 148a (citation omitted).
The district court acknowledged the government’s
arguments that “recognizing [respondents’] standing to
sue, deeming the controversy justiciable, and recognizing a federal public trust and a fundamental right to a
climate system capable of sustaining human life would
be unprecedented,” but rejected the premise that the
unprecedented nature of those decisions “alone requires * * * dismissal.” App., infra, 167a. The court
expressed its view that “[f ]ederal courts too often have
been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.” Id.
at 167a-168a. The court invoked the “failure of the legal
system to protect humanity from the collapse of finite
natural resources by the uncontrolled pursuit of shortterm profits,” and stated that the “third branch can, and
should, take another long and careful look at the barriers to litigation created by modern doctrines of subjectmatter jurisdiction and deference to the legislative and
administrative branches.” Id. at 168a (citation omitted).
6
The district court subsequently declined the government’s request to certify its decision denying the motion
to dismiss for interlocutory appeal under 28 U.S.C.
1292(b). See Juliana v. United States, No. 15-cv-1517,
2017 WL 2483705, at *2 (June 8, 2017).
3. The government petitioned the Ninth Circuit for
a writ of mandamus ordering dismissal of the suit. The
government contended that allowing respondents’
claims to proceed contravened fundamental limitations
on judicial review imposed by Article III of the Constitution, and that the district court had clearly erred in
recognizing a sweeping new fundamental right to certain climate conditions under the Due Process Clause
and a federal public-trust theory. The government further requested a stay of the litigation pending the court
of appeals’ consideration of the mandamus petition.
On July 25, 2017, the court of appeals granted the
government’s request for a stay. See App., infra, 7a-8a,
94a. But after considering the petition for nearly eight
more months, the court in March 2018 “decline[d] to exercise [its] discretion to grant mandamus relief at th[at]
stage of the litigation.” Id. at 103a; see id. at 91a-103a.
The court recognized that “some of [respondents’]
claims as currently pleaded are quite broad, and some
of the remedies [respondents] seek may not be available
as redress.” Id. at 103a. The court reasoned, however,
that “the district court need[ed] to consider those issues
further in the first instance.” Ibid. The court “underscore[d] that this case [wa]s at a very early stage, and
that the [government] [would] have ample opportunity
to raise legal challenges to decisions made by the district court on a more fully developed record, including
decisions as to whether to focus the litigation on specific
governmental decisions and orders.” Id. at 101a. The
7
court also observed that “[c]laims and remedies often
are vastly narrowed as litigation proceeds” and that it
had “no reason to assume this case will be any different.”
Id. at 103a. And the court stated that the governmental
defendants could continue to “raise and litigate any legal objections they have,” including by challenging future discovery orders; moving to “dismiss the President
as a party”; “reasserting a challenge to standing, particularly as to redressability”; “seeking mandamus in the future”; or “asking the district court to certify orders for interlocutory appeal of later rulings.” Id. at 99a, 101a-103a.
4. The government did not immediately seek this
Court’s review. Instead, in light of the court of appeals’
identification of various means by which the government could contest the suit, the government filed a series of motions in the district court seeking to terminate
the case or at least narrow respondents’ claims.
First, the government filed a motion for judgment on
the pleadings, reiterating its prior arguments for dismissal and setting forth three new grounds for dismissing some or all of respondents’ claims: (1) the President
must be dismissed because the court lacks jurisdiction
to enjoin him in the performance of his official duties;
(2) respondents’ claims must be dismissed because the
Administrative Procedure Act (APA), 5 U.S.C. 551
et seq., provides the mechanism for challenging the federal administrative actions that underlie respondents’
claims, but respondents fail to challenge discrete, identified agency actions or alleged failures to act, as the
APA requires; and (3) in any event, respondents’ claims
and requested relief violate the constitutional separation of powers by effectively requiring the district court
to usurp the roles of Congress and the President. D. Ct.
Doc. 195, at 6-25 (May 9, 2018).
8
Second, the government filed a motion for a protective order barring all discovery. D. Ct. Doc. 196 (May
9, 2018). The government argued that, because this
case may proceed only under the APA, judicial review
must be based on the administrative record of specifically identified actions or decisions, not on discovery.
Id. at 9-14. The government also contended that, even
if review were not otherwise limited to the administrative record of specific agency actions, discovery in this
case would be independently barred by the procedural
requirements that the APA and the agencies’ organic
statutes impose on agency fact-finding and decisionmaking (including the requirements for public participation) and the separation of powers. Id. at 14-19.
Third, the government filed a motion for summary
judgment, arguing that (1) respondents lack standing as
a matter of law and as judged against the evidentiary
record, and the suit is not a proper case or controversy
within the meaning of Article III; (2) respondents have
failed to identify a right of action for their claims apart
from the APA and have not satisfied the APA’s requirement to challenge discrete agency actions or inactions;
and (3) respondents’ claims fail on the merits. D. Ct.
Doc. 207, at 5-19, 24-30 (May 22, 2018).
5. On May 25, 2018, the magistrate judge denied the
government’s motion for a protective order. App., infra,
88a-90a. He rejected the government’s argument that
any challenges to the agencies’ actions or failures to act
must proceed under the APA, concluding that respondents may proceed in a sweeping manner against all federal defendants collectively because their claims are
“based on alleged violations of their constitutional
rights.” Id. at 89a. He also declined to grant a protec-
9
tive order based on the separation of powers, ruling instead that “[s]hould a specific discovery request arise
during discovery in this case that implicates a claim of
privilege the government wishes to assert, the government may file a motion for a protective order directed
at any such specific request.” Id. at 90a.
The district court summarily affirmed the magistrate judge’s order. App., infra, 86a-87a. The court
stated that it had “carefully reviewed [the] order in light
of [the government’s] objections” and “conclude[d] that
the order is not clearly erroneous or contrary to law.”
Id. at 87a. The court provided no further explanation
for its decision and declined “to certify [its] decision for
interlocutory appeal under 28 U.S.C. § 1292(b).” Ibid.
The district court set an opening trial date of October 29, 2018. See D. Ct. Doc. 189 (Mar. 26, 2018); D. Ct.
Doc. 192 (Apr. 12, 2018). The court indicated its expectation that the trial will last approximately 50 trial days.
See, e.g., 4/12/18 Tr. 8 (Coffin, J.) (estimating “five weeks
per side in essence”). And the court has repeatedly
made clear that it has no intention of delaying trial. See,
e.g., 10/4/18 Tr. 19 (Coffin, J.) (“Th[e] trial date of October 29th is a firm trial date and will not be changed unless changed by order of an appellate court or the Supreme Court.”); 5/23/18 Tr. 17 (Aiken, J.) (“[W]e have
got a trial date and we are moving forward.”); 5/10/18
Tr. 27 (Coffin, J.) (“October 29, 2018, trial starts unless
some higher court says no.”).
6. On July 5, 2018, the government again petitioned
the Ninth Circuit for a writ of mandamus. The government explained that, in an effort to terminate or narrow
this case, it had taken every step that the Ninth Circuit
had contemplated in its prior decision. And yet the district court was moving forward with discovery and an
10
impending trial without narrowing the claims in any respect. The government accordingly asked the Ninth
Circuit to order dismissal of this case, or, at a minimum,
to direct the district court to stay all discovery and trial
pending the resolution of the government’s dispositive
motions, and to consider certifying for interlocutory appeal any rulings on those motions.
On July 20, 2018, the court of appeals denied the government’s mandamus petition without prejudice. App.,
infra, 78a-85a. The court noted that “the government
has not challenged a single specific discovery request,”
and the “government retains the ability to challenge
any specific discovery order that it believes would be
unduly burdensome or would threaten the separation of
powers.” Id. at 81a-82a. The court further rejected the
government’s separation-of-powers argument, stating
that “allowing the usual legal processes to go forward
will not threaten the separation of powers in any way
not correctable on appeal.” Id. at 84a. The court denied
the “mandamus petition without prejudice,” adding that
the “merits of the case can be resolved by the district
court or in a future appeal.” Id. at 85a.
7. While its second mandamus petition was pending
before the court of appeals, the government filed a stay
application in this Court. The government asked this
Court to stay discovery and trial pending the Ninth Circuit’s consideration of the mandamus petition. As an alternative, the government noted that the Court could
direct dismissal of the case itself by construing the stay
application as a petition for a writ of mandamus or a petition for a writ of certiorari.
On July 30, 2018, this Court denied the stay application “without prejudice.” United States v. U.S. Dist.
Court, No. 18A65, 2018 WL 3615551, at *1 (Juliana).
11
While stating that the government’s application was
“premature,” the Court observed that the “breadth of
respondents’ claims is striking” and that “the justiciability of those claims presents substantial grounds for
difference of opinion.” Ibid. The Court directed the
district court to “take these concerns into account in assessing the burdens of discovery and trial, as well as the
desirability of a prompt ruling on the Government’s
pending dispositive motions.” Ibid.
8. Despite this Court’s expectation of “a prompt ruling on the Government’s pending dispositive motions,”
Juliana, 2018 WL 3615551, at *1, the district court issued no ruling on those motions for more than two
months after this Court’s order, which itself came more
than two months after the motions were filed. With the
trial date of October 29 just weeks away, the government on October 5 filed another stay request with the
district court. The government informed the court that
it planned to file a petition for a writ of mandamus (or,
in the alternative, a petition for a writ of certiorari) with
this Court, and asked the district court to stay discovery
and trial pending this Court’s resolution of that petition.
See D. Ct. Doc. 361 (Oct. 5, 2018). The court called for
a response and took the stay motion under advisement.
See D. Ct. Doc. 362 (Oct. 9, 2018). The court ultimately
denied the request. See D. Ct. Doc. 374 (Oct. 15, 2018).
One week after asking the district court for a stay,
the government asked the court of appeals to stay discovery and trial pending this Court’s review of the government’s petition. At the time this petition was printed,
the court of appeals had not yet acted on that request. 1
Under Ninth Circuit precedent, the court of appeals lacks jurisdiction to consider a motion for a stay pending Supreme Court review after the court of appeals has denied a mandamus petition. See
1
12
9. On October 15, 2018—roughly five months after
the government’s dispositive motions were filed and
only two weeks before the start of the scheduled trial—
the district court issued an opinion largely denying the
motions and declining to certify its ruling for interlocutory appeal. App., infra, 1a-77a.
The district court granted two narrow aspects of the
government’s motions. First, the court dismissed the
President from the suit, but only “without prejudice.”
App., infra, 23a, 77a. The court explained that “on the
current record, it appears that this is a case in which
effective relief is available through a lawsuit addressed
only to lower federal officials,” but added that it “is not
possible to know how developments to the record in the
course of the litigation may change the analysis” and
that the court could “not conclude with certainty that
President Trump will never become essential to affording complete relief.” Id. at 23a. Second, the court granted
summary judgment to the government on respondents’
“freestanding claim under the Ninth Amendment,” which
the court found “not viable as a matter of law.” Id. at 69a.
The district court otherwise denied the government’s
motions. The court rejected the government’s argument
that respondents were required to assert their challenges under the APA, concluding that the “APA does
not govern” claims seeking equitable relief for alleged
constitutional violations based on “aggregate action by
multiple agencies.” App., infra, 31a. The court also rejected the government’s argument that respondents
had failed to establish standing under the summaryIn re United States, 875 F.3d 1177, 1178 (2017). The government
disagrees with that precedent but accepted it for purposes of this
case and accordingly submitted its stay request to the Ninth Circuit
in the form of an additional petition for a writ of mandamus.
13
judgment standard, largely by reiterating its analysis
from the motion-to-dismiss stage. Id. at 36a-55a. The
court likewise reiterated its earlier holdings on the government’s other central arguments. See id. at 31a-34a,
56a-59a, 68a-69a. And the court addressed respondents’
equal protection claim for the first time, allowing the
claim to proceed because it “would be aided by further
development of the factual record.” Id. at 73a.
The district court again declined to certify its order
for interlocutory appeal under 28 U.S.C. 1292(b), which
authorizes certification where, inter alia, an “order involves a controlling question of law as to which there is
substantial ground for difference of opinion.” See App.,
infra, 73a-77a. The court did not address this Court’s
express statement that “the justiciability of [respondents’] claims presents substantial grounds for difference of opinion.” Juliana, 2018 WL 3615551, at *1.
REASONS FOR GRANTING THE PETITION
A writ of mandamus is warranted when a party establishes that (1) the “right to issuance of the writ is
‘clear and indisputable,’ ” (2) the party has “no other adequate means to attain the relief ” sought, and (3) “the
writ is appropriate under the circumstances.” Cheney
v. United States Dist. Court, 542 U.S. 367, 380-381 (2004)
(citation omitted). Mandamus is reserved for “exceptional circumstances amounting to a judicial ‘usurpation
of power.’ ” Id. at 380 (citation omitted). Those are
the circumstances of this case. Respondents’ position
amounts to the astounding assertion that permitting or
encouraging the combustion of fossil fuels violates the
Due Process Clause of the Constitution and a single district court in a suit brought by a handful of plaintiffs
may decree the end of the carbon-based features of the
United States’ energy system, without regard to the
14
statutory and regulatory framework Congress enacted
to address such issues with broad public input. Months
ago, this Court flagged the “striking” breadth of those
claims and the “substantial” doubts about their justiciability, reciting the standard for interlocutory certification and thereby indicating that appellate review is warranted before trial. United States v. U.S. Dist. Court,
No. 18A65, 2018 WL 3615551, at *1 (July 30, 2018). But
the district court nevertheless refused to meaningfully
narrow respondents’ claims, to certify its orders for interlocutory appeal, or to halt the trial now set to begin
in less than two weeks. The government therefore has
no choice but to ask this Court once again to intervene—
and to end this profoundly misguided suit.
The factors for mandamus are readily satisfied.
Given the manifest absence of Article III jurisdiction
and the egregious defects in respondents’ claims, the
government has established a “clear and indisputable”
right to relief. Cheney, 542 U.S. at 381 (citation omitted). The government has “no other adequate means”
to “attain the relief ” it seeks before an unjustified trial
that would “threaten the separation of powers.” Id. at
380-381 (citation omitted). And issuance of “the writ is
appropriate under the circumstances”; indeed, the “traditional use of the writ * * * has been to confine” a
court “to a lawful exercise of its prescribed jurisdiction.” Id. at 380 (citation omitted). Mandamus is especially appropriate here, because it is the only way “to
prevent a lower court from interfering with a coequal
branch’s ability to discharge its constitutional responsibilities.” Id. at 382.
