Petition for Writ of Certiorari — Kelsey Cascadia Rose Juliana, et al., Petitioners v. United States, et al.
Supreme Court briefDec 9, 2024
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APPENDIX
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TABLE OF APPENDICES
Page
APPENDIX A — Order of the United States
Court of Appeals for the Ninth Circuit,
May 1, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — Judgment of the United States
District Court for the District of Oregon, Eugene
Division, May 1, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . 6a
APPENDIX C — Supplemental Order of the
United States District Court for the District of
Oregon, Eugene Division, April 19, 2024 . . . . . . . . . 7a
APPENDIX D — Opinion and Order of the
United States District Court for the District of
Oregon, Eugene Division, December 29, 2023 . . . . 25a
APPENDIX E — Opinion and Order of the
United States District Court for the District of
Oregon, Eugene Division, June 1, 2023 . . . . . . . . . . 79a
APPENDIX F — Opinion of the United States
Cour t of Appeals for the Ninth Circuit,
January 17, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101a
APPENDIX G — Order of the United States
Cour t of Appeals for the Ninth Circuit,
December 26, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . 165a
APPENDIX H — Order of the United States
District Court for the District of Oregon,
Eugene Division, November 21, 2018 . . . . . . . . . . 174a
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Table of Appendices
Page
APPENDIX I — Opinion of the Supreme Court of
the United States, November 2, 2018 . . . . . . . . . . 181a
APPENDIX J — Opinion and Order of the
United States District Court for the District of
Oregon, Eugene Division, October 15, 2018 . . . . . . . 185a
APPENDIX K — Opinion of the Supreme Court
of the United States, July 30, 2018 . . . . . . . . . . . . . 269a
APPENDIX L — Order of the United States
Court of Appeals for the Ninth Circuit,
July 12, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270a
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Appendix AA
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
------------------No. 24-684
D.C. No. 6:15-cv-1517
District of Oregon, Portland
In re: UNITED STATES OF AMERICA.
UNITED STATES OF AMERICA, et al.,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON, EUGENE,
Respondent,
STATE OF ALABAMA,
Defendant,
XIUHTEZCATL TONATIUH M., through his
Guardian Tamara Roske-Martinez, et al.,
Real Parties in Interest,
THE NATIONAL ASSOCIATION OF
MANUFACTURERS, et al.,
Intervenors,
ENVIRONMENTAL JUSTICE CLINIC –
UNIVERSITY OF MIAMI SCHOOL OF LAW, et al.,
Amici Curiae.
-------------------
2a
Appendix A
Filed:
May 1, 2024
------------------ORDER
------------------Before: BENNETT, R. NELSON, and MILLER, Circuit
Judges.
In the underlying case, twenty-one plaintiffs (the
Juliana plaintiffs) claim that—by failing to adequately
respond to the threat of climate change—the government
has violated a putative “right to a stable climate system
that can sustain human life.” Juliana v. United States,
No. 6:15-CV-01517-AA, 2023 WL 9023339, at *1 (D. Or.
Dec. 29, 2023). In a prior appeal, we held that the Juliana
plaintiffs lack Article III standing to bring such a claim.
Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir.
2020). We remanded with instructions to dismiss on
that basis. Id. The district court nevertheless allowed
amendment, and the government again moved to dismiss.
The district court denied that motion, and the government
petitioned for mandamus seeking to enforce our earlier
mandate. We have jurisdiction to consider the petition.
See 28 U.S.C. § 1651. We grant it.
1. “[M]andamus is an extraordinary remedy . . .
reserved for extraordinary situations.” Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289
(1988). “[M]andamus is the appropriate remedy” when
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“sought on the ground that the district court failed to
follow the appellate court’s mandate.” Vizcaino v. U.S.
Dist. Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir.
1999); see also United States v. U.S. Dist. Ct. for S. Dist. of
N.Y., 334 U.S. 258, 263 (1948). We review a district court’s
compliance with the mandate de novo. Pit River Tribe v.
U.S. Forest Serv., 615 F.3d 1069, 1080 (9th Cir. 2010).
2. The petition accuses the district court of failing
to execute our mandate on remand. District courts
must “act on the mandate of an appellate court, without
variance or examination, only execution.” United States
v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006).
“[T]he only step” that a district court can take is “to obey
the mandate.” Rogers v. Consol. Rock Prods. Co., 114 F.2d
108, 111 (9th Cir. 1940). A district court must “implement
both the letter and the spirit of the mandate, taking
into account the [prior] opinion and the circumstances it
embraces.” Pit River Tribe, 615 F.3d at 1079 (emphasis
added) (cleaned up).
3. In the prior appeal, we held that declaratory relief
was “not substantially likely to mitigate the plaintiffs’
asserted concrete injuries.” Juliana, 947 F.3d at 1170. To
the contrary, it would do nothing “absent further court
action,” which we held was unavailable. Id. We then clearly
explained that Article III courts could not “step into the[]
shoes” of the political branches to provide the relief the
Juliana plaintiffs sought. Id. at 1175. Because neither
the request for declaratory relief nor the request for
injunctive relief was justiciable, we “remand[ed] th[e] case
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Appendix A
to the district court with instructions to dismiss for lack
of Article III standing.” Id. Our mandate was to dismiss.
4. The district court gave two reasons for allowing
amendment. First, it concluded that amendment was not
expressly precluded. Second, it held that intervening
authority compelled a different result. We reject each.
The first reason fails because we “remand[ed] . . . with
instructions to dismiss for lack of Article III standing.”
Id. Neither the mandate’s letter nor its spirit left room
for amendment. See Pit River Tribe, 615 F.3d at 1079.
The second reason the district court identified was
that, in its view, there was an intervening change in the
law. District courts are not bound by a mandate when
a subsequently decided case changes the law. In re
Molasky, 843 F.3d 1179, 1184 n.5 (9th Cir. 2016). The
case the court identified was Uzuegbunam v. Preczewski,
which “ask[ed] whether an award of nominal damages
by itself can redress a past injury.” 141 S. Ct. 792, 796
(2021). Thus, Uzuegbunam was a damages case which says
nothing about the redressability of declaratory judgments.
Damages are a form of retrospective relief. Buckhannon
Bd. & Care Home v. W. Va. Dep’t of Health & Human
Res., 532 U.S. 598, 608–09 (2001). Declaratory relief is
prospective. The Juliana plaintiffs do not seek damages
but seek only prospective relief. Nothing in Uzuegbunam
changed the law with respect to prospective relief.
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Appendix A
We held that the Juliana plaintiffs lack standing to
bring their claims and told the district court to dismiss.
Uzuegbunam did not change that. The district court is
instructed to dismiss the case forthwith for lack of Article
III standing, without leave to amend.
PETITION GRANTED.
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Appendix BB
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
------------------Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
------------------Filed:
May 1, 2024
------------------JUDGMENT
------------------AIKEN, District Judge:
For the reasons set forth in the Court’s accompanying
Order, this case is DISMISSED.
It is so ORDERED and DATED this 1st day of May
2024.
/s/ Ann Aiken
Ann Aiken
United States District Judge
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Appendix CC
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
------------------Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
------------------Filed:
April 19, 2024
------------------SUPPLEMENTAL ORDER
ADDRESSING PETITION FOR WRIT
OF MANDAMUS
------------------AIKEN, District Judge:
This supplemental order is issued in response to the
invitation of the United States Court of Appeals for the
Ninth Circuit to address defendants’ Petition for Writ
of Mandamus (“Pet.”), ECF No. 581-1, which is pending
before the appellate court, Case No. 24-684.
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Appendix C
INTRODUCTION
The young plaintiffs here have compiled an abundance
of factual evidence to support their claim that the
government has known about the dangers posed by
fossil fuel production, and, despite that knowledge, chose
to promote production and consumption of coal, oil, and
gas at increasing levels over decades. The evidence, as
the Ninth Circuit stated, “leaves little basis for denying
that climate change is occurring at an increasingly rapid
pace . . . and stems from fossil fuel combustion.” Juliana
v. United States, 947 F.3d 1159, 1166 (9th Cir. 2020).
A case about climate change, to be sure, raises legal
issues of first impression, but the matters the district court
has addressed time and again throughout the pendency
of this case are the bread-and-butter of daily trial court
work: injury, causation, and redressability under Article
III; justiciability; viability of claims under Federal Rules of
Procedure 12(b); standards for injunctive and declaratory
relief—foundational inquiries necessary to proceed to
any factfinding phase reaching the heart of plaintiffs’
novel claims. Plaintiffs note in their response that this
is defendants’ seventh petition for writ of mandamus.
Defendants’ petition challenges the district court’s order
granting leave to amend and denying a motion to dismiss
on the pleadings, assigning error to this Court’s rulings
as one would through the usual appellate process.
As the Ninth Circuit has stated, “[t]here is enduring
value in the orderly administration of litigation by the trial
courts, free of needless appellate interference. In turn,
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appellate review is aided by a developed record and full
consideration of issues by the trial courts. If appellate
review could be invoked whenever a district court denied
a motion to dismiss, we would be quickly overwhelmed
with such requests, and the resolution of cases would
be unnecessarily delayed.” In re United States, 884
F.3d 830, 837 (9th Cir. 2018). This Court appreciates its
responsibility in the constitutional scheme to develop a
record, consider the facts, and faithfully interpret the
law. Fulfilling this role will aid the appellate court in its
review in the normal course of appeal, the proper vehicle
for its analysis of defendants’ assignments of error.
BACKGROUND
A factual background relevant to the parties’
arguments on defendants’ now-pending petition for writ
of mandamus is set forth in the district court’s Order on
defendants’ motion to dismiss, ECF No. 565 (December
29, 2023). Otherwise, it has been briefed extensively by
the parties. In their petition, defendants assert that this
Court violated the Ninth Circuit’s mandate in its 2020
decision. This Court highlights portions of the procedural
history it finds helpful to recall.
I.
2020 Appellate Court Decision
The Ninth Circuit did not reach the merits of
plaintiffs’ claims because it found that plaintiffs lacked
standing. In the appellate court’s 2020 decision, writing
for the majority, Judge Hurwitz, joined by Judge Murguia,
began with the basics: “To have standing under Article
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III, a plaintiff must have (1) a concrete and particularized
injury that (2) is caused by . . . challenged conduct and
(3) is likely redressable by a favorable judicial decision.”
Juliana, 947 F.3d at 1168. (9th Cir. 2020).
Agreeing with the district court, Judge Hurwitz found
that “[a]t least some plaintiffs” had claimed “particularized
injuries,” since climate change threatened to harm certain
plaintiffs in “concrete and personal” ways if left unchecked.
Id. And, that some plaintiffs had also established causation
because there was “at least a genuine factual dispute
as to whether” U.S. climate policy was a “substantial
factor” in exacerbating plaintiffs’ climate change-related
injuries. Id. at 1169. Thus, plaintiffs’ standing turned on
redressability: “whether the plaintiffs’ claimed injuries
[were] redressable by an Article III court.” Id.
Plaintiffs claimed defendants had violated their
constitutional right to a climate system capable of
sustaining life, and to redress that violation, sought
injunctive relief, including an order directing defendants
to “prepare and implement an enforceable national
remedial plan to phase out fossil fuel emissions and draw
down excess atmospheric CO2 to stabilize the climate
system.” First. Am. Compl. at 94 ¶¶ 2, 6, 7.
“Reluctantly,” the panel found such relief “beyond
[the district court’s] constitutional power.” Juliana, 947
F.3d at 1165. For injunctive relief, the Ninth Circuit was
“skeptical,” but assumed without deciding that plaintiffs
might show that their injuries could be redressed by an
order in their favor. Id. at 1171. That said, the appellate
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Appendix C
court based its ruling on the second redressability
prong, stating that an injunction was “beyond the power
of an Article III court to order, design, supervise, or
implement.” Id. The appellate court explained that Article
III courts cannot order injunctive relief unless constrained
by more “limited and precise” legal standards, discernable
in the Constitution, and that plaintiffs must make their
case to the political branches. Id. at 1175.
As for plaintiffs’ request for declaratory relief, the
Ninth Circuit determined that a declaration would be
“unlikely by itself to remediate [plaintiffs’] alleged
injuries.” Juliana 947 F.3d at 1170. Accordingly, the Ninth
Circuit “reverse[d] the certified orders of the district court
and remand[ed]” the case “with instructions to dismiss
for lack of Article III standing.” Id. at 1175.
II. 2023 District Court Orders
After the Ninth Circuit ordered the district court
to dismiss the case, plaintiffs moved to file a second
amended complaint. ECF No. 462. On June 1, 2023, this
Court granted plaintiffs’ motion to amend their complaint.
Order on Second Am. Compl., ECF No. 540 (June 1, 2023).
Plaintiffs had notified the Court of an intervening case
from the United States Supreme Court, Uzuegbunam
v. Preczewski, ___U.S.___, 141 S. Ct. 792 (2021) which
held that, for purposes of Article III standing, nominal
damages—a form of declaratory relief—provide the
necessary redress for a completed violation of a legal right.
