Application — United States, et al., Applicants v. United States District Court for the District of Oregon
Supreme Court briefJul 17, 2018
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No. 17A-_______
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
UNITED STATES OF AMERICA, ET AL., APPLICANTS
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
_______________
APPLICATION FOR A STAY PENDING DISPOSITION BY THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OF A PETITION FOR A WRIT OF MANDAMUS TO THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
AND ANY FURTHER PROCEEDINGS IN THIS COURT
AND REQUEST FOR AN ADMINISTRATIVE STAY
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
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 include Kelsey
(I)
II
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 LeighAnn 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).
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 17A-_______
UNITED STATES OF AMERICA, ET AL., APPLICANTS
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
_______________
APPLICATION FOR A STAY PENDING DISPOSITION BY THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OF A PETITION FOR A WRIT OF MANDAMUS TO THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
AND ANY FURTHER PROCEEDINGS IN THIS COURT
AND REQUEST FOR AN ADMINISTRATIVE STAY
_______________
Pursuant to Rule 23 of the Rules of this Court and the All
Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of the
United States, the President of the United States, the Executive
Office of the President, the U.S. Environmental Protection Agency,
the U.S. Departments of Agriculture, Commerce, Defense, Energy,
the Interior, State, and Transportation, and all other federal
parties, respectfully applies for a stay of discovery and trial in
the United States District Court for the District of Oregon,
pending the disposition of the government’s petition for a writ of
mandamus filed on July 5, 2018, in the United States Court of
Appeals for the Ninth Circuit and any further proceedings in this
2
Court.
Petitioners also request an administrative stay pending
the Court’s consideration of this stay application.
This suit is an attempt to redirect federal environmental and
energy
policies
through
the
courts
rather
than
through
the
political process, by asserting a new and unsupported fundamental
due process right to certain climate conditions.
Rather than
challenging any specific agency action or inaction (save one), the
plaintiffs allege that the “affirmative aggregate acts” of the
federal defendants for the past 50 years in the area of fossilfuel production and use are causing a “dangerous climate system”
and
systematically
process rights.
violating
their
Am. Compl. ¶ 289.
asserted
substantive
due
The plaintiffs ask the district
court to address these alleged wrongs by ordering the President
and the defendant agencies to prepare and implement a national
remedial plan, without regard to the procedural and substantive
limitations
of
those
agencies’
organic
statutes
and
the
Administrative Procedure Act (APA), and by retaining jurisdiction
indefinitely to ensure compliance.
Remarkably, the district court has allowed this improper suit
to proceed for nearly three years over the repeated objections of
the government and has now set aside 50 trial days this fall for
the plaintiffs’ requested “Trial of the Century.” 1
In 2016, the
court refused to dismiss the plaintiffs’ claims, concluding that
1
Youth v. Gov, Draw #youthvgov., http://www.youthvgov.org/
artist-search/ (last visited July 16, 2018).
3
the
plaintiffs
had
adequately
pleaded
facts
sufficient
to
establish Article III standing, that the plaintiffs had stated a
violation of an asserted fundamental right to “a climate system
capable of sustaining human life,” App., infra, 27a, and that the
court could remedy that violation by ordering defendants to “move
to swiftly phase out CO2 emissions, as well as take such other
action
necessary
to
ensure
that
atmospheric
CO2
is
no
more
concentrated than 350 ppm by 2100, including to develop a national
plan to restore Earth’s energy balance, and implement that national
plan so as to stabilize the climate system,” id. at 24a-25a.
After the district court declined to certify its ruling for
interlocutory appeal, the government immediately sought from the
Ninth Circuit a writ of mandamus ordering dismissal.
That court
declined to intervene. The court of appeals observed that no order
concerning discovery had yet issued and the government had not yet
moved for a protective order, to dismiss the President, or for
summary
judgment.
opportunity
for
In
the
the
court’s
government
to
view,
there
raise
and
remained
re-raise
the
legal
objections to the plaintiffs’ claims and for the district court to
reconsider its prior decisions, including whether the claims are
“too broad to be legally sustainable” and whether this litigation
must be “focus[ed]
orders.”
it
* * *
on specific governmental decisions and
App., infra, 61a-62a.
expected
the
claims
to
be
The court of appeals stated that
“vastly
narrowed
as
litigation
4
proceed[ed]” beyond that “very early stage” of litigation.
Id. at
62a-63a.
Following the Ninth Circuit’s decision, the government took
every step contemplated by that court in its decision.
In a motion
for judgment on the pleadings, the government moved to dismiss the
President and made two additional arguments for why the plaintiffs’
claims in this case are not justiciable.
In a motion for summary
judgment, the government restated its prior objections to the
plaintiffs’ standing and to the merits of their claims, permitting
the district court to reconsider those rulings on the basis of a
more developed record.
order
against
all
And the government moved for a protective
discovery,
explaining
that
discovery
is
categorically inappropriate because it would violate the APA’s
judicial-review provisions, as well as the APA’s comprehensive
regulation
of
agency
decisionmaking
and
the
Constitution’s
separation of powers.
Meanwhile, the plaintiffs have done nothing to narrow their
claims or focus them on specifically identified agency actions.
Nonetheless, the district court summarily denied the government’s
motion for a protective order and denied the government’s request
for a stay pending consideration of the two dispositive motions
that would obviate the occasion for any discovery.
The court has
repeatedly stated its expectation that, absent intervention from
a higher court, trial will begin in just over three months and
will likely proceed for 50 trial days.
5
In
light
of
these
developments,
on
July
5,
2018,
the
government again petitioned the Ninth Circuit for mandamus relief,
requesting an order directing dismissal of this ill-conceived suit
or, at a minimum, an order directing the district court to stay
all discovery and trial pending the resolution of the government’s
pending dispositive motions.
In accordance with Supreme Court
Rule 23.3, the government also separately moved in the district
court and the court of appeals for a stay of discovery and trial
pending disposition of its petition for a writ of mandamus filed
in the court of appeals.
The district court has not yet acted on
the government’s motion.
After briefing from the parties, the
Ninth Circuit yesterday denied the government’s motion for a stay.
The standards for granting a stay pending consideration of a
matter in the court of appeals are readily met in this case.
the
Ninth
Circuit
does
not
grant
the
government’s
If
mandamus
petition, this Court is likely to grant review to consider the
district court’s manifestly wrong recognition of a new fundamental
substantive due process right to certain climate conditions in the
context
of
litigation
over
which
the
district
court
lacks
jurisdiction under Article III and that is otherwise deeply flawed
as a procedural matter.
Absent relief from the Ninth Circuit or
this Court, the government will be forced to participate in a
highly
compacted
period
of
discovery
and
trial
preparation
followed by a 50-day trial, all of which will itself violate
bedrock limitations on agency decisionmaking and the judicial
6
process imposed by the APA and the separation of powers.
In light
of these impending harms, the Court is therefore likely to order
dismissal of this suit or, at a minimum, direct the district court
to
stay
discovery
and
trial
until
the
government’s
pending
dispositive motions are resolved. In contrast to the obvious harms
to the government, respondents can make no credible claim of
imminent, irreparable harm.
Their alleged injuries stem from the
cumulative effects of CO2 emissions from every source in the world
over decades; whatever additions to the global atmosphere that may
somehow be attributed to the government over the time it takes to
resolve the pending mandamus petition are plainly de minimis.
Accordingly, the government requests that this Court stay
discovery and trial pending the Ninth Circuit’s consideration of
the government’s mandamus petition and any further proceedings in
this Court.
Alternatively, given the numerous manifest defects in
this suit and the district court’s egregious errors, the government
respectfully submits that the Court may wish to construe this
application as a petition for a writ of mandamus or as a petition
for a writ of certiorari from the Ninth Circuit’s prior mandamus
decision and directly order dismissal of this suit or a stay of
discovery and trial until the government’s pending dispositive
motions are resolved.
STATEMENT
1.
The plaintiffs below (respondents in this Court) are 21
minor individuals, an organization known as Earth Guardians, and
7
future generations (by and through their self-appointed guardian
Dr. James Hansen).
They filed this suit in 2015 against President
Obama, the Executive Office of the President, and numerous Cabinetlevel Executive agencies, alleging that these Executive officials
and agencies contributed to climate change in violation of rights
that respondents assert under the Fifth and Ninth Amendments to
the Constitution and an asserted federal public-trust doctrine.
Am.
Compl.
defendants
¶¶
277-310.
(now
Respondents
President
Trump
allege
and
that
the
officials
federal
in
his
Administration) have, through action and inaction, enabled the
combustion of fossil fuels, which releases greenhouse gases into
the atmosphere.
Id. ¶ 1.
With one exception, respondents do not
challenge any specific agency actions, such as agency orders,
permits, adjudications, or rulemakings, or even any failure to
undertake any specific required actions.
Instead, they challenge
what they term the government’s “aggregate actions,” id. ¶ 129,
which they assert have caused “climate instability” that injures
their prospects for long and healthy lives, id. ¶ 288.
Respondents ask the district court to declare that they have
the right under the Constitution to a particular climate system
and to require that the Executive Branch “prepare a consumptionbased inventory of U.S. CO2 emissions” and “prepare and implement
an enforceable national remedial plan to phase out fossil fuel
emissions and draw down excess atmospheric CO2.”
Am. Compl. 94.
In addition, they ask the court to retain jurisdiction for an
8
indefinite period of time to monitor the government’s compliance
with this “national remedial plan.”
2.
In
November
2016,
the
Ibid.
district
court
denied
the
government’s motion to dismiss respondents’ claims for lack of
jurisdiction and failure to state a claim.
App., infra, 1a-53a.
The court found that respondents had established Article III
standing by alleging that they had been harmed by the effects of
climate
change
through
increased
droughts,
wildfires,
and
flooding; and that the government’s regulation of (and failure to
further regulate) fossil fuels had caused respondents’ injuries.
The court determined that it could redress those injuries by
“order[ing]
[the
government]
to
cease
[its]
permitting,
authorizing, and subsidizing of fossil fuels and, instead, move to
swiftly phase out CO2 emissions, as well as take such other action
necessary to ensure that atmospheric CO2 is no more concentrated
than 350 ppm by 2100, including to develop a national plan to
restore Earth’s energy balance, and implement that national plan
so as to stabilize the climate system.”
Id. at 24a-25a (citation
omitted); see id. at 19a-25a.
On the merits, the district court concluded that respondents
had stated a claim under the Fifth Amendment’s Due Process Clause
and a federal public-trust doctrine.
court
found
in
the
Fifth
App., infra, 25a-38a.
Amendment’s
protection
against
The
the
deprivation of “life, liberty, or property, without due process of
law,” U.S. Const. Amend. V, a previously unrecognized fundamental
9
right to a “climate system capable of sustaining human life,” and
the
court
determined
that
respondents
had
adequately
alleged
infringement of that fundamental right, App., infra, 27a.
The
court further determined that respondents had adequately stated a
claim under a federal public-trust doctrine, which it held imposes
a judicially enforceable prohibition on the federal government
against “depriving a future legislature of the natural resources
necessary
to
citizens.”
provide
for
the
well-being
and
Id. at 30a (citation omitted).
survival
of
its
Respondents’ claims
under this doctrine, the court concluded, are also “properly
categorized as substantive due process claims.”
3.
of
The government petitioned the Ninth Circuit for a writ
mandamus
court’s
Id. at 38a.
ordering
order
dismissal,
denying
the
contending
motion
to
that
the
dismiss
district
contravened
fundamental limitations on judicial review imposed by Article III
of the Constitution and clearly erred in recognizing a sweeping
new fundamental right to certain climate conditions under the Due
Process Clause.
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
government’s request for a stay.
App., infra, 54a.
7,
“decline[d]
2018,
discretion
the
court
ultimately
to
grant
mandamus
litigation.”
relief
at
granted
the
But on March
to
exercise
[its]
th[at]
stage
the
App., infra, 63a; see id. at 55a-63a.
of
In its
10
decision, 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 62a.
The court reasoned, however, that “the district court need[ed] to
consider those issues further in the first instance.”
Id. at 63a.
The court of appeals “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
decisions
as
to
on
a
more
whether
to
fully
developed
focus
the
governmental decisions and orders.”
record,
litigation
Id. at 62a.
including
on
specific
The court of
appeals 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 63a.
And the
court stated that the governmental defendants could continue to
“raise and litigate any legal objections they have,” id. at 62a,
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 61a, 63a.
On May 29, 2018, Justice Kennedy extended the time within
which to file a petition for a writ of certiorari to review the
Ninth Circuit’s decision to and including July 5.
On June 25,
Justice Kennedy further extended the time within which to file a
11
petition for a writ of certiorari to review the Ninth Circuit’s
decision to and including August 4, 2018.
4.
Following the court of appeals’ decision, the government
filed a series of motions in the district court as contemplated by
the Ninth Circuit’s decision.
First, the government filed a motion for judgment on the
pleadings,
reiterating
its
prior
arguments
for
dismissal:
respondents lack standing, and their novel assertion of judicially
enforceable fundamental rights to a particular climate system
lacks any support in the Constitution or this Nation’s history and
tradition.
See D. Ct. Doc. 195, at 6-7 (May 9, 2018).
The
government also set forth three new grounds for dismissing some or
all of respondents’ claims:
because
the
court
lacks
(1) the President must be dismissed
jurisdiction
to
enjoin
him
in
the
performance of his official duties; (2) all of respondents’ claims
must be dismissed because the APA 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 role of
Congress in enacting a government-wide regulatory framework and
the President in calling on the expertise and resources of the
Executive Branch to formulate environmental and energy policies
12
and to make recommendations to Congress concerning changes to laws
governing those policies.
Id. at 7-25.
Second, on the same day, the government filed a motion for a
protective order barring all discovery or, at a minimum, a stay of
all discovery pending resolution of its motion for judgment on the
pleadings and its forthcoming motion for summary judgment.
Doc. 196, at 1-2 (May 9, 2018).
D. Ct.
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, and therefore no discovery is
proper.
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
imposes
on
agency
fact-finding
separation of powers.
and
Id. at 14-19.
decisionmaking
and
the
Finally, the government
argued that, at a minimum, the district court should stay all
discovery until the court ruled on the government’s pending motion
for judgment on the pleadings and its forthcoming motion for
summary judgment, the granting of which would either eliminate any
occasion for discovery or substantially affect its scope.
Id. at
19-20.
Third, the government filed a motion for summary judgment,
arguing that (1) respondents lack standing both as a matter of law
and as judged against the evidentiary record; (2) respondents have
13
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.
2018).
D. Ct. Doc. 207, at 5-19, 24-30 (May 22,
In addition, the government contended that it was entitled
to summary judgment because, even aside from respondents’ lack of
standing, this suit is not a case or controversy within the meaning
of Article III.
5.
wholly
Id. at 20-24.
In the meantime, both respondents and the district court
failed
to
narrow
or
focus
the
claims
in
this
case.
Immediately following the court of appeals’ prior decision, the
district court ordered the parties to proceed with discovery, and
it set an opening trial date of October 29, 2018.
D. Ct. Doc. 189
(Mar. 26, 2018); D. Ct. Doc. 192 (Apr. 12, 2018).
The court
indicated
last
its
expectation
that
approximately 50 trial days.
the
trial
will
for
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., 5/23/18 Tr. 16 (Aiken, J.) (“[A]s we have talked
about in this case before, we are not delaying the trial at this
point.
We are moving forward.”); id. at 17 (“[W]e have got a trial
date and we are moving forward.”); 5/10/18 Tr. 27 (Coffin, J.)
(“[H]ere’s the big picture.
October 29, 2018, trial starts unless
some higher court says no.”); D. Ct. Doc. 239 (June 14, 2018)
(Aiken, J.) (denying request to extend the trial date for the same
14
period as extension of time for respondents to oppose summary
judgment).