In the alternative, the Court could grant further review of this case in either of two other ways. First, the
Court could construe this petition as a petition for a writ
15
of certiorari under 28 U.S.C. 1254(1) seeking review of
the Ninth Circuit’s July 20, 2018, denial of the government’s mandamus petition. App., infra, 78a-85a. The
Court could then grant certiorari on any or all of the
questions presented and review the court of appeals’ decision not to issue a writ of mandamus directing dismissal of the suit. Cf. Cheney, 542 U.S. at 391 (granting
petition for writ of certiorari and reversing court of appeals’ decision not to grant mandamus). 2 Second, the
Court could construe this petition as a petition for a
common-law writ of certiorari under 28 U.S.C. 1651
seeking review of the district court decisions denying
the government’s dispositive motions. App., infra, 1a77a, 104a-200a; see, e.g., De Beers Consol. Mines v.
United States, 325 U.S. 212, 217 (1945) (explaining the
“propriety of review” under a common-law writ of certiorari where “there is a substantial question whether the
District Court has jurisdiction of a suit which it has retained for trial on the merits”); United States Alkali
Exp. Ass’n v. United States, 325 U.S. 196, 201-204 (1945)
(similar). The Court could then grant certiorari on any
or all of the questions presented and review the district
court’s decisions directly.
Whatever path the Court chooses, this case should
not be permitted to proceed to trial on respondents’
“striking[ly]” broad claims without the further appellate review contemplated by this Court’s July order.
Juliana, 2018 WL 3615551, at *1.
In Cheney, this Court declined to issue a writ of mandamus directly to the district court because the “Court wa[s] not presented
with an original writ of mandamus.” 542 U.S. at 391. Here, by contrast, the government has sought a writ of mandamus from this
Court.
2
16
A. The Government Has A Clear And Indisputable Right
To Relief From The District Court’s Refusal To Dismiss
This Fundamentally Misguided Suit
The government’s right to the dismissal of this case
is “clear and indisputable.” Cheney, 542 U.S. at 381 (citation omitted). Respondents’ implausible and far-reaching
claims are procedurally and substantially defective in at
least three independent ways.
1. The district court clearly and indisputably erred by
exercising jurisdiction over the suit
Most fundamentally, the district court lacks jurisdiction over respondents’ claims. “[N]o principle is more fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federalcourt jurisdiction to actual cases or controversies.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)
(citation omitted; brackets in original). Accordingly,
the “[t]raditional use of the writ” of mandamus “has
been to confine” a court “to a lawful exercise of its prescribed jurisdiction.” Cheney, 542 U.S. at 380 (citation
omitted). Respondents’ suit fails to qualify as a case or
controversy within the meaning of Article III for at
least two reasons.
a. Respondents lack Article III standing. To demonstrate standing, respondents must prove that (1) they
“have suffered an injury in fact,” i.e., “an invasion of a
legally protected interest which is (a) concrete and particularized,” and “(b) actual or imminent, not conjectural or hypothetical”; (2) the injury is “fairly . . .
trace[able] to the challenged action of the defendant,
and not . . . th[e] result [of ] the independent action of
some third party not before the court”; and (3) it is
“likely, as opposed to merely speculative, that the injury
17
will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (citations and internal quotation marks omitted; brackets in
original). The purpose of these standing requirements
is “to prevent the judicial process from being used to
usurp the powers of the political branches.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “In keeping with that purpose,” a court’s inquiry must be “ ‘especially rigorous when reaching the merits of the dispute would force [it] to decide whether an action taken
by one of the other two branches of the Federal Government was unconstitutional.’ ” Ibid. (citation omitted).
All three standing requirements must be satisfied to invoke a court’s jurisdiction. See Defenders of Wildlife,
504 U.S. at 560. Respondents here cannot show any of
the three standing requirements.
i. As to injury, respondents fail to satisfy the standing requirement because they assert “generalized grievance[s],” not the invasion of a “legally protected” interest that is “concrete and particularized.” Defenders of
Wildlife, 504 U.S. at 560, 575 (citation omitted); see, e.g.,
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 125, 127 n.3 (2014). This Court has made
clear that “standing to sue may not be predicated upon
an interest * * * which is held in common by all members of the public, because of the necessarily abstract
nature of the injury all citizens share.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220 (1974).
Respondents’ asserted injuries are quintessential generalized grievances, rather than challenges to the invasion of a distinct, legally protected interest. The asserted injuries arise from a diffuse, global phenomenon
that affects every other person in their communities, in
the United States, and throughout the world. Indeed,
18
the “very concept of global warming seems inconsistent
with” the “particularization requirement,” because “[g]lobal warming is a phenomenon ‘harmful to humanity at
large.’ ” Massachusetts v. EPA, 549 U.S. 497, 541 (2007)
(Roberts, C.J., dissenting) (citation omitted).
ii. Even if respondents adequately alleged judicially
cognizable injuries, they cannot establish that those injuries were caused by the broad, undifferentiated aggregation of the largely unspecified government actions
they challenge, much less particular actions that must be
the focus of judicial review. See Defenders of Wildlife,
504 U.S. at 560. Respondents principally complain of
the government’s regulation (or lack thereof ) of private
parties not before the district court. Among their
widely scattered objections, for example, respondents
claim that the United States subsidizes the fossil-fuel
industry. Am. Compl. ¶¶ 171-178. But when a plaintiff ’s
alleged harms may have been caused directly by the
conduct of parties other than the defendants (and only
indirectly by the defendants), it is “substantially more
difficult to meet the minimum requirement” of Article III:
“to establish that, in fact, the asserted injury was the
consequence of the defendants’ actions, or that prospective relief will remove the harm.” Warth v. Seldin,
422 U.S. 490, 504-505 (1975); accord Defenders of Wildlife, 504 U.S. at 562.
Showing causation is especially difficult given the
complex interaction of greenhouse gases in the global
atmosphere. As this Court has explained, “emissions in
New Jersey may contribute no more to flooding in New
York than emissions in China.” American Elec. Power
Co. v. Connecticut, 564 U.S. 410, 422 (2011). But even
respondents’ extremely broad challenge does not suggest that petitioners can control “emissions in China.”
19
Ibid. And the types of regulatory decisions that respondents and the district court do reference, such as
permits for livestock grazing and setting “energy and
efficiency standards,” are remarkably attenuated from
the specific injuries alleged, such as “the magnitude of
rainfall and the extent of flooding” near one respondent’s home or “the pattern of drought that led” another
respondent to relocate. App., infra, 48a, 50a. In short,
there is no “causal nexus” between the amorphously described decisions respondents challenge and the specific harms they allege. Washington Envtl. Council v.
Bellon, 732 F.3d 1131, 1143 (9th Cir. 2013) (finding no
causation in similar case). To the contrary, there is “a
natural disjunction between [respondents’] localized injuries and the greenhouse effect.” Ibid.
iii. Finally, even if respondents could somehow establish injury-in-fact and causation, they could not establish that their asserted injuries likely could be redressed by an order of a federal court. See Defenders
of Wildlife, 504 U.S. at 560. Respondents have not even
begun to articulate a remedy within a federal court’s authority to award that could move the needle on the complex phenomenon of global climate change, much less
likely redress their alleged injuries. See, e.g., Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40-46
(1976) (holding that plaintiffs challenging tax subsidies
for hospitals serving indigent patients lacked standing
where they could only speculate whether a change in
policy would “result in [the plaintiffs] receiving the hospital services they desire”).
The district court assumed that it had the authority
to order petitioners “to prepare and implement an enforceable national remedial plan to phase out fossil fuel
emission[s] and draw down excess atmospheric CO 2.”
20
App., infra, 172a (quoting Am. Compl. 94); see id. at
184a. In its most recent order, the court contemplates
some of the “actions” that petitioners could take to redress respondents’ asserted injuries, including drastic
measures like phasing out all greenhouse gas emissions
“within several decades” or converting the Nation’s entire electricity generation infrastructure to “100 percent clean, renewable wind, water, and sunlight”
sources. Id. at 54a (brackets and citation omitted). But
neither respondents nor the court has cited any legal
authority that would permit such an unprecedented
usurpation of legislative and executive authority by an
Article III court, essentially placing a single district
court in Oregon—acting at the behest of a few plaintiffs
having one particular perspective on the complex issues
involved—in charge of directing American energy and
environmental policy. Nor have respondents or the district court grappled with the fact that the carbon emissions arguably within the control of petitioners “may
become an increasingly marginal portion of global emissions” as developing countries increase their own emissions, thereby making it all the more speculative and uncertain that even respondents’ unprecedented remedy
would actually redress their asserted injuries. Massachusetts, 549 U.S. at 545 (Roberts, C.J., dissenting).
b. Quite aside from these fatal flaws with respect to
standing, this suit simply is not one that a federal court
may entertain consistent with the Constitution. The
“judicial Power of the United States,” U.S. Const. Art.
III, § 1, is “ ‘one to render dispositive judgments’ ” in
“cases and controversies” as defined by Article III.
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-219
(1995) (citation omitted). It can “come into play only in
matters that were the traditional concern of the courts
21
at Westminster” and only when those matters arise “in
ways that to the expert feel of lawyers constituted
‘Cases’ or ‘Controversies.’ ” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765,
774 (2000) (citation omitted). “If a dispute is not a proper
case or controversy, the courts have no business deciding it.” Cuno, 547 U.S. at 341.
Respondents’ suit is not a case or controversy cognizable under Article III. Respondents ask the district
court to review and assess the entirety of Congress’s
and the Executive Branch’s programs and regulatory
decisions relating to climate change and then to undertake to pass upon the comprehensive constitutionality
of all of those policies, programs, and inaction in the aggregate. See, e.g., Am. Compl. ¶¶ 277-310. No federal
court, nor the courts at Westminster, has ever purported to use the “judicial Power” to perform such a
sweeping policy review—and for good reason: the Constitution commits to Congress the power to enact comprehensive government-wide measures of the sort respondents seek. And it commits to the President the
power to oversee the Executive Branch in its administration of existing law and to draw on its expertise and
formulate policy proposals for changing existing law.
Such functions are not the province of Article III courts.
The district court’s contrary assertion constitutes a “judicial ‘usurpation of power.’ ” Cheney, 542 U.S. at 380
(citation omitted).
Respondents appeal to the district court’s equitable
powers as justifying the review they seek in this case.
But a federal court’s equitable powers are “subject to
restrictions: the suit must be within the traditional scope
of equity as historically evolved in the English Court of
Chancery.” Guaranty Trust Co. v. York, 326 U.S. 99,
22
105 (1945). The relief requested by respondents is plainly
not of the sort “traditionally accorded by courts of equity.” Grupo Mexicano de Desarrollo, S.A. v. Alliance
Bond Fund, Inc., 527 U.S. 308, 319 (1999). “There simply
are certain things that courts, in order to remain courts,
cannot and should not do.” Missouri v. Jenkins, 515 U.S.
70, 132 (1995) (Thomas, J., concurring). One of those
things is “running Executive Branch agencies.” Id. at
133. The same is surely true of running all of them. At
bottom, this dispute over American energy and environmental policy “is not a proper case or controversy” or a
proper suit in equity, so “the courts have no business
deciding it.” Cuno, 547 U.S. at 341.
2. The district court clearly and indisputably erred by
allowing the claims to proceed outside the binding
framework of the APA
Respondents’ suit is misconceived for another reason. Under the APA, a suit challenging an agency’s regulatory measures must be targeted at specifically identified agency actions or alleged failures to act, and review
must be based on the administrative record for those
actions and in accordance with special statutory provisions for judicial review. 3 The APA provides that a
“person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to
judicial review thereof.” 5 U.S.C. 702. The APA authorizes a reviewing court to “hold unlawful and set
aside agency action” that is “arbitrary, capricious, an
Respondents ignore, for example, that challenges to many regulatory measures, such as those adopted under the Clean Air Act,
must be brought in a court of appeals, not in a district court. See
42 U.S.C. 7607(b)(1).
3
23
abuse of discretion, or otherwise not in accordance with
law” or “contrary to constitutional right, power, privilege, or immunity,” 5 U.S.C. 706(2)(A)-(B), and to “compel agency action unlawfully withheld or unreasonably
delayed,” 5 U.S.C. 706(1).
The APA thus provides a “comprehensive remedial
scheme” for a “person ‘adversely affected * * * ’ by
agency action” or alleged failure to act with respect to
regulatory requirements and standards, permitting,
and other administrative measures. Western Radio
Servs. Co. v. United States Forest Serv., 578 F.3d 1116,
1122-1123 (9th Cir. 2009) (citation omitted), cert. denied,
559 U.S. 1106 (2010); see Wilkie v. Robbins, 551 U.S.
537, 551-554 (2007) (describing the APA as the remedial
scheme for vindicating complaints against “unfavorable
agency actions”); Webster v. Doe, 486 U.S. 592, 607 n.*
(1988) (Scalia, J., dissenting) (explaining that the APA
“is an umbrella statute governing judicial review of all
federal agency action” and that “if review is not available under the APA it is not available at all”).
Respondents allege that a vast number of (mostly
unspecified) “agency action[s]” and inactions spanning
the last several decades are, in the words of the APA,
“contrary to constitutional right.” 5 U.S.C. 702, 706(2)(B).
As currently formulated, however, respondents’ claims
cannot proceed under the APA, because the APA only
allows challenges to “circumscribed, discrete” final
agency action, not the “broad programmatic attack” on
agency policies that respondents assert here. Norton v.
Southern Utah Wilderness Alliance, 542 U.S. 55, 62, 64
(2004) (SUWA); see Lujan v. National Wildlife Fed’n,
497 U.S. 871, 891 (1990). Respondents expressly cast
their claims as a challenge to the “affirmative aggregate
actions” of the defendant agencies, Am. Compl. ¶ 5—the
24
antithesis of a challenge to specifically identified and
“discrete agency action” as permitted by Congress under the APA, SUWA, 542 U.S. at 64.
Respondents do not argue that their claims are proper
under the APA. Rather, they argue that their claims
need not comply with the APA because the Constitution
itself provides a right of action. Am. Compl. ¶ 13. But
this Court has never suggested that the Constitution itself provides an across-the-board right of action for all
constitutional claims. To the contrary, the Court recently concluded that the Supremacy Clause does not
“confer a right of action,” a decision that conflicts with
the inherent cause of action for constitutional claims envisioned by respondents. Armstrong v. Exceptional
Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015).
The district court likewise failed to grapple with
Armstrong. See App., infra, 23a-31a. Armstrong recognized that federal courts have equitable authority in
some circumstances “to enjoin unlawful executive action.” 135 S. Ct. at 1385. But Armstrong emphasized
that equitable power is “subject to express and implied
statutory limitations.” Ibid. Thus, “[w]here Congress
has created a remedial scheme for the enforcement of a
particular federal right,” courts “have, in suits against
federal officers, refused to supplement that scheme
with one created by the judiciary.” Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 74 (1996). Here, even if the
equitable authority of an Article III court could otherwise ever extend to a suit remotely resembling the one
respondents seek to bring here, the APA provides “express * * * statutory limitations” that “ ‘foreclose,’ ” Armstrong, 135 S. Ct. at 1385 (citation omitted), respondents’ asserted constitutional claims against the broad
25
and largely unspecified “aggregate actions” of the federal government as a whole, Am. Compl. ¶ 129.