Id. at 798, 802. That, with this Court’s understanding
that the Ninth Circuit had not expressly foreclosed the
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possibility of amendment, led the Court to grant plaintiffs’
motion to amend. This Court explained:
“Absent a mandate which explicitly directs
to the contrary, a district court upon remand
can permit the plaintiff to file additional
pleadings . . . .” San Francisco Herring Ass’n
v. Dep’t of the Interior, 946 F.3d 564, 574 (9th
Cir. 2019) (quoting Nguyen, 792 F.2d at 1502;
see also Sierra Club v. Penfold, 857 F.2d 1307,
1312 (9th Cir. 1988). When mandate in the prior
appeal did not expressly address the possibility
of amendment and did not indicate a clear intent
to deny amendment seeking to raise new issues
not decided by the prior appeal, that prior
opinion did not purport “to shut the courthouse
doors.” San Francisco Herring Ass’n, 946 F.3d
at 574 (citing Nguyen, 792 F.2d at 1503).
...
“Here, this Court does not take lightly its
responsibility under the rule of mandate.
Rather, it considers plaintiffs’ new factual
allegations under the Declaratory Judgment
Act, and amended request for relief in light
of intervening recent precedent, to be a new
issue that, while discussed, was not decided by
the Ninth Circuit in the interlocutory appeal.
Nor did the mandate expressly state that
plaintiffs could not amend to replead their
case—particularly where the opinion found a
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narrow deficiency with plaintiffs’ pleadings on
redressability. This Court therefore does not
interpret the Ninth Circuit’s instructions as
mandating it “to shut the courthouse doors”
on plaintiffs’ case where they present newly
amended allegations. San Francisco Herring
Ass’n, 946 F.3d at 574.
ECF No. 540 at 10-11.
Defendants quickly moved to dismiss plaintiffs’ second
amended complaint, ECF No. 547, and this Court denied
defendants’ motion. Order on Mot. to Dismiss, ECF No.
565 (December 29, 2023). Defendant had again asserted
that the district court had violated the rule of mandate
and this Court again explained its due regard for the rule:
Because it is jurisdictional error to contravene
a rule of mandate, the Court duly reconsiders
the mandate of the Ninth Circuit and does not
take the matter lightly. “A district court that
has received the mandate of an appellate court
cannot vary or examine that mandate for any
purpose other than executing it.” Hall v. City
of Los Angeles, 697 F.3d 1059, 1067 (9th Cir.
2012). “Violation of the rule of mandate is a
jurisdictional error.” Id. at 1067.
“But while the mandate of an appellate court
forecloses the lower court from reconsidering
matters determined in the appellate court,
it leaves to the district court any issue not
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expressly or impliedly disposed of on appeal.”
S.F. Herring Ass’n v. Dep’t of the Interior, 946
F.3d 564, 574 (9th Cir. 2019) (quoting Nguyen
v. United States, 792 F.2d 1500, 1502 (9th
Cir. 1986)). In determining which matters fall
within the compass of a mandate, “[d]istrict
courts must implement both the letter and the
spirit of the mandate, taking into account the
appellate court’s opinion and the circumstances
it embraces.” Vizcaino v. U.S. Dist. Ct. for W.
Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999)
(as amended) (quoting Delgrosso v. Spang & Co.,
903 F.2d 234, 240 (3d Cir. 1990)).
“Absent a mandate which explicitly directs
to the contrary, a district court upon remand
can permit the plaintiff to file additional
pleadings . . . ” S.F. Herring, 946 F.3d at 574
(quoting Nguyen, 792 F.2d at 1502); see also
Sierra Club v. Penfold, 857 F.2d 1307, 1312
(9th Cir. 1988). When the mandate in the
prior appeal does not expressly address the
possibility of amendment and does not indicate
a clear intent to deny amendment seeking to
raise new issues not decided, that mandate does
not purport “to shut the courthouse doors.” S.F.
Herring, 946 F.3d at 574.
In S.F. Herring, the Ninth Circuit discussed
its mandate in a prior appeal, which vacated
the district court’s order entering summary
judgment in the defendants’ favor and directed
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the district court to dismiss the complaint.
See S.F. Her r ing Ass’n v. U.S. Dep’t of
Interior, 683 F. App’x 579, 581 (9th Cir. 2017)
(vacating judgment and remanding case with
instructions to dismiss for lack of subject
matter jurisdiction). On remand, the district
court allowed the plaintiff to file a second
amended complaint.
In the later appeal, the Ninth Circuit determined
that the district court correctly found that the
earlier mandate to dismiss did not prevent
the plaintiff from seeking leave to re-plead.
S.F. Herring, 946 F.3d at 574. The appellate
court reasoned that in instructing the district
court to dismiss, the mandate was silent on
whether dismissal should be with or without
leave to amend, and the mandate therefore did
not preclude the district court from allowing
plaintiff to file amended pleadings. Id. at 572574.
When this Court granted plaintiffs’ motion
for leave to amend, it “consider[ed] plaintiffs’
new factual allegations under the Declaratory
Judgment Act and plaintiffs’ amended request
for relief, in light of inter vening recent
precedent, to be a new issue that, while
discussed, was not decided by the Ninth Circuit
in the interlocutory appeal.” Juliana v. United
States, No. 6:15 -CV- 01517-A A, 2023 WL
3750334, at *5 (D. Or. June 1, 2023).
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Appendix C
The Court once again finds that the Ninth
Circuit’s mandate did not address whether
amendment, if permitted, would cure the
deficiency it identified in plaintiffs’ complaint.
The Ninth Circuit also did not instruct the Court
to dismiss without leave to amend. Accordingly,
its mandate to dismiss did not foreclose that
opportunity, and the Court, on reconsideration,
finds that in permitting plaintiffs to proceed
with their second amended complaint, the rule
of mandate is not contravened. S.F. Herring,
946 F.3d at 574; see also Creech v. Tewalt, 84
F.4th 777, 783 (9th Cir. 2023) (where appellate
court remanded and stated that plaintiff should
have leave to amend, district court did not
violate rule of mandate by dismissing without
leave to amend, because appellate court did not
expressly foreclose that option).
ECF No. 565 at 19-20.
On February 2, 2023, defendants filed notice with the
district court of their petition for writ of mandamus in
the Ninth Circuit. Pet., ECF No. 585, 585-1. Defendants
contend that the Ninth Circuit should issue a writ of
mandamus to this Court, directing it to dismiss this case
for lack of jurisdiction and without leave to amend. The
Ninth Circuit invited the district court to address the
petition.
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LEGAL STANDARD
“The writ of mandamus is a drastic and extraordinary
remedy reserved for really extraordinary causes.”
In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011)
(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947))
(internal quotation marks omitted). “[O]nly exceptional
circumstances amounting to a judicial usurpation of power
or a clear abuse of discretion will justify the invocation of
this extraordinary remedy.” Cheney v. U.S. Dist. Ct., 542
U.S. 367 (2004) (internal quotation marks and citations
omitted).
In considering whether to grant a writ of mandamus,
appellate courts are guided by the five factors identified
in Bauman v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir. 1977):
(1) whether the petitioner has no other means, such as
a direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in any
way not correctable on appeal; (3) whether the district
court’s order is clearly erroneous as a matter of law; (4)
whether the district court’s order is an oft repeated error
or manifests a persistent disregard of the federal rules;
and (5) whether the district court’s order raises new and
important problems or issues of first impression. Perry
v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010)
(citing Bauman, 557 F.2d at 654-55). “All factors are
not relevant in every case and the factors may point in
different directions in any one case.” Christensen v. U.S.
Dist. Ct., 844 F.2d 694, 697 (9th Cir. 1988).
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Appendix C
DISCUSSION
Defendants maintain that mandamus is warranted
because (1) the district court violated the Ninth Circuit’s
mandate which required dismissal and foreclosed
amendment; (2) the district court erred in finding that
plaintiffs have Article III standing; and (3) the district
court erred in finding that plaintiffs had stated plausible
claims for relief under due process clause and public trust
doctrine.
I.
Standing & Merits
This Court has addressed the merits of the parties’
arguments on Article III standing and the viability of
plaintiffs’ due process and public trust claims, and as
before, “stands by its prior rulings on jurisdictional and
merits issues, as well as its belief that this case would
be best served by further factual development at trial.”
Juliana v. United States, No. 6:15-CV-01517-AA, 2018
WL 6303774, at *3 (D. Or. Nov. 21, 2018); see also ECF
No. 565 at 21-34 (discussing redressability for purposes
of Article III standing), id. at 35-36 (discussing the
political question doctrine and justiciability), id. at 3644 (discussing plaintiffs’ due process claim), id. at 46-48
(discussing plaintiffs’ public trust claim and incorporating
analysis from prior orders).
As in their motion to dismiss, defendants maintain that
the relief plaintiffs seek is “sweeping” and “unprecedented”
and that plaintiffs must make their demands to the
political branches. See Pet. For Writ of Mandamus (“Pet.”)
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at 1, Doc. 585-1. In any case over which trial courts have
jurisdiction, where the plaintiffs have stated a legal claim,
it is the proper and peculiar province of the courts to
impartially find facts, faithfully interpret and apply the
law, and render reasoned judgment. See The Federalist
No. 78 (Alexander Hamilton).
As this Court stated in its 2023 Order denying
defendants’ motion to dismiss, “[t]he judiciary is capable
and duty-bound to provide redress for the irreparable
harm government fossil fuel promotion has caused.”
ECF No. 565 at 6. This Court draws from that 49-page
Order to answer why the remedies plaintiffs seek are not
“sweeping” or “unprecedented.” In its Order, this Court
explained why plaintiffs’ proposed remedy is one typical
for a district court to fashion and over which it can provide
jurisdictional oversight while the parties implement the
plans, practices, and policies they together devise. Id.
at 31-34. As to the merits of plaintiffs constitutional and
public trust doctrine claims, the assignments of errors
defendants raise in their petition are better suited to an
appeal in the regular course.
II. Propriety of Writ of Mandamus
This Court maintains, as do plaintiffs and amici,
that the issues defendants raise on mandamus are better
addressed through the ordinary course of litigation.
The first Bauman factor is whether the petitioner will
“ha[ve] no other means . . . to obtain the desired relief.”
Perry, 591 F.3d at 1156. This factor ensures that a writ
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of mandamus will not “be used as a substitute for appeal
even though hardship may result from delay and perhaps
unnecessary trial.” Schlagenhauf v. Holder, 379 U.S. 104,
110 (1964) (internal citation omitted).
Defendants argue that a writ of mandamus is the
only means to ensure that the district court complies with
the Ninth Circuit’s 2020 decision holding that plaintiffs’
claims are beyond the judicial power to redress. Pet. at
29. That said, the Court has explained that its Orders duly
regarded and complied with the Ninth Circuit’s decision
and found plaintiffs’ amended complaint demonstrated
redress was within the district court’s constitutional
authority. ECF No. 540 at 14-18; ECF No. 565 at 28-34.
Further, challenges to standing “may be raised by a
party, or by a court on its own initiative, at any stage in
the litigation, even after trial and the entry of judgment.”
Wood v. City of San Diego, 678 F.3d 1075, 1082 (9th Cir.
2012) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 506
(2006)). Therefore, defendants’ argument that it has no
other means to raise a challenge based on redressability—
an element of standing—does not succeed.
The second Bauman factor is whether the petitioner
“will be damaged or prejudiced in any way not correctable
on appeal.” Perry, 591 F.3d at 1156. To satisfy this factor,
the defendants “must demonstrate some burden . . . other
than the mere cost and delay that are the regrettable,
yet normal, features of our imperfect legal system.”
DeGeorge v. U.S. Dist. Ct., 219 F.3d 930, 935 (9th Cir. 2000)
(alteration in original) (quoting Calderon v. U.S. Dist.
Ct., 163 F.3d 530, 535 (9th Cir. 1998) (en banc)). Prejudice
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serious enough to warrant mandamus relief “includes
situations in which one’s ‘claim will obviously be moot by
the time an appeal is possible,’ or in which one ‘will not
have the ability to appeal.’” Id. (quoting Calderon, 163
F.3d at 535).
Defendants argue that holding a trial on the plaintiffs’
claims threatens the separation of powers and flouts the
Ninth Circuit’s mandate. To the extent that defendants
are asserting that executive branch officials and agencies
in general should not be burdened by an unmeritorious
lawsuit, “Congress has not exempted the government from
the normal rules of appellate procedure, which anticipate
that sometimes defendants will incur burdens of litigating
cases that lack merit but still must wait for the normal
appeals process to contest rulings against them.” In re
United States, 884 F.3d 830, 836 (9th Cir. 2018).
“The first two criteria articulated in Bauman are
designed to [ensure] that mandamus, rather than some
other form of relief, is the appropriate remedy.” In
re Cement Antitrust Litig. (MDL No. 296), 688 F.2d
1297, 1301 (9th Cir. 1982), aff’d sub nom. Arizona v.
U.S. Dist. Ct., 459 U.S. 1191 (1983) (mem.). This Court’s
determination that the mandate did not foreclose dismissal
is a legal conclusion, along with the district court’s
determinations on the plausibility of plaintiffs’ claims
under Federal Rules of Civil Procedure 12(b)(1) and (6),
and those determinations, if in error, are correctable
through the ordinary course of litigation. In this Court’s
view, defendants have not satisfied the second Bauman
factor.
22a
Appendix C
The third Bauman factor is whether the district
court’s order “is clearly erroneous as a matter of law.”
Perry, 591 F.3d at 1156. Appellate review of that factor
“is significantly deferential and . . . is not met unless the
reviewing court is left with a definite and firm conviction
that a mistake has been committed.” In re Bundy, 840 F.3d
1034, 1041 (9th Cir. 2016) (quoting In re United States, 791
F.3d 945, 955 (9th Cir. 2015)). “The absence of controlling
precedent weighs strongly against a finding of clear error
[for mandamus purposes].” In re Van Dusen, 654 F.3d 838,
845 (9th Cir. 2011).