At the same time, the district court extended the deadline
for respondents to respond to the government’s motion for judgment
on the pleadings to June 15, D. Ct. Doc. 210 (May 23, 2018), and
set argument on that motion for July 18, D. Ct. Doc. 214 (May 30,
2018).
It similarly extended the deadline for respondents to
respond to the government’s motion for summary judgment until June
28.
D. Ct. Doc. 240 (June 14, 2018).
After the government filed
its mandamus petition, the court granted the government’s request
to set argument on the motion for summary judgment for the July 18
hearing.
D. Ct. Doc. 316 (July 13, 2018).
Meanwhile, in April 2018, respondents served the government
with
17
expert
reports.
In
May
2018,
respondents
served
413 requests for admissions (RFAs) and Federal Rule of Civil
Procedure 30(b)(6) deposition notices on the U.S. Departments of
Agriculture, the Interior, and Transportation.
These RFAs are
broad in scope, seeking admissions dating back to the 1960s on
topics such as whether, in the agencies’ views, certain resources
are “at risk”; and admissions concerning “cultural services” such
as “spiritual renewal[] and aesthetic enjoyment.”
See, e.g.,
D. Ct. Doc. 194-3, at 17 (May 8, 2018); D. Ct. Doc. 194-4, at 29.
Among
the
topics
noticed
for
the
Rule
30(b)(6)
depositions,
respondents demanded that the government designate witnesses to
express
the
defendant
agencies’
official
positions
on
“[a]ny
15
analysis
or
evaluation”
concentrations,
climate
related
change
to
targets,
“atmospheric
or
greenhouse
CO2
gas
emission” that “would avoid endangerment of human health and
welfare for current and future generations,” as well as on the
role of the agencies in implementing President Trump’s energy
policy.
D. Ct. Doc. 196-1, at 6 (capitalization omitted) (Rule
30(b)(6) notice of deposition of U.S. Department of the Interior);
D. Ct. Doc. 196-2, at 6 (capitalization omitted) (Rule 30(b)(6)
notice of deposition of U.S. Department of Agriculture); D. Ct.
Doc. 217-6, at 6 (June 4, 2018) (capitalization omitted) (Rule
30(b)(6)
notice
of
deposition
of
U.S.
Department
of
Transportation).
In June 2018, respondents served similar RFAs and nearly
identical Rule 30(b)(6) deposition notices on the U.S. Departments
of Energy and Defense.
When the government sought a protective
order with respect to the May RFAs and deposition notices on
multiple grounds, respondents refused to withdraw the requests but
asked the district court to hold the government’s responses in
abeyance while respondents seek to obtain the same information
through
contention
notice.
D. Ct. Doc. 247, at 2-4 (June 25, 2018).
6.
interrogatories
and
requests
for
judicial
Magistrate Judge Coffin denied the government’s motion
for a protective order for all discovery or, at a minimum, a stay
of all discovery pending resolution of the government’s motions
for judgment on the pleadings and summary judgment.
App., infra,
16
64a-66a.
Judge Coffin determined that respondents’ complaint does
not assert claims arising under the APA because their claims are
“based on alleged violations of their constitutional rights.”
at 65a.
Id.
He expressed the view that the district court had already
rejected the government’s argument that respondents must bring
their claims under the APA.
Ibid.
And he refused to grant a
protective 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 66a.
Judge
Coffin denied the government’s request for a stay of discovery
without explanation.
Ibid.
On June 29, the district court summarily affirmed Judge
Coffin’s order, stating that it had “carefully reviewed [that]
order in light of [the government’s] objections” and “conclude[d]
that the order is not clearly erroneous or contrary to law.”
infra, 68a; see id. at 67a-68a.
explanation for its decision.
App.,
The court provided no additional
Also without explanation, the court
“decline[d] to certify [its] decision for interlocutory appeal
under
28
U.S.C.
§
1292(b).”
Id.
at
68a.
Meanwhile,
the
government’s trial-preparation burdens continue, as the October
trial
date
fast
approaches.
Among
other
obligations,
the
government is required to provide expert reports to respondents by
August 13, 2018.
D. Ct. Doc. 192.
17
7.
On July 5, the government again petitioned the Ninth
Circuit for a writ of mandamus and a stay pending the court’s
consideration
of
the
government’s
petition.
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 respondents had failed to narrow their
claims in any respect, and the district court’s orders made clear
that this case will not be terminated or respondents will not be
required to narrow their manifestly overbroad claims in time to
have any meaningful effect on discovery or trial.
Accordingly,
the government asked the Ninth Circuit (1) to direct the district
court to dismiss this case or (2) at a minimum, to direct the
district
court
to
stay
all
discovery
and
trial
pending
the
resolution of the government’s dispositive motions, and consider
certifying for interlocutory appeal any rulings on those motions,
and (3) to stay all discovery and trial while the court of appeals
considered the government’s mandamus petition.
The court of appeals ordered respondents to respond to the
government’s stay request by July 10, with the government to file
any reply the following day.
On July 16, the court denied the
stay request, stating that it would rule on the government’s
mandamus petition “on an expedited basis.”
App., infra, 69a.
The
court has not yet ordered a response to the government’s mandamus
petition.
18
ARGUMENT
The government respectfully requests that this Court grant a
stay
of
all
discovery
and
trial
pending
the
Ninth
Circuit’s
resolution of the government’s petition for a writ of mandamus and
any
further
proceedings
in
this
Court.
The
government
also
respectfully requests an administrative stay pending this Court’s
ruling on this application for a stay.
Under this Court’s Rule 23
and the All Writs Act, 28 U.S.C. 1651, a single Justice or the
Court has authority to enter a stay pending proceedings in a court
of appeals. 2
In considering an application for such a stay, the
Court or Circuit Justice considers whether four Justices are likely
to vote to grant a writ of certiorari if the court of appeals
ultimately rules against the applicant; whether five Justices
would then likely conclude that the case was erroneously decided
below; and whether, on balancing the equities, the injury asserted
by the applicant outweighs the harm to the other parties or the
public.
See San Diegans for the Mt. Soledad Nat’l War Mem’l v.
Paulson, 548 U.S. 1301, 1302 (2006) (Kennedy, J., in chambers);
Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (traditional stay
factors).
1.
appeals
2
All of those factors support a stay here.
This Court is likely to grant review if the court of
denies
the
government’s
petition
for
mandamus.
The
See, e.g., Trump v. International Refugee Assistance
Project, 138 S. Ct. 542 (2017); West Virginia v. EPA, 136 S. Ct.
1000 (2016); Stephen M. Shapiro et al., Supreme Court Practice
§ 17.6, at 881-884 (10th ed. 2013).
19
district court has egregiously erred in declaring a never-beforerecognized fundamental right to a particular climate system that
lacks any support in the Constitution, this Court’s precedents, or
this Nation’s history and tradition.
It has done so in the context
of litigation over which the court lacks Article III jurisdiction
in multiple respects and is otherwise fundamentally procedurally
flawed.
Absent relief from the Ninth Circuit or this Court, this
litigation is barreling toward an extremely compacted period of
discovery that, in one form or another, will force the government
to violate its obligations under the APA and the separation of
powers, followed immediately by a 50-day trial that would itself
violate the same constraints.
If the court of appeals sanctions
such a dramatic “depart[ure] from the accepted and usual course of
judicial proceedings,” an exercise of this Court’s supervisory
power would be warranted.
2.
Moreover,
if
Sup. Ct. R. 10(a).
the
court
of
appeals
denies
the
government’s petition, a majority of this Court will likely reverse
the Ninth Circuit’s denial of mandamus relief or issue a writ of
mandamus directly to the district court.
As this Court has
observed, the traditional use of mandamus has been “to confine the
court against which mandamus is sought to a lawful exercise of its
prescribed jurisdiction.”
542
U.S.
367,
380
Cheney v. United States Dist. Court,
(2004)
(brackets
and
citation
omitted).
Moreover, mandamus may also be justified by errors “amounting to
a judicial ‘usurpation of power’” or a “clear abuse of discretion.”
20
Ibid. (citation omitted).
A court may issue a writ of mandamus
when the petitioner establishes that (1) the petitioner’s “right
to issuance of the writ is ‘clear and indisputable’”; (2) “no other
adequate means [exist] to attain the relief he desires”; and
(3) “the
writ
is
appropriate
under
the
circumstances.”
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam)
(quoting Cheney, 542 U.S. at 380-381) (brackets in original). Each
of those prerequisites for mandamus relief is met here.
a.
“clear
The government’s right to the dismissal of this case is
and
omitted).
indisputable.”
Perry,
558
U.S.
at
190
(citation
Respondents’ implausible and far-reaching claims are
procedurally and substantially defective in at least three ways.
i.
Most
fundamentally,
the
district
court
lacks
jurisdiction over respondents’ claims.
“[N]o principle is more
fundamental
role
to
the
judiciary’s
proper
in
our
system
of
government than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies.”
DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Raines v. Byrd,
521 U.S. 811, 818 (1997)). This suit fails to qualify as a “Case[]”
or “Controvers[y]” within the meaning of Article III for two
independent reasons.
U.S. Const. Art. III, § 2, Cl. 1.
First, 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
21
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 will be redressed
by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-561 (1992) (citations, footnote, 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
omitted).
Government
was
Respondents
unconstitutional.’”
Ibid.
(citation
cannot
of
standing
establish
any
the
requirements here.
Respondents assert “generalized grievance[s],” not “concrete
and particularized” injuries sufficient to satisfy the first prong
of the standing analysis. See, e.g., Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1386, 1387 n.3 (2014);
Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam); Cuno,
547 U.S. at 344-346.
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
22
abstract nature of the injury all citizens share.”
Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 220 (1974).
The
injuries that respondents claim all involve the diffuse effects of
a generalized phenomenon on a global scale that are the same as
those felt by any other person in their communities, in the United
States, or throughout the world at large.
Moreover, respondents cannot establish that the government
policies they challenge -- expressed in broad and undifferentiated
terms, rather than directed to discrete agency actions -- caused
their asserted injuries.
560.
Respondents
See Defenders of Wildlife, 504 U.S. at
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 Art. 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).
And respondents cannot establish a
causal link between the amorphously described policy decisions and
the specific harms that they allege, as opposed to the independent
23
actions by private persons both within and outside the United
States.
Finally, even if respondents could somehow establish injuryin-fact and causation, they could not establish that it is likely
that their asserted injuries could be redressed by an order of a
federal
court.
Indeed,
respondents
have
not
even
begun
to
articulate a remedy that a federal court would have authority to
award and 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 Kentucky Welfare Rights
Org.,
U.S.
426
26,
40-46
(1976)
(holding
that
plaintiffs
challenging tax subsidies for hospitals serving indigent patients
lacked standing where they could only speculate on 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 “[o]rder Defendants to prepare and implement an
enforceable
national
remedial
plan
to
phase
emissions and draw down excess atmospheric CO2.”
(quoting Am. Compl. 94).
out
fossil
fuel
App., infra, 41a
But neither respondents nor the court
cited any legal authority that would permit such a usurpation of
legislative and executive authority by an Article III court.
Second, 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
24
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 at
Westminster” and only when those matters arise “in ways that to
the
expert
feel
‘Controversies.’”
of
lawyers
constituted
‘Cases’
or
Vermont Agency of Natural Res. v. United States
ex rel. Stevens, 529 U.S. 765, 774 (2000) (citation omitted).
Respondents’ suit is not such 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 policies 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.
e.g., Am. Compl. ¶¶ 277-310.
See,
No federal court, nor the courts at
Westminster, has ever purported to use the “judicial Power” to
perform such a review -- and for good reason:
the Constitution
commits to Congress the power to enact comprehensive governmentwide measures of the sort respondents seek.
President
the
power
to
oversee
the
And it commits to the
Executive
Branch
in
its
administration of existing law and to draw on its expertise and
formulate
policy
proposals
for
changing
existing
law.
functions are not the province of Article III courts.
Such
See U.S.
Const. Art. I, § 1; id. Art. II, § 2, Cl. 1; id. § 3; cf. Cheney,
542 U.S. at 385.
25
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.”
York, 326 U.S. 99, 105 (1945).
Guaranty Trust Co. v.
The relief respondents request 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,
concurring).
agencies.”
515
U.S.
70,
132
(1995)
(Thomas,
J.,
One of those things is “running Executive Branch
Id. at 133.
And it surely includes running all of
them.
ii.
Beyond these limitations imposed by Article III, a suit
challenging an agency’s regulatory measures would have to be
targeted at specifically identified agency actions or alleged
failures
to
act,
and
review
would
have
to
be
based
on
the
administrative record for those actions.
The APA provides that a
“person
of
suffering
legal
wrong
because
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.
unlawful
and
The APA authorizes a reviewing court to “hold
set
aside
agency
action”
that
is
“arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
26
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’
failure
to
act
with
* * *
respect
to
by agency action” or alleged
regulatory
requirements
standards, permitting, and other administrative measures.
and
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
allows only for challenges to “circumscribed, discrete” final
agency action, not the sort of “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
27
Lujan v.
National
Respondents
Wildlife
expressly
cast
Fed’n,
497
U.S.
their
claims
871,
as
a
891
(1990).
challenge
to
“affirmative aggregate actions” by the numerous defendant agencies
that
“permitted,
encouraged,
and
otherwise
enabled
continued
exploitation, production, and combustion of fossil fuels.”
Compl. ¶¶ 1, 5.
Am.
A challenge to “aggregate actions” is the
antithesis of the “discrete agency action” that this Court has
explained must be challenged under the APA.
SUWA, 542 U.S. at 64.
Respondents suggest that they can evade the APA’s limitations
because the Constitution itself provides the right of action for
constitutional claims.
Am. Compl. ¶ 13.
But this Court has never
held that the Constitution itself provides an across-the-board
right of action for all constitutional claims -- and especially
for the sweeping constitutional claims concerning governmental
regulation that respondents advance here and the sweeping relief
they seek.
Cf. Armstrong v. Exceptional Child Ctr., Inc., 135
S. Ct. 1378, 1384 (2015) (“[T]he Supremacy Clause does not confer
a right of action.”).
Federal courts do have equitable authority
in some circumstances “to enjoin unlawful executive action.”
at 1385.
Id.
But 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
judiciary.”
supplement
that
scheme
with
one
created
by
the
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74
28
(1996).
Here, even if the equitable authority of an Article III
court could ever extend to a case of this sort, the APA provides
“express
* * *
statutory
limitations”
that
“‘foreclose,’”
Armstrong, 135 S. Ct. at 1385 (citation omitted), respondents’
asserted
constitutional
claims
against
the
broad
and
largely
unspecified “aggregate actions” of the federal government as a
whole, Am. Compl. ¶ 129.
iii.
Even if a court could reach the merits of respondents’
constitutional
theories,
they
plainly
fail.
In
denying
the
government’s motion to dismiss, the district court concluded that
respondents stated two related constitutional claims based on
substantive due process:
(1) a previously unidentified judicially
enforceable fundamental right to “a climate system capable of
sustaining human life”; and (2) a federal public-trust doctrine to
the same effect.
App., infra, 27a; see id. at 25a-38a.
Those
claims are baseless.
This
Court
has
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, and lest important issues be placed “outside the arena
of
public
debate
and
legislative
action.”
Washington
v.
Glucksberg, 521 U.S. 702, 720 (1997) (citation omitted). The Court
has “regularly observed that the Due Process Clause specially
protects
those
fundamental
rights
and
liberties
which
are,
29
objectively,
‘deeply
rooted
in
this
Nation’s
tradition.’”