3. The district court clearly and indisputably erred by
allowing the claims to proceed on the merits
Finally, even if the district court could reach the
merits of respondents’ constitutional theories, it should
not have allowed their claims to move forward, let alone
to a ten-week trial. In declining to dismiss the case, the
court concluded that respondents had stated two constitutional claims based on substantive due process: (1) a
judicially enforceable fundamental right to “a climate
system capable of sustaining human life,” and (2) a federal public-trust doctrine to the same effect. App., infra,
59a; see id. at 69a. Both claims are baseless.
a. As this Court has recognized, respondents’ substantive due process claims are “striking” in breadth.
Juliana, 2018 WL 3615551, at *1. And this Court has
repeatedly instructed courts considering novel due process claims to “ ‘exercise the utmost care whenever * * *
asked to break new ground in this field,’ lest the liberty
protected by the Due Process Clause be subtly transformed” into judicial policy preferences. Washington v.
Glucksberg, 521 U.S. 702, 720 (1997) (citation omitted).
More specifically, the Court has “regularly observed
that the Due Process Clause specially protects those
fundamental rights and liberties which are, objectively,
‘deeply rooted in this Nation’s history and tradition.’ ”
Id. at 720-721 (citation omitted). The district court’s
recognition here of an “unenumerated fundamental right”
to “a climate system capable of sustaining human life,”
App., infra, 140a-141a, squarely contradicts that directive, because such a right is entirely without basis in
this Nation’s history or tradition.
26
The district court’s recognition of a constitutional
right to particular climate conditions, moreover, would
wrest fundamental policy issues of energy development
and environmental regulation affecting everyone in the
country from “the arena of public debate and legislative
action,” and thrust them into the supervision of the federal courts. Glucksberg, 521 U.S. at 720. Indeed, the
district court’s decision here would vest a single district
court—acting at the behest of 21 minors, a person purporting to act on behalf of future generations, and a single environmental organization advocating one particular perspective—with authority to oversee some of the
most complex and high-stakes policy problems in government. To understate considerably, Congress or an
“expert agency is surely better equipped to do the job
than individual district judges.” American Elec. Power,
564 U.S. at 428.
Remarkably, the district court rooted its recognition
of a fundamental due process right to “a climate system
capable of sustaining human life,” App., infra, 141a, in
this Court’s recognition of a fundamental right to samesex marriage in Obergefell v. Hodges, 135 S. Ct. 2584
(2015). There is no relationship, however, between a
distinctly personal and circumscribed right to same-sex
marriage and the alleged right to a climate system capable of sustaining human life that apparently would
run indiscriminately to every individual in the United
States. The right recognized by the district court has
no relationship to any right as “fundamental as a matter
of history and tradition” as the right to marry recognized in Obergefell. Id. at 2602. Nor was Obergefell’s
recognition of that narrow right an invitation to abandon the cautious approach to recognizing new funda-
27
mental rights that is demanded by the Court’s prior decisions. The district court’s reliance on Roe v. Wade,
410 U.S. 113 (1973), and a decision from the Supreme
Court of the Philippines provides no further support.
See App., infra, 141a. To the contrary, the court’s invocation of such far-afield precedents underscores that
the right it purported to recognize has no legal basis.
b. Respondents’ novel public-trust claim fares no
better. The roots of a public-trust doctrine “trace to
Roman civil law and its principles can be found in the
English common law on public navigation and fishing
rights over tidal lands and in the state laws of this country.” PPL Montana, LLC v. Montana, 565 U.S. 576,
603 (2012). Where it applies, such a doctrine generally
holds that the sovereign “owns all of its navigable waterways and the lands lying beneath them as trustee of
a public trust for the benefit of the people.” National
Audubon Soc’y v. Superior Court, 658 P.2d 709, 718
(Cal.) (citation and internal quotation marks omitted),
cert. denied, 464 U.S. 977 (1983).
Respondents attempt to invoke a federal public-trust
doctrine to impose judicially enforceable, extra-statutory
obligations on the government’s regulation of the fossilfuel industry and the alleged effects on the atmosphere.
They fail, however, to identify a single decision applying
public-trust notions in this sweeping and novel manner.
And even if such a doctrine could ever dictate a sovereign’s regulation of private parties, respondents’ claim
would be unavailing because a public-trust doctrine is
purely a matter of state law and pertains only to a
State’s functions. See PPL Montana, 565 U.S. at 603
(“[T]he public trust doctrine remains a matter of state
law.”). Indeed, the D.C. Circuit concluded that a similar
28
public-trust claim against federal officials could not provide a basis for federal jurisdiction. See Alec L. ex rel.
Loorz v. McCarthy, 561 Fed. Appx. 7, 8 (per curiam),
cert. denied, 135 S. Ct. 774 (2014). As the D.C. Circuit
explained, this Court has “categorically rejected any
federal constitutional foundation for th[e public trust]
doctrine, without qualification or reservation.” Ibid.
B. The Government Has No Other Adequate Means To Attain
Relief From A Fundamentally Misguided And Improper
Trial
Mandamus is warranted to correct the district
court’s egregious errors because the government has
“no other adequate means” to obtain relief from the district court’s refusal to dismiss this litigation or to prevent the impending trial. Cheney, 542 U.S. at 380 (citation omitted). The denial of a motion to dismiss is not
among the “final decisions of the district courts” reviewable by a court of appeals under 28 U.S.C. 1291. And
the district court has repeatedly rejected the government’s requests to certify its decisions for interlocutory
appeal. See App., infra, 73a-77a. Indeed, the court refused to certify its decision for interlocutory appeal
even after this Court expressly recognized the “substantial grounds for difference of opinion” about the justiciability of the claims, Juliana, 2018 WL 3615551, at
*1—a statement that directly tracks the text of the statute authorizing certification for interlocutory appeal,
28 U.S.C. 1292(b), but that the district court did not
even mention in its order denying the government’s dispositive motions.
To be sure, the government may be able to raise some
of the arguments asserted here after a 50-day liabilityphase trial, a finding that the federal government is lia-
29
ble for the harms of climate change, and further proceedings to impose an unprecedented invasive remedy.
But an appellate reversal at that point would hardly
provide an “adequate means” of obtaining relief from
the usurpation of power by the district court and from
the resulting proceedings that themselves violate the
separation of powers. Cheney, 542 U.S. at 380 (emphasis added; citation omitted); see, e.g., In re Kellogg
Brown & Root, Inc., 756 F.3d 754, 761 (D.C. Cir. 2014)
(Kavanaugh, J.) (granting mandamus where appeal after final judgment would not provide an “adequate”
means of obtaining relief ), cert. denied, 135 S. Ct. 1163
(2015); In re Justices of Supreme Court of Puerto Rico,
695 F.2d 17, 20-25 (1st Cir. 1982) (Breyer, J.) (same);
16 Charles Alan Wright et al., Federal Practice and
Procedure § 3932 (3d ed. 2005 & Supp. 2018) (citing similar cases).
Petitioners, moreover, are not private litigants seeking to evade the normal process of appellate review.
The Executive Branch agencies and officials sued by respondents will “suffer a special institutional harm by
being forced to remain” in this suit through a trial, finding of liability, and entry of a remedy. In re Justices,
695 F.2d at 20. As this Court explained in Cheney,
“mandamus standards are broad enough to allow a
court of appeals to prevent a lower court from interfering with a coequal branch’s ability to discharge its constitutional responsibilities.” 542 U.S. at 382; see ibid.
(recognizing the “paramount necessity of protecting the
Executive Branch from vexatious litigation that might
distract it from the energetic performance of its constitutional duties”). Here, requiring petitioners to participate in the fundamentally misguided trial envisioned
30
by the district court would constitute a “judicial ‘usurpation of power’ ” warranting mandamus for at least two
additional reasons. Id. at 380 (citation omitted).
First, subjecting petitioners to trial on respondents’
claims would violate the APA’s carefully reticulated
scheme for agencies to make factual assessments and
policy determinations through rulemaking with broad
public participation and through agency adjudication, not
civil litigation in Article III courts. The APA sets forth
a “comprehensive regulation of procedures” for agency
decisionmaking. Wong Yang Sung v. McGrath, 339 U.S.
33, 36 (1950). “Time and again,” this Court has explained
that the APA establishes the exclusive procedural requirements for agency decisionmaking, and courts are
not free to alter those requirements. Perez v. Mortgage
Bankers Ass’n, 135 S. Ct. 1199, 1207 (2015). To require
agencies to take official positions on factual assessments
and questions of policy concerning the climate through
the civil litigation process—and then, if liability is
found, to participate in further judicial proceedings to
impose on them an “enforceable national remedial plan
to phase out fossil fuel emissions and draw down excess
atmospheric CO2,” Am. Compl. 94—would impermissibly conflict with the procedures prescribed by the APA
and deprive other interested parties and the public of
the opportunity mandated by Congress or agency procedures to provide input.
Second, subjecting petitioners to trial on respondents’ claims would violate the Constitution’s separation
of powers. Even before the enactment of the APA, this
Court recognized that permitting an agency’s “findings
to be attacked or supported in court by new evidence
would substitute the court for the administrative tribunal,” Tagg Bros. & Moorhead v. United States, 280 U.S.
31
420, 444 (1930), a step that would improperly allow the
court to “usurp[] the agency’s function,” Unemployment
Comp. Comm’n v. Aragon, 329 U.S. 143, 155 (1946).
Moreover, “in cases where Congress has simply provided for review, without setting forth the standards to
be used or the procedures to be followed,” the Court
“has held that consideration is to be confined to the administrative record and that no de novo proceeding may
be held.” United States v. Carlo Bianchi & Co., 373 U.S.
709, 715 (1963).
Limiting judicial review of actions taken within the
scope of the agency’s authority as conferred by Congress in its organic statute in this manner reflects fundamental separation-of-powers principles. By seeking
to leverage the civil litigation process to direct petitioners’ decisions outside the congressionally prescribed
statutory framework, respondents would run roughshod over those principles. Respondents’ proposed approach violates the vesting of the “legislative Power[]”
in Congress to the extent it would require agencies to
transgress the substantive and procedural constraints
imposed on them by statute. U.S. Const. Art. I, § 1.
And to the extent respondents seek a judicial decree directly requiring petitioners to develop and implement
broad policies across the Executive Branch, they seek
to violate the Constitution’s vesting of “executive Power
* * * in a President of the United States.” Id. Art. II, § 1,
Cl. 1. Granting mandamus relief is the only “adequate
means” of preventing such intrusions. Cheney, 542 U.S.
at 380 (citation omitted).
C. Mandamus Relief Is Appropriate Under The Circumstances
Finally, and for the reasons discussed above, mandamus relief is “appropriate under the circumstances.”
32
Cheney, 542 U.S. at 381. As noted, mandamus was traditionally used “to confine [an inferior court] to a lawful
exercise of its prescribed jurisdiction,” and granting
mandamus to dismiss this case based on the manifest
absence of Article III jurisdiction and of any cognizable
constitutional rights on the merits would be consistent
with that use. Id. at 380 (citation omitted); see, e.g., In
re Roman Catholic Diocese of Albany, New York, Inc.,
745 F.3d 30, 35-36 (2d Cir. 2014) (per curiam) (issuing
writ of mandamus based on district court’s failure to
grant motion to dismiss for lack of jurisdiction); Abelesz
v. OTP Bank, 692 F.3d 638, 651-652 (7th Cir. 2012)
(same); In re Justices, 695 F.2d at 25 (same); Wright
§ 3933.1 (discussing other examples).
Mandamus is particularly appropriate here because
dismissing the case is the only way “to prevent a lower
court from interfering with a coequal branch’s ability to
discharge its constitutional responsibilities.” Cheney,
542 U.S. at 382. As noted, this Court has indicated that
appellate review before trial is appropriate by reciting
language from the statute authorizing certification for
interlocutory appeal. See Juliana, 2018 WL 3615551,
at *1. But the district court declined to follow this Court’s
lead, leaving an extraordinary writ as the only means
for appellate review before much of the Executive
Branch is subjected to a trial on baseless claims that the
district court has no authority to remedy. The “novelty
of the District Court’s” ruling, “combined with its potentially broad and destabilizing effects,” underscores
that granting such a writ is “ ‘appropriate under the circumstances.’ ” In re Kellogg Brown & Root, 756 F.3d at
763 (quoting Cheney, 542 U.S. at 381).
33
CONCLUSION
For the foregoing reasons, the Court should issue a
writ of mandamus directing the district court to dismiss
this suit. Alternatively, the Court should construe this
petition as either (1) a petition for a writ of certiorari
seeking review of the court of appeals’ July 20, 2018, decision (App., infra, 78a-85a) or (2) a petition for a commonlaw writ of certiorari seeking review of the district court
decisions denying the government’s dispositive motions
(id. at 1a-77a, 104a-200a), and grant certiorari on the
questions presented.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JEFFREY H. WOOD
Acting Assistant Attorney
General
JEFFREY B. WALL
EDWIN S. KNEEDLER
Deputy Solicitors General
ERIC GRANT
Deputy Assistant Attorney
General
JONATHAN Y. ELLIS
CHRISTOPHER G. MICHEL
Assistants to the Solicitor
General
ANDREW C. MERGEN
SOMMER H. ENGELS
ROBERT J. LUNDMAN
Attorneys
OCTOBER 2018
APPENDIX A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
Case No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, ET AL., PLAINTIFFS
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS
Filed: Oct. 15, 2018
OPINION AND ORDER
AIKEN, Judge: 1
In this civil rights action, plaintiffs—a group of
young people who were between the ages of eight and
nineteen when this lawsuit was filed; Earth Guardians,
a nonprofit association of young environmental activists; and Dr. James Hansen, acting as guardian for
1
As with the Court’s previous Order and Opinion on the federal
defendants’ motions to dismiss, student externs worked on each
stage of the preparation of this opinion. The Court would be remiss if it did not acknowledge the invaluable contributions of
JoAnna Atkinson (George Washington University Law School),
Trevor Byrd (Willamette University Law School), Doyle Canning
(University of Oregon School of Law), Omeed Ghafarri (University
of Washington School of Law), Tyler Hardman (University of
Oregon School of Law), Maggie Massey (University of Oregon
School of Law), and Patrick Rosand (Boston University School of
Law), Elise Williard (University of Oregon School of Law).
(1a)
2a
plaintiff “future generations”—allege that the federal
government is violating their rights under the Fifth
Amendment to the United States Constitution.
Before the Court are two dispositive motions: federal
defendants’ Motion for Judgment on the Pleadings (doc.
195) and federal defendants’ Motion for Summary
Judgment (doc. 207). For the reasons set forth below,
the Motion for Judgment on the Pleadings is granted in
part and denied in part, and the Motion for Summary
Judgment is granted in part and denied in part.