Here, this Court provided authority from the Ninth
Circuit in support of its determination that it had not
violated the rule of mandate. See ECF No. 540 at 10-11,
ECF No. 565 19-20. The Court also thoroughly analyzed
plaintiffs’ claims on the merits, as described above (p.
9). Defendants do not put forth any other controlling
Ninth Circuit authority on any of the theories asserted
by plaintiffs. Defendants argue that the theories are
unprecedented. Thus, the lack of controlling precedent
here weighs strongly against a finding of clear error. Id.
The fourth Bauman factor is whether the district
court’s order is “an oft repeated error or manifests a
persistent disregard of the federal rules.” Perry, 591 F.3d
at 1156. This Court finds no oft-repeated error here, and
defendants do not contend that the district court violated
any federal rule. The defendants do not satisfy the fourth
factor.
The final factor is whether the district court’s order
“raises new and important problems or issues of first
23a
Appendix C
impression.” Perry, 591 F.3d at 1156. The Ninth Circuit
has relied on this factor when there is a “novel and
important question” that “may repeatedly evade review.”
Id. at 1159; see also In re Cement Antitrust Litig., 688 F.2d
at 1304–05 (“[A]n important question of first impression
will evade review unless it is considered under our
supervisory mandamus authority. Moreover, that question
may continue to evade review in other cases as well.”).
As this Court has found, the legal theories asserted
raise issues of first impression—i.e., existence of federal
public trust doctrine and whether the right to a climate
that can sustain human life is fundamental under the
Constitution. The merits of those claims are suitable for
appeal after final judgment. Whether a district court may
grant leave to amend a complaint after a reviewing court
orders dismissal is not a matter of first impression, as
discussed in this Court’s prior orders. See ECF No. 540 at
9-11; ECF No. 565 at 18-21. Accordingly, this Court’s order
granting amendment and denying a motion to dismiss on
the pleadings does not present the possibility that those
issues will evade appellate review. In this Court’s view,
defendants have not satisfied the fifth Bauman factor.
Under the test, a writ of mandamus is not necessary.
III. Staying Litigation
Defendants also ask the Ninth Circuit to stay litigation
while deciding their petition for writ of mandamus.
Defendants have moved to stay litigation several times
and have filed multiple petitions for writ of mandamus.
ECF Nos. 177, 308, 365, 390, 420, 585. In this iteration,
24a
Appendix C
defendants maintain that the case must be stayed because
there is a substantial likelihood that the Ninth Circuit will
grant their petition. Pet. at 5-6. Defendants have not met
their burden to show the petition for writ of mandamus is
warranted or likely to be granted. The Court has analyzed
the appropriate factors and finds that a stay should not
be granted.
CONCLUSION
This Court has great regard for the judicial process.
It has deliberately considered all motions the parties
brought, and its decisions are accessible for appellate
scrutiny in the due course of litigation. Trial courts across
the country address complex cases involving similar
jurisdictional, evidentiary, and legal questions as those
presented here without resorting to interlocutory appeal
or petitioning for a writ of mandamus. As Justice Stewart
noted, “the proper place for the trial is in the trial court,
not here.” Baker v. Carr, 369 U.S. 186, 266 (1962) (Stewart,
J., concurring.) Defendants therefore have other means,
such as a direct appeal, to obtain the desired relief. This
Court recommends denying defendants’ petition for writ
of mandamus.
SUPPLEMENTAL ORDER DATED this 19th day of
April 2024.
/s/ Ann Aiken
Ann Aiken
United States District Judge
25a
Appendix DD
APPENDIX
2023 WL 9023339
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF OREGON, EUGENE DIVISION
------------------Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA, et al.,
Defendants.
------------------Signed:
December 29, 2023
-------------------
OPINION AND ORDER
------------------AIKEN, District Judge:
In 2015, twenty-one plaintiffs—a group of young
people, including “future generations”—brought this
civil rights action against the federal government,
alleging injury from the devastation of climate change
and contending that the Constitution guarantees the
26a
Appendix D
right to a stable climate system that can sustain human
life. Through the years of litigating this case, plaintiffs
maintain that their government, by subsidizing fossil fuel
extraction and consumption, is responsible for destroying
the climate system on which all life, liberty, and property
depends, violating plaintiffs’ fundamental rights under the
Due Process Clause of the Constitution and the historical
public trust doctrine. On June 1, 2023, the Court granted
plaintiffs’ motion to file a second amended complaint.
Now before the Court is defendants’ motion to dismiss
the second amended complaint. ECF No. 547. For the
reasons explained, the Court DENIES defendants’
motion to dismiss, ECF No. 547; DENIES defendants’
motion for an order certifying its prior order, ECF No.
540, for interlocutory appeal, ECF No. 551; and DENIES
defendants’ motion to stay litigation, ECF No. 552.
The Court GRANTS plaintiffs’ motion to set a pretrial
conference, ECF No. 543.
INTRODUCTION
The parties do not disagree that the climate crisis
threatens our ability to survive on planet Earth. This
catastrophe is the great emergency of our time and
compels urgent action.1 As this lawsuit demonstrates,
1. See David Wallace-Wells, The Uninhabitable Earth: Life
After Warming (2019); Andrew Freedman & Jason Samenow,
Humidity and Heat Extremes Are on the Verge of Exceeding
Limits of Human Survivability, Study Finds, Washington Post
(May 8, 2020) (reporting study warning that highly populated
regions of the world will be rendered uninhabitable sooner than
27a
Appendix D
young people—too young to vote and effect change
through the political process—are exercising the
institutional procedure available to plead with their
government to change course. While facts remain to be
proved, lawsuits like this highlight young people’s despair
with the drawn-out pace of the unhurried, inchmeal,
bureaucratic response to our most dire emergency. Top
elected officials have declared that the climate emergency
spells out “code red for humanity.” 2 Burning fossil fuels
changes the climate more than any other human activity. 3
The government does not deny that it has promoted
fossil fuel combustion through subsidies; tax exemptions;
permits for fossil fuel development projects; leases on
federal lands and offshore areas; permits for imports and
exports; and permits for energy facilities.4 Despite many
previously thought for parts of the year); Nafeez Ahmed, New
Report Suggests ‘High Likelihood of Human Civilization Coming
to an End’ Starting in 2050, VICE (June 3, 2019).
2. President Joseph Biden, Remarks on “Actions to Tackle
the Climate Crisis” at Brayton Point Power Station, Somerset,
Massachusetts (July 20, 2022), https://www.whitehouse.gov/
brief ing-room /speeches-remarks/2022 /07/20/remarks-bypresident-biden-on-actions-to-tackle-the-climate-crisis/ [https://
perma.cc/LU2U-CTFM].
3. Environmental Protection Agency, Sec. Environmental
Topics, Climate Change, Causes of Climate Change, (last updated
April 25, 2023), https://www.epa.gov/climatechange-science/
causes-climate-change [https://perma.cc/UGU4-B6EF].
4. Juliana v. United States, 947 F.3d 1159, 1167 (9th Cir.
2020) (“The government affirmatively promotes fossil fuel use
in a host of ways, including beneficial tax provisions, permits for
imports and exports, subsidies for domestic and overseas projects,
and leases for fuel extraction on federal land.”).
28a
Appendix D
climate change suits around the country, in 2023, the
United States witnessed record-breaking levels of oil and
gas production. 5 And recent calculations conservatively
estimate that the United States provides the oil and
gas industry $20,000,000,000.00 annually in an array of
subsidies.6
Defendants maintain that, because tackling the climate
crisis is complex, and no single remedy may entirely
redress plaintiffs’ harms caused by climate change, the
judiciary is constrained by the Constitution from offering
any redress at all. See defs.’ mot. to dismiss (“Mot.”) at
11-13. Defendants contend that the issue of climate change
is political in its nature, and that redress of plaintiffs’
alleged injuries must be sought from Congress. Id. at 28.
That unnecessarily narrow view overlooks one clear and
constitutional path to shielding future generations from
impacts of the onslaught of environmental disaster: that
5. Energy Poverty Prevention and Accountability Act
of 2023: Hearing on H.R.6474 and H.R.6481 before the H. Nat.
Resources Subcomm. on Energy and Min. Resources, 118th
Cong. (statement of J. Mijin Cha, Assistant Professor, Univ. of
Cal.) (citing Oliver Milman, “US Oil and Gas Production Set to
Break Record in 2023 despite UN Climate Goals,” The Guardian,
November 27, 2023, sec. Environment, https://www.theguardian.
com/environment/2023/nov/27/us-oil-gas-record-fossil-fuelscop28-united-nations [https://perma.cc/VJ4C-KZGH]).
6. Id. (Statement of J. Mijin Cha) (citing Environmental
and Energy Study Institute, Fact Sheet, “Proposals to Reduce
Fossil Fuel Subsidies (2021),” (July 23, 2021)) https://www.eesi.
org/papers/view/fact-sheet-proposals-to-reduce-fossil-fuelsubsidies-2021 [https://perma.cc/SD8B-7P6B].
29a
Appendix D
it is the responsibility of the judiciary to declare the law
that the government may not deprive the People of their
Constitutional guarantee of the God-given right to life.
U.S. Const. art III; U.S. Const. amend. V; Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
Plaintiffs’ allegations are that collective resolve at
every level and in every branch of government is critical
to reducing fossil fuel emissions and vital to combating
climate change. That curbing climate change requires
an all-hands-on-deck approach does not oust the Court
from its province or discharge it of its duty under the
Constitution to say what the law is. Marbury 5 U.S. at
170.7 Combatting climate change may require all to act in
accord, but that does not mean that the courts must “throw
up [our] hands” in defeat. See Juliana v. United States,
947 F.3d 1159, 1175 (9th Cir. 2020) (Staton, J., dissenting).
The legislative and executive branches of government
wield constitutional powers entrusted to those branches
by the People through the democratic process. See U.S.
Const. art. I and art. II. So too, as part of a coequal branch
of government, the Court cannot shrink from its role to
decide on the rights of the individuals duly presenting
their case and controversy. Marbury, 5 U.S. at 170. Indeed,
courts at home and abroad are capably grappling with
7. See also Edith M. Lederer, UN Chief: World Must Prevent
Runaway Climate Change by 2020, Associated Press News (Sept.
10, 2018) (describing massive decarbonization effort necessary to
avoid climate “tipping points.”), https://apnews.com/article/floodsunited-nations-antonio-guterres-us-news-climate-71ab1abf44c14
605bf2dda29d6b5ebcc [https://perma.cc/84E6-D24C].
30a
Appendix D
climate change lawsuits seeking redress against both
government and private actors on a range of legal theories,
many novel. 8 In Montana, Judge Kathy Seeley presided
over the first climate change trial in the United States,
piercing through expert testimony and scientific evidence
to provide factual findings and conclusions of law, ruling
that the state’s failure to consider climate change when
approving fossil fuel projects was unconstitutional. See
Held v. Montana, Findings of Fact, Conclusions of Law,
and Order, Civil Action CDV-2020-307 (Mont. First Jud.
D. Ct. Lewis and Clark County, Aug. 14, 2023).
The judiciary is capable and duty-bound to provide
redress for the irreparable harm government fossil fuel
promotion has caused. Legal scholar and professor Mary
Christina Wood contends that the all-encompassing
breadth of ongoing “irreparable harm” sets the climate
emergency apart from any other crisis, in terms of the
human interests at stake.9 As Professor Wood eloquently
states: “Because no crisis is as ominous, imminent, and
far reaching, the climate emergency must be considered
8. The Sabin Center for Climate Change Law of Columbia
University has assembled for public access the “Climate Change
Litigation Database” containing summaries and court dockets for
climate change lawsuits brought in the United States and abroad.
Climate Change Litigation Databases, Colum. L. Sch.: Sabin Ctr.
For Climate Change L., https://climatecasechart.com/ [https://
perma.cc/B89Z-YN4M].
9. Mary C. Wood, “On the Eve of Destruction”: Courts
Confronting the Climate Emergency, 97 Ind. L.J. 239, 249 (2022)
(hereinafter “Wood, Eve of Destruction”).
31a
Appendix D
sui generis,” that is, “in a class of its own.”10 The legal
approach must “rise to the emergency rather than
repeat a failed past paradigm.” 11 In the context of
Australian youth’s challenge to government approval of
a coal mine, Justice Bromberg wrote that failure to curb
climate change is “what might fairly be described as the
greatest inter-generational injustice ever inflicted by one
generation of humans upon the next.”12
10. Id.
11. Id.
12. Sharma v. Minister for the Env’t [2021] FCA 560 1, 90 (27
May 2021) (Austl.). The court stated:
“It is difficult to characterise in a single phrase the
devastation that the plausible evidence presented
in this proceeding forecasts for the Children. As
Australian adults know their country, Australia will
be lost and the World as we know it gone as well.
The physical environment will be harsher, far more
extreme and devastatingly brutal when angry. As for
the human experience—quality of life, opportunities
to partake in nature’s treasures, the capacity to grow
and prosper—all will be greatly diminished. Lives
will be cut short. Trauma will be far more common
and good health harder to hold and maintain. None of
this will be the fault of nature itself. It will largely be
inflicted by the inaction of this generation of adults, in
what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation
of humans upon the next.”
Id.