Id. at 720-721 (citation omitted).
history
and
The district
court’s recognition of an “unenumerated fundamental right” to “a
climate system capable of sustaining human life,” App., infra,
26a-27a, is entirely without basis in this Nation’s history or
tradition.
It threatens to wrest fundamental policy issues of
energy development and environmental regulation affecting everyone
in the country from “the arena of public debate and legislative
action,” Glucksberg, 521 U.S. at 720, and to thrust them into the
supervision of the federal courts -- indeed, here, into a single
district court at the behest of a handful of individuals, a person
purporting to act on behalf of future generations, and a single
environmental organization, advancing just one perspective on the
complex issues involved.
The
district
recognition
of
a
court
relied
fundamental
principally
right
to
on
same-sex
Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
the
Court’s
marriage
in
App., infra, 26a.
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.
135 S. Ct. at 2602.
Nor was the Obergefell Court’s recognition of
30
that narrow right an invitation to abandon the cautious approach
to recognizing new fundamental rights that is demanded by the
Court’s prior decisions.
Respondents’ 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.”
603 (2012).
PPL Montana, LLC v. Montana, 565 U.S. 576,
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.), cert. denied, 464 U.S. 977 (1983)
(citation and internal quotation marks omitted).
Respondents
attempt
to
invoke
that
doctrine
to
impose
judicially enforceable, extra-statutory obligations on the federal
government’s
regulation
of
the
fossil-fuel
industry
and
its
alleged effects on the atmosphere. They fail, however, to identify
a single decision applying the public-trust doctrine in this novel
manner.
And
sovereign’s
would
be
even
if
regulation
unavailing
such
of
a
doctrine
private
because,
as
could
parties,
this
ever
dictate
respondents’
Court
has
a
claim
repeatedly
recognized, the public-trust doctrine is purely a matter of state
law and pertains only to a State’s functions.
See, e.g., PPL
Montana, 565 U.S. at 603 (“[T]he public trust doctrine remains a
31
matter of state law.”) (citing Idaho v. Coeur d'Alene Tribe of
Idaho, 521 U.S. 261, 285 (1997)).
Indeed, the D.C. Circuit
recently concluded that a nearly identical public-trust claim was
so insubstantial that it could not provide even a basis for federal
court subject-matter jurisdiction.
See Alec L. ex rel. Loorz
v. McCarthy, 561 Fed. Appx. 7, 8 (per curiam), cert. denied,
135 S. Ct. 774 (2014).
iv.
Finally, even if the Court were hesitant at this moment
to direct dismissal in light of all these defects, it is likely at
least to direct the district court to stay discovery and trial
pending resolution of the government’s motion for judgment on the
pleadings and its motion for summary judgment.
A favorable ruling
on either motion would terminate the litigation or substantially
narrow it to allow challenges only to specifically identifiable
agency action under the APA, thus eliminating any occasion for
discovery or trial.
At the very least, such a ruling would
substantially affect the scope of any trial or discovery, including
the government’s expert reports that are due in the coming weeks.
In similar circumstances, this Court recently held that the
Ninth Circuit erred in denying the government’s petition for a
writ of mandamus against district court orders that would have
required the government to produce certain materials before the
district court had resolved the government’s threshold arguments
for dismissal.
See In re United States, 138 S. Ct. 443 (2017)
(per curiam).
In that case, the district court had refused to
32
stay all discovery pending resolution of the government’s motion
to dismiss the case as nonjusticiable and the court ordered the
expansion of the administrative record that the government had
produced.
Id. at 444.
government’s
Court
mandamus
unanimously
After the Ninth Circuit denied the
petition
vacated
challenging
the
those
decision,
orders,
remanding
this
with
instructions that the district court first rule on the government’s
threshold arguments and then “consider certifying that ruling for
interlocutory appeal under 28 U.S.C. § 1292(b) if appropriate.”
Id. at 445.
b.
At the very least, the same relief is warranted here.
Mandamus
is
an
appropriate
remedy
to
correct
the
district court’s egregious errors because the government has no
adequate means to obtain relief from the court’s refusal to dismiss
this litigation or to prevent the impending discovery and trial.
This Court observed in Cheney that mandamus may be used to correct
a “judicial ‘usurpation of power,’” 542 U.S. at 380 (citation
omitted), and
“mandamus standards are broad enough to allow a
court of appeals to prevent a lower court from interfering with a
coequal
branch’s
responsibilities,”
“paramount
ability
to
id.
382;
necessity
of
at
discharge
see
protecting
its
ibid.
the
constitutional
(recognizing
Executive
Branch
the
from
vexatious litigation that might distract it from the energetic
performance of its constitutional duties”).
Here, as a result of
the district court’s denial of a protective order, the defendant
agencies will now be required to proceed with discovery and, in
33
all likelihood, participate in a fast-approaching 50-day trial
that is not only flatly inconsistent with the APA’s rules requiring
a challenge to be directed to specific agency actions based on
record review, but would also (i) violate the APA’s carefully
reticulated scheme for agencies to make factual assessments and
policy
determinations
matters
within
through
their
rulemaking
jurisdiction
and
and
adjudication
(ii) contravene
in
the
constitutional separation of powers.
i.
The
APA
sets
forth
a
“comprehensive
procedures” for agency decisionmaking.
regulation
of
Wong Yang Sung v. McGrath,
339 U.S. 33, 36, modified, 339 U.S. 908 (1950); see 5 U.S.C. 551554.
“Time and again,” this Court has explained that the APA
establishes
the
decisionmaking,
exclusive
and
procedural
courts
are
not
requirements
free
to
for
agency
alter
those
requirements.
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199,
1207 (2015).
To require agencies to comply with discovery seeking
official positions on factual assessments and questions of policy
concerning the climate and then participate in a trial 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
ability to provide input where the APA’s rulemaking provisions or
agency procedures require.
34
In pending discovery requests, for example, respondents seek
to depose under Rule 30(b)(6) an official representative of the
U.S.
Department
of
Transportation
on
the
agency’s
“role
in
implementing President Trump’s America First Energy Plan,” D. Ct.
Doc. 217-6, at 6, and have the agency “admi[t]” propositions such
as “[p]etroleum use in the transportation sector in the United
States is expected to remain at about 13.5 million barrels per day
through 2040 and beyond,” D. Ct. Doc. 217-9, at 19 (capitalization
omitted).
If discovery proceeds in this case, the agencies’
official statements and conclusions on such topics would be offered
without public input from other stakeholders and without any of
the
relevant
orderly
procedures
of
agency
contemplated by the APA.
See 5 U.S.C. 553, 554.
required
discovery
responses
to
thus
would
decisionmaking
Those and similar
be
in
direct
contravention of Congress’s judgment in the APA and the agencies’
respective organic statutes to vest such determinations in the
agencies’ administrative processes in the first instance.
And
trial on such matters seeking to bind the defendant agencies (much
less the President) would be fundamentally inconsistent with the
APA and the agencies’ organic statutes.
ii.
Discovery and trial in this case would also violate the
Constitution’s separation of powers.
the
APA,
this
Court
recognized
Even before the enactment of
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
35
Bros. & Moorhead v. United States, 280 U.S. 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 to the administrative record of
actions
taken
within
the
scope
of
the
agency’s
authority
as
conferred by Congress in its organic statute reflects fundamental
separation-of-powers principles.
This suit, in which respondents
seek discovery in aid of requiring the defendant agencies (and the
President) to develop and implement a comprehensive, governmentwide
climate
policy
outside
the
congressionally
prescribed
statutory framework runs roughshod over those principles.
It
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.
Art. I, § 1.
U.S. Const.
And to the extent it seeks to require the President
and Executive agencies to develop and implement such policies, it
violates the Constitution’s vesting of “executive Power
a President of the United States.”
* * *
Id. Art. II, § 1, Cl. 1.
in
36
Allowing respondents to simply file a complaint in federal
court and then leverage the civil litigation system to marshal the
views of federal agencies on broad questions concerning climate
conditions and national environmental and energy policies would
displace the President in his superintendence of the Executive
Branch and encroach on his exclusive authority to elicit the views
of
federal
agencies
in
formulating
national
addressing important issues of general concern.
policies
for
See U.S. Const.
Art. II, § 2, Cl. 1 (vesting in the President the exclusive power
to “require the Opinion
* * *
of the principal Officer in each
of the executive Departments, upon any Subject relating to the
Duties
of
their
respective
Offices”);
id.
§
3
(vesting
the
President with power to “recommend to” Congress for “Consideration
such Measures as he shall judge necessary and expedient”).
Just
as the President may not compel an advisory opinion from a court
on a question of law, see, e.g., Flast v. Cohen, 392 U.S. 83, 96
& n.14 (1968), a court may not compel the opinions and proposals
of executive officials on such matters.
The Court should grant
mandamus relief to prevent the irreparable harm that would be
caused by such intrusions.
stay
3.
The balance of equities strongly supports granting a
of
discovery
and
trial
government’s mandamus petition.
pending
consideration
of
the
Absent a stay, the government
will be forced to proceed with burdensome discovery on a highly
compressed
timeframe
and
to
prepare
for
(and
eventually
37
participate in) a fast-approaching 50-day trial while, at the same
time, violating its obligations under the APA and transgressing
the separation of powers under the Constitution. Most immediately,
by August 13 the government must produce expert reports rebutting
respondents’ 17 expert witnesses.
opine
on
wide-ranging
topics
Respondents’ expert reports
from
the
merits
vel
non
of
implementing a carbon tax, D. Ct. Doc. 266-1, at 33-35 (June 28,
2018), to the technological and economic feasibility of converting
100% of the United States’ energy from fossil fuels to renewable
energy for all sectors by 2050, D. Ct. Doc. 261-1, at 4-11 (June
28, 2018).
Respondents also have not withdrawn their requests for
admission
propounded
on
the
U.S.
Departments
of
Agriculture,
Defense, Energy, the Interior, and Transportation or their Rule
30(b)(6)
notices
seeking
an
official
designee
from
the
same
agencies to testify to each agency’s positions on various aspects
of climate change and the agency’s view of its role in implementing
the President’s energy policies.
See pp. 14-15, supra.
Indeed,
respondents have promised that more discovery requests on similar
topics will be served soon, D. Ct. Doc. 247, at 4, all of which
are unlawful and unnecessary.
By contrast, respondents can make no credible claim that a
relatively brief stay to decide the government’s petition will
cause
them
irreparable
harm.
Because
respondents’
alleged
injuries stem from the cumulative effects of CO2 emissions from
every source in the world over decades, whatever additions to the
38
global atmosphere that may somehow be attributed to the defendant
agencies over the time it takes to resolve the government’s pending
petition are plainly de minimis in context and not a source of
irreparable harm.
CONCLUSION
For the foregoing reasons, this Court should stay discovery
and
trial
pending
the
court
of
appeals’
disposition
of
the
government’s petition for a writ of mandamus and any further
proceedings
in
this
Court.
Alternatively,
the
Court
should
construe this application as a petition for a writ of mandamus to
the district court, or as a petition for a writ of certiorari
seeking review of the Ninth Circuit’s prior mandamus decision
(App., infra, 55a-63a), and it should order that the district court
dismiss this suit or that the district court stay discovery and
trial
until
the
government’s
pending
dispositive
motions
are
resolved and then consider certifying for interlocutory appeal any
rulings on those motions.
The government also requests that this
Court enter an administrative stay pending its consideration of
this stay application.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JULY 2018
APPENDIX
Order Denying Motion to Dismiss (D. Or. Nov. 10, 2016).........1a
Order Granting Stay (9th Cir. July 25, 2017)..................54a
Opinion Denying Petition for a Writ of Mandamus
(9th Cir. Mar. 7, 2018) ....................................55a
Order Denying Motion for Protective Order and Stay
(D. Or. May 25, 2018) ......................................64a
Order Affirming Denial of Motion for Protective Order
and Stay (D. Or. June 29, 2018) ............................67a
Order Denying Stay (9th Cir. July 16, 2018)...................69a
1224
217 FEDERAL SUPPLEMENT, 3d SERIES
(citing Int’l Ass’n of Machinists v. Street,
367 U.S. 740, 761, 81 S.Ct. 1784, 6 L.Ed.2d
1141 (1961) and Hughes Tool Co., 104
N.L.R.B. 318, 324–25 (1953) (‘‘[A] union
could not assess nonmembers for costs
arising from contract negotiations for the
latter are the exclusive duty and prerogative of the certified representative which
the nonmember minority is both entitled to
and bound under.’’)). As the Sweeney
Court explained:
The powers of the bargaining representative are ‘comparable to those possessed by a legislative body both to create and restrict the rights of those
whom it represents.’ The duty of fair
representation is therefore a ‘corresponding duty’ imposed in exchange for
the powers granted to the Union as an
exclusive representative. It seems disingenuous not to recognize that the Union’s position as a sole representative
comes with a set of powers and benefits
as well as responsibilities and duties.
Id. (quoting Steele v. Louisville & N.R.
Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed.
173 (1944)).
Because Local 370 is ‘‘fully and adequately compensated by its rights as the
sole and exclusive member at the negotiating table,’’ Local 370 fails to state a Fifth
Amendment claim. Id.
ORDER
NOW, THEREFORE, IT IS HEREBY
ORDERED:
1. Defendant’s Motion to Dismiss FAC
(Dkt. 16) is GRANTED. This case is
dismissed in its entirety, with prejudice.
2. Defendant’s Motion to Dismiss Complaint (Dkt. 11) is MOOT and is
therefore DENIED.
,
Kelsey Cascadia Rose JULIANA,
et al., Plaintiffs,
v.
UNITED STATES of America,
et al, Defendants.
Case No. 6:15–cv–01517–TC
United States District Court,
D. Oregon,
Eugene Division.
Signed 11/10/2016
Background:
Environmental activists
who were too young to vote, and purported
guardian for future generations, brought
action for declaratory and injunctive relief
against United States, the President, and
numerous executive agencies, alleging that
greenhouse gas emissions from carbon dioxide, produced by burning fossil fuels,
were destabilizing the climate system, and
asserting violations of substantive due process and defendants’ obligation to hold natural resources in public trust. The District
Court, Coffin, United States Magistrate
Judge, 2016 WL 183903, allowed industry
associations to intervene as defendants.
Defendants and intervenors filed motions
to dismiss for lack of subject matter jurisdiction and for failure to state a claim.
Holdings: The District Court, Aiken, J.,
adopted the report and recommendation of
Coffin, United States Magistrate Judge,
and held that:
(1) a nonjusticiable political question was
not raised;
(2) activists alleged a concrete and particularized injury, as required for Article
III standing;
(3) the alleged injury was imminent;
(4) the right to a climate system capable
of sustaining human life is a fundamental right protected by substantive due
process;
(1a)
2a
JULIANA v. U.S.
Cite as 217 F.Supp.3d 1224 (D.Or. 2016)
1225
(5) activists stated a claim for a substantive due process violation based on a
danger creation theory;
(6) activists adequately alleged harm to
public trust assets;
(7) the public trust doctrine can apply to
the federal government; and
(8) activists had a right of action to enforce the public trust doctrine.
Motions denied.
questioning adherence to a political decision already made; or (6) the potentiality
of embarrassment from multifarious pronouncements by various departments on
one question.
1. Federal Courts O2078, 2080
A motion to dismiss for lack of subject
matter jurisdiction may attack either the
allegations of the complaint or the existence of subject matter in fact. Fed. R.
Civ. P. 12(b)(1).
7. Constitutional Law O2332
2. Federal Courts O2081
The party seeking to invoke the district court’s jurisdiction bears the burden
of establishing subject matter jurisdiction.
8. Constitutional Law O2580
3. Constitutional Law O2580
If a case presents a political question,
federal courts lack subject matter jurisdiction to decide that question.