BACKGROUND
Plaintiffs filed this action in August 2015, naming the
United States, President Barack Obama, and the heads
of numerous executive agencies (collectively, “federal
defendants”) as defendants. 2 Plaintiffs allege that
federal defendants have known for more than fifty
years that carbon dioxide (“CO2”) produced by the industrial scale burning of fossil fuels was “causing global warming and dangerous climate change, and that
continuing to burn fossil fuels would destabilize the
climate system on which present and future generations of our nation depend for their wellbeing and survival.” First Am. Compl. ¶ 1. Plaintiffs further allege that federal defendants have long “known of the
unusually dangerous risks of harm to human life, libThe First Amended Complaint names as defendants the United
States, the President, and the heads of the Council on Environmental Quality, the Office of Management and Budget, the Office of
Science and Technology Policy, the Department of Energy, the
Department of the Interior, the Department of Transportation, the
Department of Agriculture, the Department of Commerce, the Department of Defense, the Department of State, and the Environmental Protection Agency.
2
3a
erty, and property that would be caused by continued
fossil fuel burning.” Id. ¶ 5. Plaintiffs assert that,
rather than responding to this knowledge by “implement[ing] a rational course of effective action to phase
out carbon pollution,” federal defendants “have continued to permit, authorize, and subsidize fossil fuel extraction, development, consumption and exportation[,]”
thereby “deliberately allow[ing] atmospheric CO2 concentrations to escalate to levels unprecedented in human history[.]” Id. ¶¶ 5, 7.
Plaintiffs contend that federal defendants’ policy on
fossil fuels deprives plaintiffs of life, liberty, and property without due process of law; impermissibly discriminates against “young citizens, who will disproportionately experience the destabilized climate system in our
country[;]” and fails to live up to federal defendants’
obligations to hold certain essential natural resources
in trust for the benefit of all citizens. Id. ¶ 8. Plaintiffs seek injunctive and declaratory relief, asserting
that there is “an extremely limited amount of time to
preserve a habitable climate system for our country”
before “the warming of our nation will become locked
in or rendered increasingly severe.” Id. ¶ 10.
In November 2015, federal defendants moved to dismiss for failure to state a claim under Federal Rules of
Civil Procedure 12(b)(l) and 12(b)(6). (doc. 27) Federal defendants argued that plaintiffs lacked standing
to sue; that plaintiffs’ public trust claims failed as a
matter of law because the public trust doctrine does not
apply to the federal government; that plaintiffs’ equal
protection claims could not proceed because plaintiffs
are not members of a protected class and the government’s energy and climate policies have a rational basis;
4a
and that plaintiffs’ due process claims were deficient
because they had not alleged violation of a fundamental
right.
Also in November 2015, three national trade
organizations—the National Association of Manufacturers, American Petroleum Institute, and American
Fuel & Petrochemical Manufacturers (collectively,
“intervenor-defendants”)—moved to intervene under
Federal Rule of Civil Procedure 24(a) and dismiss
the complaint. (doc. 14 & 19) Like federal defendants,
intervenor-defendants argued that plaintiffs lacked
standing to sue. Intervenor defendants also argued
that plaintiffs had failed to identify a cognizable cause
of action and that dismissal was required because the
case presented non-justiciable political questions.
In January 2016, Magistrate Judge Coffin granted
intervenor-defendants’ motion to intervene. Juliana
v. United States, 2016 WL 138903, at *5 (D. Or. Jan. 14,
2016). In April 2016, following oral argument, Judge
Coffin issued his Findings and Recommendation
(“F&R”), recommending that the Court deny both motions to dismiss. (doc. 68) Federal defendants and
intervenor-defendants filed objections to the F&R and
the Court held oral argument in September 2016.
(doc. 73, 74 & 81) Following that argument, in November 2016, the Court issued an opinion and order
adopting Judge Coffin’s F&R and denying the motions
to dismiss. Juliana v. United States, 217 F. Supp. 3d
1224, 1276 (D. Or. 2016).
In January 2017, federal defendants filed their Answer. (doc. 98) They agreed with many of the scientific and factual allegations in the First Amended Complaint, including that:
5a
•
“for over fifty years some officials and persons
employed by the federal government have been
aware of a growing scientific body of research
concerning the effects of fossil fuel emissions on
atmospheric concentrations of CO2—including
that increased concentrations of atmospheric CO2
could cause measureable long-lasting changes to
the global climate, resulting in an array of severe and deleterious effects to human beings,
which will worsen over time;”
•
“global atmospheric concentrations of CO2, methane, and nitrous oxide are at unprecedentedly
high levels compared to the past 800,000 years of
historical data and pose risks to human health
and welfare;”
•
“Federal Defendants . . . permit, authorize,
and subsidize fossil fuel extraction, development,
consumption, and exportation;”
•
“fossil fuel extraction, development, and con. . .
sumption produce CO2 emissions and
past emissions of CO2 from such activities have
increased the atmospheric concentration of
CO2;”
•
“EPA has concluded . . . that, combined,
emissions of six well-mixed [greenhouse gases]
are the primary and best understood drivers of
current and projected climate change;”
•
“the consequences of climate change are already
occurring and, in general, those consequences
will become more severe with more fossil fuel
emissions;”
6a
•
“climate change is damaging human and natural
systems, increasing the risk of loss of life, and
requiring adaptation on larger and faster scales
than current species have successfully achieved
in the past, potentially increasing the risk of extinction or severe disruption for many species;”
and
•
“human activity is likely to have been the dominant cause of observed warming since the mid1900s.”
Fed. Defs.’ Answer to First Am. Compl. ¶¶ 1; 5; 7; 10;
213; 217. Those admissions and federal defendants’
other filings make clear that plaintiffs and federal defendants agree on the following contentions: climate
change is happening, is caused in significant part by
humans, specifically human induced fossil fuel combustion, and poses a “monumental” danger to Americans’
health and welfare. See Juliana, 217 F. Supp. 3d at
1234 n.3 (quoting federal defendants’ objections to
Judge Coffin’s F&R recommending denial of the motions to dismiss). The pleadings also make clear that
plaintiffs and federal defendants agree that federal
defendants’ policies regarding fossil fuels and greenhouse gas emissions play a role in global climate
change, though federal defendants dispute that their
actions can fairly be deemed to have caused plaintiffs’
alleged injuries. 3
Intervenor-defendants’ Answer, by contrast, contained no admissions with respect to plaintiffs’ factual and scientific assertions
about climate change. (doc. 93) Intervenor-defendants asserted
that they lacked sufficient information to admit or deny those allegations. At a series of status conferences in 2017, Judge Coffin
3
7a
In January 2017, Barack Obama left office and Donald J. Trump assumed the presidency. In March 2017,
both federal defendants and intervenor-defendants
moved to certify the opinion and order denying their
motion to dismiss for interlocutory appeal, pursuant to
28 U.S.C. § 1292(b). (doc. 120 & 122) That same day,
federal defendants sought a stay of proceedings pending this Court’s resolution of the motion to certify for
interlocutory appeal and the Ninth Circuit’s resolution
of that proposed appeal. (doc. 121) In April 2017,
Judge Coffin denied the request for a stay. (doc.
137) In May 2017, Judge Coffin issued his F&R
recommending that the Court deny the motions to
certify. (doc. 146) Federal defendants and intervenordefendants filed objections, and in June 2017, the Court
adopted Judge Coffin’s F&R and declined to certify the
opinion and order for interlocutory appeal. Juliana v.
United States, 2017 WL 2483705, at *2 (D. Or. June 8,
2017).
In May and June 2017, intervenor-defendants moved
to withdraw from this lawsuit. (docs. 163, 166 & 167)
Judge Coffin granted that motion. (doc. 182)
In June 2017, federal defendants filed a petition for
writ of mandamus in the Ninth Circuit, seeking an order directing this Court to dismiss the case. (doc. 177)
Federal defendants asked the Ninth Circuit to stay all
proceedings in this Court pending resolution of that
petition. Id. In July 2017, the Ninth Circuit granted
pressed intervenor-defendants to clarify their position regarding
whether the issues to be litigated at trial would include whether climate change is happening or whether humans play a role in causing
climate change. Intervenor-defendants withdrew from the lawsuit
before taking a position on those questions.
8a
the request for a stay and ordered plaintiffs to file a
response to the petition for writ of mandamus. Ninth
Circuit Case No. 17-71692.
On March 7, 2018, the Ninth Circuit denied the petition for writ of mandamus. In re United States, 884
F.3d 830, 833 (9th Cir. 2018). The denial rested on the
court’s determination that federal defendants had not
satisfied any of the factors justifying the extraordinary
remedy of mandamus. Id. at 834-38.
On May 7, 2018, federal defendants filed a motion
for judgment on the pleadings. (doc. 195) In that
motion, they seek to dismiss President Trump as a
party and to obtain dismissal of the entire lawsuit on
the grounds that plaintiffs failed to state a claim under
the Administrative Procedure Act (“APA”). Additionally, federal defendants argue that plaintiffs’ requested relief is barred by the separation of powers.
Federal defendants also moved for a protective order,
seeking a stay of all discovery on the theory that discovery in this case is barred by the APA. (doc. 196)
Specifically, federal defendants sought a stay of discovery pending the resolution of the motion for a protective order, the motion for judgment on the pleadings, and a not-yet-filed motion for summary judgment.
On May 22, 2018, federal defendants filed a motion for
summary judgment. (doc. 207) In that motion, they
seek a judgment as a matter of law in their favor, arguing that (1) there are no genuine issues of material
fact; (2) plaintiffs lack Article III standing to sue;
(3) plaintiffs have failed to assert a valid cause of action
under the APA; (4) plaintiffs’ claims violate separation
of powers principles; (5) plaintiffs have no due process
right to a climate system capable of sustaining human
9a
life; and (6) the federal government has no obligations
under the public trust doctrine.
Meanwhile, the Solicitor General was considering
seeking Supreme Court review of the Ninth Circuit’s
opinion denying mandamus relief. The presumptive
deadline to file a petition for writ of certiorari to review
that opinion was June 5, 2018. On May 24, 2018, the
Solicitor General sought to extend the time for filing a
petition for writ of certiorari to July 5, 2018. That
request was docketed in United States v. U.S. District
Court for the District of Oregon, Supreme Court No.
17A1304. Justice Kennedy granted the extension.
On May 25, 2018, Judge Coffin denied federal defendants’ motion for a protective order and a stay. (doc.
212) On June 1, 2018, federal defendants filed objections to Judge Coffin’s denial of the protective order
and requested a stay of discovery pending resolution of
those objections. (doc. 215 & 216) On June 14, 2018,
the Court denied that request for a stay by minute
order. (doc. 238)
On June 25, 2018, federal defendants sought a second
extension of the deadline for filing a petition for writ of
certiorari. Justice Kennedy granted that request and
extended the deadline to August 4, 2018.
On June 29, 2018, the Court affirmed Judge Coffin’s
denial of federal defendants’ request to stay all discovery. (doc. 300) On July 5, 2018, federal defendants
sought review of that decision through a second petition for writ of mandamus in the Ninth Circuit. In
separate filings, federal defendants asked this Court
and the Ninth Circuit to stay all discovery and trial
pending the Ninth Circuit’s resolution of that petition.
10a
On July 16, 2018, the Ninth Circuit denied the request
for a stay. On July 17, 2018, the Court denied the request for a stay. (doc. 324) That same day, the Solicitor General petitioned Justice Kennedy for a stay of
proceedings pending the Ninth Circuit’s resolution of
the mandamus petition. That request was docketed at
United States v. U.S. District Court for the District of
Oregon, Supreme Court No. 18A65. In his application
for a stay, the Solicitor General suggested to Justice
Kennedy that he could construe the stay application as
a petition for writ of mandamus directing this Court to
dismiss the lawsuit or as a petition for a writ of certiorari
to review the Ninth Circuit’s first mandamus decision.
On July 18, 2018, the parties appeared for oral argument before this Court on the Motion for Judgment
on the Pleadings and Motion for Summary Judgment.
On July 20, 2018, the Ninth Circuit denied federal
defendants’ second mandamus petition, holding that
federal defendants had not met the standard to qualify
for mandamus relief. In re United States, ___ F.3d
___, 2018 WL 3484444, at *1 (9th Cir. July 20, 2018).
The court concluded that because “no new circumstances justify this second petition,” it “remains the
case that the issues the government raises in its petition are better addressed through the ordinary course
of litigation.” Id.
That same day, the Solicitor General wrote to Justice Kennedy to reiterate his request that he construe
the application for a stay in Supreme Court Case No.
18A65 as a petition for a writ of certiorari to review the
Ninth Circuit’s first mandamus decision. Alternatively,
he suggested that Justice Kennedy could construe the
application as a petition for a writ of certiorari to re-
11a
view the Ninth Circuit’s second mandamus decision.
On July 30, 2018, Justice Kennedy referred the application for a stay to the entire Supreme Court. In a
summary order, the Supreme Court denied as the Solicitor General’s application as premature.
This leaves two substantive motions before the
Court, which the Court now addresses in Sections I and
II below: federal defendants’ motion for judgment on
the pleadings, and federal defendants’ motion for summary judgment. Defendants have also requested that
the Court certify any portion of this opinion and order
denying their substantive motions for interlocutory
appeal, this is addressed in Section III. Plaintiffs’
Motion in Limine, (doc. 254) seeking judicial notice of
certain documents, is addressed in Section IV.
STANDARDS
A party may move for judgment on the pleadings after the pleadings are closed but early enough not to
delay trial. Fed. R. Civ. P. 12(c). “Analysis under
Rule 12(c) is substantially identical to analysis under
Rule 12(b)(6) because, under both rules, a court must
determine whether the facts alleged in the complaint,
taken as true, entitle the plaintiff to a legal remedy.”
Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d
1147, 1155 (9th Cir. 2015) (citation and quotation marks
omitted). Accordingly, “[a] judgment on the pleadings
is properly granted when, taking all allegations in the
pleadings as true, the moving party is entitled to judgment as a matter of law.” Owens v. Kaiser Found.
Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)
(quotation marks omitted). To survive a motion for
judgment on the pleadings, “the non-conclusory ‘factual
content’ [of the complaint],” and reasonable inferences
12a
from that content, “must be plausibly suggestive of a
claim entitling the plaintiff to relief.” Moss v. U.S.
Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[O]nce a claim
has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 563 (2007).
Summary judgment is appropriate if “there is no
genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party has the burden of
establishing the absence of a genuine issue of material
fact. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If the moving party shows the absence of a
genuine issue of material fact, the nonmoving party
must go beyond the pleadings and identify facts which
show a genuine issue for trial. Id. at 324. Summary
judgment is inappropriate if a rational trier of fact,
drawing all inferences in favor of the nonmoving party,
could return a verdict in the nonmoving party’s favor.
Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207
(9th Cir. 2008). Any doubt as to the existence of a
genuine issue for trial should be resolved against the
moving party. Celotex, 477 U.S. at 339. Finally, even if
the standards of Rule 56 are met, a court has discretion
to deny a motion for summary judgment if it believes
that “the better course would be to proceed to a full
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).
13a
DISCUSSION
There are two motions before the Court in this now
three year old case: federal defendants’ Motion for
Judgment on the Pleadings (doc. 195) and Motion for
Summary Judgment (doc. 207). Many of the issues
raised in these motions are interrelated. Given the
nature of the arguments presented, it is more efficient
and likely to avoid confusion to deal with all of the
pending issues in a single opinion and order. Thus,
the Court addresses each motion in turn.
I.
Motion for Judgment on the Pleadings 4
Federal defendants’ motion for judgment on the
pleadings rests on four grounds, two of which they
raise for the first time in their 12(c) motion and two of
which the Court has already considered and ruled
Even though federal defendants could have raised each argument in its 12(c) motion in its initial motion to dismiss, that failure
is not a bar to asserting the arguments now. See Fed. R. Civ. P.
12(g) (prohibiting subsequent Rule 12 motions “based on [a] defense or objection . . . omitted” in a prior Rule 12 motion
“except . . . as provided in subdivision (h)(2)”); Fed. R. Civ. P.
12(h)(2) (“A defense of failure to state a claim upon which relief can
be granted . . . may be made in any pleading permitted or ordered under Rule 7 (a), or by motion for judgment on the pleadings,
or at the trial on the merits.”). There are reasons to question the
wisdom of permitting failure-to-state-a-claim defenses to be raised
on different legal theories in back-to-back 12(b)(6) and 12(c) motions. See Sprint Telephony PCS, L.P. v. Cty. of San Diego, 311
F. Supp. 2d 898, 905 (S.D. Cal. 2004) (“It is a waste of judicial resources to consider motion after motion in which defendants raise
the same defense over and over, each time testing a new argument.
Allowing such a tactic means that defendants potentially could stall
litigation indefinitely as long as they can conjure up a new argument on which to base a failure to state a claim defense.”). But as
presently written, the rules plainly permit such successive motions.
4
14a
upon. First, federal defendants move to dismiss President Trump as a defendant, arguing that he is not
essential to effective relief and his presence in the lawsuit violates the separation of powers. Second, federal
defendants seek dismissal of the lawsuit in its entirety,
on the theory that the APA governs all challenges to
federal agency action and plaintiffs have failed to state
a claim under the APA. Third, federal defendants invite the Court to reconsider all aspects of its opinion
and order denying their November 2016 motion to dismiss and urge dismissal of the lawsuit on the grounds
raised in that motion. Finally, echoing arguments
raised two years ago by intervenor-defendants, federal
defendants contend that dismissal of this action is
required because the Court cannot redress plaintiffs’
injuries without violating the separation of powers.
A.
Motion to Dismiss President Trump as a
Defendant
Federal defendants first move to dismiss President
Trump as a defendant. The Ninth Circuit declined to
address federal defendants’ argument on that point in
its denial of the 2017 mandamus petition because defendants had not first raised the issue in this Court.
See In re United States, 884 F.3d at 836 (“First, to the
extent the defendants argue that the President himself
has been named as a party unnecessarily and that defending this litigation would unreasonably burden him,
this argument is premature because the defendants never moved in the district court to dismiss the President
as a party.”).
At oral argument, the parties reported that plaintiffs were willing to stipulate to the dismissal of the President without prejudice. Federal defendants rejected
15a
that offer and request dismissal with prejudice. In the
absence of a stipulation, the Court must address both
whether dismissal is warranted and, if it is, whether
that dismissal should be with or without prejudice.
Federal defendants assert that it would violate separation of powers principles for this Court to issue an
injunction or declaration against President Trump in
connection with his official duties. The extent to which a
federal court may issue equitable relief against a sitting President is unsettled and hotly contested. As
Justice O’Connor, writing for a plurality of the Court,
explained twenty-five years ago:
While injunctive relief against executive officials
like the Secretary of Commerce is within the courts’
power, see Youngstown Sheet & Tube Co. v. Sawyer,
[343 U.S. 579 (1952),] the District Court’s grant of
injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows. We have left open the question whether the
President might be subject to a judicial injunction
requiring the performance of a purely “ministerial”
duty, Mississippi v. Johnson, 4 Wall. 475, 498-499
(1867), and we have held that the President may be
subject to a subpoena to provide information relevant to an ongoing criminal prosecution, United
States v. Nixon, 418 U.S. 683 (1974), but in general
“this court has no jurisdiction of a bill to enjoin the
President in the performance of his official duties.”
Mississippi v. Johnson, [4 Wall. at 501]. At the
threshold, the District Court should have evaluated
whether injunctive relief against the President was
available, and, if not, whether appellees’ injuries
were nonetheless redressable.
16a
Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992)
(plurality op.) (parallel citations omitted). Justice
O’Connor ultimately concluded that it was unnecessary
to “decide whether injunctive relief against the President
was appropriate” because “the injury alleged [wa]s likely
to be redressed by declaratory relief against the Secretary [of Commerce] alone.” Id. at 803.
Since Franklin, subsequent cases have made clear
that there is no absolute bar on issuance of declaratory
and injunctive relief against a sitting president, even
with regard to the exercise of his official duties. For
example, in Clinton v. City of New York, 524 U.S. 417,
449 (1998), the Supreme Court affirmed a declaratory
judgment holding that certain actions taken by President Clinton under the Line Item Veto Act violated the
Constitution’s allocation of lawmaking authority between Congress and the President.
In its recent decision on President Trump’s second
“travel ban” executive order, the Ninth Circuit cited
Franklin for the proposition that when adequate equitable relief is likely available from some inferior governmental official (or group of officials) the President
ought to be dismissed out of respect for separation of
powers:
Finally, the Government argues that the district
court erred by issuing an injunction that runs
against the President himself. This position of the
Government is well taken. Generally, we lack “jurisdiction of a bill to enjoin the President in the performance of his official duties.” Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (quoting
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501
(1866)); see id. at 802 (“[I]njunctive relief against
17a
the President himself is extraordinary, and should
. . . raise [] judicial eyebrows.”). Injunctive relief,
however, may run against executive officials, including the Secretary of Homeland Security and the
Secretary of State. See, e.g., Youngstown Sheet &
Tube Co., 343 U.S. at 588-89 (holding that President
Truman did not act within his constitutional power
in seizing steel mills and affirming the district
court’s decision enjoining the Secretary of Commerce
from carrying out the order); Franklin, 505 U.S. at
802-03.
We conclude that Plaintiffs’ injuries can be redressed
fully by injunctive relief against the remaining Defendants, and that the extraordinary remedy of enjoining the President is not appropriate here. See
Franklin, 505 U.S. at 803. We therefore vacate the
district court’s injunction to the extent the order
runs against the President, but affirm to the extent
that it runs against the remaining “Defendants and
all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them.”
Hawaii v. Trump, 859 F.3d 741, 788 (9th Cir. 2017), vacated and remanded on mootness grounds, 138 S. Ct. 377
(2017). Hawaii makes Franklin’s plurality opinion on
this point binding Ninth Circuit precedent. The inquiry is not into the President’s action or inaction in
relationship to the injuries complained of, but rather
into the relief requested, and whether or not equitable
remedies involving the President himself are essential
to that relief. As adopted in Hawaii, Franklin’s rule
on when the President is an appropriate defendant is
best understood as a strain of the canon of constitu-
18a
tional avoidance: because granting equitable relief
against the President of the United States raises serious constitutional questions, dismissal of the President
as a defendant is appropriate whenever it appears likely
that the plaintiffs’ injuries can be redressed through relief against another defendant.
Plaintiffs’ opposition to dismissing President Trump
boils down to a general assertion that complete relief
may be unavailable without the President as a defendant. They argue that further development of the factual record is necessary to determine whether injunctive or declaratory relief is available against President
Trump and whether plaintiffs’ injuries are redressable
in the absence of such relief. The Court is not persuaded. This lawsuit is, at its heart, a challenge to the
environmental and energy policies of the federal government as expressed through the action (or inaction)
of federal agencies. Because the Supreme Court and
Ninth Circuit have spoken so clearly about the separation of powers concerns inherent in awarding equitable
relief against a sitting president, the burden is on
plaintiffs to explain with specificity why relief against
President Trump is essential to redressing their injuries. They have failed to carry that burden.
In an attempt to demonstrate why President Trump
is necessary to effective equitable relief, plaintiffs cite a
number of specific presidential actions in their Amended
Complaint and briefs. For example, plaintiffs cite:
•
An Executive Order in which President Trump
directed a rollback of the Clean Power Plan by
rescinding the moratorium on coal mining on
federal lands and six other Obama-era executive
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orders aimed at curbing climate change and regulating emissions;
•
An Executive Order in which President Trump
ordered the expedition of environmental reviews
and approvals for infrastructure projects;
•
An Executive Order in which President Trump
ordered a review of the “Waters of the United
States” Rule; and
•
Presidential memoranda encouraging approval
of the Dakota Access Pipeline and the Keystone
XL Pipeline.
The problem with those examples is that it is not
enough, under Hawaii, to show that the President was
involved in the challenged action; plaintiffs must show
that effective relief is unavailable unless it is awarded
against the President. Like the “travel ban” challenged in Hawaii, each of the foregoing orders and
memoranda included express directives to be carried
out by other governmental officials. See, e.g. Exec.
Order No. 13783, 82 Fed. Reg. 16093 (Mar. 28, 2017)
(issuing orders to “[t]he heads of agencies” including to
the “Administrator of the Environmental Protection
Agency” and the “Secretary of the Interior”); Exec.
Order No. 13766, 82 Fed. Reg. 8657 (directing the
Chairman of the White House Council on Environmental Quality the Director of the Office of Management and Budget to take certain actions); Exec. Order
No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017) (addressing “the Administrator, the Assistant Secretary, and
the heads of all executive departments and agencies”
including the Administrator of the Environmental
Protection Agency); President Trump Takes Action to
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Expedite Priority Energy and Infrastructure Projects
(Jan. 24, 2017), https://www.whitehouse.gov/briefingsstatements/president-trump-takes-action-expeditepriority-energy-infrastructure-projects/ (summarizing
memoranda addressed to “relevant Federal agencies”).
Thus, with respect to the propriety of the President as
a defendant, this case is indistinguishable from Hawaii
and Franklin: because lower governmental officials
are charged with executing the challenged presidential
policies, equitable relief against President Trump is not
essential to redressability.
Plaintiffs note that Hawaii concerned injunctive relief only, and certainly injunctive relief implicates more
serious separation of powers concerns than declaratory
relief. But as articulated in Franklin, any equitable
relief awarded against a sitting president with respect
to his official duties raises constitutional concerns.
Accordingly, when effective relief is available against
lower administration officials, the Court concludes that
dismissal of the President is the correct decision for
either type of equitable relief. See Franklin, 505 U.S.
at 827-828 (Stevens, J., concurring) (arguing that declaratory relief against the president, like injunctive
relief, “would produce needless head-on confrontations
between district judges and the Chief Executive”).
On the current record, the Court concludes that President Trump is not essential to effective relief because
“[p]laintiffs’ injuries can be redressed fully by injunctive [or declaratory] relief against the remaining [d]efendants.” Hawaii, 859 F.3d at 788. Due respect for
separation of powers therefore requires dismissal of
President Trump as a defendant.
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The next question is whether dismissal should be
with or without prejudice. Across a host of contexts,
the default rule is dismissal without prejudice. See,
e.g., Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(stating that dismissal under Federal Rule of Civil Procedure 12(b)(6) should be with prejudice only if the
court determines that the pleading “could not possibly
be cured by the allegation of other facts”); Hamilton
Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d
1428, 1429 (9th Cir. 1990) (explaining that, even when a
party’s misconduct justifies the sanction of dismissal,
dismissal with prejudice is “extreme” and rarely deployed); Fed. R. Civ. P. 41(a)(2) (providing that dismissal at the plaintiffs request shall be without prejudice unless the dismissal order states otherwise); In re
Fresenius Granuf lo/Naturalyte Dialysate Prods.
Liability Litig., 111 F. Supp. 3d 103, 106 (D. Mass.
2015) (explaining that dismissal with prejudice under
Rule 41(a)(2) generally is justified only in situations
where it is clear that there is “no way for any plaintiff
to bring the same claim” in the future, for example
when the applicable statute of limitations has “conclusively run”); Lepesh v. Barr, 2001 WL 34041885, *3
(D. Or. 2001) (citing Ninth Circuit precedent governing
when amendment of a pleading would be futile for the
proposition that dismissal should be with prejudice
only if it “appear[s] to a certainty that Plaintiff would
not be entitled to relief under any set of facts that could
be proven”).
Federal defendants argue that President Trump
should be dismissed with prejudice because Supreme
Court and Ninth Circuit precedent is clear that federal
courts lack jurisdiction to issue equitable relief in connection with a sitting president’s performance of his
22a
official duties. As explained above, however, neither
the Supreme Court nor the Ninth Circuit has gone so
far. Indeed, it is clear that under some limited circumstances and when required by the constitution,
such equitable relief is available. Clinton, for example, involved a challenge to President Clinton’s use of
the line-item veto. Clinton, 524 U.S. at 449. The
veto power is, of course, exercised directly by the President and not by subordinate agencies, so no other federal official would have been an appropriate defendant
in that case. More recently, in a case involving alleged violations of the Foreign and Domestic Emoluments Clauses of the Constitution, the U.S. District
Court for the District of Maryland addressed the availability of equitable relief against President Trump:
The Court also disagrees that the President’s status
as the sole defendant changes this analysis, given
that no official other than he could be sued to enforce the purported violations at issue. “[I]t would
be exalting form over substance if the President’s
acts were held to be beyond the reach of judicial
scrutiny when he himself is the defendant, but held
within judicial control when he and/or the Congress
has delegated the performance of duties to federal
officials subordinate to the President and one or
more of them can be named as a defendant.” Nat’l
Treasury Emps. Union v. Nixon, 492 F.2d 587, 613
(D.C. Cir. 1974).
District of Columbia v. Trump, 291 F. Supp. 3d 725,
751-52 (D. Md. 2018). The Emoluments Clauses, like
the veto power, are specific to the President. A lawsuit asserting violation of those clauses therefore could
23a
not be directed to federal agency heads or other federal
officials.
As explained above, on the current record, it appears that this is a case in which effective relief is
available through a lawsuit addressed only to lower
federal officials. It is not possible to know how developments to the record in the course of the litigation
may change the analysis. The Court cannot conclude
with certainty that President Trump will never become
essential to affording complete relief. For that reason, the Court concludes that dismissal without prejudice is the appropriate course. Any harm the President will suffer from the continuing hypothetical possibility that he might be joined as a defendant in the
future is minimal. Moreover, that minimal harm is further mitigated by the fact that federal defendants
would be free to oppose any future motion for leave to
amend the complaint and add the President as a defendant on the grounds that permitting such amendment would cause “undue prejudice to the opposing
party.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Federal defendants’ motion to dismiss President
Trump from this lawsuit is granted. The dismissal is
without prejudice.