32a
Appendix D
Some may balk at the Court’s approach as errant or
unmeasured,13 but more likely than not, future generations
may look back to this hour and say that the judiciary
failed to measure up at all. In any case over which trial
courts have jurisdiction, where the plaintiffs have stated
a legal claim, it is the proper and peculiar province of the
courts to impartially find facts, faithfully interpret and
apply the law, and render reasoned judgment.14 Such is
the case here.
BACKGROUND
I.
Plaintiffs’ Lawsuit
In 2015, plaintiffs filed this civil rights lawsuit
that journalists later coined “The Biggest Case on
the Planet.”15 At the start of this case, the twenty-one
13. Juliana v. United States, 947 F.3d 1159, 1174 (9th Cir.
2020) (“Not every problem posing a threat—even a clear and
present danger—to the American Experiment can be solved by
federal judges. As Judge Cardozo once aptly warned, a judicial
commission does not confer the power of ‘a knight errant, roaming
at will in pursuit of his own ideal of beauty or of goodness’; rather,
we are bound ‘to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system.’ ”) (quoting
Benjamin N. Cardozo, The Nature of the Judicial Process 141
(1921)).
14. See The Federalist No. 78 (Alexander Hamilton).
15. Laura Parker, “Biggest Case on the Planet” Pits Kids
v. Climate Change, Nat’l Geographic (Nov. 9, 2018), https://www.
nationalgeographic.com/science/article/kids-sue-us-governmentclimate-change [https://perma.cc/2J7J-74C2].
33a
Appendix D
plaintiffs were between the ages of eight and nineteen.
They brought suit along with “future generations”
through their guardian, Dr. James Hansen. Plaintiffs
named as defendants all federal agencies that plaintiffs
alleged were responsible for the U.S. energy policy,
including the Department of Agriculture, Department
of Transportation, Environmental Protection Agency,
Department of Interior, the State Department, Council
on Environmental Quality, Department of Defense, and
Department of Commerce. Compl., ECF No. 1; First Am.
Compl. (“FAC”), ECF No. 7.
Plaintiffs compiled an abundance of factual evidence
to support their claim that the government has known
about the dangers posed by fossil fuel production, and,
despite that knowledge, chose to promote production
and consumption of coal, oil, and gas at increasing levels
over decades. The record is extensive. The evidence, as
the Ninth Circuit stated, “leaves little basis for denying
that climate change is occurring at an increasingly rapid
pace ... and stems from fossil fuel combustion.” Juliana,
947 F.3d at 1166.
From the beginning, plaintiffs alleged that, as
early as the year 1899, scientists understood that CO2
concentration in the atmosphere caused heat retention,
global heating, and climate change. FAC ¶ 131. Plaintiffs
stated that for over fifty years, the United States of
America has known that CO2 pollution from burning
fossil fuels was causing global warming and dangerous
climate change, and that continuing to burn fossil fuels
would destabilize the climate system on which present and
34a
Appendix D
future generations of our nation depend for survival. Id.
¶¶ 132-35. Recounting over a dozen signpost junctures,
plaintiffs provide letters, memoranda, and reports to the
political branches from scientific experts and government
agencies cautioning about the danger of carbon pollution
and warning that a lack of action would be felt for decades.
Id. ¶¶ 136-50.
Defendants moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) for
lack of standing; failure to state a cognizable constitutional
claim; and failure to state a claim on a public trust
theory. ECF No. 27. The Court denied that motion in
November 2016. See Nov. 10, 2016 Op. & Order, ECF No.
83. Defendants also moved for judgment on the pleadings
and summary judgment. ECF Nos. 195, 207. For the most
part, the Court denied those motions.
When the Court denied defendants’ motions to certify
its dispositive orders for interlocutory appeal, defendants
petitioned the Supreme Court for a writ of mandamus,
ECF No. 390-1, and to stay proceedings, ECF No. 391-1,
both which were denied. Defendants asked the district
court to reconsider certifying its orders for interlocutory
appeal, and, that time, the Ninth Circuit invited the
district court to do so. See Nov. 21, 2018 Order, ECF Nos.
444, 445. Defendants then sought permission to appeal,
which the Ninth Circuit granted. Filed Ord., Juliana v.
United States, No. 18-36082 (9th Cir. Dec. 26, 2018).
On January 17, 2020, a divided panel of the Ninth
Circuit issued a decision reversing the district court’s
35a
Appendix D
certified orders and remanding the case with instructions
to dismiss for lack of Article III standing. Juliana, 947
F.3d at 1175. Writing for the majority, Judge Hurwitz,
joined by Judge Murguia, began with the basics: “To
have standing under Article III, a plaintiff must have (1)
a concrete and particularized injury that (2) is caused by
... challenged conduct and (3) is likely redressable by a
favorable judicial decision.” Id. at 1168.
Agreeing with the district court, Judge Hurwitz
found that “[a]t least some plaintiffs” had claimed
“particularized injuries,” since climate change threatened
to harm certain plaintiffs in “concrete and personal” ways
if left unchecked. Id. The appellate court described the
dire circumstances faced by one plaintiff who had had
to evacuate his coastal home because of climate change.
Id. And some plaintiffs had also established causation
because there was “at least a genuine factual dispute
as to whether” U.S. climate policy was a “substantial
factor” in exacerbating plaintiffs’ climate change-related
injuries. Id. at 1169. Thus, plaintiffs’ standing turned on
redressability: “whether the plaintiffs’ claimed injuries
[were] redressable by an Article III court.” Id.
Plaintiffs claimed defendants had violated their
constitutional right to a climate system capable of
sustaining life, and to redress that violation, sought
injunctive relief, including an order directing defendants
to “prepare and implement an enforceable national
remedial plan to phase out fossil fuel emissions and draw
down excess atmospheric CO2 to stabilize the climate
system.” FAC at 94 ¶¶ 2, 6, 7.
36a
Appendix D
“Reluctantly,” the panel found such relief “beyond [the
district court’s] constitutional power.” Juliana, 947 F.3d
at 1165. To establish redressability, the appellate court
explained, plaintiffs must have identified relief that was
both “(1) substantially likely to redress their injuries” and
“(2) within the district court’s power to award.” Id. at 1170.
On the first prong, the panel found that plaintiffs’ own
experts had stated that only a comprehensive, governmentled plan to reduce U.S. greenhouse gas emissions could
mitigate “the global consequences of climate change” and
thereby bring plaintiffs’ total redress. Id. Turning to the
second prong, the panel found that supervising such a
plan “would necessarily require” judges to make “a host
of complex policy decisions.” Id. at 1171.
Plaintiffs told the appellate court that even partial
relief would suffice to redress their injuries, and that
the district court “need not itself make policy decisions,”
because if plaintiffs’ request for a remedial plan were
granted, the political branches “could decide what policies”
would be best to “draw down excess atmospheric CO2 .”
Id. at 1172. But the panel determined that, “even under
such a scenario,” the district court would need to pass
judgment on the sufficiency of the government’s response
to the order. In the Ninth Circuit’s view, a district court
could not engage in passing judgment on the sufficiency
of the government’s response to a court order, because it
“necessarily would entail a broad range of policymaking.”
Id.
The panel continued: “[A] constitutional directive
or legal standard[ ] must guide the court’s exercise of
37a
Appendix D
equitable power,” and, on the other hand, “limited and
precise” legal rules simply could not resolve the range
of policy-related questions plaintiffs’ claims raised. Id.
at 1173. The appellate court determined that no remedy
subject to limited and precise definition could redress
plaintiffs’ injuries and therefore issuing such relief was
not within the district court’s power. Id.
Judge Josephine L. Staton dissented. “Plaintiffs bring
suit,” she lamented, “to enforce the most basic structural
principle embedded in our system of ordered liberty: that
the Constitution does not condone the Nation’s willful
destruction.” Id. at 1175. In Judge Staton’s view, the
district court had the power to award plaintiffs’ relief
unless plaintiffs’ claims ran afoul of the political question
doctrine. See id. at 1184-85. Since plaintiffs’ claims did not
pose political questions, she continued, they should have
proceeded. Id. at 1185-86. “[O]ur history is no stranger
to widespread, programmatic changes ... ushered in by
the judiciary[ ],” Judge Staton concluded, and the “slow
churn” of institutional-reform litigation “should not
dissuade us here.” Id. at 1188-89. At end of the day, the
narrower understanding prevailed: that Article III courts
cannot order injunctive relief unless constrained by more
“limited and precise” legal standards, discernable in the
Constitution, and that plaintiffs must make their case
to the political branches. Id. at 1175. The Ninth Circuit
“reverse[d] the certified orders of the district court and
remand[ed]” the case “with instructions to dismiss for
lack of Article III standing.” Id.
Plaintiffs moved to file an amended complaint,
removing from their prayer for relief the injunction that
38a
Appendix D
the Ninth Circuit had found objectionable. ECF No.
462. The Court granted it because (1) the Ninth Circuit
did not foreclose the possibility of amendment when it
mandated dismissal; (2) plaintiffs had notified the Court of
a Supreme Court case providing a new and more expansive
interpretation of declaratory judgments; and (3) plaintiffs’
proposed complaint narrowed the scope of the injunctive
relief it had initially requested. See Juliana v. United
States, No. 6:15-CV-01517-AA, 2023 WL 3750334 (D. Or.
June 1, 2023).
II. Plaintiffs File a Second Amended Complaint
In plaintiffs’ second amended complaint, they
maintain earlier factual allegations, contending that
defendants implemented no recommendation provided to
them via scientific reports warning of catastrophic climate
change. Second Am. Compl. (“SAC”) ¶ 153. Plaintiffs
contend that, if defendants had not disregarded the
evidence, “CO2 emissions today would be reduced by 35%
from 1987 levels.” Id. Instead, since 1991, plaintiffs state
that defendants have allowed CO2 emissions from fossil
fuel combustion to increase. Id. Plaintiffs provide tables
setting forth data from government sources showing that
fossil fuel production, fossil fuel energy consumption,
and fossil fuel emissions have climbed substantially since
1965, and that by 2011, fossil fuel combustion in the U.S.
accounted for 94% of CO2 emissions. Id. ¶¶ 155-58. By
2012, data plaintiffs provide shows that the U.S. was the
largest producer of natural gas, and the second largest
producer of coal and energy production. Id. ¶ 160. By
2014, according to the United States Energy Information
39a
Appendix D
Administration, the U.S. had become the largest producer
of total petroleum in the world. Id. ¶ 161.
Plaintiffs assert that defendants knew the harmful
effect of their actions would significantly endanger many,
like plaintiffs, with damage persisting for millennia.
Id. ¶¶ 1, 161. Despite that knowledge, plaintiffs allege
defendants continued their policies and practices of
promoting the exploitation of fossil fuels and that
defendants acted with deliberate indifference to the peril
they knowingly created. Id.
Plaintiffs’ inventory cataloguing the regulatory
permits, export permits, and approvals for leasing,
drilling, and mining on public lands is substantial. The
accounting of exploitation for fossil fuel extraction, coal
tracts, and oil and gas leases is staggering. Id. ¶¶ 16470. Plaintiffs comprehensively inventory the affirmative
governmental promotion of fossil fuel combustion over
decades. Id. ¶¶ 171-78.
Plaintiffs also include allegations drawing from
scientific evidence documenting the tangible impacts of
climate change. Evidence describes rising sea levels,
severe droughts, hurricanes, wildfires, extreme heat, flash
flooding, unprecedented ocean acidification, and rapid
depletion of sea ice. Id. ¶¶ 213-41. Such events alter our
air quality, water availability, water quality, crop yields,
animal agriculture, and housing security. Id. Plaintiffs’
allegations about what the future holds if climate change
is unabated are harrowing. Id. ¶¶ 242-55.
40a
Appendix D
As the legal basis for their claims, plaintiffs maintain
that defendants have violated the Due Process Clause and
Equal Protection Clause of the Fifth Amendment; the
“unenumerated rights preserved for the people by the
Ninth Amendment”; and the public trust doctrine. FAC
at 84, 88, 91, 92; SAC at 133, 137, 140, 141 (bringing same
claims for relief).
Plaintiffs seek declaratory relief under the Declaratory
Judgment Act, 28 U.S.C. § 2201. SAC ¶ 14. Requested
relief includes a declaration that the United States national
energy system that creates the harmful conditions
described above has violated and continues to violate the
Fifth Amendment of the U.S. Constitution and plaintiffs’
constitutional rights to substantive due process and equal
protection of the law. Id. at 143 ¶ 1. Further, plaintiffs seek
a declaration that defendants violated public trust rights
and a declaration that the Energy Policy Act, Section 201
is unconstitutional. Id. at 143 ¶¶ 2-3.16 Plaintiffs request
injunctive relief only if necessary and “as appropriate.”
Id. at 143 ¶ 4.
III. The Government Files a Motion to Dismiss
Defendants move to dismiss under Federal Rule
of Civil Procedure 12(b)(1) and 12(b)(6), asserting that
plaintiffs lack standing; that plaintiffs cannot bring claims
16. As noted earlier, plaintiffs had initially sought injunctive
relief, including an order directing defendants to “prepare and
implement an enforceable national remedial plan to phase out
fossil fuel emissions and draw down excess atmospheric CO2 to
stabilize the climate system.” FAC at 94 ¶¶ 2, 6, 7.