4. Constitutional Law O2580
The political question doctrine, as basis for abstention by federal courts, is primarily a function of the constitutional separation of powers.
5. Constitutional Law O2580
Six criteria, each of which could individually signal the presence of a nonjusticiable political question, are: (1) a textually
demonstrable constitutional commitment of
the issue to a coordinate political department; (2) a lack of judicially discoverable
and manageable standards for resolving it;
(3) the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial discretion; (4) the impossibility of a court’s undertaking independent resolution without expressing lack of
the respect due coordinate branches of
government; (5) an unusual need for un-
6. Constitutional Law O2330
Constitutional separation of powers is
fundamental to the system of government,
known even before the birth of the country
to be a defense against tyranny.
Under separation of powers, it is a
basic principle of the constitutional scheme
that one branch of the government may
not intrude upon the central prerogatives
of another.
The decision to deny access to judicial
relief, based on the political question doctrine, should never be made lightly, because federal courts have the power, and
ordinarily the obligation, to decide cases
and controversies properly presented to
them; accordingly, a court cannot simply
err on the side of declining to exercise
jurisdiction when it fears a political question may exist, and it must instead diligently map the precise limits of jurisdiction. U.S. Const. art. 3, § 2, cl. 1.
9. Constitutional Law O2580
A case does not present a nonjusticiable political question merely because it
raises an issue of great importance to the
political branches; instead, dismissal on political question grounds is appropriate only
if one of the considerations for finding a
political question is inextricable from the
case.
10. Declaratory Judgment O203
There was no textually demonstrable
constitutional commitment, to a coordinate
political department, of issue of whether
greenhouse gas emissions from carbon di-
3a
1226
217 FEDERAL SUPPLEMENT, 3d SERIES
oxide, produced by burning fossil fuels,
were destabilizing the climate system, as
would provide basis for nonjusticiability
under political question doctrine, in environmental activists’ action for declaratory
and injunctive relief against President and
executive branch agencies, asserting substantive due process claim; Constitution
did not mention environmental policy, atmospheric emissions, or global warming,
and climate change policy was not a fundamental power on which any other power
allocated exclusively to other branches of
government rested. U.S. Const. Amend.
5.
11. Declaratory Judgment O203
Environmental activists were not asking federal court to pinpoint the best
greenhouse gas emissions level, and thus,
action for declaratory and injunctive relief
against President and executive branch
agencies, asserting substantive due process claim alleging that greenhouse gas
emissions from carbon dioxide, produced
by burning fossil fuels, were destabilizing
the climate system, did not suffer from
lack of judicially discoverable and manageable standards or from impossibility of
making a decision without an initial policy
determination of a kind clearly for nonjudicial discretion, as would provide basis for
nonjusticiability under political question
doctrine; activists were seeking a determination of what emissions level would be
sufficient to redress their injuries, which
question could be answered without any
consideration of competing interests. U.S.
Const. Amend. 5.
12. Declaratory Judgment O203
Environmental activists were not asking the federal court to choose which agencies and sectors should reduce greenhouse
gas emissions, and by how much, and thus,
action for declaratory and injunctive relief
against President and executive branch
agencies, asserting substantive due process claim alleging that greenhouse gas
emissions from carbon dioxide, produced
by burning fossil fuels, were destabilizing
the climate system, did not suffer from
lack of judicially discoverable and manageable standards or from impossibility of
making a decision without an initial policy
determination of a kind clearly for nonjudicial discretion, as would provide basis for
nonjusticiability under political question
doctrine; activists were asking federal
court to direct the agencies to conduct a
consumption-based inventory of carbon dioxide emissions and use that inventory to
prepare and implement an enforceable national remedial plan. U.S. Const. Amend.
5.
13. Declaratory Judgment O203
Environmental activists’ action concerning climate change, by asserting a constitutional claim against President and executive branch agencies for violation of
substantive due process, rather than asserting violations of precise statutes or
regulations, did not present a claim for
which judicially discoverable and manageable standards for resolution were lacking,
as would provide basis for nonjusticiability
under political question doctrine, in action
for declaratory and injunctive relief, alleging that greenhouse gas emissions from
carbon dioxide, produced by burning fossil
fuels, were destabilizing the climate system; every day, federal courts applied legal standards governing due process
claims to new sets of facts. U.S. Const.
Amend. 5.
14. Declaratory Judgment O319
While environmental activists did not
cite particular statutory or regulatory provisions, the allegations in their complaint
were specific enough to put President and
executive branch agencies on notice of
their claims, as required under general
pleading standards, in action for declaratory and injunctive relief, alleging that
greenhouse gas emissions from carbon di-
4a
1227
JULIANA v. U.S.
Cite as 217 F.Supp.3d 1224 (D.Or. 2016)
oxide, produced by burning fossil fuels,
were destabilizing the climate system; activists’ theory was that defendants’ aggregate actions violated their substantive due
process rights and government’s public
trust obligations. U.S. Const. Amend. 5;
Fed. R. Civ. P. 8, 12.
15. Declaratory Judgment O203
Even if executive and legislative
branches had taken numerous steps to address climate change, judicial resolution of
environmental activists’ action concerning
climate change, asserting a constitutional
claim against President and executive
branch agencies for violation of substantive
due process, would not express a lack of
respect for another branch of government,
as would provide basis for nonjusticiability
under political question doctrine, in action
for declaratory and injunctive relief, alleging that greenhouse gas emissions from
carbon dioxide, produced by burning fossil
fuels, were destabilizing the climate system. U.S. Const. Amend. 5.
16. Federal Courts O2073
Federal courts have an independent
obligation to assure themselves of the existence of subject matter jurisdiction.
17. Declaratory Judgment O203
A nonjusticiable political question was
not raised in action concerning climate
change, brought by environmental activists
who were too young to vote, alleging a
substantive due process violation and seeking declaratory and injunctive relief
against President and executive branch
agencies, based on allegations that greenhouse gas emissions from carbon dioxide,
produced by burning fossil fuels, were destabilizing the climate system. U.S. Const.
Amend. 5.
18. Constitutional Law O2450
Despite constitutional separation of
powers, federal courts retain broad authority to fashion practical remedies when con-
fronted with complex and intractable constitutional violations.
19. Declaratory Judgment O328
Speculation about the difficulty of
crafting a remedy without violating constitutional separation of powers did not support early-stage dismissal on a motion asserting lack of subject matter jurisdiction,
based on political question doctrine, in environmental activists’ action concerning climate change, alleging a substantive due
process violation and seeking declaratory
and injunctive relief against President and
executive branch agencies, based on allegations that greenhouse gas emissions
from carbon dioxide, produced by burning
fossil fuels, were destabilizing the climate
system. U.S. Const. Amend. 5; Fed. R.
Civ. P. 12(b)(1).
20. Federal Civil Procedure O103.2
A threshold question in every federal
case is whether at least one plaintiff has
standing.
21. Federal Civil Procedure O103.2
Standing requires a plaintiff to allege
such a personal stake in the outcome of
the controversy as to warrant the invocation of federal-court jurisdiction and to
justify exercise of the court’s remedial
powers.
22. Federal
103.3
Civil
Procedure O103.2,
To demonstrate Article III standing, a
plaintiff must show: (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. U.S. Const. art. 3, § 2, cl. 1.
23. Federal Civil Procedure O103.2
A plaintiff must support each element
of the test for Article III standing with the
5a
1228
217 FEDERAL SUPPLEMENT, 3d SERIES
manner and degree of evidence required at
the successive stages of the litigation.
U.S. Const. art. 3, § 2, cl. 1.
stract and indefinite nature, for example,
harm to the common concern for obedience
to the law. U.S. Const. art. 3, § 2, cl. 1.
24. Federal Civil Procedure O103.5,
1829
At the motion to dismiss stage, general allegations suffice to establish Article
III standing, because those allegations are
presumed to embrace those specific facts
that are necessary to support the claim.
U.S. Const. art. 3, § 2, cl. 1; Fed. R. Civ.
P. 12(b)(1).
28. Federal Civil Procedure O103.4
25. Environmental Law O651
In an environmental case, a plaintiff
cannot demonstrate injury in fact, as element for Article III standing, merely by
alleging injury to the environment; there
must be an allegation that the challenged
conduct is harming or imminently will
harm the plaintiff. U.S. Const. art. 3, § 2,
cl. 1.
26. Environmental Law O656
Environmental activists who were too
young to vote sufficiently alleged injury in
fact, as element for Article III standing, in
action alleging a substantive due process
violation and seeking declaratory and injunctive relief against President and executive branch agencies, based on allegations
that greenhouse gas emissions from carbon dioxide, produced by burning fossil
fuels, were destabilizing the climate system; activists alleged harm to their personal, economic, and aesthetic interests that
were concrete and particularized, not abstract or indefinite, and that harms to
youths and future generations were greater. U.S. Const. art. 3, § 2, cl. 1; U.S.
Const. Amend. 5.
27. Federal Civil Procedure O103.2,
103.4
Federal courts lack jurisdiction to
hear a case, because the injury in fact
element for Article III standing is not
satisfied, where the harm at issue is not
only widely shared, but is also of an ab-
The fact that a harm is widely shared,
alone, does not necessarily render it a
generalized grievance that is insufficient to
satisfy the injury-in-fact element for Article III standing. U.S. Const. art. 3, § 2,
cl. 1.
29. Federal Civil Procedure O103.2
Even if the experience at the root of
the complaint is shared by virtually every
American, the inquiry regarding the injury-in-fact element for Article III standing
remains whether that shared experience
caused an injury that is concrete and particular to the plaintiff. U.S. Const. art. 3,
§ 2, cl. 1.
30. Federal Civil Procedure O103.2
Plaintiffs must demonstrate Article
III standing for each claim they seek to
press and for each form of relief sought.
U.S. Const. art. 3, § 2, cl. 1.
31. Injunction O1044
Plaintiffs seeking injunctive relief
must show their injuries are ongoing or
likely to recur.
32. Declaratory Judgment O300
Environmental Law O656
Environmental activists sufficiently alleged the imminence of their injuries, for
purposes of injury-in-fact element for Article III standing, in action alleging a substantive due process violation and seeking
declaratory and injunctive relief against
President and executive branch agencies,
based on allegations that greenhouse gas
emissions from carbon dioxide, produced
by burning fossil fuels, were destabilizing
the climate system; complaint alleged that
present level of carbon dioxide and its
warming, both realized and latent, were
6a
JULIANA v. U.S.
Cite as 217 F.Supp.3d 1224 (D.Or. 2016)
already in zone of danger, and that early
consequences of carbon overshoot were already threatening and would, in the short
term, rise to an unbearable level unless
immediate action was taken by defendants.
U.S. Const. art. 3, § 2, cl. 1; U.S. Const.
Amend. 5.
33. Federal Civil Procedure O103.3
Although a defendant’s action need
not be the sole source of injury, to support
the causation element for Article III
standing, the line of causation between the
defendant’s action and the plaintiff’s harm
must be more than attenuated. U.S.
Const. art. 3, § 2, cl. 1.
34. Federal Civil Procedure O103.3
A causal chain does not fail, for purposes of Article III standing, simply because it has several links, provided those
links are not hypothetical or tenuous and
remain plausible. U.S. Const. art. 3, § 2,
cl. 1.
35. Environmental Law O656
Environmental activists satisfied causation element for Article III standing, in
action alleging a substantive due process
violation and seeking declaratory and injunctive relief against President and executive branch agencies, based on allegations
that greenhouse gas emissions from carbon dioxide, produced by burning fossil
fuels, were destabilizing the climate system; the emissions at issue, produced in
the United States, allegedly made up onefourth of global emissions, and activists’
theory of causation involved both defendants’ affirmative acts and their failure to
act. U.S. Const. art. 3, § 2, cl. 1; U.S.
Const. Amend. 5.
36. Federal Civil Procedure O103.3
A plaintiff need not show a favorable
decision is certain to redress his injury, in
order to establish Article III standing, but
must show a substantial likelihood it will
do so. U.S. Const. art. 3, § 2, cl. 1.
1229
37. Federal Civil Procedure O103.3
It is sufficient, for the redressability
element for Article III standing, to show
that the requested remedy would slow or
reduce the harm. U.S. Const. art. 3, § 2,
cl. 1.
38. Environmental Law O656
Environmental activists satisfied redressability element for Article III standing, in action alleging a substantive due
process violation and seeking declaratory
and injunctive relief against President and
executive branch agencies, based on allegations that greenhouse gas emissions
from carbon dioxide, produced by burning
fossil fuels, were destabilizing the climate
system; activists alleged that defendants
controlled over one-fourth of planet’s
greenhouse gas emissions, and they were
asking the court to order defendants to
prepare and implement an enforceable national remedial plan to phase out fossil fuel
emissions and draw down excess atmospheric carbon dioxide. U.S. Const. art. 3,
§ 2, cl. 1; U.S. Const. Amend. 5.
39. Federal Civil Procedure O103.3
The possibility that some other individual or entity might later cause the same
injury does not defeat the redressability
element for Article III standing; the question is whether the injury caused by the
defendant can be redressed. U.S. Const.
art. 3, § 2, cl. 1.
40. Federal Civil Procedure O103.2
Once a federal court concludes one
plaintiff has Article III standing, it need
not determine whether the remaining
plaintiffs have standing. U.S. Const. art.
3, § 2, cl. 1.
41. Constitutional Law O3877, 3901
When a plaintiff challenges affirmative government action under the Due Process Clause, the threshold inquiry is the
applicable level of judicial scrutiny, and the
7a
1230
217 FEDERAL SUPPLEMENT, 3d SERIES
default level of scrutiny is rational basis,
which requires a reviewing court to uphold
the challenged governmental action so long
as it implements a rational means of
achieving a legitimate governmental end.
U.S. Const. Amend. 5.
42. Constitutional Law O3901
When the government infringes a fundamental right, a reviewing court applies
strict scrutiny for a due process violation.
U.S. Const. Amend. 5.
43. Constitutional Law O3901
Substantive due process forbids the
government to infringe certain fundamental liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. U.S. Const. Amend.
5.
44. Constitutional Law O3894
Fundamental liberty rights, protected
by the substantive component of the Due
Process Clause, include both rights enumerated elsewhere in the Constitution and
rights and liberties which are either: (1)
deeply rooted in the Nation’s history and
tradition, or (2) fundamental to the scheme
of ordered liberty. U.S. Const. Amend. 5.
45. Constitutional Law O3894
Federal courts must exercise the utmost care whenever they are asked to
break new ground in the field of substantive due process, lest the liberty protected
by the Due Process Clause be subtly
transformed into judicial policy preferences. U.S. Const. Amend. 5.
46. Constitutional Law O3894
The identification and protection of
fundamental rights protected by the substantive component of the Due Process
Clause is an enduring part of the judicial
duty to interpret the Constitution, which
has not been reduced to any formula.
U.S. Const. Amend. 5.
47. Constitutional Law O3894
In determining whether a right is fundamental, for purposes of substantive due
process, courts must exercise reasoned
judgment, keeping in mind that history
and tradition guide and discipline this inquiry but do not set its outer boundaries.
U.S. Const. Amend. 5.
48. Constitutional Law O4320
Environmental Law O700
The right to a climate system capable
of sustaining human life was fundamental
to a free and ordered society, and thus,
strict scrutiny for a violation of substantive
due process was applicable, in environmental activists’ action seeking declaratory and
injunctive relief against President and executive branch agencies, based on allegations that greenhouse gas emissions from
carbon dioxide, produced by burning fossil
fuels, were destabilizing the climate system; a stable climate system was quite
literally the foundation of society, without
which there would be neither civilization
nor progress. U.S. Const. Amend. 5.