B.
Motion to Dismiss for Failure to State a Claim
under the APA
Federal defendants next argue that this entire case
must be dismissed because plaintiffs are challenging
the actions (and inactions) of federal agencies, and thus
24a
must bring their suit, if at all, under the APA. 5 The
APA provides a right of judicial review to “[a] person
suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action.”
5 U.S.C. § 702. “Agency action made reviewable by
statute and final agency action for which there is no
As a threshold matter, plaintiffs contend that this Court already has rejected federal defendants’ APA argument, and that the
Ninth Circuit affirmed that rejection under the “no clear error’ standard. Neither contention is correct. First, this Court has not addressed federal defendants’ APA argument. Federal defendants
argued in their motion to dismiss that plaintiffs had failed to identify a viable cause of action, but they did not argue that the APA
was the exclusive vehicle for claims that a federal agency has violated a plaintiff ’s constitutional rights. Second, the Ninth Circuit
did not “affirm” any of this Court’s determinations under the “clear
error” standard. It is true that in both mandamus opinions, the
Ninth Circuit held that the government had not shown that this
Court’s order was “clearly erroneous as a matter of law,” as required to satisfy the third factor of the five-factor test for mandamus relief. In re United States, 884 F.3d at 837-38; see also In re
United States, 2018 WL 3484444, at *2 (“As detailed in our opinion
denying the first mandamus petition, the government does not
satisfy the third, fourth, or fifth Bauman factors.”). But in finding that the third factor had not been satisfied, the Ninth Circuit
declined to take a position on whether this Court’s rulings were
clearly erroneous. See In re United States, 884 F.3d at 837 (“[W]e
decline to exercise our discretion to intervene at this stage of the
litigation to review preliminary legal decisions made by the district
court or otherwise opine on the merits.”). Because this is the first
time either this Court or the Ninth Circuit has addressed federal
defendants’ APA argument, the Court will address the argument
on its merits. See Sprint Telephony, 311 F. Supp. 2d at 905 (holding that application of the law of the case doctrine was inappropriate because, “although the court previously considered defendants’
failure to state a claim defense in its earlier order, the court has not
considered the issues defendants now raise in their motion presently before the court”).
5
25a
other adequate remedy in court are subject to judicial
review.” Id. § 704. A reviewing court has authority
both to “compel agency action unlawfully withheld or
unreasonably delayed” and to “set aside agency action”
on several grounds, including that the action is “arbitrary, capricious, [or] an abuse of discretion;” is “contrary to constitutional right, power, privilege, or immunity”; or exceeds the agency’s statutory authority.
Id. § 706(1) & (2)(A)-(C). The APA’s judicial review
provisions apply only in limited circumstances such as
when agency action is final or “otherwise reviewable
by statute.” Navajo Nation v. Dep’t of the Interior,
876 F.3d 1144, 1171 (9th Cir. 2017).
When a plaintiff asserts an APA claim, the court
must determine whether the plaintiff has identified a
final agency action subject to judicial review. Lujan
v. Nat’l Wildlife Fed., 497 U.S. 871, 882 (1990). But
here, plaintiffs have not asserted APA claims; their
claims are brought directly under the United States
Constitution, which has no “final agency action” requirement. As a general rule, plaintiffs are “master[s] of
[their] complaint” and may choose which claims to assert
and which legal theories to press. Caterpillar, Inc. v.
Williams, 482 U.S. 386, 398-99 (1987). Federal defendants’ APA argument succeeds only if they can demonstrate that the APA is the only available avenue to
judicial review of the government’s conduct that plaintiffs challenge in this lawsuit.
Federal defendants’ argument that the APA is the
exclusive means to challenge any agency action rests
on the proposition that “[w]here Congress has created
a remedial scheme for the enforcement of a particular
federal right,” courts “have, in suits against federal of-
26a
ficers, refused to supplement that scheme with one created by the judiciary.” Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 74 (1996). Federal defendants
indiscriminately cite cases involving both claims for
damages and claims for equitable relief in arguing that
the APA is a comprehensive statutory scheme demonstrating Congressional intent to cut off common law
claims. But in order to properly analyze federal defendants’ argument, it is critical to avoid conflating the
Supreme Court’s treatment of claims for damages with
its treatment of claims for equitable relief.
In Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 396 (1971), the
Supreme Court broke new ground by permitting a suit
for damages against federal officials for violations of
the Fourth Amendment, even though no federal statute
created such a cause of action. The Court subsequently extended Bivens to two other contexts. In
Davis v. Passman, 442 U.S. 228, 247 (1979), the Court
recognized an implied right of action to sue for damages
based on an allegation that a U.S. Congressman had
discriminated against an employee on the basis of sex,
in violation of the Due Process Clause of the Fifth
Amendment. And in Carlson v. Green, 446 U.S. 14, 20
(1980), the Court recognized a Bivens cause of action
for a federal prisoner alleging violations of his rights
under the Eighth Amendment.
“Since Carlson, however, the Supreme Court has
consistently refused to extend Bivens liability to any
new context or new category of defendants.” Western
Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116,
1119 (9th Cir. 2009); see also, Armstrong v. Exceptional
Child Ctr., Inc., ___ U.S. ___, 135 S. Ct. 1378, 1384
27a
(2015) (rejecting the argument that the Supremacy
Clause creates an implied cause of action for every
violation of federal law). As the Ninth Circuit has explained, whether to recognize a Bivens cause of action
in a new context involves a two-step inquiry:
First, the Court determines whether there is any alternative, existing process for protecting the plaintiffs interests. Such an alternative remedy would
raise the inference that Congress expected the Judiciary to stay its Bivens hand and refrain from
providing a new and freestanding remedy in damages. The Court has explained that, when the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that
may occur in the course of its administration, we
have not created additional Bivens remedies. . . .
. . . .
Second, if the Court cannot infer that Congress
intended a statutory remedial scheme to take the
place of a judge-made remedy, the Court next asks
whether there nevertheless are factors counseling
hesitation before devising such an implied right of
action. Even where Congress has given plaintiffs
no damages remedy for a constitutional violation,
the Court has declined to create a right of action
under Bivens when doing so would be plainly inconsistent with Congress’ authority in this field.
Id. at 1120-21 (citations and internal quotation marks
omitted).
Applying that two-step inquiry in Western Radio,
the Ninth Circuit determined that the APA is the sort
28a
of “comprehensive remedial scheme” that indicates
“Congress’s intent that courts should not devise additional, judicially crafted default remedies.” Id. at
1123. Based on that determination, the court held
“that the APA leaves no room for Bivens claims based
on agency action or inaction.” Id. Federal defendants cite Western Radio for its broad language on the
comprehensiveness of the APA. However, Ninth Circuit and Supreme Court precedent make clear that the
analysis for Bivens claims is specific to the availability
of remedies for damages.
The process for determining whether Congress
intended to cut off common law claims for equitable
relief—such as those contained in plaintiffs’ petition—
is substantially different. With respect to equitable
relief, the Supreme Court has expressly required a
“heightened” showing of clear legislative intent to
displace constitutional claims in part to avoid the “serious constitutional question” that would arise “if a federal statute were construed to deny any judicial forum
for a colorable constitutional claim.” Webster v. Doe,
486 U.S. 592, 603 (1988). In Webster, the Supreme
Court expressly rejected the argument that the APA
provided the only available route to judicial review of
agency action and inaction. Id. That rejection is
brought into sharp relief by Justice Scalia’s assertion,
in dissent, that “at least with respect to all entities that
come within the [APA]’s definition of ‘agency,’ if review
is not available under the APA it is not available at all.”
Id. at 607 n.* (Scalia, J., dissenting).
The APA contains no express language suggesting
that Congress intended it to displace constitutional
claims for equitable relief. Indeed, the Ninth Circuit
29a
has held that § 702 of the APA “is an unqualified waiver
of sovereign immunity in actions seeking nonmonetary
relief against legal wrongs for which governmental
agencies are accountable”—whether such actions are
asserted under the APA or under the general federal
question jurisdiction statute. The Presbyterian Church
(U.S.A.) v. United States, 870 F.2d 518, 525 & n.9 (9th
Cir. 1989). Recognition of causes of action against federal agencies that fall outside the APA is implicit in Presbyterian Church; it makes little sense to hold that the APA
waives sovereign immunity for both APA and non-APA
claims against federal agencies if the only viable claims are
subject to the APA’s judicial review provisions.
In a recent case involving a challenge to “the confinement conditions imposed on illegal aliens pursuant
to a high-level executive policy,” the Supreme Court
underscored the difference between claims for damages
and claims for equitable relief:
It is of central importance, too, that this is not a case
like Bivens or Davis in which it is damages or nothing. Unlike the plaintiffs in those cases, respondents
do not challenge individual instances of discrimination
or law enforcement overreach, which due to their
very nature are difficult to address except by way of
damages actions after the fact. Respondents instead challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief.
Ziglar v. Abbasi, ___ U.S. ___ 137 S. Ct. 1843, 1862 (2017)
(citations and internal quotation marks omitted) (emphasis
added). The Court expressly noted that separation-ofpowers concerns “are . . . more pronounced when the
30a
judicial inquiry comes in the context of a claim seeking
money damages rather than a claim seeking injunctive or
other equitable belief ” because “the risk of personal damages liability is more likely to cause an official to secondguess difficult but necessary decisions[.]” Id. at 1861.
Supreme Court, Ninth Circuit, and other cases plainly
show that challenge to federal agency action may, depending on the circumstances, be stated as an APA
claim or a constitutional claim. See, e.g., Franklin,
505 U.S. at 801 (“Although the apportionment challenge is not subject to review under the standards of
the APA, that does not dispose of appellees’ constitutional claims.”); Webster, 486 U.S. at 603 (holding that
§ 102(c) of the National Security Act rendered the CIA
director’s personnel decisions unreviewable under the
APA, but rejecting that argument that the same statute precluded a claim that those decisions violated the
Constitution); Navajo Nation, 876 F.3d at 1170 (“Claims
not grounded in the APA, like . . . constitutional
claims . . . , do not depend on the cause of action
found in the first sentence of § 702 [of the APA] and
thus § 704’s limitation does not apply to them.”) (internal quotation marks omitted and alterations normalized); Stone v. Trump, 280 F. Supp. 3d 747, 772 (D. Md.
2017) (dismissing the plaintiffs’ APA claim but permitting equal protection and due process claims to proceed
in a case challenging the ban on transgender individuals serving in the military); L. v. U.S. Immigration &
Customs Enforcement, 302 F. Supp. 3d 1149, 1168 (S.D.
Cal. 2018) (dismissing the plaintiffs’ APA claim but
permitting their due process claim to proceed in a case
challenging the federal practice of separating migrant
children from their parents at the border).
31a
Plaintiffs’ claims simply do not fall within the scope of
the APA. As federal defendants correctly point out, the
Supreme Court has made clear that review under the APA
requires a “case-by-case approach” to determine whether
“a specific final agency action has an actual or immediately
threatened effect.” Lujan, 497 U.S. at 892. By its
terms, the APA contains no provisions by which plaintiffs
may “seek wholesale improvement of [an agency] program
by court decree[.]” Id. at 891 (emphasis in original).
But that case law does not support the conclusion that
plaintiffs’ claims must be dismissed; it simply underscores
that plaintiffs’ claims are not APA claims. Plaintiffs do
not contend that any single agency action is causing their
asserted injuries—nor could they, given the complex chain
of causation involved in climate change. They seek review of aggregate action by multiple agencies, something
the APA’s judicial review provisions do not address. The
APA does not govern plaintiffs’ claims. As a result, plaintiffs’ failure to state a claim under the APA is not a ground
for dismissal of this action.
C. Motion to Dismiss on Separation of Powers
Grounds & Request to Reconsider the November
2016 Denial of the Government’s 12(b)(6) Motion
Finally, federal defendants raise a set of arguments
on which this Court already has ruled. First, federal
defendants open their Rule 12(c) motion by asserting
“that [they are] entitled to judgment as a matter of law
for the reasons set forth in [their] November 2015 motion to dismiss.” Defs.’ Mot. for J. on the Pleadings 6.
Federal defendants ask the Court to “revisit its order
denying the motion to dismiss and grant judgment to
Defendants on some or all of Plaintiffs’ claims.” Id. at 7.
Second and more specifically, federal defendants argue
32a
that any claim brought outside the APA’s framework is
foreclosed by the separation of powers.
As an initial matter, the Court acknowledges now, as
it did in 2016, that the allocation of power among the
branches of government is a critical consideration in
this case and reiterate that, “[s]hould plaintiffs prevail
on the merits, this Court would no doubt be compelled to
exercise great care to avoid separation-of-powers problems in crafting a remedy.” Juliana, 217 F. Supp. 3d at
1241. The Court recognizes that there are limits to
the power of the judicial branch, as demonstrated by
the Court’s determination that President Trump is not
a proper defendant in this case.
This is the first time that federal defendants have
highlighted separation of powers concerns; they did not
raise that argument, except in passing, in their 12(b)(6)
motion. But former defendant-intervenors raised and
fully briefed separation-of-powers arguments in the
section of their motion to dismiss addressing the political question doctrine. Although this is the first time
federal defendants are raising a political question challenge, their brief on the subject largely reiterates arguments considered and rejected in the opinion and order on the motion to dismiss. And obviously, the invitation to reconsider the November 2016 order and opinion necessarily implicates issues on which this Court
has already ruled.
In order to determine how to address federal defendants’ attempt to re-raise these issues, the Court
begins by considering the application of the law of the
case doctrine. Under that doctrine, “a court is ordinarily precluded from reexamining an issue previously
decided by the same court.” Old Person v. Brown,
33a
312 F.3d 1036, 1039 (9th Cir. 2002). The doctrine is
“founded upon the sound public policy that litigation
must come to end.” Jeffries v. Wood, 114 F.3d 1484,
1489 (9th Cir. 1997) (en banc). It also “serves to maintain consistency.” Id. The doctrine has three exceptions:
reconsideration is permitted when “(1) the decision is
clearly erroneous and its enforcement would work a
manifest injustice, (2) intervening controlling authority
makes reconsideration appropriate, or (3) substantially
different evidence was adduced at a subsequent trial.”
Old Person, 114 F.3d at 1039. Although the federal rules
permit back-to-back motions to dismiss for failure to
state a claim, see Section I n.3, supra, courts are under
no obligation to give full consideration to a rehash of
arguments already presented in a 12(b)(6) motion. See
Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 434
(M.D.N.C. 2011) (declining to “reconsider issues that it
addressed fully at the Rule 12(b)(6) stage” in adjudicating a Rule 12(c) motion).