41a
Appendix D
in the absence of a statutory right of action; that plaintiffs
ask the Court to exercise authority that exceeds the scope
of its power under Article III of the Constitution; and that
all of plaintiffs’ claims fail on the merits. Defendants also
assert that, if the Court denies their motion, it should
again certify its decision for interlocutory appeal.
LEGAL STANDARDS
I.
Motion to Dismiss – Federal Rule of Civil Procedure
12(b)(1)
A court reviews a motion to dismiss a complaint for
lack of Article III standing under Rule 12(b)(1). Naruto
v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018) (quoting
Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011)).
If the jurisdictional attack is facial, courts determine
whether the allegations contained in the complaint are
sufficient on their face to invoke federal jurisdiction,
accepting all material allegations in the complaint as
true and construing them in favor of the party asserting
jurisdiction. See Warth v. Seldin, 422 U.S. 490, 501 (1975).
Once a party has moved to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), the party invoking
federal jurisdiction bears the burden of establishing the
elements of standing. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992). “[A] party must establish an Article III
case or controversy before [a court can] exert subject
matter jurisdiction.” Matter of E. Coast Foods, Inc., 66
F.4th 1214, 1218 (9th Cir. 2023). To satisfy the “irreducible
constitutional minimum” of Article III standing, a plaintiff
must establish (1) an injury in fact (2) that is fairly
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traceable to the challenged conduct and show that a court
can provide (3) a remedy likely to redress that injury.
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
II. Motion to Dismiss – Federal Rule of Civil Procedure
12(b)(6)
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
state a “claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007). A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Id. at 556. The plausibility standard
is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted
unlawfully. Id. The tenet that a court must accept as true
all allegations contained in a complaint is inapplicable
to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice. Id. (citing Twombly, 550 U.S. at 555). “Where the
well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint
has alleged—but it has not show[n]—that the pleader is
entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R.
Civ. P. 8(a)(2)).
DISCUSSION
Over the eight years litigating this case, plaintiffs have
presented evidence spanning over 50 years describing
43a
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defendants’ contribution to climate change through
both inaction and affirmative promotion of fossil fuel
use. The Court recalls plaintiffs’ evidence included a
letter by a top aide to President Nixon’s domestic policy
adviser emphasizing the effect of rising sea levels in
1969: “Goodbye New York. Goodbye Washington, for
that matter.”17 In 1986, a Senate subcommittee observed
that “there is a very real possibility that man—through
ignorance or indifference, or both—is irreversibly altering
the ability of our atmosphere to perform basic life support
functions for the planet.”18 Those are but two documents
out of hundreds highlighting the lengthy nature of
government knowledge of the dangers of fossil fuel
combustion. By and large, defendants have not disputed
the factual premises of plaintiffs’ claims. Juliana, 947
F.3d at 1167 (so stating). However, plaintiffs have not
legally established that evidence. In reviewing defendants’
motion to dismiss, the Court notes that, though it has
held evidentiary hearings and painstakingly reviewed
thousands of pages of declarations and exhibits, today, its
task is solely to decide whether plaintiffs have standing
to bring suit and state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(1), (6).
17. Memorandum from Daniel P. Moynihan, Assistant to the
President for Domestic Pol’y, to John Ehrlichman, Assistant to
the President for Domestic Affs. (Sept. 17, 1969), [https://perma.
cc/G92P-AKLJ].
18. Ozone Depletion, the Greenhouse Effect, and Climate
Change: Hearing Before the Subcomm. on Env’t Pollution of
the Comm. on Env’t & Pub. Works, 99th Cong. 2 (1986) (opening
statement of Sen. John H. Chafee, Chairman, Subcomm. on Env’t
Pollution).
44a
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As an initial matter, defendants assert that the
Court must consider whether the rule of mandate, as
a jurisdictional rule, requires the Court to dismiss the
second amended complaint. Mot. at 10. Next, defendants
maintain that plaintiffs have failed to bring a justiciable
case and that the Court must dismiss plaintiffs’ claims
under Rule 12(b)(1) for lack of subject matter jurisdiction.
Id. at 10-16. Finally, defendants urge the Court to find
that plaintiffs’ claims fail on the merits and that plaintiffs
should have brought this action under the Administrative
Procedure Act (“APA”) but failed to do so. Id. at 32.
I.
Mandate of the Court of Appeals for the Ninth
Circuit
Defendants state that the Ninth Circuit was clear
when it remanded the case to the Court with instructions
to dismiss. Id. at 11. Defendants argue that, when the
scope of the remand is clear, a district court cannot vary or
examine the mandate of an appellate court “for any other
purpose than execution.” Id. at 10 (citing In re Sanford
Fork & Tool Co., 160 U.S. 247, 255 (1895)). Defendants
contend that, rather than examine whether plaintiffs’
amended pleadings establish redressability to satisfy the
requirement of standing, the Court should reconsider the
Ninth Circuit’s mandate and dismiss the second amended
complaint. Id. at 11. Because it is jurisdictional error to
contravene a rule of mandate, the Court duly reconsiders
the mandate of the Ninth Circuit and does not take the
matter lightly.
“A district court that has received the mandate of an
appellate court cannot vary or examine that mandate for
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any purpose other than executing it.” Hall v. City of Los
Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). “Violation of
the rule of mandate is a jurisdictional error.” Id. at 1067.
“But while the mandate of an appellate court forecloses
the lower court from reconsidering matters determined
in the appellate court, it leaves to the district court any
issue not expressly or impliedly disposed of on appeal.”
S.F. Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564,
574 (9th Cir. 2019) (quoting Nguyen v. United States, 792
F.2d 1500, 1502 (9th Cir. 1986)). In determining which
matters fall within the compass of a mandate, “[d]istrict
courts must implement both the letter and the spirit of the
mandate, taking into account the appellate court’s opinion
and the circumstances it embraces.” Vizcaino v. U.S. Dist.
Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999)
(as amended) (quoting Delgrosso v. Spang & Co., 903 F.2d
234, 240 (3d Cir. 1990)).
“Absent a mandate which explicitly directs to the
contrary, a district court upon remand can permit the
plaintiff to file additional pleadings ...” S.F. Herring, 946
F.3d at 574 (quoting Nguyen, 792 F.2d at 1502); see also
Sierra Club v. Penfold, 857 F.2d 1307, 1312 (9th Cir. 1988).
When the mandate in the prior appeal does not expressly
address the possibility of amendment and does not indicate
a clear intent to deny amendment seeking to raise new
issues not decided, that mandate does not purport “to
shut the courthouse doors.” S.F. Herring, 946 F.3d at 574.
In S.F. Herring, the Ninth Circuit discussed its
mandate in a prior appeal, which vacated the district court’s
order entering summary judgment in the defendants’ favor
46a
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and directed the district court to dismiss the complaint.
See S.F. Herring Ass’n v. U.S. Dep’t of Interior, 683 F.
App’x 579, 581 (9th Cir. 2017) (vacating judgment and
remanding case with instructions to dismiss for lack of
subject matter jurisdiction). On remand, the district court
allowed the plaintiff to file a second amended complaint.
In the later appeal, the Ninth Circuit determined that the
district court correctly found that the earlier mandate to
dismiss did not prevent the plaintiff from seeking leave
to re-plead. S.F. Herring, 946 F.3d at 574. The appellate
court reasoned that in instructing the district court to
dismiss, the mandate was silent on whether dismissal
should be with or without leave to amend, and the mandate
therefore did not preclude the district court from allowing
plaintiff to file amended pleadings. Id. at 572-574.
When this Court granted plaintiffs’ motion for leave to
amend, it “consider[ed] plaintiffs’ new factual allegations
under the Declaratory Judgment Act and plaintiffs’
amended request for relief, in light of intervening recent
precedent, to be a new issue that, while discussed, was
not decided by the Ninth Circuit in the interlocutory
appeal.” Juliana v. United States, No. 6:15-CV-01517-AA,
2023 WL 3750334, at *5 (D. Or. June 1, 2023). The Court
once again finds that the Ninth Circuit’s mandate did not
address whether amendment, if permitted, would cure the
deficiency it identified in plaintiffs’ complaint.
The Ninth Circuit also did not instruct the Court
to dismiss without leave to amend. Accordingly, its
mandate to dismiss did not foreclose that opportunity,
and the Court, on reconsideration, finds that in permitting
47a
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plaintiffs to proceed with their second amended complaint,
the rule of mandate is not contravened. S.F. Herring, 946
F.3d at 574; see also Creech v. Tewalt, 84 F.4th 777, 783 (9th
Cir. 2023) (where appellate court remanded and stated
that plaintiff should have leave to amend, district court
did not violate rule of mandate by dismissing without
leave to amend, because appellate court did not expressly
foreclose that option).
II. Standing
The Ninth Circuit determined that plaintiffs had
established an injury in fact, traceable to defendants—the
first two elements of constitutional standing. Juliana 947
F.3d at 1168-70. For completeness in its standing analysis,
this Court adopts the Ninth Circuit’s determination.
Defendants reserve the right to “oppose” the Ninth
Circuit’s ruling. Mot. at 12.
Defendants contend that plaintiffs have not satisfied
the third element of standing, because they failed to
demonstrate that their injuries are “redressable” and
that they are entitled to injunctive or declaratory relief.
Defendants maintain that plaintiffs’ requested relief fails,
because plaintiffs cannot show that the relief they seek
is (1) substantially likely to redress their injuries or (2)
within the Court’s power to award. Id. at 4-5, 12; see also
Spokeo, 578 U.S. at 338.
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.” Lujan, 504 U.S. at
48a
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561 (1992). 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. A
plaintiff need not show a favorable decision is “certain” to
redress his injury but must show a substantial likelihood
it will do so. Washington Env’t Council v. Bellon, 732
F.3d 1131, 1146 (9th Cir. 2013). The injury need not be
completely redressable; it is sufficient that the injury be
partially redressed. Meese v. Keene, 481 U.S. 465, 476
(1987) (“enjoining the application of the words political
propaganda to the films would at least partially redress
the reputational injury of which appellee complains.”).
As for plaintiffs’ request for declaratory relief, the
Ninth Circuit determined that a declaration would be
“unlikely by itself to remediate [plaintiffs’] alleged
injuries.” Juliana 947 F.3d at 1170. For injunctive relief,
the Ninth Circuit was “skeptical,” but assumed without
deciding that plaintiffs might be able to show that their
injuries could be redressed by an order in their favor. Id. at
1171. That said, the appellate court based its ruling on the
second redressability prong, stating that an injunction was
“beyond the power of an Article III court to order, design,
supervise, or implement.” Id. Plaintiffs’ second amended
complaint scales down the requested injunctive relief,
seeking “an injunction restraining [d]efendants from
carrying out policies, practices, and affirmative actions
that render the national energy system unconstitutional
in a manner that harms [p]laintiffs,” and only “if deemed
necessary, just and proper.” SAC at 143 ¶ 4.
49a
Appendix D
Accordingly, for plaintiffs’ claim for both injunctive
relief and declaratory relief, the Court will evaluate
whether each form of relief is (1) substantially likely to
redress their injuries and (2) within the Court’s power to
award. Spokeo, 578 U.S. at 338.
A.
Injunctive Relief
1.
Substantial Likelihood of Redress
Defendants assert that an order enjoining defendants’
fossil fuel activities will not stop catastrophic climate
change or even partially ameliorate plaintiffs’ injuries,
and therefore, any such injunction is not substantially
likely to redress plaintiffs’ injuries and satisfy standing.
Mot. at 12.
Whether a court order will halt all climate change
by restraining defendants from carrying out fossil fuel
activities 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. Spokeo, 578 U.S. at 338. Second, the
possibility that some other individual or entity might
cause the same injury does not defeat standing—the
question is whether the injury caused by the defendant
can be redressed.
Defendants have not disputed plaintiffs’ factual
allegations that they produce a quarter of all emissions
on Earth. Juliana, 947 F.3d at 169. Based on plaintiffs’
alleged facts, an order to defendants to refrain from
50a
Appendix D
certain fossil fuel activities which are causing plaintiffs’
injuries would redress those injuries. On the spectrum of
likely to unlikely, a favorable court order is much closer to
likely, i.e., substantially likely, to redress plaintiffs’ harm.
“Substantially likely” is a legal characterization,
not an evidence based, scientific number. Quantifying a
threshold datapoint at which plaintiffs’ harm would be
remedied would involve rigorous, disciplined fact-finding,
and inevitably would raise a host of questions: What part
of plaintiffs’ injuries stem from causes beyond defendants’
control? Even if emissions increase elsewhere, will the
extent of plaintiffs’ injuries be less if they obtain the relief
they seek in this lawsuit? When would we reach this “point
of no return” that plaintiffs’ evidence describes, and do
defendants have it within their power to avert reaching
it, even without cooperation from third parties? All these
questions are inextricably bound up in an evidentiary
inquiry, and none of them can be answered at the motionto-dismiss stage. At this junction, the Court finds that
plaintiffs have shown that a favorable decision from this
Court would be substantially likely to redress plaintiffs’
injuries. Defendants’ motion to dismiss is denied as to
this issue.
2.
The Court’s Power to Provide Redress
Defendants assert that the Ninth Circuit determined
that the injunction plaintiffs sought in their first amended
complaint would “necessarily require a host of complex
policy decisions entrusted ... to the wisdom and discretion
of the executive and legislative branches,” Juliana, 947
51a
Appendix D
F.3d at 1171, decisions “which must be made by the
People’s elected representatives.” Id. at 1172. Defendants
maintain that, even with amendment, plaintiffs’ requested
injunctive relief is unavailable, because it would “enjoin
the executive branch from exercising discretionary
authority” granted to it by statute, and would enjoin
Congress from exercising power expressly granted to it
by the Constitution. Mot. at 13 (citing the Property Clause,
U.S. Const. art. IV, § 3, cl. 2). In defendants’ view, the
requested injunction remains beyond a district court’s
power to award. Id.