49. Constitutional Law O4048
With limited exceptions, the Due Process Clause does not impose on the government an affirmative obligation to act,
even when such aid may be necessary to
secure life, liberty, or property interests of
which the government itself may not deprive the individual. U.S. Const. Amend.
5.
50. Constitutional Law O4049, 4050
There are two exceptions to the general rule that the Due Process Clause does
not impose on the government an affirmative obligation to act: (1) the special relationship exception, and (2) the danger creation exception. U.S. Const. Amend. 5.
51. Constitutional Law O4049
The special relationship exception, to
the general rule that the Due Process
8a
JULIANA v. U.S.
Cite as 217 F.Supp.3d 1224 (D.Or. 2016)
Clause does not impose on the government
an affirmative obligation to act, provides
that when the government takes an individual into custody against his or her will,
it assumes some responsibility to ensure
that individual’s safety.
U.S. Const.
Amend. 5.
52. Constitutional Law O4050
The danger creation exception, to the
general rule that the Due Process Clause
does not impose on the government an
affirmative obligation to act, permits a substantive due process claim when government conduct places a person in peril in
deliberate indifference to their safety.
U.S. Const. Amend. 5.
53. Constitutional Law O4050
A plaintiff challenging government inaction on a danger creation theory of a
violation of substantive due process must
show the government actor created or exposed the plaintiff to a danger which he or
she would not have otherwise faced; the
government action must place the plaintiff
in a worse position than that in which he
or she would have been had the government not acted at all. U.S. Const. Amend.
5.
54. Constitutional Law O4050
When challenging government inaction on a danger creation theory of a violation of substantive due process, the
plaintiff must show the government actor
recognized the unreasonable risks to the
plaintiff and actually intended to expose
the plaintiff to such risks without regard
to the consequences to the plaintiff; the
government actor must have acted with
deliberate indifference, which requires a
culpable mental state more than gross
negligence. U.S. Const. Amend. 5.
55. Constitutional Law O4320
Environmental Law O700
Environmental activists stated a claim
for a substantive due process violation
based on a danger creation theory, in ac-
1231
tion seeking declaratory and injunctive relief against President and executive branch
agencies, based on allegations that greenhouse gas emissions from carbon dioxide,
produced by burning fossil fuels, were destabilizing the climate system; activists alleged that defendants knowingly, with full
appreciation of the consequences, caused,
and continued to cause, dangerous interference with the atmosphere and climate
system by permitting, authorizing, and
subsidizing fossil fuel extraction, production, transportation, and utilization. U.S.
Const. Amend. 5.
56. Public Lands O7
In its broadest sense, the term ‘‘public
trust,’’ in context of public trust doctrine,
refers to the fundamental understanding
that the federal government cannot legitimately abdicate its core sovereign powers.
See publication Words and Phrases
for other judicial constructions and
definitions.
57. Public Lands O7
The public trust doctrine rests on the
fundamental principle that every succeeding legislature possesses the same jurisdiction and power with respect to the public
interest as its predecessors.
58. Public Lands O7
The public trust doctrine conceives of
certain powers and obligations, such as the
police power, as inherent aspects of sovereignty, and recognizes that permitting the
government to permanently give one of
these powers to another entity diminishes
the power of future legislatures to promote
the general welfare.
59. Public Lands O7
With respect to essential natural resources, the sovereign’s public trust obligations prevent it from depriving a future
legislature of the natural resources necessary to provide for the well-being and survival of its citizens.
9a
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217 FEDERAL SUPPLEMENT, 3d SERIES
60. Public Lands O7
The public trust doctrine, with respect
to natural resources, operates according to
basic trust principles, which impose upon
the trustee a fiduciary duty to protect the
trust property against damage or destruction, and the trustee owes this duty equally to both current and future beneficiaries
of the trust.
61. Public Lands O7
The public trust doctrine is generally
thought to impose three types of restrictions on governmental authority: (1) the
property subject to the trust must not only
be used for a public purpose, but it must
be held available for use by the general
public; (2) the property may not be sold,
even for a fair cash equivalent; and (3) the
property must be maintained for particular
types of uses.
62. Declaratory Judgment O203
Water Law O2651
Allegation of environmental activists,
that the federal government was failing to
protect the territorial sea, involved a public trust asset, for purposes of stating a
claim for violation of public trust doctrine,
in action seeking declaratory and injunctive relief against President and executive
branch agencies, based on allegations that
greenhouse gas emissions from carbon dioxide, produced by burning fossil fuels,
were destabilizing the climate system. 43
U.S.C.A. § 1312.
63. Water Law O2660
The public trust doctrine applies to
lands beneath tidal waters.
64. Declaratory Judgment O203
Water Law O2651
Environmental activists, by alleging
injuries relating to effects of ocean acidification and rising ocean temperatures, adequately alleged harm to public trust assets,
for purposes of stating a claim for violation
of public trust doctrine, in action seeking
declaratory and injunctive relief against
President and executive branch agencies,
based on allegations that greenhouse gas
emissions from carbon dioxide, produced
by burning fossil fuels, were destabilizing
the climate system.
65. Public Lands O7
The public trust doctrine can apply to
the federal government.
66. Constitutional Law O4320
Environmental Law O700
Environmental activists’ right of action, to enforce the federal government’s
obligations as trustee under the public
trust doctrine, arose from the Due Process
Clause’s substantive component, in action
seeking declaratory and injunctive relief
against President and executive branch
agencies, based on allegations that greenhouse gas emissions from carbon dioxide,
produced by burning fossil fuels, were destabilizing the climate system. U.S. Const.
Amend. 5.
67. Federal
103.4
Civil
Procedure O103.2,
Even when a case falls within the
constitutional boundaries for Article III
standing, a plaintiff may still lack standing
under the prudential principles by which
the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated, and to
limit access to the federal courts to those
litigants best suited to assert a particular
claim. U.S. Const. art. 3, § 2, cl. 1.
68. Constitutional Law O3896
Substantive due process rights are
limited by careful respect for the teachings
of history and recognition of the basic
values that underlie society, and therefore,
only official conduct that shocks the conscience is cognizable as a due process violation. U.S. Const. Amend. 5.
10a
JULIANA v. U.S.
Cite as 217 F.Supp.3d 1224 (D.Or. 2016)
Julia A. Olson, Wild Earth Advocates,
Daniel M. Galpern, Law Offices of Daniel
M. Galpern, Eugene, OR, Philip L. Gregory, Cotchett, Pitre & McCarthy, LLP,
Burlingame, CA, for Plaintiffs.
Sean C. Duffy, U.S. Department of Justice, Washington, DC, for Defendants.
OPINION AND ORDER
Aiken, Judge:1
Plaintiffs in this civil rights action are a
group of young people between the ages
of eight and nineteen (‘‘youth plaintiffs’’);
Earth Guardians, an association of young
environmental activists; and Dr. James
Hansen, acting as guardian for future
generations.2 Plaintiffs filed this action
against defendants the United States,
President Barack Obama, and numerous
executive agencies. Plaintiffs allege defendants have known for more than fifty
years that the carbon dioxide (‘‘CO2’’) produced by burning fossil fuels was destabilizing the climate system in a way that
would ‘‘significantly endanger plaintiffs,
with the damage persisting for millenia.’’
First. Am. Compl. ¶ 1. Despite that knowledge, plaintiffs assert defendants, ‘‘[b]y
their exercise of sovereign authority over
our country’s atmosphere and fossil fuel
resources, TTT permitted, encouraged, and
otherwise enabled continued exploitation,
production, and combustion of fossil fuels,
TTT deliberately allow[ing] atmospheric
CO2 concentrations to escalate to levels
unprecedented in human history[.]’’ Id.
¶ 5. Although many different entities con1.
Student externs worked on each stage of the
preparation of this opinion, from initial background research to final copyedits. I would be
remiss if I did not acknowledge the invaluable
contributions of Daniel Bodden (University of
Kentucky), Elizabeth Jacklin (University of
Oregon School of Law), Ann Richan Metier
(Willamette University College of Law), James
Mullins (University of Washington School of
Law), Jessy R. Nations (University of Washington School of Law), Lydeah Negro (Lewis
1233
tribute to greenhouse gas emissions,
plaintiffs aver defendants bear ‘‘a higher
degree of responsibility than any other individual, entity, or country’’ for exposing
plaintiffs to the dangers of climate
change. Id. ¶ 7. Plaintiffs argue defendants’ actions violate their substantive due
process rights to life, liberty, and property, and that defendants have violated their
obligation to hold certain natural resources in trust for the people and for
future generations.
Plaintiffs assert there is a very short
window in which defendants could act to
phase out fossil fuel exploitation and avert
environmental catastrophe. They seek (1) a
declaration their constitutional and public
trust rights have been violated and (2) an
order enjoining defendants from violating
those rights and directing defendants to
develop a plan to reduce CO2 emissions.
Defendants moved to dismiss this action for lack of subject matter jurisdiction
and failure to state a claim. Doc. 27. Intervenors the National Association of
Manufacturers, the American Fuel & Petrochemical Manufacturers, and the
American Petroleum Institute moved to
dismiss on the same grounds. Doc. 19.
After oral argument, Magistrate Judge
Coffin issued his Findings and Recommendation (‘‘F & R’’) and recommended
denying the motions to dismiss. Doc. 68.
Judge Coffin then referred the matter to
me for review pursuant to 28 U.S.C.
§ 636 and Federal Rule of Civil Procedure 72. Doc. 69. Defendants and interve& Clark Law School), and Eleanor J. Vincent
(University of Oregon School of Law.)
2.
Although plaintiffs in this lawsuit hale from
a number of different states, venue is proper
in the District of Oregon. The majority of
youth plaintiffs, including lead plaintiff Kelsey
Juliana, reside in the District of Oregon. First
Am. Compl. ¶¶ 16, 23, 31, 35, 44, 47, 50, 53,
57, 60. In addition, plaintiff Earth Guardians
has a chapter in Eugene, Oregon.
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217 FEDERAL SUPPLEMENT, 3d SERIES
nors filed objections (docs. 73 & 74), and
on September 13, 2016, this Court heard
oral argument.
For the reasons set forth below, I adopt
Judge Coffin’s F & R as elaborated in this
opinion and deny the motions to dismiss.
BACKGROUND
This is no ordinary lawsuit. Plaintiffs
challenge the policies, acts, and omissions
of the President of the United States, 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 (‘‘DOT’’), the Department of Agriculture, the Department of Commerce, the
Department of Defense, the Department of
State, and the Environmental Protection
Agency (‘‘EPA’’). This lawsuit challenges
decisions defendants have made across a
vast set of topics—decisions like whether
and to what extent to regulate CO2 emissions from power plants and vehicles,
whether to permit fossil fuel extraction
and development to take place on federal
lands, how much to charge for use of those
lands, whether to give tax breaks to the
fossil fuel industry, whether to subsidize or
directly fund that industry, whether to
fund the construction of fossil fuel infrastructure such as natural gas pipelines at
home and abroad, whether to permit the
export and import of fossil fuels from and
to the United States, and whether to au3.
For the purposes of this motion, I proceed
on the understanding that climate change exists, is caused by humans, and poses a serious threat to our planet. Defendants open
their Objections to Judge Coffin’s F & R by
stating that ‘‘[c]limate change poses a monumental threat to Americans’ health and welfare by driving long-lasting changes in our
climate, leading to an array of severe negative effects, which will worsen over time,’’
Fed. Defs.’ Obj. to F & R 1 (doc. 78). In the
2015 State of the Union address, defendant
President Barack Obama declared ‘‘[n]o chal-
thorize new marine coal terminal projects.
Plaintiffs assert defendants’ decisions on
these topics have substantially caused the
planet to warm and the oceans to rise.
They draw a direct causal line between
defendants’ policy choices and floods, food
shortages, destruction of property, species
extinction, and a host of other harms.
This lawsuit is not about proving that
climate change is happening or that human
activity is driving it. For the purposes of
this motion, those facts are undisputed.3
The questions before the Court are whether defendants are responsible for some of
the harm caused by climate change,
whether plaintiffs may challenge defendants’ climate change policy in court, and
whether this Court can direct defendants
to change their policy without running
afoul of the separation of powers doctrine.
STANDARDS
The Magistrates Act authorizes a district court to ‘‘accept, reject or modify, in
whole or in part, the findings or recommendations made by the magistrate
judge.’’ 28 U.S.C. § 636(b)(1). When a party objects to any portion of the magistrate’s findings and recommendation, the
district court must review de novo that
portion of the magistrate judge’s report.
Fed. R. Civ. P. 72(b)(3); see also McDonnell Douglas Corp. v. Commodore Bus.
Machs., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981) (for dispositive motions, ‘‘the statute
lenge TTT poses a greater threat to future
generations than climate change,’’ President
Barack Obama, Remarks in State of the Union Address (Jan. 20, 2015), available at
www.whitehouse.gov/the-press-office/2015/01/
20/remarks-president-state-union-addressjanuary-20–2015 (last visited Nov. 7, 2016).
When asked at oral argument if they agreed
that human-caused climate change poses a
serious threat, intervenors declined to take a
clear position. All parties agree, however,
that a dispute over the existence of climate
change is not at the heart of this case.
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Cite as 217 F.Supp.3d 1224 (D.Or. 2016)
grants the broadest possible discretion to
the reviewing district court’’).
[1, 2] Under Federal Rule of Civil Procedure 12(b)(1), a district court must dismiss an action if subject matter jurisdiction is lacking. A motion to dismiss under
Rule 12(b)(1) may attack either the allegations of the complaint or the ‘‘existence of
subject matter in fact.’’ Thornhill Publ’g
Co., Inc. v. Gen. Tel. & Elec. Corp., 594
F.2d 730, 733 (9th Cir. 1979). The party
seeking to invoke the district court’s jurisdiction bears the burden of establishing
subject matter jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391
(1994).
Under Federal Rule of Civil Procedure
12(b)(6), a complaint is construed in favor
of the plaintiff, and its factual allegations
are taken as true. Daniels–Hall v. Nat’I
Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.
2010), However, the court need not accept
as true ‘‘conclusory’’ allegations or unreasonable inferences. Id. Thus, ‘‘for a complaint to survive a motion to dismiss, the
non-conclusory factual content, and reasonable inferences 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)
(quotation marks omitted). ‘‘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.’’ Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
‘‘[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, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007).
DISCUSSION
Judge Coffin recommended denying defendants’ and intervenors’ motions to dismiss and holding that plaintiffs’ public
trust and due process claims may proceed.
Defendants and intervenors object to those
recommendations on a number of grounds.
They contend plaintiffs’ claims must be
dismissed for lack of jurisdiction because
the case presents non-justiciable political
questions, plaintiffs lack standing to sue,
and federal public trust claims cannot be
asserted against the federal government.
They further argue plaintiffs have failed to
state a claim on which relief can be granted. I first address the threshold challenges
to jurisdiction, and then proceed to address the viability of plaintiffs’ due process
and public trust claims.
I. Political Question
[3, 4] If a case presents a political
question, federal courts lack subject matter jurisdiction to decide that question.
Corrie v. Caterpillar, Inc., 503 F.3d 974,
982 (9th Cir. 2007). The political question
doctrine is ‘‘primarily a function of the
separation of powers.’’ Baker v. Carr, 369
U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663
(1962). This limitation on the federal courts
was recognized in Marbury v. Madison, 5
U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803),
in which Chief Justice Marshall wrote,
‘‘[q]uestions, in their nature political, or
which are, by the constitution and laws,
submitted to the executive, can never be
made in this court.’’ However, the scope of
the political question doctrine should not
be overstated. As Alexis de Tocqueviile
observed, ‘‘[t]here is hardly any political
question in the United States that sooner
or later does not turn into a judicial question.’’ 1 Alexis de Tocqueviile, Democracy
in America 440 (Liberty Fund 2012).