To the extent that federal defendants seek reconsideration on questions unrelated to the Court’s subject
matter jurisdiction, the Court declines to revisit its earlier
rulings. The Court gave full and fair consideration to the
arguments federal defendants now raise in their November 2016 opinion. Nothing has changed to warrant expending judicial resources in retreading that ground at
this juncture. The same legal standard applies to motions under Rules 12(b)(6) and 12(c) and federal defendants have cited no intervening changes in the law.
To the extent that federal defendants’ arguments
challenge subject matter jurisdiction, the law of the case
doctrine does not apply. United States v. Houser,
804 F.2d 565, 569 (9th Cir. 1986). But federal defend-
34a
ants have pointed to no relevant change in circumstances or the governing law between November 2016
and today. Accordingly, the Court has little to add to
the prior opinion, which addressed the separation of
powers issue at length. See Juliana, 217 F. Supp. 3d
at 1235-42, 1270-71. The separation of powers did not
require dismissal of this lawsuit in November 2016, and
it does not require dismissal of this lawsuit now.
Due respect for the separation of powers has informed,
and will continue to inform, the Court’s approach to this
case at every step of the litigation. The Court remains
mindful, however, that it is “emphatically the province and
duty of the judicial department to say what the law is.”
Marbury v. Madison, 5 U.S. 137, 177 (1803). Courts have
an obligation not to overstep the bounds of their jurisdiction, but they have an equally important duty to fulfill
their role as a check on any unconstitutional actions of the
other branches of government.
II.
Motion for Summary Judgment 6
Federal defendants raise several arguments in their
motion for summary judgment, many of which were
previously considered in the November 2016 Order.
Namely, federal defendants reiterate their contention
that plaintiffs lack Article III standing because their
Subsequent to Oral Argument in July 2018, plaintiffs filed what
they style as a Notice of Supplemental Disputed Facts Raised by
federal defendants’ Expert Reports in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment. (doc. 338)
Essentially, plaintiffs submit excerpts from defendant’s expert reports and argue that these submissions show that genuine issues of
material fact remain for trial. However, the Court declines to consider the notice as it is untimely and prohibited under the District’s
Local Rules. L.R. 7-1(f ).
6
35a
injuries are not concrete and particularized; the harms
alleged by plaintiffs are not fairly traceably to federal
defendants; and plaintiffs’ claims are not redressable
by this Court. Federal defendants also argue that
plaintiffs have failed to adequately state a claim under
the APA and that plaintiffs’ claims would violate separation of powers principles. Federal defendants further argue, as they did in their previous motion to dismiss, that there is no fundamental right to a climate
system capable of sustaining human life; that plaintiffs
cannot establish a state-created danger claim; and that
the public trust doctrine does not apply to the federal
government.
In response, plaintiffs proffer the declarations of the
named plaintiffs as well as declarations from eighteen
expert witnesses. 7 They argue that genuine issues of
material fact exist as to standing, separation of powers,
and their due process and public trust claims.
Many of documents referenced by plaintiffs’ in their response
to the motion for summary judgment, and supporting declarations,
are subject to their motion in limine (doc. 254) seeking judicial notice of certain documents. The Court has examined which of those
documents are judicially noticeable in a contemporaneous opinion.
Further, at oral argument plaintiffs requested that the Court take
judicial notice of the announcement of the Department of Interior’s
plan to offer 78 million acres offshore of the Gulf Coast for oil and
gas exploration and development. The Court has located the announcement of the plan available on the Department’s public website. https://www.doi.gov/pressreleases/interior-announces-regionwide-oil-and-gas-lease-sale-gulf-mexico. Consistent with the Court’s
analysis the contemporaneous opinion regarding plaintiffs’ first
motion in limine, the Court takes judicial notice of the announcement.
7
36a
Many of these arguments raised in the present motion are substantially similar to those raised in federal
defendants’ and the former defendant-intervenors’ motions to dismiss. However, federal defendants correctly note that the standard for this Court in reviewing a motion for summary judgment is different than
the standard which was applied in the previous order.
Thus the Court must review the briefing and record to
determine whether there is any genuine dispute as to
any material fact and the government is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
A.
Standing
Federal defendants argue, as they did at the pleadings stage, that plaintiffs lack Article III standing to
bring their claims. While many of the arguments offered in the present summary judgment motion are
substantially similar to those offered in the federal defendants’ previous motion to dismiss, a different standard applies at this stage of the proceedings.
To avoid summary judgment, plaintiffs need not establish that they in fact have standing but only that
there is a genuine question of material fact as to the
standing elements. Cent. Delta Water Agency v.
United States, 306 F.3d 938, 947 (9th Cir. 2002). To
demonstrate standing, a plaintiff must show that (1)
she suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly
traceable to the defendant’s challenged conduct; and
(3) the injury is likely to be redressed by a favorable
court decision. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). A plaintiff must support each
element of the standing test “with the manner and
degree of evidence required at the successive stages of
37a
the litigation.” Id. at 561. General factual allegations of injury resulting from the defendant’s conduct
will suffice in responding to a motion to dismiss. Id.
In responding to a motion for summary judgment,
however, a plaintiff can no longer rest on “ ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ Fed. Rule Civ. Proc. 56(e), which
for purposes of the summary judgment motion will be
taken to be true.” Id. And at the final stage of
standing evaluation, those facts (if controverted) must
be supported adequately by the evidence adduced at
trial. Id.
i. Injury in Fact
In an environmental case, a plaintiff cannot demonstrate injury in fact merely by alleging injury to the
environment; there must be an allegation that the
challenged conduct is harming (or imminently will
harm) the plaintiff. Friends of the Earth, Inc. v.
Laidlaw Envt’l Servs. (I’OC), Inc., 528 U.S. 167, 181
(2000). For example, a plaintiff may meet the injury
in fact requirement by alleging that the challenged
activity “impairs his or her economic interests or aesthetic and environmental well-being.” Wash. Envt’l
Council v. Bellon, 732 F.3d 1131, 1140 (9th Cir. 2013)
(quotation marks omitted and alterations normalized).
Plaintiffs have filed sworn declarations attesting to
a broad range of personal injuries caused by human
induced climate change. For example, plaintiff Jayden F. attests to being injured by extreme weather
events in 2016 and 2017 which led to the flooding in
both 2016 and 2017 of her home in Rayne, Louisiana.
Jayden Decl. ¶ 2-16; ¶ 26; ¶ 28-32. This has caused
emotional trauma, lost recreational opportunities, as
38a
well as lost personal and economic security. Id. at
¶ 36; 39-42. Other plaintiffs also attest to injuries
caused by flooding caused by sea level rise and extreme
weather events. See Journey Decl. ¶¶ 21-27; Levi
Decl. ¶¶ 3; 12-16; Tia Decl. ¶ 9; Victoria Decl. ¶¶ 8-9.
Similarly, plaintiff Journey attests that harm to his
health, personal safety, cultural practices, economic
stability, food security and recreation interests have
occurred due to climate destabilization and ocean acidification. Journey Decl. ¶¶ 1; 11-20;; See also Journey
Decl. 21-27; Levi Decl. ¶¶ 3; 12-16; Tia Decl. ¶ 9; Victoria
Decl. ¶¶ 8-9; Jacob Decl. ¶ 20; Wanless Decl. Ex. 1 at 30.
Plaintiff Kelsey Juliana attests that climate change
has harmed her recreational interests in Oregon’s
freshwater lakes, rivers, forests, and mountains and
has degraded the quality of local food sources and
drinking water. Kelsey Decl. ¶¶ 10-12. She, like
other plaintiffs, also alleges adverse health and recreation impacts caused by the increased occurrence and
intensity of seasonal wildfires. Id. ¶ 15; Aji Decl.
¶¶ 2-3; Alexander Decl. ¶¶ 33-41; Jaime Decl. ¶ 17;
Kirin Decl. ¶¶ 6-8; Xiuhtezcatl Decl. ¶ 15; Zealand Decl.
¶ 6. Some plaintiffs attest that they are suffering
psychological trauma as result of fossil-fuel induced
climate change caused by federal defendants. See
Levi Decl. ¶ 5; Victoria Decl. ¶¶ 8-10, 16-18; Jayden
Decl. ¶ 42; Nicholas Decl. ¶¶ 4, 7, 17. Other plaintiffs
attest to injuries to their indigenous and cultural practices and values. Miko Decl. ¶¶, 6-7, Jamie Decl.
¶¶ 12-14; Xiuhtezcatl Decl. ¶¶ 6-8. These are merely a
selection of the many injuries alleged.
Plaintiffs further offer expert testimony tying injuries alleged by plaintiffs to fossil fuel induced global
39a
warming. See Trenberth Decl. 23 (“[I]t is my expert
opinion that Plaintiffs including Jayden, Levi, Xiuhtezcatl, Victoria, Jaime, Journey, Zealand, and Nathan
are already experiencing extreme weather events that
have been exacerbated due to anthropogenic climate
change.”); Frumpkin Decl. Ex. 1, 2 & 11; Running Decl.
13 (“This will impact the many Plaintiffs in the West
who suffer increased risk and severity of impacts from
wildfires near their homes, in places that they visit for
recreation, and in the air they breathe during the extended fire season, including Xiuhtezcatl, Jaime Lynn,
Jacob, Sahara, Kelsey, Alex, Zealand, Nick, Aji, Nathan, Hazel and Avery.”); Van Sustern Decl. Ex. 1, 17
(“The Plaintiffs I interviewed are suffering a range of
emotional injuries from acute and chronic exposure to
climate change—from being personally harmed by climate change impacts like drought and extreme weather events, to empathic identification with others who
are harmed by climate change, to profound fears about
future harm—consistent with those injuries described
in the literature.”); Stiglitz Decl. Ex. 1 ¶ 29 (“Youth
Plaintiffs themselves will suffer the disproportionate,
increased financial burdens of climate change as the
impacts of climate change propagate throughout the
economy.”).
Federal defendants argue that these declarations
fail to show that plaintiffs’ injuries are concrete and
particularized to them; rather federal defendants’ contend that the injuries alleged are generalized widespread environmental phenomena which affect all other
humans on the planet, making them nonjusticiable.
See Lexmark Int’l, Inc. v. Static Control Components,
Inc., ___ U.S. ___ 134 S. Ct. 1377, 1387 n.3 (2014) (ex-
40a
plaining that generalized grievances do not meet Article III’s case or controversy requirement).
However, as the Court noted in its November 2016
order:
The government misunderstands the generalized
grievance rule. As the Ninth Circuit recently explained, federal courts lack jurisdiction to hear a
case when the harm at issue is “not only widely
shared, but is also of an abstract and indefinite
nature—for example, harm to the common concern
for obedience to the law.” Novak v. United States,
795 F.3d 1012, 1018 (9th Cir. 2015) (quoting Fed Elec.
Comm’n v. Akins, 524 U.S. 11, 23 (1998)). Standing
alone, “the fact that a harm is widely shared does not
necessarily render it a generalized grievance.” Jewel, 673 F.3d at 909; see also Massachusetts v. EPA,
549 U.S. 497, 517 (2007) (“[I]t does not matter how
many persons have been injured by the challenged
action” so long as “the party bringing suit shows
that the action injures him in a concrete and personal way.” (quotation marks omitted and alterations normalized)); Akins, 524 U.S. at 24 (“[A]n injury . . . . widely shared . . . does not, by itself, automatically disqualify an interest for Article
III purposes. Such an interest, where sufficiently
concrete, may count as an ‘injury in fact.”); Covington v. Jefferson Cnty., 358 F.3d 626, 651 (9th Cir.
2004) (Gould, J., concurring) (“[T]he most recent
Supreme Court precedent appears to have rejected
the notion that injury to all is injury to none for
standing purposes.”); Pye v. United States, 269 F.3d
459, 469 (4th Cir. 2001) (“So long as the plaintiff
. . . has a concrete and particularized injury, it
41a
does not matter that legions of other persons have
the same injury.”). Indeed, even if the experience
at the root of [the] complaint was shared by virtually
every American,” the inquiry remains whether that
shared experience caused an injury that is concrete
and particular to the plaintiff. Jewel, 673 F.3d at 910.
Juliana, 217 F. Supp. 3d at 1243-44.
Further, denying “standing to persons who are in
fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.” United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687 (1973).
Federal defendants have presented no new controlling
authority or other evidence which changes the Court’s
previous analysis.
As to imminence, plaintiffs must demonstrate standing for each claim they seek to press and for each form
of relief sought. DaimlerChrysler Corp. v. Cuna,
547 U.S. 332, 352 (2006). Because plaintiffs seek injunctive relief, they must show that their injuries are
“ongoing or likely to recur.” Consumer Fin. Prot.
Bureau v. Gordon, 819 F.3d 1179, 1197 (9th Cir. 2016)
(quoting FTC v. Evans Prods. Co., 775 F.2d 1084, 1087
(9th Cir. 1985)). Plaintiffs have met this requirement
under the summary judgment standard.
Plaintiffs submit evidence that fossil fuel emissions
are responsible for most of the increase in atmospheric
CO2, and that increasing CO2, in turn, is the main cause
of global warming, and that atmospheric concentrations of greenhouse gasses, due to fossil fuel combustion, are increasing quickly such that planetary warm-
42a
ing is accelerating at rates never before seen in human
history. Hansen Decl. Ex. A, at 38. Further, not
only are concentrations of atmospheric CO2 continuing
to increase, but the rate of increase has also nearly
doubled since measurements began being recorded
pushing humanity closer to the “point of no return.”
Id. at 29, 38. Estimates show that extreme weather
events are likely to continue to increase as the global
surface temperature continues to rise. Id. at 35; Trenberth Decl. Ex. 1, at 1, 8, 13. Indeed, the five hottest
years in the 123 years of record-keeping in the United
States have all occurred in the past decade. Trenberth
Decl. Ex. 1, at 3. Plaintiffs present evidence that 2017
saw record setting events such as extreme wildfires in the
western United States 8 and abnormally strong hurricanes
in the southeastern United States and Gulf of Mexico
(Hurricanes Harvey, Irma, and Maria), all of which were
exacerbated by climate change. Id. at 7-11.
Further, plaintiffs offer that global sea level rise will
continue unabated under current conditions. Plaintiffs’ expert Dr. James Hansen has submitted video
animations showing how the future impacts of seal level
rise will flood or impact the livability of the homes of
plaintiffs in Louisiana, Oregon, Washington, Florida,
“By 2006, scientists documented that the wildfire season in the
western United States was 87 days longer than it was in the 1980s
(Westerling et al. 2006). The number of large fires, >1000 acres,
had grown four times, and the number of acres burned per year had
increased six times. Recent studies have found the global wildfire
season increased 19 [percent] globally from 1979-2013, and the global area vulnerable to wildfire increased 108 [percent] (Jolly et al.