While crafting and implementing injunctions in cases
involving longstanding agency shortcomings may require
rigorous, adversarial fact-finding to penetrate questions
of science, there is nothing exceptional about a federal
court issuing injunctions against federal agencies. See
e.g., Nw. Env’t Def. Ctr. v. United States Army Corps of
Engineers, No. 3:18-CV-00437-HZ, 2021 WL 3924046 (D.
Or. Sept. 1, 2021) (injunction requiring U.S. Army Corps
of Engineers to implement drawdown, spill, and specific
fish management actions at its facilities; establishing an
expert panel to craft implementation plans; and requiring
status reports from agency).
Other federal district courts have similarly ordered
agency action, and appellate courts have affirmed that
granting this type of injunctive relief falls within the
“broad equitable powers” of district courts. Cobell VI, 240
F.3d 1081, 1108 (D.C. Cir. 2001); Gautreaux v. Romney,
457 F.2d 124, 132 (7th Cir. 1972). Courts may also
issue injunctions even when “ordering what is in effect
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nationwide relief.” Bresgal v. Brock, 843 F.2d 1163, 1171
(9th Cir. 1987).
Without any explicit statutory command to the
contrary, no court has held that these powers categorically
fail on separation-of-powers grounds. See Samuel
Buckberry Joyce, Climate Injunctions: The Power of
Courts to Award Structural Relief Against Federal
Agencies, 42 Stan. Env’tl. L.J. 241, 268-281, May 2023
(compiling cases featuring structural injunctions against
the federal government).
Familiar instances of large-scale institutional
litigation in modern American history include cases
that ordered busing to desegregate schools;19 the treaty
rights cases that assured a fair share of fish for American
Indian treaty fishers;20 cases instituting prison condition
reform;21 and cases relating to land use and low-income
housing. 22 Legal scholars have cited those cases and
explained that injunctions in those cases “aimed to break
down, scrutinize, and reform institutional dynamics and
19. See, e.g., Brown v. Bd. of Educ. of Topeka, 347 U.S. 483
(1954); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971); Milliken v. Bradley, 418 U.S. 717 (1974); Green v. Cnty.
Sch. Bd. of New Kent Cnty., 391 U.S. 430 (1968).
20. See, e.g., United States v. Washington, 520 F.2d 676 (9th
Cir. 1975); Washington v. Washington State Com. Passenger
Fishing Vessel Ass’n, 443 U.S. 658 (1979).
21. See, e.g., Brown v. Plata, 563 U.S. 493 (2011); Hudson v.
McMillian, 503 U.S. 1 (1992); Hutto v. Finney, 437 U.S. 678 (1978).
22. See Hills v. Gautreaux, 425 U.S. 284, 298 (1976).
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practices that caused the government to repeatedly violate
fundamental rights of citizens to bring about enduring
constitutional and civil rights compliance.” 23
In their first amended complaint, plaintiffs’ requested
remedy was an injunction requiring the government not
only to “cease permitting, authorizing, and subsidizing”
fossil fuel use, but also to “prepare a remedial plan subject
to judicial approval to draw down harmful emissions.”
Juliana, 947 F.3d at 1170.
When it determined that plaintiffs’ requested relief
was beyond the power of an Article III court to order, the
Ninth Circuit did not offer any explicit guidance on how
to distinguish other structural injunction cases, where
the district court has power to order specific, injunctive
relief, from this case, where the relief necessary to redress
plaintiffs’ injuries is held to be too broad.
Plaintiffs have scaled back the specific directives they
at first sought in the injunction in their first amended
complaint. At this point in the litigation, where the facts
alleged are accepted as true, the Court can only identify
one distinction between the injunction plaintiffs’ request
and the injunctions issued in the structural reform cases
described above. In other reform cases, those plaintiffs’
obtained injunctions against a single agency for a discreet
violation of law. In this case, plaintiffs seek relief on
constitutional grounds and historical trust principles
against a host of governmental defendants.
23. Wood, Eve of Destruction, at 262.
54a
Appendix D
The Court appreciates that, under existing precedent,
an injunction of the scope plaintiffs first requested, and the
“scaled down” request plaintiffs make now, against every
named defendant in this suit, would be more expansive
than any case of which the Court is aware.
On the other hand, requiring plaintiffs to bring
piecemeal statutory actions against individual agencies
perpetuates a status quo unlikely to bring about the allout course correction necessary to avoid the impending
crisis. Requiring plaintiffs to file individual suits premised
on discreet agency shortcomings may be a viable path
to achieving protections for the environment. However,
a court order directing the agencies to work together,
outside their silos to oversee resolution of a complex,
multiagency problem may prove especially constructive
where a practical solution has eluded the entire government
for decades.
Such an order has not proven to be necessary—and is
perhaps premature—at this point in the case. Plaintiffs’
amended request for injunction, though narrower, still
treads on ground over which Ninth Circuit cautioned the
Court not to step. If the reform plaintiffs seek is to prod
a negotiated change of behavior, it is unnecessary to seek
injunctive relief at this point to do so. Defendants’ motion
to dismiss plaintiffs’ claim for injunctive relief is granted.
B. Declaratory Relief
Plaintiffs’ second amended complaint seeks a
declaration that “the national energy system” violates
55a
Appendix D
the Constitution and the public trust doctrine. SAC at
143, ¶¶ 1-3. Defendants contend that plaintiffs’ claim for
declaratory relief must be dismissed, asserting that the
declaration is not materially distinct from the declaration
plaintiffs sought in their first amended complaint. And
defendants argue that plaintiffs cannot satisfy the
two prongs for redressability, because an “unbounded
declaration” alone will not redress plaintiffs’ injuries,
and declaring an “energy system” unconstitutional
would “functionally declare unconstitutional unspecified
laws, regulations, and policies,” and such a declaration is
therefore not within the power of a federal court. Mot.
at 14.
1.
Substantial Likelihood of Redress
Under the Declaratory Judgment Act, 28 U.S.C.
§§ 2201, et seq., courts can grant declaratory relief in
the first instance and later consider if further relief is
warranted. “In a case of actual controversy within its
jurisdiction, [ ] any court of the United States, upon the
filing of an appropriate pleading, may declare the rights
and other legal relations of any interested party seeking
such declaration, whether or not further relief is or could
be sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be reviewable
as such.” 28 U.S.C. § 2201. “Further necessary or proper
relief based on a declaratory judgment or decree may be
granted, after reasonable notice and hearing, against any
adverse party whose rights have been determined by such
judgment.” 28 U.S.C. § 2202.
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Appendix D
The Supreme Court has long recognized that
declaratory judgment actions can provide redressability,
even where relief obtained is a declaratory judgment
alone. See generally Franklin v. Massachusetts, 505 U.S.
788, 803 (1992) and Utah v. Evans, 536 U.S. 452 (2002).
In Franklin and Evans, states objected to the technique
used by the Census Bureau to count people and those
states sued government officials.
In Franklin v. Massachusetts, the Supreme Court
stated that “[f]or purposes of establishing standing,”
it did not need to decide whether injunctive relief was
appropriate where “the injury alleged is likely to be
redressed by declaratory relief,” and the court could
“assume it is substantially likely that the President and
other executive and congressional officials would abide by
an authoritative interpretation of the census statute and
constitutional provision by the District Court.” 505 U.S.
at 803. In Utah v. Evans, the Supreme Court referenced
Franklin, explaining that, in terms of its “standing”
precedent, declaratory relief affects a change in legal
status, and the practical consequence of that change would
“amount to a significant increase in the likelihood that the
plaintiff would obtain relief that directly redresses the
injury suffered.” 536 U.S. 452 (2002).
Other cases recognize the role of declaratory
relief in resolving Constitutional cases. See, e.g.,
Evers v. Dwyer, 358 U.S. 202, 202-04 (1958) (ongoing
governmental enforcement of segregation laws created
actual controversy for declaratory judgment); Powell v.
McCormack, 395 U.S. 486, 499 (1969) (“A court may grant
57a
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declaratory relief even though it chooses not to issue an
injunction or mandamus.”).
Finally, the Supreme Court held that, for the purpose
of Article III standing, nominal damages—a form of
declaratory relief—provide the necessary redress for
a completed violation of a legal right, even where the
underlying unlawful conduct had ceased. Uzuegbunam,
592 U.S. 279, ––––, 141 S. Ct. 792, 802. Uzuegbunam
illustrates that when a plaintiff shows a completed
violation of a legal right, as plaintiffs have shown here,
standing survives, even when relief is nominal, trivial,
or partial. As Justice Thomas stated, in the context of
nominal damages, “True, a single dollar often cannot
provide full redress, but the ability to effectuate a partial
remedy satisfies the redressability requirement. 592 U.S.
at ––––, 141 S. Ct. at 801 (quoting Church of Scientology
of Cal. v. United States, 506 U.S. 9, 13 (1992)).
To satisfy redressability under Article III, plaintiffs
need not allege that a declaration alone would solve
their every ill. To plead a justiciable case, a court
need only evaluate “whether the facts alleged, under
all the circumstances, show that there is a substantial
controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment.” MedImmune,
Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (quoting
Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273
(1941)).
There is nothing in § 2201 preventing a court from
granting declaratory relief even if it is the only relief
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Appendix D
awarded. Section 2201 provides that declaratory relief
may be granted “whether or not further relief is or could
be sought.” Id. Under the statute, the relief plaintiffs
seek fits like a glove where plaintiffs’ request declaratory
relief independently of other forms of relief, such as an
injunction. See Steffel v. Thompson, 415 U.S. 452, 475,
(1974) (stating in a different context that “regardless
of whether injunctive relief may be appropriate, federal
declaratory relief is not precluded.”). A declaration that
defendants are violating plaintiffs’ constitutional rights
may be enough to bring about relief by changed conduct.
2.
The Court’s Power to Provide Redress
A s expressed in Marbur y v. Madison: “It is
emphatically the province and duty of the judicial
department to say what the law is.” 5 U.S. at 177. Over
the course of American history, courts have corrected
longstanding, systemic wrongs of political branches that
encroach on the fundamental rights of citizens.
The judiciary has the unique and singular duty to
both declare constitutional rights and prevent political
acts that would curb or violate those rights. Id. at 167. It
is a foundational doctrine that when government conduct
harms American citizens, the judiciary is constitutionally
required to perform its independent role and determine
whether the challenged conduct, not exclusively committed
to any branch by the Constitution, is unconstitutional. Id.
at 176-78.
The Act gives “federal courts competence to make a
declaration of rights.” Pub. Affairs Associates v. Rickover,
59a
Appendix D
369 U.S. 111, 112 (1962). The Supreme Court has found it
“consistent with the statute ... to vest district courts with
discretion in the first instance, because facts bearing on
the usefulness of the declaratory judgment remedy, and
the fitness of the case for resolution, are peculiarly within
their grasp.” MedImmune, 549 U.S. at 136.
A declaratory judgment need not be “unbound”
as defendants assert but may precisely describe and
quantify the government’s obligations. For example, in
the landmark treaty fishing cases, courts declared the
tribes right to take up to 50 percent of the harvestable
quantities of fish. United States v. Washington, 520 F.2d
676, 687 (9th Cir. 1975).
Declaratory judgments are thus firmly sited within
the core competences of the courts in a way that structural
injunctions are not. Declaratory judgments ask courts
to declare actions lawful or unlawful, applying legal
standards to a set of facts. Unlike structural injunctions,
which envision an on-going dialogue between the court
and the parties, the declaratory relief model facilitates
a dialogue between the parties. Following a court’s
declaration of rights, which serves as the baseline below
which a defendant may not fall, the various stakeholders
are left to handle the details. 24
24. See generally Emily Chiang, Reviving the Declaratory
Judgment: A New Path to Structural Reform, 63 Buff. L. Rev.
549 (May 2015) (discussing models of structural reform and
encouraging public interest lawyers to consider declaratory relief
as an effective and uniquely suited tool for structural reform in
the modern age).
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From the beginning, the Court has envisioned that the
government defendants would be interested in collectively
developing a remedial plan of their own making—not of the
Court’s making—containing measures that they decide
are appropriate to bring the agencies into constitutional
compliance.
Following a declaratory judgment outlining the
constitutional benchmark, a fact-finding stage often
requires scientific analysis (a proficiency in which
defendants are well-equipped) along with production of
data defendants most likely already possess. To avoid
complex remedial issues from clouding the foundational
task of defining plaintiffs’ basic rights and defendants’
consequent obligations, the Court would bifurcate the case
into a “liability” stage and a “remedy” stage.
The liability stage may allow the Court to specify legal
obligations in a declaratory judgment, while the remedy
stage demands a more innovative judicial role to supervise
the parties in crafting a plan. During the remedy stage,
the Court could invoke the usual standards of deference to
the agency, while the case remains open under its ongoing
jurisdiction so that parties can challenge aspects of the
remedy implementation without bringing a new lawsuit.
One model of supervision involves the appointment
of a special master to handle complex factual issues,
make determinations on recurring issues, and make
recommendations to the court. Consent decrees are used
in many contexts of long-lasting government violations.