[5] In Baker, the Supreme Court identified six criteria, each of which could indi-
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217 FEDERAL SUPPLEMENT, 3d SERIES
vidually signal the presence of a political
question:
[ (1) A] textually demonstrable constitutional commitment of the issue to a coordinate political department; [ (2) ] a lack
of judicially discoverable and manageable standards for resolving it; [ (3) ] the
impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [ (4) ] the
impossibility of a court’s undertaking independent resolution without expressing
lack of the respect due coordinate
branches of government; [ (5) ] an unusual need for unquestioning adherence
to a political decision already made; or
[ (6) ] the potentiality of embarrassment
from multifarious pronouncements by
various departments on one question.
Baker, 369 U.S. at 217, 82 S.Ct. 691. The
Baker tests ‘‘are probably listed in descending order of both importance and
certainty.’’ Vieth v. Jubelirer, 541 U.S. 267,
278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004)
(plurality op.). The factors overlap, with
the analyses ‘‘often collapsing into one another.’’ Alperin v. Vatican Bank, 410 F.3d
532, 544 (9th Cir. 2005). The ‘‘common
underlying inquiry’’ is whether ‘‘the question is one that can properly be decided by
the judiciary.’’ Id.
[6–8] Determining whether the political question doctrine requires abstention
calls on a court to balance profoundly important interests. On the one hand, the
separation of powers is fundamental to our
system of government, known ‘‘[e]ven before the birth of this country’’ to be ‘‘a
defense against tyranny.’’ Loving v. United States, 517 U.S. 748, 756, 116 S.Ct.
1737, 135 L.Ed.2d 36 (1996). It is a ‘‘basic
principle of our constitutional scheme that
one branch of the Government may not
intrude upon the central prerogatives of
another.’’ Id. at 757, 116 S.Ct. 1737. On the
other hand, ‘‘[t]he decision to deny access
to judicial relief’’ should never be made
‘‘lightly,’’ because federal courts ‘‘have the
power, and ordinarily the obligation, to
decide cases and controversies properly
presented to them.’’ Alperin, 410 F.3d at
539 (quoting Liu v. Rep. of China, 892
F.2d 1419, 1433 (9th Cir. 1989) and W.S.
Kirkpatrick & Co. v. Envt’l Tectonics
Corp., Int’l, 493 U.S. 400, 409, 110 S.Ct.
701, 107 L.Ed.2d 816 (1990)). Accordingly,
a court cannot simply err on the side of
declining to exercise jurisdiction when it
fears a political question may exist; it
must instead diligently map the precise
limits of jurisdiction.
[9] Climate change, energy policy, and
environmental regulation are certainly ‘‘political’’ in the sense that they have ‘‘motivated partisan and sectional debate during
important portions of our history.’’ U.S.
Dep’t of Commerce v. Montana, 503 U.S.
442, 458, 112 S.Ct. 1415, 118 L.Ed.2d 87
(1992). But a case does not present a political question merely because it ‘‘raises an
issue of great importance to the political
branches.’’ Id. Instead, dismissal on political question grounds is appropriate only if
one of the Baker considerations is ‘‘inextricable’’ from the case. Baker, 369 U.S. at
217, 82 S.Ct. 691. As a result, federal
courts regularly adjudicate claims that
arise in connection with politically charged
issues. See, e.g., Jewel v. Nat’l Sec. Agency,
673 F.3d 902, 912 (9th Cir. 2011) (electronic surveillance); Chiles v. Thornburgh, 865
F.2d 1197, 1216 (11th Cir. 1989) (detention
of undocumented immigrants); Planned
Parenthood Fed’n of Am, Inc. v. Agency
for Int’l Dev., 838 F.2d 649, 656 (2d Cir.
1988) (international funding for birth control and abortion). In each of the above
cases, the court engaged in ‘‘discriminating
inquiry into the precise facts’’ before concluding the controversy was justiciable.
Baker, 369 U.S. at 217, 82 S.Ct. 691. A
similar rigorous analysis is necessary here.
14a
JULIANA v. U.S.
Cite as 217 F.Supp.3d 1224 (D.Or. 2016)
A. First Baker Factor
The first Baker factor requires abstention ‘‘[w]hen a case would require a court
to decide an issue whose resolution is textually committed to a coordinate political
department’’ because ‘‘the court lacks authority to resolve that issue.’’ Zivotofsky ex
rel Zivotofsky v. Clinton, 566 U.S. 189, 132
S.Ct. 1421, 1431, 182 L.Ed.2d 423 (2012)
(Sotomayor, J., concurring). Since Baker,
the Supreme Court has found such ‘‘textual commitment’’ in very few cases. In Nixon v. United States, 506 U.S. 224, 113 S.Ct.
732, 122 L.Ed.2d 1 (1993), a former federal
judge sought to challenge the Senate’s processes for taking evidence during impeachment trials. Id. at 226, 113 S.Ct. 732. The
Court found his claim nonjusticiable due to
the Constitution’s clear statement granting
the Senate ‘‘the sole Power to try ail Impeachments.’’ Id. at 229, 113 S.Ct. 732
(quoting U.S. Const, art. I, § 3, cl. 6). The
Court found the provision’s use of the
word ‘‘sole’’ to be ‘‘of considerable significance.’’ Id. at 231, 113 S.Ct. 732. The Court
also discussed the history of the clause at
issue, noting that the ‘‘Framers labored
over the question of where the impeachment power should lie’’ and ‘‘at least two
considered’’—and rejected—placing that
power within the federal judiciary. Id. at
233, 113 S.Ct. 732.
In Davis v. Passman, 442 U.S. 228, 235
n.11, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979),
the Court characterized the Speech or Debate Clause as the ‘‘paradigm example’’ of
a ‘‘textually demonstrable constitutional
commitment.’’ That clause provides that
Senators and Representatives, ‘‘for any
Speech or Debate in either House, TTT
shall not be questioned in any other place.’’
U.S. Const. Art. I, § 6, cl. 1. The Court
explained that the clause plainly shields
statements of federal legislators made during speech or debate in committees or on
the House or Senate floor from any sort of
judicial review, and thus speaks ‘‘directly
1237
to TTT separation-of-powers concerns.’’
Davis, 442 U.S. at 235 n.11, 99 S.Ct. 2264.
Most recently, in Zivotofsky ex rel. Zivotofsky v. Kerry, the Court held that the
Constitution gives the president the exclusive authority to recognize foreign nations
and governments. ––– U.S. ––––, 135 S.Ct.
at 2086, 192 L.Ed.2d 83. The Court acknowledged that the Constitution does not
use the term ‘‘recognition.’’ Id. at 2084.
Nonetheless, the Court determined that
the Constitution granted the recognition
power to the Executive Branch ‘‘[a]s a
matter of constitutional structure.’’ Id. at
2085. The Court concluded that the clauses
giving the president exclusive authority to
receive ambassadors and to negotiate treaties implicitly granted the recognition power. Id. at 2086. That determination rested
in part on the Court’s conclusion that recognition was uniquely ‘‘a topic on which
the Nation much speak with one voice.’’ Id.
at 2086 (quotation marks and ellipsis omitted). If Congress had the power to decline
to recognize a foreign state the Executive
had decided to recognize, the president
would be unable to assure that foreign
state that its ambassadors would be received, its officials would be immune from
suit in federal court, and it would be permitted to initiate lawsuits in the United
States to vindicate its rights. Id. In issuing
its decision, the Court expressly declined
to hold that the Constitution gives the
president the ‘‘unbounded power’’ to ‘‘conduct diplomatic relations’’ and exercise
‘‘the bulk of foreign-affairs powers.’’ Id. at
2089.
[10] Unlike in the constitutional provisions at issue Nixon and Passman, the
constitutional provisions cited here contain
nothing approaching a clear reference to
the subject matter of this case. The Constitution does not mention environmental
policy, atmospheric emissions, or global
warming. And unlike in Zivotofksy, climate
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217 FEDERAL SUPPLEMENT, 3d SERIES
change policy is not a fundamental power
on which any other power allocated exclusively to other branches of government
rests. Intervenors correctly point out that
the Constitution gives the political branches authority over commerce, foreign relations, national defense, and federal lands—
all areas affected by climate change policy.
See U.S. Const, art. I, § 8 cl. 3 (Congress
has authority to ‘‘regulate commerce with
foreign nations, and among the several
states’’); Zivotofsky, 135 S.Ct. at 2084–86
(discussing various constitutional provisions granting the Executive Branch foreign relations authority); U.S. Const. art.
I, § 8 cl. 11–16 (detailing Congress’s powers relating to war and the military); U.S.
Const, art. II, § 2, cl. 1 (President is commander in chief of armed forces); U.S.
Const. art. IV, § 3, cl. 2 (Congress has
power to ‘‘dispose of and make all needful
rules and regulations’’ regarding federal
land). But holding the first Baker factor
applies in any case relating to these topic
areas would permit the exception to swallow the rule. The question is not whether a
case implicates issues that appear in the
portions of the Constitution allocating power to the Legislative and Executive
Branches—such a test would, by definition,
shield nearly all legislative and executive
action from legal challenge, Rather, the
question is whether adjudicating a claim
would require the Judicial Branch to second-guess decisions committed exclusively
to another branch of government.
In the lower courts, the first Baker factor has found its broadest application in
foreign policy cases. See, e.g., Corrie, 503
F.3d at 983 (‘‘Whether to grant military or
other aid to a foreign nation is a political
decision inherently entangled with the conduct of foreign relations.’’); Gonzalez–Vera
v. Kissinger, 449 F.3d 1260, 1263 (D.C.
Cir. 2006) (decision to take ‘‘drastic measures’’ to keep Chilean dictator Augusto
Pinochet in power was a foreign policy
decision textually committed to the Execu-
tive Branch); Sadowski v. Bush, 293
F.Supp.2d 15, 21 (D.C. Cir. 2003) (decision
to go to war in Afghanistan was not justiciable, ‘‘primarily because war powers have
been explicitly committed to the political
branches’’), As a result, I give special consideration to the argument that granting
plaintiffs’ requested relief would usurp the
Executive Branch’s foreign relations authority. Climate change policy has global
implications and so is sometimes the subject of international agreements. But unlike the decisions to go to war, take action
to keep a particular foreign leader in power, or give aid to another country, climate
change policy is not inherently, or even
primarily, a foreign policy decision. Moreover, in the foreign policy context, Baker
expressly warned against framing the
‘‘textually committed’’ inquiry too broadly.
See Baker, 369 U.S. at 211, 82 S.Ct. 691
(‘‘[I]t is error to suppose that every case or
controversy which touches foreign relations lies beyond judicial cognizance.’’) The
first Baker factor does not apply.
B. Second and Third Baker Factors
‘‘The second and third Baker factors
reflect circumstances in which a dispute
calls for decisionmaking beyond courts’
competence.’’ Zivotofsky, 132 S.Ct. at 1432
(Sotomayor, J., concurring). ‘‘When a court
is given no standard by which to adjudicate a dispute, or cannot resolve a dispute
in the absence of a yet-unmade policy determination charged to a political branch,
resolution of the suit is beyond the judicial
role envisioned by Article III.’’ Id.
[11] Defendants’ and intervenors’ arguments on the second and third Baker
factors can be divided into two main
points. First, intervenors contend the
Court cannot set a permissible emissions
level without making ad hoc policy determinations about how to weigh competing
economic and environmental concerns. But
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Cite as 217 F.Supp.3d 1224 (D.Or. 2016)
plaintiffs do not ask this Court to pinpoint
the ‘‘best’’ emissions level; they ask this
Court to determine what emissions level
would be sufficient to redress their injuries. That question can be answered without any consideration of competing interests. Cf. Coleman v. Schwarzenegger, 2010
WL 99000, *1 (E.D. Cal. & N.D. Cal. Jan.
12, 2010) (requiring state to reduce the
population of adult prisons to 137.5% of
their total design capacity, a target which
‘‘extend[ed] no further than necessary to
correct the violation of California inmates’
federal constitutional rights’’). The science
may well be complex, but logistical difficulties are immaterial to the political question
analysis. See Alperin, 410 F.3d at 552, 555
(‘‘[T]he crux of th[e political question] inquiry is TTT not whether the case is unmanageable in the sense of being large,
complicated, or otherwise difficult to tackle
from a logistical standpoint,’’ but rather
whether ‘‘a legal framework exists by
which courts can evaluate TTT claims in a
reasoned manner.’’).
[12] Second, intervenors aver the
Court would have to choose which agencies
and sectors should reduce emissions, and
by how much. At oral argument, intervenors contended this would require review
of every environmental rule and regulation
in the last one hundred years. These arguments mischaracterize the relief plaintiffs
seek. Plaintiffs do not seek to have this
Court direct any individual agency to issue
or enforce any particular regulation. Rather, they ask the Court to declare the United States’ current environmental policy infringes their fundamental rights, direct the
agencies to conduct a consumption-based
inventory of United States CO2 emissions,
and use that inventory to ‘‘prepare and
implement an enforceable national remedial plan to phase out fossil fuel emissions
and draw down excess atmospheric CO2 so
as to stabilize the climate system and protect the vital resources on which Plaintiffs
now and in the future will depend.’’ First
1239
Am. Compl. at 94. This Court could issue
the requested declaration without directing
any individual agency to take any particular action.
[13] Finally, defendants and intervenors contend that plaintiffs’ failure to identify violations of precise statutory or regulatory provisions leaves this court without
any legal standard by which to judge plaintiffs’ claims, Plaintiffs could have brought
a lawsuit predicated on technical regulatory violations, but they chose a different
path. As masters of their complaint, they
have elected to assert constitutional rather
than statutory claims. Every day, federal
courts apply the legal standards governing
due process claims to new sets of facts.
The facts in this case, though novel, are
amenable to those well-established standards. Neither the second nor the third
Baker factor divests this Court of jurisdiction.
[14] In the political question section of
their objections to Judge Coffin’s F & R,
defendants assert the allegations in the
complaint are not specific enough to put
them on notice of plaintiffs’ claims. This
argument relates to the second and third
Baker factors and the competence of this
Court to adjudicate those claims, considerations which are addressed above. The argument also touches on concerns about
causation and redressability, which are discussed in Section II of this opinion. However, the argument is also phrased in
terms common to cases governing general
pleading standards. See Twombly, 550 U.S.
at 555, 127 S.Ct. 1955 (complaint in federal
court must contain enough information to
‘‘give the defendant fair notice’’ of both the
claim and the ‘‘grounds upon which it
rests’’ (quoting Conley v. Gibson, 355 U.S.
41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To
the extent defendants challenge the First
Amended Complaint as inadequately
pleaded, that challenge fails. This is not a
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217 FEDERAL SUPPLEMENT, 3d SERIES
typical environmental case, Plaintiffs are
not arguing defendants issued any particular permit in violation of a statutory provision in the Clean Air Act or the Clean
Water Act. They are not arguing any specific tax break, royalty rate, or contract
runs afoul of an agency’s governing regulations. Rather, the theory of plaintiffs’ case
is much broader: it is that defendants’
aggregate actions violate their substantive
due process rights and the government’s
public trust obligations. That theory, which
requires no citation to particular statutory
or regulatory provisions, is clear from the
face of the First Amended Complaint.
C. Fourth through Sixth Baker Factors
The fourth through sixth Baker factors
‘‘address circumstances in which prudence
may counsel against a court’s resolution of
an issue presented.’’ Zivotofsky, 132 S.Ct.
at 1432 (Sotomayor, J., concurring). Only
in ‘‘rare’’ cases will Baker’s ‘‘final factors
alone render a case nonjusticiable.’’ Id. at
1434.