2015).” Running Decl. Ex. 1, 13. Future wildfire activity may be
200-600 [percent] higher than today in the Pacific Northwest alone.
Id. at 28.
8
43a
New York, and Hawaii based on current assumptions
about carbon emission. Hansen Decl. Ex. E-R. The
most recent projections from the National Oceanic and
Atmospheric Administration (“NOAA”) provide that
global mean sea level will rise between 1.5-2.5 m (5-8.2
ft.) by 2100 and that it is expected to continue to rise
and even accelerate more after 2100. Wanless Decl.
Ex. 1 at 12.
In sum, the Court is left with plaintiffs’ sworn affidavits attesting to their specific injuries, as well as a
swath of extensive expert declarations showing those
injuries are linked to fossil fuel-induced climate change
and if current conditions remain unchanged, these injuries are likely to continue or worsen. Federal defendants offer nothing to contradict these submissions,
and merely recycle arguments from their previous motion. Thus, for the purposes of this case, the declarations submitted by plaintiffs and their experts have
provided “specific facts,” of immediate and concrete
injuries. Lujan, 504 U.S. at 561; See Bellon, 732 F.3d
at 1141.
ii. Causation
A plaintiff must show the injury alleged is “fairly
traceable” to the challenged action of the defendant
and not the result of the independent action of some
third party not before the court.” Lujan, 504 U.S. at
560 (citation and quotation marks omitted). Although
a defendant’s action need not be the sole source of
injury to support standing, Barnum Timber Co. v.
EPA, 633 F.3d 894, 901 (9th Cir. 2011), “[t]he line of
causation between the defendant’s action and the
plaintiffs harm must be more than attenuated,” Native
Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849,
44a
867 (9th Cir. 2012) (citations and quotation marks omitted). However, a “causal chain does not fail simply
because it has several links, provided those links are
not hypothetical or tenuous and remain plausible.”
Id. (citations, quotation marks, and alterations omitted). At the summary judgment stage, the “causal
connection put forward for standing purposes cannot
be too speculative, or rely on conjecture about the behavior of other parties, but need not be so airtight at
this stage of the litigation as to demonstrate that the
plaintiffs would succeed on the merits.” Ecological
Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1152
(9th Cir. 2000)
Here, federal defendants argue again that the association between the conduct of which plaintiffs complain, namely the government’s subsidizing the fossil
fuel industry; allowing the transportation, exportation,
and importation of fossil fuels; setting of energy and
efficiency standards for vehicles, appliances, and buildings; reducing carbon sequestration capacity and expanding areas for fossil fuel extraction and production
through federal land leasing policies is tenuous and
filled with many intervening actions by third parties.
Thus, they argue that plaintiffs have failed to tether
their injuries, both direct and indirect, to specific actions of the United States.
Federal defendants again rely on the Ninth Circuit’s
holding in Bellon to support their argument that “the
causal chain is too weak to support standing” for plaintiffs’ injuries. Bellon, 732 F.3d at 1142. The Court
discussed Bellon in detail in its November 2016 Order
on the motions to dismiss. See Juliana, 217 F. Supp.
3d at 1244-1246. Briefly, the court in Bellon found
45a
that the five oil refineries at issue in that case were responsible for just under six percent of total greenhouse
gas emissions produced in the State of Washington.
The court quoted the state’s expert’s declaration that
the effect of those emissions on global climate change
was “scientifically indiscernible, given the emission levels, the dispersal of greenhouse gases worldwide, and
the absence of any meaningful nexus between Washington refinery emissions and global greenhouse gases
concentrations now or as projected in the future.”
Bellon, 732 F.3d at 1144 (quotation marks omitted).
Previously, the Court distinguished Bellon on the
procedural basis that it was considering motions to dismiss, while the court in Bellon reviewed an order on a
motion for summary judgment. Now on summary judgment in this case, the Court still finds that Bellon does
not foreclose standing for plaintiffs. The court in
Bellon relied on the scientific evidence, presented in an
“unchallenged declaration” from the defendants’ expert that showed that the causal connection between
the regulatory actions of the defendants, the greenhouse gas emissions in question, and the injuries complained of by the plaintiffs were too tenuous to support
standing. Id. at 1143-44 (emphasis added). The
Ninth Circuit later clarified, “causation was lacking [in
Bellon] because the defendant oil refineries were such
minor contributors to greenhouse gas emissions, and
the independent third-party causes of climate change
were so numerous, that the contribution of the defendant oil refineries was ‘scientifically indiscernible.’ ”
WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d
1148, 1158 (9th Cir. 2015) (quoting Bellon, 732 F.3d at
1144).
46a
Unlike in Bellon, plaintiffs’ claims do not challenge
the global impact of such specific emissions. Rather,
plaintiffs have proffered uncontradicted evidence showing that the government has historically known about the
dangers of greenhouse gases but has continued to take
steps promoting a fossil fuel based energy system, thus
increasing greenhouse gas emissions. As the Court
noted in the November 2016 Order, climate science and
our ability to understand the effects of climate change
are constantly evolving. Juliana, 217 F. Supp 3d at
1245 (quoting Kirsten Engel & Jonathan Overpeck,
Adaptation and the Courtroom: Judging Climate
Science, 3 Mich. J. Envt’l & Admin. L. 1, 25 (2013) (although “climate impacts at the regional and local levels
are subject, among other things, to the uncertainties of
downscaling techniques [,] . . . our knowledge of the
climate is developing at a breakneck pace.”)). Bellon
does not foreclose standing in any suit simply because
it is based on actions causing dangerous levels atmospheric carbon emissions.
In further contrast to Bellon, the pattern of federally authorized emissions challenged by plaintiffs in this
case do make up a significant portion of global emissions.
Federal defendants have admitted that “from 1850 to
2012, CO2 emissions from sources within the United
States including from land use “comprised more than
25 [percent] of cumulative global CO2 emissions.”
Answer at ¶ 151. At oral argument, federal defendants noted that plaintiffs’ evidence only shows “United
States’ current global contribution to current emissions
is around 14 to 15 percent.” July 18, 2018 Hearing
Trans. 29. In a different context the Supreme Court
held that United States motor-vehicle emissions which
were responsible for six percent of worldwide CO2 “make
47a
a meaningful contribution to greenhouse gas concentrations” when “judged by any standard.” 9 Mass. v. EPA,
549 U.S. at 524-25. The emissions implicated by federal defendants’ conduct in the case outstrip either of
those considered in either Bellon or Massachusetts.
Still, federal defendants contend that plaintiffs do
not adequately show a causal connection between a
specific action taken by federal defendants and their
climate change related injuries. They argue that
plaintiffs’ causal connection is based on the actions of
third-party emitters. However, plaintiffs challenge not
only the direct emissions of federal defendants through
their use of fossil fuels to power its buildings and vehicles 10, but also the emissions that are caused and supported by their policies. Plaintiffs have alleged that
federal defendants’ systematic conduct, which includes
“government policies practices, and actions, showing
how each Defendant permits, licenses, leases, authorizes,
and/or incentivizes the extraction, development, processing, combustion, and transportation of fossil fuel” caused
plaintiffs’ injuries. Plaintiffs’ Resp. to Mot. for Summ
The court in Bellon declined to extend the rationale of Massachusetts in part because while the 6 percent of Washington state
emissions at issue in that case might be significant in that state, the
plaintiffs did not “provide any evidence that places this statistic in
national or global perspective to assess whether the refineries’ emissions are a meaningful contribution to global greenhouse gas levels.”
732 F.3d 1131, 1146 (9th Cir. 2013) (internal citation omitted).
10
These emissions are not insignificant. In 2016, the federal
government had 1,340,000 cars and 1,810,000 trucks in its fleet.
Olson Decl. Ex. 136. In 2015, the federal fleet consumed 310,416
gallons of gasoline and 66,736 gallons of diesel. Id. The Department of Defense uses enough electricity to power 2.6 million average American homes. Id. at Ex. 217
9
48a
J. 11. And plaintiffs provide evidence that federal defendants’ actions (or inaction), such as coal leasing, oil
development, fossil fuel industry subsidies, and the
setting of fuel efficiency standards for vehicles, led to
plaintiffs’ injuries.
For example, regarding federal leasing policy, more
than five million acres of National Forest lands are
currently leased for oil, natural gas, coal, and phosphate development. Olsen Decl. Ex. 73. In 2016, the
Department of Interior administered some 5000 active
oil and gas leases on nearly 27 million acres in the
Outer Continental Shelf. Id. Ex. 215. In 2015, 782
million barrels of crude oil, five trillion cubic feet of
natural gas, and 421 million tons of coal were produced
on federal lands managed by the Department of Interior. See Id. Ex. 74. Between 1905 and 2016, the
United States Department of Agriculture authorized
the harvest of 525,484,148 billion board feet of timber
from federal land, thus reducing the country’s carbon
sequestration capacity. Id. Ex. 45. Federal defendants permit livestock grazing on over 95 million acres
of National Forest lands in 26 states, further reducing
carbon sequestration capacity and increasing methane
emissions. Id. 42, 46, 52, 50-55, 70. It is uncontested
that federal defendants control leasing and permitting
on federal land. Third parties could not extract fossil
fuels or make other use of the land without Federal
Defendants’ permission.
Federal defendants also set energy and efficiency
standards that do impact the rate at which individual
and businesses emit greenhouse gases. The Department of Energy sets energy conservation standards for
more than 60 categories of appliances and equipment,
49a
which covers roughly 90 percent of home energy use.
Id. Ex. 92. Likewise, passenger cars and light trucks
cannot be sold in the United States unless they comply
with the Fuel Economy Standards set by the Department of Transportation, which historically have been
lower in the United States than other developed nations. Id. Ex. 151.
Federal defendants’ actions impact the import, export, and transport of fossil fuels. For example, in
2015, Congress lifted a ban on crude oil exports and exports rose rapidly thereafter. Id. Ex. 96. No offshore liquefied natural gas or oil import and export
facility can legally operate without a license from the
Department of Transportation. Id. at 120 189. The
Federal Energy Regulatory Commission must approve
interstate transport of fossil fuel, and Department of
Transportation permitting is required for transportation of hazardous material including fossil fuels. Id. at
384, 385. These examples are merely illustrative of
the evidence proffered by plaintiffs.
Plaintiffs’ expert declarations also provide evidence
that federal defendants’ actions have led to led to plaintiffs’ complained of injuries. Plaintiffs’ expert Dr.
James Hansen asserts that “[t]he United States is, by
far, the nation most responsible for the associated increase in global temperatures. The [United States]
alone is responsible for a 0.15°C increase in global
temperature.” Hansen Decl. 28. Plaintiffs’ expert
Dr. Joseph Stiglitz offers that “the current national energy system, in which approximately 80 percent of energy comes from fossil fuels, is a direct result of decisions and actions taken by Defendants.” Stiglitz Decl.
Ex. 1 ¶ 27. That is echoed by plaintiffs’ expert Dr.
50a
Mark Jacobson who notes that “fossil fuels supply
more than 80 [percent] of our all-purpose energy in the
United States, not out of necessity, but because of political preference and historic government support that
led to the development and maintenance of a widespread fossil-fuel infrastructure.” Jacobson Decl. Ex.
1, 5. Plaintiffs’ expert Peter Erickson submitted that
by subsidizing the low cost of oil the United States government has historically and is currently substantially
expanding the country’s future oil production relative
to the production that would occur if these subsidies
were not in place. Erickson Decl. Ex. 1, 15.
Plaintiffs’ experts tether plaintiffs’ specific injuries
to climate change and climate change related weather
events. See generally Section 2.A.ii. Plaintiffs’ expert Dr. Harold Wanless opines that sea level rise solely
caused by fossil fuel-induced climate change poses clear
and irreversible harm to plaintiffs like Levi whose community will likely be uninhabitable in future. Wanless
Decl. Ex. 1 at 1-2. Likewise, plaintiffs’ expert Dr.
Kevin Trenberth offers, as an example of climate change
related weather events harming plaintiffs, localized extreme weather events like the flooding affecting plaintiff
Jayden and her home were heightened by climate
change. Trenberth Decl. Ex. 1 at 20-22. The magnitude of rainfall and the extent of flooding near Jayden’s
home would not have occurred without fossil fuel-induced
climate change. Id. Dr. Steven Running notes that
the pattern of drought that led plaintiff Jaime to move
from her home on the Navajo Reservation in New Mexico
is directly linked to climate change. Running Decl. 6.
At this stage of the proceedings, the Court finds
that plaintiffs have provided sufficient evidence show-
51a
ing that causation for their claims is more than attenuated. Plaintiffs’ “need not connect each molecule” of
domestically emitted carbon to their specific injuries
to meet the causation standard. Bellon, 732 F.3d
1142-43. The ultimate issue of causation will require
perhaps the most extensive evidence to determine at
trial, but at this stage of the proceedings, plaintiffs
have proffered sufficient evidence to show that genuine
issues of material fact remain on this issue. A final
ruling on this issue will benefit from a fully developed
factual record where the Court can consider and weigh
evidence from both parties.
iii. Redressability
The final prong of the standing inquiry is redressability. The causation and redressability prongs of the
standing inquiry “overlap and are two facets of a single
causation requirement.” Bellon, 732 F.3d at 1146 (citation and quotation marks omitted). They are distinct in that causation “examines the connection between the alleged misconduct and injury, whereas redressability analyzes the connection between the alleged injury and requested judicial relief.” Id. A
plaintiff need not show that a favorable decision is
certain to redress her injury, but must show a substantial likelihood that it will do so. Id. For the redressability inquiry, it is sufficient to show that the requested remedy would “slow or reduce” the harm. 11 Mass. v.
EPA, 549 U.S. at 525 (citing Larson v. Valente, 456 U.S.
228, 243 n.15 (1982)).
“[A] plaintiff satisfies the redressability requirement when he
shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his
every injury.” Mass. v. EPA, 549 U.S. at 525
11
52a
Federal defendants contend that there is no possible
redress in this case because the remedies sought by
plaintiffs are beyond the Court’s authority to provide. 12
Further, they argue that even if this Court did find in
favor of plaintiffs, any remedy it fashioned would not
redress the harms alleged by plaintiffs, because fossil
fuel emissions from other entities would still contribute
to continuing global warming. Thus, they argue that
there is no evidence that any immediate reduction in
emissions caused by the United States would manifest
in a reduction of climate change induced weather phenomena. As the Court has stated before, whether the
Court could guarantee a reduction in greenhouse gas
emission is the wrong inquiry because redressability
does not require certainty. Rather, at this stage, it
only requires a substantial likelihood that the Court
could provide meaningful relief. Moreover, the possibility that some other individual or entity might later
cause the same injury does not defeat standing; the
question remains whether the injury caused by the
defendants in this suit can be redressed. Juliana,
217 F. Supp. 3d at 1247; See also WildEarth Guardians
v. US. Dep’t of Agric., 795 F.3d 1148, 11
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