Professor Wood points out one notable example in the
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environmental context that arose from a treaty fishing
case, United States v. Oregon, handled by Judge Belloni,
U.S. District Court of Oregon. 25 The litigation “culminated
in a consent decree” and the Columbia River Fish
Management Plan (“CRFMP”) became “a model of judicial
administration that gained nationwide acclaim.” 26
The CRFMP established a system of co-management
between nine sovereigns (states, tribes, and the federal
government) managing treaty fisheries in the Columbia
River Basin. See United States v. Oregon, 699 F. Supp.
at 1469 (describing and approving Columbia River Fish
Management Plan). The CRFMP set forth detailed
management criteria for each fishery, established technical
and policy committees, and created a dispute resolution
process that involved the court only as a last resort.
Professor Wood argues that by “allowing the sovereign
parties to identify points of agreement and work out the
details of a remedy using their own administrative and
scientific expertise, the consent decree process can create
an enduring remedy structure to fit complex institutional
and biological circumstances.” 27
Defendants have not shown that plaintiffs’ claim for
declaratory relief falls outside the scope of the Court’s
authority, where “facts bearing on the usefulness of
25. Wood, Eve of Destruction, at 264 (citing United States
v. Oregon, 699 F. Supp. 1456, 1469 (D. Or. 1988) (describing and
approving the CRFMP)).
26. Id.
27. Id.
62a
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the declaratory judgment remedy, and the fitness of the
case for resolution, are peculiarly within [its] grasp.”
MedImmune, 549 U.S. at 136. Accordingly, defendants’
motion to dismiss is denied as to this issue.
III. Political Question Doctrine
Defendants maintain that plaintiffs’ claims present
political questions over which the Court lacks jurisdiction.
Mot. at 12-19. In defendants’ view, plaintiffs ask the
Court to “review and assess the entirety of Congress’s
and the Executive Branch’s programs and regulatory
decisions relating to climate change and then to pass
on the comprehensive constitutionality of all of those
policies, programs, and inaction in the aggregate.” Id.
at 17. Defendants assert that no federal court “has ever
purported to use the judicial [p]ower to perform such a
sweeping policy review.” Id.
Defendants appear to misunderstand the function of
the Court acting within its prescribed authority to declare
what the law is—it is not the Court which will perform “a
sweeping policy review,” it is defendants.
There is no need for the Court to step outside its
prescribed role to decide this case. At its heart, this
lawsuit asks the 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 (1983) (the judiciary is bound
to determine whether the political branches have “chosen
a constitutionally permissible means of implementing
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[their] power”); Jewel v. Nat’l Sec. Agency, 673 F.3d 902,
912 (9th Cir. 2011) (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.”).
The Court previously analyzed whether plaintiffs’
claims presented a political question under Baker v. Carr,
369 U.S. 186 (1962) and adopts that analysis here. See
Juliana v. United States, 217 F. Supp. 3d 1224, 1235-42
(D. Or. 2016) rev’d and remanded on other grounds, 947
F.3d 1159 (9th Cir. 2020). The Ninth Circuit explicitly
stated that it did not find that plaintiffs had presented a
political question. Juliana, 947 F.3d at 1174 n.9 (“Contrary
to the dissent, we do not find this to be a political question,
although that doctrine’s factors often overlap with
redressability concerns”).
Here the Constitution entrusts defendants with
the power to oversee departments and agencies in the
executive branch in their administration of the broad
range of laws committed to their implementation. Mot. at
18. Speculation about the remedial stage does not support
dismissal. Baker, 369 U.S. at 198 (“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 the Court finds that under Baker, the political
question doctrine does not impede plaintiffs’ claims,
defendants’ motion to dismiss is denied on this issue.
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IV. First Claim for Relief – Due Process Clause of the
Fifth Amendment
Plaintiffs allege that the Due Process Clause of
the Fifth Amendment recognizes and preserves the
fundamental right of citizens to be free from government
actions that harm “life, liberty, and property.” SAC
¶ 278. Plaintiffs maintain that these “inherent and
inalienable rights” reflect the basic societal contract of
the Constitution to protect citizens and “posterity”—
future generations—from government infringement upon
basic freedoms and basic rights. Id. Plaintiffs state that
defendants’ affirmative aggregate acts have been and are
infringing on plaintiffs’ liberties, by knowingly creating
a destabilized climate system that is causing irreversible
harm.
Defendants 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 CO 2 at dangerous levels). Defendants
maintain that the Constitution “does not impose an
affirmative duty to protect individuals, and plaintiffs have
failed to allege a cognizable claim under the “state-created
danger” exception to that rule. Mot. at 21.
65a
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Defendants state that the Supreme Court has
repeatedly instructed courts considering novel due
process claims to “exercise the utmost care whenever
... asked to break new ground in this field, ... lest the
liberty protected by the Due Process Clause be subtly
transformed” into judicial policy preferences. Id. at 1920 (quoting Washington v. Glucksberg, 521 U.S. 702, 720
(1997)). Defendants maintain that plaintiffs’ request to
recognize an implied fundamental right to a stable climate
system, SAC ¶ 304, “contradicts that directive, because
such a purported right is without basis in the Nation’s
history or tradition.” Mot. at 20.
A.
Affirmative Government Action and Due
Process
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.
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
66a
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infringes on 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 compelling state interest.”
Reno v. Flores, 507 U.S. 292, 302, (1993).
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 motion to dismiss therefore hinges on whether
plaintiffs have alleged infringement of a fundamental
right.
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, 561
U.S. 742, 767 (2010) (internal citations, quotations, and
emphasis omitted). Seemingly “new” fundamental rights
are not out of bounds. 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 ... did
not presume to know the extent of freedom
in all its dimensions, and so they entrusted to
future generations a charter protecting the
67a
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right of all persons to enjoy liberty as we learn
its meaning. When new insight reveals discord
between the Constitutions central protections
and a received legal stricture, a claim to liberty
must be addressed.
Obergefell v. Hodges, 576 U.S. 644, 664 (2015). Thus,
“[t]he identification and protection of fundamental rights
is an enduring part of the judicial duty to interpret the
Constitution ... [that] has not been reduced to any formula.”
Id. at 663-64 (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. at 664. The
genius of the Constitution is that its text allows “future
generations [to] protect ... the right of all persons to enjoy
liberty as we learn its meaning.” Id.
Exercising “reasoned judgment,” id., the Court finds
that the right to a climate system that can sustain human
life is fundamental to a free and ordered society.
Defendants 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. Mot. at 20. Defendants mischaracterize
the right plaintiffs assert. Plaintiffs do not object to the
government’s role in producing any pollution or in causing
any climate change; they assert the government has caused
pollution and climate change on a catastrophic level, and
that if the government’s actions continue unchecked, they
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will permanently and irreversibly damage plaintiffs’
property, their economic livelihood, their recreational
opportunities, their health, and ultimately their (and their
children’s) ability to live.
In this opinion, this Court simply holds that where
a complaint alleges governmental action is affirmatively
and substantially damaging the climate system in a way
that will cause human deaths, shorten human lifespans,
damage property, threaten human food sources, and
dramatically alter the planets ecosystem, it states a claim
for a due process violation. To hold otherwise would be
to say that the Constitution affords no protection against
a government’s knowing decision to poison the air its
citizens breathe or the water its citizens drink.
How can the judiciary uphold the Constitution’s
guarantee that the government shall not deprive its
citizens of life without due process, while also upholding
government “actions that could leave [future generations]
a world with an environment on the brink of ruin and no
mechanism to assert their rights.” Aji P. v. State, 198
Wash. 2d 1025, 497 P.3d 350, 351 (2021) (Gonzalez, C.J.)
(dissenting). We cannot vow to uphold the Constitution’s
protection of a God-given right to life, and at the same
time, exercise “judicial restraint” by telling plaintiffs
that “life” cannot possibly include the right to be free
from knowing government destruction of their ability
to breathe, to drink, or to live. “It cannot be presumed
that any clause in the [C]onstitution is intended to be
without effect.” Marbury, 5 U.S. at 174. Plaintiffs have
adequately alleged infringement of a fundamental right
and defendants’ motion to dismiss is denied on this issue.
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Appendix D
B. Government Inaction Under the Due Process
Clause
Plaintiffs allege that “[a]cting with full appreciation
of the consequences of their acts, defendants knowingly
caused, and continue to cause, dangerous interference
with our atmosphere and climate system.” SAC ¶ 280.
They allege this danger stems, “in substantial part, [from]
[d]efendants’ historic and continuing permitting, authorizing,
and subsidizing of fossil fuel extraction, production,
transportation, and utilization.” Id. ¶ 279. Plaintiffs allege
defendants acted “with full appreciation” of the consequences
of their acts. Id. ¶¶ 278–79. Plaintiffs challenge defendants’
failure to limit third-party CO2 emissions under the danger
creation exception stated in DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189 (1989).
The Due Process Clause imposes no duty on the
government to protect persons from harm inflicted by
third parties that would violate due process if inflicted by
the government. Id. at 196; accord Patel v. Kent Sch. Dist.,
648 F.3d 965, 971 (9th Cir. 2011). As a general matter:
[The Due Process Clause] is phrased as a
limitation on the State’s power to act, not as a
guarantee of certain minimal levels of safety
and security. It forbids the State itself to deprive
individuals of life, liberty, or property without
“due process of law,” but its language cannot
fairly be extended to impose an affirmative
obligation on the State to ensure that those
interests do not come to harm through other
means.
70a
Appendix D
DeShaney, 489 U.S. at 194-95. The Ninth Circuit
recognizes two narrow exceptions to the no-duty-toprotect rule from DeShaney: (1) the “special-relationship”
exception, which applies to individuals involuntarily
placed in state custody; and (2) the state-created danger
exception. Murguia v. Langdon, 61 F.4th 1096, 1106 (9th
Cir. 2023).
In the Ninth Circuit, a plaintiff challenging government
inaction on a danger creation theory must first show the
“state actor create[d] or expose[d] an individual to a
danger which he or she would not have otherwise faced.”
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th
Cir. 2006). The state action must place the plaintiff “in
a worse position than that in which he would have been
had the state not acted at all.” Pauluk v. Savage, 836 F.3d
1117, 1125 (9th Cir. 2016) (quotation marks omitted and
alterations normalized).
Second, the plaintiff must show the “state actor ...
recognize[d]” the unreasonable risks to the plaintiff and
“actually intend[ed] to expose the plaintiff to such risks
without regard to the consequences to the plaintiff.”
Campbell v. Wash. Dep’t of Soc. & Health Servs., 671
F.3d 837, 846 (9th Cir. 2011) (brackets and quotation
marks omitted). The defendant must have acted with
“[d]eliberate indifference,” which “requires a culpable
mental state more than gross negligence.” Pauluk, 836
F.3d at 1125 (quotation marks omitted).
Defendants assert that applying the DeShaney
exception to the circumstances of this case would cause
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the exception to swallow the rule, arguing that “[e]very
instance” in which the Ninth Circuit has “permitted a
state-created danger theory to proceed has [also] involved
an act by a government official that created an obvious,
immediate, and particularized danger to a specific person
known to that official.” Mot. at 22; Pauluk, 836 F.3d at
1129-30 (Murguia, J., concurring in part and dissenting
in part) (internal quotation marks omitted). Defendants
assert that plaintiffs fail to identify immediate harm to
their personal security or bodily integrity and identify no
government actions or actors that put them in danger—
only general degradation of the climate, without the
immediate, direct, physical, and personal harms at issue
in the above referenced cases. Mot. at 20.
Plaintiffs’ allegations include “[harm to] plaintiffs’
dignity, including their capacity to provide for their basic
human needs, safely raise families, practice their religious
and spiritual beliefs, maintain their bodily integrity, and
lead lives with access to clean air, water, shelter, and food.”
SAC ¶ 283. In the face of these risks, plaintiffs allege
defendants “have had longstanding, actual knowledge of
the serious risks of harm and have failed to take necessary
steps to address and ameliorate the known, serious risk
to which they have exposed [p]laintiffs.” Id. ¶ 285.
Accepting the allegations of the complaint as true,
plaintiffs have adequately alleged a danger creation claim.
Defendants’ arguments do not reflect that DeShaney
imposes rigorous proof requirements. A plaintiff asserting
a danger-creation due process claim must show (1) the
government’s acts created the danger to the plaintiff; (2)
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the government knew its acts caused that danger; and (3)
the government with deliberate indifference failed to act
to prevent the alleged harm. These stringent standards
are sufficient safeguards against the flood of litigation
concerns raised by defendants.
At the motion-to-dismiss stage, the Court accepts the
factual allegations in the complaint as true. Plaintiffs have
alleged that defendants helped create the current climate
crisis, that defendants acted with full knowledge of the
consequences of their actions, and that defendants have
failed to correct or mitigate the harms they helped create
in deliberate indifference to the injuries caused by climate
change. Plaintiffs may therefore proceed with their
substantive due process challenge to defendants’ failure
to adequately regulate CO2 emissions and defendants’
motion to dismiss is denied as to this issue.
V. Second Claim for Relief: Equal Protection Under
the Fifth Amendment
Plaintiffs allege that both unborn members of “future
generations” and minor children who cannot vote are a
suspect classification. SAC ¶¶ 290-301. Plaintiffs state
that, for purposes of this action, they should be treated as
protected classes because many harmful effects caused
by the acts of defendants will occur again. Id. ¶ 297.