[15] Intervenors contend the fourth
Baker factor, which concerns a court expressing lack of respect to another branch
of government, applies in this case. They
argue that because the Executive and Legislative branches have taken numerous
steps to address climate change, a ruling
in plaintiffs’ favor would be disrespectful
to those efforts. Intervenors would have
this Court hold the political question doctrine prevents a court from determining
whether the federal government has violated a plaintiff’s constitutional rights so long
as the government has taken some steps to
mitigate the damage. However, intervenors cite no cases—and this Court is
aware of none—to support such a broad
application of the fourth Baker factor.
Rather, courts have found the fourth factor applies in cases asking a court to
‘‘question the good faith with which another branch attests to the authenticity of its
internal acts.’’ Id. at 1433. The fourth factor has also been held relevant when ‘‘judicial resolution of a question would contradict prior decisions taken by a political
branch in those limited contexts where
such contradiction would seriously interfere with important governmental interests.’’ Kadic v. Karadzic, 70 F.3d 232, 249
(2d Cir. 1995).
Consistent with those formulations, federal appellate courts have found the fourth
Baker factor present when judicial adjudication of a claim would be wholly incompatible with foreign-relations decisions made
by one of the political branches. See, e.g.,
Whiteman v. Dorotheum GmbH & Co. KG,
431 F.3d 57, 59 (2d Cir. 2005) (political
question doctrine prevented court from adjudicating claims against Austrian government for seizure of property from Jewish
families during World War II because two
presidential administrations had ‘‘committed the United States to a policy of resolving Holocaust-era restitution claims
through international agreements rather
than litigation.’’); Schneider v. Kissinger,
412 F.3d 190, 198 (D.C. Cir. 2005) (political
question doctrine barred review of Executive Branch decision to participate in covert operations in Chile, a decision that
had already been the subject of congressional inquiry).
Although the United States has made
international commitments regarding climate change, granting the relief requested
here would be fully consistent with those
commitments. There is no contradiction
between promising other nations the United States will reduce CO2 emissions and a
judicial order directing the United States
to go beyond its international commitments to more aggressively reduce CO2
emissions. Because this Court could grant
plaintiffs’ requested relief without expressing disrespect for the Executive Branch’s
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international climate change agreements,
the fourth Baker factor does not apply.
[16] Neither intervenors nor defendants suggest the fifth or sixth Baker factors apply here. Nonetheless, I address
those factors because federal courts have
an ‘‘independent obligation to assure
[them]selves of’’ the existence of subject
matter jurisdiction. Rosson v. Fitzgerald
(In re Rosson), 545 F.3d 764, 769 n.5 (9th
Cir. 2008). On the face of the complaint, I
see no evidence of an ‘‘unusual need for
unquestioning adherence to a political decision already made’’ or any ‘‘potentiality of
embarrassment from multifarious pronouncements by various departments on
one question.’’ Baker, 369 U.S. at 217, 82
S.Ct. 691. I conclude neither of the two
final Baker factors deprives this Court of
subject matter jurisdiction.
D. Summary: This Case Does Not
Raise a Nonjusticiable Political
Question
[17] There is no need to step outside
the core role of the judiciary to decide this
case. At its heart, this lawsuit asks this
Court to determine whether defendants
have violated plaintiffs’ constitutional
rights. That question is squarely within the
purview of the judiciary. See INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 77
L.Ed.2d 317 (1983) (judiciary is bound to
determine whether the political branches
have ‘‘chosen a constitutionally permissible
means of implementing [their] power’’);
Jewel, 673 F.3d at 912 (although lawsuit
challenging federal agencies’ surveillance
practices ‘‘strikes at the heart of a major
public policy controversy,’’ claims were
justiciable because they were ‘‘straightforward claims of statutory and constitutional
rights, not political questions’’).
4.
The motion of the League of Women Voters
of the United States and the League of Wom-
1241
This case shares some key features with
Baker itself, In Baker, a group of voters
challenged a statute governing the apportionment of state legislative districts. 369
U.S. at 188–95, 82 S.Ct. 691. Sixty years of
population growth without legislative reapportionment had led to some votes carrying much more weight than others. Id. at
192–93, 82 S.Ct. 691. Here, the majority of
youth plaintiffs are minors who cannot
vote and must depend on others to protect
their political interests. Thus, as amicus
the League of Women Voters persuasively
argues, the youth plaintiffs’ claims are similar to the Baker claims because they are
‘‘rooted in a ‘debasement of their votes’
and an accompanying diminishment of
their voice in representational government.’’ Br. for the League of Women Voters in the United States et al. as Amici
Curiae at 19–20 (doc. 79–1).4 In Baker, the
Court acknowledged that the plaintiffs’
claims had political dimensions and ramifications—but nonetheless concluded none
of the Baker factors was inextricable from
the case. 369 U.S. at 209, 82 S.Ct. 691.
Similarly, as discussed in detail above, this
case raises political issues yet is not barred
by the political question doctrine.
[18, 19] Should 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. The separation of powers might,
for example, permit the Court to direct
defendants to ameliorate plaintiffs’ injuries
but limit its ability to specify precisely how
to do so. Cf. S. Burlington Cnty.
N.A.A.C.P. v. Mt. Laurel Twp., 67 N.J.
151, 336 A.2d 713, 734 (1975) (leaving to
municipality ‘‘in the first instance at least’’
the determination of how to remedy the
constitutional problems with a local zoning
ordinance). That said, federal courts retain
en Voters of Oregon to appear as amici curiae
(doc. 79) is granted.
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217 FEDERAL SUPPLEMENT, 3d SERIES
broad authority ‘‘to fashion practical remedies when confronted with complex and
intractable
constitutional
violations.’’
Brown v. Plata, 563 U.S. 493, 526, 131
S.Ct. 1910, 179 L.Ed.2d 969 (2011). In any
event, speculation about the difficulty of
crafting a remedy could not support dismissal at this early stage. See Baker, 369
U.S. at 198, 82 S.Ct. 691 (‘‘Beyond noting
that we have no cause at this stage to
doubt the District Court will be able to
fashion relief if violations of constitutional
rights are found, it is improper now to
consider what remedy would be most appropriate if appellants prevail at trial.’’)
Because no Baker factor is inextricable
from the merits of this case, the political
question doctrine is not a barrier to plaintiffs’ claims.
II. Standing to Sue
[20–24] ‘‘A threshold question in every
federal case is TTT whether at least one
plaintiff has standing.’’ Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009)
(citation and quotation marks omitted).
Standing requires a plaintiff to allege
‘‘such a personal stake in the outcome of
the controversy as to warrant [the] invocation of federal-court jurisdiction and to
justify exercise of the court’s remedial
powers[.]’’ Warth v. Seldin, 422 U.S. 490,
498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
To demonstrate standing, a plaintiff must
show (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, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992). A plaintiff
must support each element of the standing
test ‘‘with the manner and degree of evidence required at the successive stages of
the litigation.’’ Id. at 561, 112 S.Ct. 2130.
Accordingly, at the motion to dismiss stage
‘‘general allegations’’ suffice to establish
standing because those allegations are presumed to ‘‘embrace those specific facts
that are necessary to support the claim.’’
Id. (citation and quotation marks omitted).
A. Injury in Fact
[25] 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.
(TOC), Inc., 528 U.S. 167, 181, 120 S.Ct.
693, 145 L.Ed.2d 610 (2000). For example,
a plaintiff may meet the injury in fact
requirement by alleging the challenged activity ‘‘impairs his or her economic interests or aesthetic and environmental wellbeing.’’ Wash. Envt’l Council v. Bellon,
732 F.3d 1131, 1140 (9th Cir. 2013) (quotation marks omitted and alterations normalized).
[26] Plaintiffs adequately allege injury
in fact. Lead plaintiff Kelsey Juliana alleges algae blooms harm the water she
drinks, and low water levels caused by
drought kill the wild salmon she eats. First
Am. Compl. ¶¶ 17–18. Plaintiff Xiuhtezcatl
Roske–Martinez alleges increased wildfires
and extreme flooding jeopardize his personal safety. Id. ¶ 21. Plaintiff Alexander
Loznak alleges record-setting temperatures harm the health of the hazelnut orchard on his family farm, an important
source of both revenue and food for him
and his family. Id. ¶ 26. Plaintiff Jacob
Lebel alleges drought conditions required
his family to install an irrigation system at
their farm. Id. ¶ 32. Plaintiff Zealand B.
alleges he has been unable to ski during
the winter as a result of decreased snowpack. Id. ¶ 38. Plaintiff Sahara V. alleges
hot, dry conditions caused by forest fires
aggravate her asthma. Id. ¶ 46.
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The most recent allegations of injury
appear in the supplemental declaration of
plaintiff Jayden F., a thirteen-year-old resident of Rayne, Louisiana. Jayden alleges
that at five o’clock the morning of August
13, 2016, her siblings woke her up. Decl.
Jayden F. ¶ 5 Sept. 7, 2016 (doc. 78). She
stepped out of bed into ankle-deep water.
By the end of the day,
Flood waters were pouring into our
home through every possible opening.
We tried to stop it with towels, blankets,
and boards. The water was flowing down
the hallway, into my Mom’s room and
my sisters’ room. The water drenched
my living room and began to cover our
kitchen floor. Our toilets, sinks, and
bathtubs began to overflow with awful
smelling sewage because our town’s sewer system also flooded. Soon the sewage
was everywhere. We had a stream of
sewage and water running through our
house.
Id. ¶ 8. With no shelters available and
nowhere else to go, the family remained in
the flooded house for weeks. Id. ¶ 10. The
floodwaters eventually receded, but the
damage remains: the carpets are soaked
with sewage water. Id. ¶ 12. The waterlogged walls must be torn down to prevent
the growth of black mold. Id. The entire
family sleeps together in the living room
because the bedrooms are uninhabitable.
Id. ¶ 15. Jayden alleges the storm that
destroyed her home ‘‘ordinarily would happen once every 1,000 years, but is happening now as a result of climate change.’’ Id.
¶ 2.
The government contends these injuries
are not particular to plaintiffs because
they are caused by climate change, which
broadly affects the entire planet (and all
people on it) in some way. According to the
government, this renders plaintiffs’ injuries nonjusticiable generalized grievances.
See Lexmark Int’l, Inc. v. Static Control
Components, Inc., ––– U.S. ––––, 134 S.Ct.
1377, 1387 n.3, 188 L.Ed.2d 392 (2014)
1243
(explaining that generalized grievances do
not meet Article III’s case or controversy
requirement).
[27–29] 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,
118 S.Ct. 1777, 141 L.Ed.2d 10 (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, 127 S.Ct. 1438, 167
L.Ed.2d 248 (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, 118
S.Ct. 1777 (‘‘[A]n injury TTTT widely
shared TTT 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 TTT has a
concrete and particularized injury, it 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
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217 FEDERAL SUPPLEMENT, 3d SERIES
shared experience caused an injury that is
concrete and particular to the plaintiff.
Jewel, 673 F.3d at 910. Applying the correct formulation of the generalized grievance rule, plaintiffs’ alleged injuries—harm
to their personal, economic and aesthetic
interests—are concrete and particularized,
not abstract or indefinite.
[30–32] That leaves imminence. Plaintiffs must demonstrate standing for each
claim they seek to press and for each form
of relief sought. DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854,
164 L.Ed.2d 589 (2006). Because plaintiffs
seek injunctive relief, they must show 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)). They have met
this requirement. The complaint alleges
that ‘‘[t]he present level of CO2 and its
warming, both realized and latent, are already in the zone of danger.’’ First Am,
Compl, ¶ 8. It also alleges that ‘‘our country is now in a period of carbon overshoot,
with early consequences that are already
threatening and that will, in the short
term, rise to unbearable unless Defendants
take immediate action[.]’’ Id. ¶ 10 (quotation marks omitted). Youth plaintiffs each
allege harm that is ongoing and likely to
continue in the future. See, e.g., id. ¶ 17
(alleging current harm and harm ‘‘[i]n the
coming decades’’ from ocean acidification
and rising sea levels); id. ¶ 45 (alleging
damage to freshwater resources now and
in the future ‘‘if immediate action is not
taken’’ to reduce CO2 emissions). This is
sufficient to satisfy the imminence requirement.
By alleging injuries that are concrete,
particularized, and actual or imminent,
plaintiffs have satisfied the first prong of
the standing test.
B. Causation
[33, 34] The second requirement of
standing is 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, 112
S.Ct. 2130 (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 plaintiff’s harm must
be more than attenuated,’’ Native Vill. of
Kivalina v. ExxonMobil Corp., 696 F.3d
849, 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
bracket omitted).
The government contends plaintiffs have
not adequately alleged causation, relying
on the Ninth Circuit’s decision in Bellon.
In that case, environmental advocacy
groups sought to compel the Washington
State Department of Ecology and other
regional agencies ‘‘to regulate greenhouse
gas emissions’’ (‘‘GHGs’’) from five oil refineries. Bellon, 732 F.3d at 1135. The
court held plaintiffs lacked standing to sue
because the causal link between the agencies’ regulatory decisions and the plaintiffs’
injuries was ‘‘too attenuated.’’ Id. at 1141.
The court explained the special challenge
of showing causation with respect to the
production of greenhouse gases:
Greenhouse gases, once emitted from a
specific source, quickly mix and disperse
in the global atmosphere and have a
long atmospheric lifetime. Current research on how greenhouse gases influence global climate change has focused
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on the cumulative environmental effects
from aggregate regional or global
sources. But there is limited scientific
capability in assessing, detecting, or
measuring the relationship between a
certain GHG emission source and localized climate impacts in a given region.
Id. at 1143. The court noted that the five
oil refineries at issue were responsible for
just under six percent of total greenhouse
gas emissions produced in the state of
Washington, and 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 GHGs worldwide, and the absence of any meaningful
nexus between Washington refinery emissions and global GHG concentrations now
or as projected in the future.’’ Id. at 1144
(quotation marks omitted). The court concluded the ‘‘causal chain [wa]s too tenuous
to support standing.’’ Id.
This case is distinguishable from Bellon
in two important respects. First, the procedural posture is different. In Bellon, the
appeal was taken from a grant of summary
judgment. Id. at 1138. That procedural
posture is underscored by the court’s reliance on expert declarations in rendering
its decision. Plaintiffs have alleged a causal
relationship between their injuries and defendants’ conduct. At this stage, I am
bound to accept those allegations as true.
This rule appropriately acknowledges the
limits of the judiciary’s expertise: at the
motion to dismiss stage, a federal court is
in no position to say it is impossible to
introduce evidence to support a well-pleaded causal connection. See Connecticut v.
Am. Elec. Power Co., Inc., 582 F.3d 309,
347 (2d Cir. 2009) (holding that causation
in climate change cases is ‘‘best left to the
rigors of evidentiary proof at a future
stage of the proceedings, rather than dispensed with as a threshold question of
constitutional standing’’), rev’d on other
grounds, Am. Elec. Power Co., Inc. v. Con-
1245
necticut, 564 U.S. 410, 429, 131 S.Ct. 2527,
180 L.Ed.2d 435 (2011). 1 note, too, that
climate science is constantly evolving. See
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[,] TTT our knowledge of the climate is developing at a
breakneck pace.’’) As a result, 1 cannot
interpret Bellon—which relied on a summary judgment record developed more
than five years ago—to forever close the
courthouse doors to climate change claims.
[35] Second, the emissions at issue in
this case, unlike the emissions at issue in
Bellon, make up a significant share of
global emissions, In Bellon, as noted, the
five oil refineries were responsible for just
under six percent of the greenhouse gas
emissions generated in the state of Washington. The Ninth Circuit recently explained that in Bellon, ‘‘causation was lacking 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
undiscernable.’ ’’ WildEarth Guardians v.
U.S. Dep’t of Agric., 795 F.3d 1148, 1158
(9th Cir. 2015) (quoting Bellon, 732 F.3d at
1144). Here, by contrast, plaintiffs’ chain of
causation rests on the core allegation that
defendants are responsible for a substantial share of worldwide greenhouse gas
emissions. Plaintiffs allege that over the
263 years between 1751 and 2014, the
United States produced more than twentyfive percent of global CO2 emissions. First
Am. Compl. ¶ 151. Greenhouse gas emissions produced in the United States continue to increase. Id. ¶ 152. In 2012, the
United States was the second largest pro-
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217 FEDERAL SUPPLEMENT, 3d SERIES
ducer and consumer of energy in the
world. Id. ¶ 160. Bellon’s reasoning, which
rested on a determination the oil refineries
were ‘‘minor contributors’’ to climate
change, does not apply. WildEarth Guardians, 795 F.3d at 1158.
The government broadly asserts that
Bellon rejected ‘‘the argument that allegations that a source ‘contributed’ to climate
change are sufficient to satisfy Article Ill’s
causation requirement[.]’’ Fed. Defs.’
Mem. of Points & Auth. in Supp. of Mot.
Dismiss at 12 (doc. 27–1). Not so. Bellon
rejected—at the summary judgment
stage—‘‘vague, conclusory’’ statements
purporting to establish a causal relationship between the emissions of five refineries and the plaintiffs’ injuries. 732 F.3d at
1142. Although the Constitution did not
require the Bellon plaintiffs to ‘‘connect
each molecule to their injuries,’’ it demanded more than ‘‘simply saying that the
Agencies have failed to curb emission of
greenhouse gases, which contribute (in
some undefined way and to some undefined degree) to their injuries[.]’’ Id. at
1142–43.
The causal chain alleged by plaintiffs
here is conclusory, but that is because they
have not yet had the opportunity to present evidence. And unlike in Bellon, plaintiffs’ causation allegations are not vague.
At oral argument, plaintiffs explained that
their theory of causation has two components. The first relates to defendants’ affirmative acts. Specifically, plaintiffs allege
that fossil fuel combustion accounts for
approximately ninety-four percent of United States CO2 emissions. First Am. Compl.
¶ 158. Defendants lease public lands for oil,
gas, and coal production; undercharge
royalties in connection with those leases;
provide tax breaks to companies to encourage fossil fuel development; permit the
import and export of fossil fuels; and incentivize the purchase of sport utility vehicles. Id. ¶¶ 164, 166, 171, 173, 181, 190.
Here, the chain of causation is: fossil fuel
combustion accounts for the lion’s share of
greenhouse gas emissions produced in the
United States; defendants have the power
to increase or decrease those emissions;
and defendants use that power to engage
in a variety of activities that actively cause
and promote higher levels of fossil fuel
combustion.
The second component of plaintiffs’ causation theory involves defendants’ failure
to act in areas where they have authority
to do so. Plaintiffs allege that together,
power plants and transportation produce
nearly two-thirds of CO2 emissions in the
United States. Id. ¶ 115 (transportation
produces approximately twenty-seven percent of annual emissions); id. ¶ 125 (power
plants produce roughly thirty-seven percent of annual emissions). Plaintiffs also
allege DOT and EPA have broad power to
set emissions standards in these sectors.
So the chain of causation is: DOT and
EPA have jurisdiction over sectors producing sixty-four percent of United States
emissions, which in turn constitute roughly
fourteen percent of emissions worldwide;
they allow high emissions levels by failing
to set demanding standards; high emissions levels cause climate change; and climate change causes plaintiffs’ injuries.
Each link in these causal chains may be
difficult to prove, but the ‘‘spectre of difficulty down the road does not inform [the]
justiciability determination at this early
stage of the proceedings.’’ Alperin, 410
F.3d at 539. At the pleading stage, plaintiffs have adequately alleged a causal link
between defendants’ conduct and the asserted injuries.
C. Redressability
[36, 37] 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
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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 a favorable decision is certain to
redress his injury, but must show a substantial likelihood it will do so. Id. It is
sufficient for the redressability inquiry to
show that the requested remedy would
‘‘slow or reduce’’ the harm, Massachusetts,
549 U.S. at 525, 127 S.Ct. 1438 (citing
Larson v. Valente, 456 U.S. 228, 243 n.15,
102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)).
[38] The declaratory and injunctive relief plaintiffs request meets this standard.
Most notably, plaintiffs ask this Court to
‘‘[o]rder Defendants to prepare and implement an enforceable national remedial plan
to phase out fossil fuel emissions and draw
down excess atmospheric CO2[.]’’ First
Am. Compl. ¶ 94. If plaintiffs can show, as
they have alleged, that defendants have
control over a quarter of the planet’s
greenhouse gas emissions, and that a reduction in those emissions would reduce
atmospheric CO2 and slow climate change,
then plaintiffs’ requested relief would redress their injuries.
Bellon is not to the contrary. In Bellon,
the court concluded the plaintiff’s injuries
would continue unabated even if the five
oil refineries shut down, repeating its conclusion that the effect of the emissions
produced by those refineries on global
emissions levels was ‘‘scientifically indiscernable.’’ 732 F.3d at 1147 (quotation
marks omitted), Thus, Bellon’s redressability holding, like its causation holding, rested on a factor not present here: that the
defendants were minor contributors to
global climate change. Accordingly, Bellon’s reasoning does not apply.
1247
[39] Defendants and intervenors essentially argue that because many entities
contribute to global warming, an injunction
operating on one entity—even a major
player—would offer no guarantee of an
overall reduction in greenhouse gas emissions. But whether the Court could guarantee an overall reduction in greenhouse
gas emissions is the wrong inquiry for at
least two reasons. First, redressability
does not require certainty, it requires only
a substantial likelihood that the Court
could provide meaningful relief. Second,
the possibility that some other individual
or entity might later cause the same injury
does not defeat standing—the question is
whether the injury caused by the defendant can be redressed.
Redressability in this case is scientifically complex, particularly in light of the
specter of ‘‘irreversible climate change,’’
wherein greenhouse gas emissions above a
certain level push the planet past ‘‘points
of no return, beyond which irreversible
consequences become inevitable, out of humanity’s control.’’ Hansen Decl. ¶ 13 & Ex.
2 at 13 Sept. 10, 2015 (docs. 7–1 & 7–3)
(quotation marks omitted). This raises a
host of questions, among them: What part
of plaintiffs’ injuries are attributable to
causes beyond this Court’s control? Even
if emissions increase elsewhere, will the
magnitude of plaintiffs’ injuries be less if
they obtain the relief they seek in this
lawsuit? When would we reach this point
of no return, and do defendants have it
within their power to avert reaching it
even without cooperation from third parties? All of these questions are inextricably
bound up in the causation inquiry, and
none of them can be answered at the motion to dismiss stage.
[40] Plaintiffs ask this Court to ‘‘order
Defendants to cease their permitting, authorizing, and subsidizing of fossil fuels
and, instead, move to swiftly phase out
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217 FEDERAL SUPPLEMENT, 3d SERIES
CO2 emissions, as well as take such other
action necessary to ensure that atmospheric CO2 is no more concentrated than 350
ppm by 2100, including to develop a national plan to restore Earth’s energy balance, and implement that national plan so
as to stabilize the climate system.’’ First
Am. Compl. ¶ 12 (emphasis omitted). Construing the complaint in plaintiffs’ favor,
they allege that this relief would at least
partially redress their asserted injuries.
Youth plaintiffs have adequately alleged
they have standing to sue.5
Defendants and intervenors challenge
plaintiffs’ due process claims on two
grounds. First, they assert any challenge
to defendants’ affirmative actions (i.e. leasing land, issuing permits) cannot proceed
because plaintiffs have failed to identify
infringement of a fundamental right or
discrimination against a suspect class of
persons. Second, they argue plaintiffs cannot challenge defendants’ inaction (i.e.,
failure to prevent third parties from emitting CO2 at dangerous levels) because defendants have no affirmative duty to protect plaintiffs from climate change.
III. Due Process Claims 6
A. Infringement of a Fundamental
Right
The Due Process Clause of the Fifth
Amendment to the United States Constitution bars the federal government from depriving a person of ‘‘life, liberty, or property’’ without ‘‘due process of law.’’ U.S.
Const. amend. V. Plaintiffs allege defendants have violated their due process
rights by ‘‘directly caus[ing] atmospheric
CO2 to rise to levels that dangerously interfere with a stable climate system required alike by our nation and Plaintiffs[,]’’
First Am. Compl. ¶ 279; ‘‘knowingly endanger[ing] Plaintiffs’ health and welfare
by approving and promoting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion,’’ id.
¶ 280; and, ‘‘[a]fter knowingly creating this
dangerous situation for Plaintiffs, TTT continu[ing] to knowingly enhance that danger
by allowing fossil fuel production, consumption, and combustion at dangerous
levels,’’ id. ¶ 284.
[41–43] When a plaintiff challenges affirmative government action under the due
process clause, the threshold inquiry is the
applicable level of judicial scrutiny. Witt v.
Dep’t of the Air Force, 527 F.3d 806, 813
(9th Cir. 2008). The default level of scrutiny is rational basis, which requires a reviewing court to uphold the challenged
governmental action so long as it ‘‘implements a rational means of achieving a legitimate governmental end[.]’’ Kim v.
United States, 121 F.3d 1269, 1273 (9th
Cir. 1997) (quotation marks omitted).
When the government infringes a ‘‘fundamental right,’’ however, a reviewing court
applies strict scrutiny. Witt, 527 F.3d at
817. Substantive due process ‘‘forbids the
government to infringe certain ‘fundamental’ liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve a com-
5.
6.
Defendants and intervenors also challenge
the standing of future generations plaintiffs
on a number of grounds. It is not necessary to
address these arguments because once a federal court concludes one plaintiff has standing, it need not determine whether the remaining plaintiffs have standing, Nat’l Ass’n
of Optometrists & Opticians LensCrafters, Inc.
v. Brown, 567 F.3d 521, 523 (9th Cir. 2009).
Plaintiffs’ due process claims encompass asserted equal protection violations and violations of unenumerated rights secured by the
Ninth Amendment. For simplicity’s sake, this
opinion refers to these claims collectively as
‘‘due process claims.’’
26a
JULIANA v. U.S.
Cite as 217 F.Supp.3d 1224 (D.Or. 2016)
pelling state interest.’’ Reno v. Flores, 507
U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d
1 (1993) (emphasis in original). It appears
undisputed by plaintiffs, and in any event
is clear to this Court, that defendants’
affirmative actions would survive rational
basis review. Resolution of this part of the
motions to dismiss therefore hinges on
whether plaintiffs have alleged infringement of a fundamental right.7
[44, 45] Fundamental liberty rights include both rights enumerated elsewhere in
the Constitution and rights and liberties
which are either (1) ‘‘deeply rooted in this
Nation’s history and tradition’’ or (2) ‘‘fundamental to our scheme of ordered liberty[.]’’ McDonald v. City of Chicago, Ill.,
561 U.S. 742, 767, 130 S.Ct. 3020, 177
L.Ed.2d 894 (2010) (internal citations, quotations, and emphasis omitted). The Supreme Court has cautioned that federal
courts must ‘‘exercise the utmost care
whenever we are asked to break new
ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into’’ judicial policy preferences. Washington v. Glucksberg, 521 U.S.
702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772
(1997) (citation and quotation marks omitted).
[46, 47] This does not mean that ‘‘new’’
fundamental rights are out of bounds,
though. When the Supreme Court broke
new legal ground by recognizing a constitutional right to same-sex marriage, Justice Kennedy wrote that
The nature of injustice is that we may
not always see it in our own times. The
generations that wrote and ratified the
Bill of Rights TTT did not presume to
know the extent of freedom in all its
7.
Strict scrutiny also is triggered by an allegation that the government discriminated on the
basis of a suspect classification, regardless of
whether the government action infringed a
fundamental right. Green v. City of Tucson,
340 F.3d 891, 896 (9th Cir. 2003). Because I
1249
dimensions, and so they entrusted to
future generations a charter protecting
the right of all persons to enjoy liberty
as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty
must be addressed.
Obergefell v. Hodges, ––– U.S. ––––, 135
S.Ct. 2584, 2598, 192 L.Ed.2d 609 (2015).
Thus, ‘‘[t]he identification and protection of
fundamental rights is an enduring part of
the judicial duty to interpret the Constitution TTT [that] has not been reduced to any
formula.’’ Id. (citation and quotation marks
omitted). In determining whether a right is
fundamental, courts must exercise ‘‘reasoned judgment,’’ keeping in mind that
‘‘[h]istory and tradition guide and discipline this inquiry but do not set its outer
boundaries.’’ Id. The genius of the Constitution is that its text allows ‘‘future generations [to] protect TTT the right of all
persons to enjoy liberty as we learn its
meaning,’’ Id.
Often, an unenumerated fundamental
right draws on more than one Constitutional source, The idea is that certain
rights may be necessary to enable the
exercise of other rights, whether enumerated or unenumerated. In Roe v. Wade,
410 U.S. 113, 152–53, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973), the Court exhaustively
chronicled the jurisprudential history of
the fundamental right to privacy—another
right not mentioned in the text of the
Constitution. Roe’s central holding rests on
the Due Process Clause of the Fourteenth
Amendment. Id. at 153, 93 S.Ct. 705. But
the Court also found ‘‘roots’’ of the right to
privacy in the First Amendment, the
conclude that plaintiffs have alleged a violation of their fundamental rights, I need not
address whether youth or future generations
are suspect classifications for equal protection
purposes.
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217 FEDERAL SUPPLEMENT, 3d SERIES
Fourth Amendment, the Fifth Amendment, the penumbras of the Bill of Rights,
and the Ninth Amendment. Id. at 152, 93
S.Ct. 705. Similarly, in Obergefell, the
Court’s recognition of a fundamental right
to many was grounded in an understanding of marriage as a right underlying and
supporting other vital liberties. See 135
S.Ct. at 2599 (‘‘[I]t would be contradictory
to recognize a right to privacy with respect
to other matters of family life and not with
respect to the decision to enter the relationship that is at the foundation of the
family in our society.’’ (citation and quotation marks omitted)); id. at 2601 (‘‘[M]arriage is a keystone of our social order.’’).
[48] Exercising my ‘‘reasoned judgment,’’ id. at 2598, I have no doubt that
the right to a climate system capable of
sustaining human life is fundamental to a
free and ordered society. Just as marriage
is the ‘‘foundation of the family,’’ a stable
climate system is quite literally the foundation ‘‘of society, without which there
would be neither civilization nor progress.’’
Id. (quoting Maynard v. Hill, 125 U.S.
190, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888));
cf. Minors Oposa v. Sec’y of the Dep’t of
Envt’l & Natural Res., G.R. No. 101083, 33
I.L.M. 173, 187–88 (S.C., Jul. 30, 1993)
(Phil.) (without ‘‘a balanced and healthful
ecology,’’ future generations ‘‘stand to inherit nothing but parched earth incapable
of sustaining life.’’).
Defendants and intervenors contend
plaintiffs are asserting a right to be free
from pollution or climate change, and that
courts have consistently rejected attempts
to define such rights as fundamental, Defendants and intervenors mischaracterize
the right plaintiffs assert. Plaintiffs do not
object to the government’s role in producing any pollution or in causing any climate
change; rather, they assert the government has caused pollution and climate
change on a catastrophic level, and that if
the government’s actions continue un-
checked, they will permanently and irreversibly damage plaintiffs’ property, their
economic livelihood, their recreational opportunities, their
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