Plaintiffs maintain that the Court should determine they
must be treated as protected classes, and federal laws and
actions that disproportionately discriminate against and
endanger them must be invalidated. Id.
73a
Appendix D
Defendants assert that “[n]one of the government
actions that [p]laintiffs complain of classify or affect
youth or posterity any differently than they affect other
persons.” Mot. at 29. While plaintiffs’ allegations are to
the contrary, asserting that future generations will be
decidedly more effected by climate change, defendants
assert that their actions furthering fossil fuel combustion
survive rational basis review, because plaintiffs cannot
allege that there is no conceivable set of facts that could
provide a rational basis for defendants’ actions. Id.
Both the Supreme Court and the Ninth Circuit
have held that age is not a suspect class. City of Dallas
v. Stanglin, 490 U.S. 19, 25 (1989); United States v.
Flores-Villar, 536 F.3d 990, 998 (9th Cir. 2008). Stanglin
and Flores-Villar both applied rational basis review to
governmental action that discriminated against teenagers
of a similar age to plaintiffs here. In both cases, that
discrimination was found to be permissible if it had a
rational basis.
Even if plaintiffs’ suspect-class argument were not
foreclosed by precedent, the Court would not be persuaded
to break new ground in this area. See Cunningham v.
Beavers, 858 F.2d 269, 273 (5th Cir. 1988) (“No cases
have ever held, and we decline to hold, that children are
a suspect class.”).
Accordingly, defendants’ motion to dismiss plaintiffs’
equal protection claim based on plaintiffs’ constituting a
suspect class is granted.
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Appendix D
VI. Third Claim for Relief: Unenumerated Rights
Under the Ninth Amendment
Plaintiffs’ third claim for relief, which is pleaded
as a freestanding claim under the Ninth Amendment,
alleges that the Nation’s founders intended that the
federal government would have both the authority and the
responsibility to be a steward of our country’s essential
natural resources. SAC ¶ 303. This stewardship, plaintiffs
assert, is clear from the delegation of powers to manage
lands and the conveyed authority to address major
challenges facing our nation. Id. Plaintiffs allege that
among the “implicit liberties protected from government
intrusion by the Ninth Amendment” is the right to
be “sustained by our country’s vital natural systems,
including our climate system.” Id.
Defendants assert that the Ninth Amendment has
never been recognized as independently securing any
constitutional right, and that this claim must be dismissed.
Mot. at 21; Strandberg v. City of Helena, 791 F.2d 744, 748
(9th Cir. 1986).
Defendants are correct. Plaintiffs’ Ninth Amendment
claim is not viable. Id. Defendants’ motion to dismiss
plaintiffs’ third claim for relief is granted.
VII. Fourth Claim for Relief: Rights Under Public
Trust Doctrine
Plaintiffs’ public trust claim arises from the particular
application of the public trust doctrine to essential natural
75a
Appendix D
resources. The complaint alleges that the overarching
public trust resource is our country’s life-sustaining
climate system, which encompasses our atmosphere,
waters, oceans, and biosphere. SAC ¶ 308. Plaintiffs
assert that defendants must take affirmative steps to
protect those trust resources. Id. As sovereign trustees,
plaintiffs contend that defendants have a duty to refrain
from “substantial impairment” of these essential natural
resources. Id. ¶ 309. The affirmative aggregate acts of
defendants, in plaintiffs’ view, in fossil fuel production and
consumption have “unconstitutionally caused, and continue
to cause, substantial impairment to the essential public
trust resources.” Id.
Plaintiffs allege that defendants have failed in their
duty of care to safeguard plaintiffs’ interest as the present
and future beneficiaries of the public trust, and that such
an abdication of duty abrogates the ability of succeeding
members of the Executive Branch and Congress to provide
for the survival and welfare of our citizens and to promote
the endurance of our nation. Id.
Defendants assert that plaintiffs’ fourth claim for
relief, asserting public trust claims, should be dismissed
for two independent reasons. Mot. at 24. First, any
public trust doctrine is a creature of state law that
applies narrowly and exclusively to particular types of
state-owned property not at issue here. Id.; U.S. Const.
art. IV, § 3, cl. 2 (“The Congress shall have Power to
dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging
to the United States.”). Defendants contend there is no
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Appendix D
basis for plaintiffs’ public trust claim against the federal
government under federal law. Second, the “climate
system” or atmosphere is not within any conceivable
federal public trust. Id.
The Court has expended innumerable hours in
research and analysis of plaintiffs’ public trust claim and,
in prior orders, determined that plaintiffs have alleged
violations of the public trust doctrine in connection with
the territorial sea. See Juliana v. United States, 217 F.
Supp. 3d 1224, 1255 (D. Or. 2016), rev’d and remanded
on other grounds, 947 F.3d 1159 (9th Cir. 2020). Because
the Ninth Circuit did not reach the merits of plaintiffs’
claims, the Court incorporates its analysis and legal
conclusions, as stated in Juliana, 217 F. Supp at 1255-61
(finding that plaintiffs’ alleged injuries relate to the effects
of ocean acidification and rising ocean temperatures, thus
pleadings adequately alleged harm to public trust assets;
the public trust doctrine applies to the federal government;
the federal government, like the states, holds public assets,
including the territorial seas, in trust for the people;
environmental statutes have not displaced the venerable
public trust doctrine; and plaintiffs’ claims rest “directly
on the Due Process Clause of the Fifth Amendment and
are enforceable against the federal government.”).
Accordingly, the Court finds that plaintiffs have
stated a claim under a purported public trust doctrine.
Defendants’ motion to dismiss plaintiffs’ fourth claim for
relief is denied.
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Appendix D
VIII. Action Under Administrative Procedure Act
Defendants argue that plaintiffs needed to bring their
claims under the Administrative Procedure Act (“APA”)
and failed to do so. Mot. at 32.
The Court finds that the APA does not govern
plaintiffs’ claims, and that, as a result, plaintiffs’ failure to
state a claim under the APA is not a ground for dismissing
this action. The Ninth Circuit found that “[w]hatever
the merits of the plaintiffs’ claims, they may proceed
independently of the review procedures mandated by the
APA.” Juliana, 947 F.3d at 1167-68. Defendants’ motion to
dismiss is denied as to this issue. Defendants reserve their
right to disagree with the Ninth Circuit’s determination
on this point but concede that the Ninth Circuit’s decision
governs, and respectfully preserve their arguments on
the applicability of the APA for potential further review.
CONCLUSION
Other courts across the United States have noted
that “[w]ith each year, the impacts of climate change
amplify and the chances to mitigate dwindle.” Matter of
Hawai‘i Elec. Light Co., Inc., 152 Haw. 352, 359 (2023). The
judicial branch of government can no longer “abdicat[e]
responsibility to apply the rule of law.” Id. at 365 (Wilson,
J., concurring). For the reasons explained, Defendants’
motion to dismiss the second amended complaint, ECF
No. 547, is GRANTED in part and DENIED in part.
The Court also DENIES defendants’ request to certify
for interlocutory review this opinion and order; DENIES
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Appendix D
defendants’ motion for an order certifying its prior order,
ECF No. 540, for interlocutory appeal, ECF No. 551;
and DENIES defendants’ motion to stay litigation, ECF
No. 552. The Court GRANTS plaintiffs’ motion to set
a pretrial conference, ECF No. 543, and ORDERS the
parties to confer and contact the Court to schedule a
telephonic status conference to discuss next steps in this
case.
It is so ORDERED on this day, December 29, 2023.
79a
Appendix EE
APPENDIX
2023 WL 3750334
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF OREGON, EUGENE DIVISION
------------------Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
------------------Signed:
June 1, 2023
------------------OPINION AND ORDER
------------------AIKEN, District Judge:
In this civil rights action, plaintiffs—a group of young
people between the ages of eight and nineteen when
this lawsuit was filed and “future generations” through
their guardian Dr. James Hansen—allege injury from
the devastation of climate change and contend that the
Constitution guarantees the right to a stable climate
system capable of sustaining human life. Plaintiffs
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Appendix E
maintain that federal defendants have continued to
permit, authorize, and subsidize fossil fuel extraction and
consumption, despite knowledge that those actions cause
catastrophic global warming. This case returns to this
Court on remand from the Ninth Circuit Court of Appeals,
where plaintiffs demonstrated their “injury in fact” was
“fairly traceable” to federal defendants’ actions—two
of three requirements necessary to establish standing
under Article III. However, the Ninth Circuit reversed
with instructions to dismiss plaintiffs’ case, holding that
plaintiffs failed to demonstrate “redressability”—the
third, final requirement to establish Article III standing.
The Ninth Circuit determined that plaintiffs did not
“surmount the remaining hurdle” to prove that the relief
they seek is within the power of an Article III court to
provide. Juliana v. United States, 947 F.3d 1159, 1171 (9th
Cir. 2020). After that court’s decision, plaintiffs moved to
amend, notifying this Court of an intervening change in
controlling law, Uzuegbunam v. Preczewski, — U.S. —,
141 S. Ct. 792, 209 L.Ed.2d 94 (2021), asserting abrogation
of the Ninth Circuit’s ruling on redressability. Now,
plaintiffs contend that permitting amendment will allow
plaintiffs to clear the hurdle the Ninth Circuit identified,
so that the case may proceed to a decision on the merits.
For the reasons explained, this Court grants plaintiffs’
motion for leave to file a second amended complaint. (Doc.
462).
BACKGROUND
In August 2015, plaintiffs brought this action asserting
that the federal government has known for decades that
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carbon dioxide pollution was causing catastrophic climate
change and that large-scale emission reduction was
necessary to protect plaintiffs’ constitutional right to a
climate system capable of sustaining human life. (Doc. 7
at 51). As the Ninth Circuit recognized, plaintiffs provided
compelling evidence, largely undisputed by federal
defendants, that “leaves little basis for denying that
climate change is occurring at an increasingly rapid pace.”
Juliana, 947 F.3d at 1166. The substantial evidentiary
record supports that since the dawn of the Industrial
Age, atmospheric carbon dioxide has “skyrocketed to
levels not seen for almost three million years,” with an
astonishingly rapid increase in the last forty years. Id.
at 1166. The Ninth Circuit summarized what plaintiffs’
expert evidence establishes: that this unprecedented rise
stems from fossil fuel combustion and will “wreak havoc
on the Earth’s climate if unchecked.” Id. The problem is
approaching “the point of no return,” the court stated,
finding that the record conclusively demonstrated that
the federal government has long understood the risks of
fossil fuel use. See id. (cataloguing, as early as 1965, urgent
warnings and reports from government officials imploring
swift nationwide action to reduce carbon emissions before
it was too late).
In their first amended complaint, filed in the District
Court for the District of Oregon, plaintiffs alleged
violations of their substantive rights under the Due
Process Clause of the Fifth Amendment; the Fifth
Amendment right to equal protection of the law; the
Ninth Amendment; and the public trust doctrine. (Doc.
7). Plaintiffs also sought several forms of declaratory
82a
Appendix E
relief and an injunction ordering federal defendants to
implement a plan to “phase out fossil fuel emissions and
draw down excess atmospheric [carbon dioxide].” Id. at
94-95.
Federal defendants moved to dismiss for lack of
standing, failure to state a cognizable constitutional claim,
and failure to state a claim on a public trust theory. (Doc.
27). Adopting the findings and recommendation of Federal
Magistrate Judge Thomas Coffin, this Court denied
federal defendants’ motion, concluding that plaintiffs
had standing to sue, raised justiciable questions, and had
stated a claim for infringement of a Fifth Amendment due
process right:
In this opinion, this Court simply holds that
where a complaint alleges governmental action
is affirmatively and substantially damaging
the climate system in a way that will cause
human deaths, shorten human lifespans, result
in widespread damage to property, threaten
human food sources, and dramatically alter
the planet’s ecosystem, it states a claim for
a due process violation[.] To hold otherwise
would be to say that the Constitution affords
no protection against a government’s knowing
decision to poison the air its citizens breathe
or the water its citizens drink. Plaintiffs
have adequately alleged infringement of a
fundamental right.
Juliana v. United States, 217 F. Supp. 3d 1224, 1250 (D. Or.
2016), rev’d and remanded, 947 F.3d 1159 (9th Cir. 2020).
83a
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At that stage of litigation, this Court also determined
that plaintiffs had stated a viable due process claim arising
from federal defendants’ failure to regulate third-party
emissions and had stated a public trust claim grounded in
the Fifth and the Ninth Amendments. Id. at 1252, 1259.
Federal defendants moved to certify to the Ninth
Circuit for interlocutory appeal 1 this Court’s order
denying federal defendants’ motion to dismiss. Doc.
120. This Court denied the motion to certify. (Doc. 172).
Federal defendants petitioned the Ninth Circuit for
Writ of Mandamus, contending that this Court’s opinion
and order denying their motion to dismiss was based
on clear error. (Doc. 177). The Ninth Circuit denied the
petition, concluding mandamus relief was unwarranted
at that stage of litigation, when plaintiffs’ claims could
be “narrowed” in further proceedings. See In re United
States, 884 F.3d 830, 833 (9th Cir. 2018).
Federal defendants then filed several motions so
aimed at narrowing plaintiffs’ claims, including motions
for judgment on the pleadings, doc. 195; a protective order
barring discovery, doc. 196; and for summary judgment,
doc. 207. This Court denied defendants’ motion for a
protective order. (Doc. 212). But this Court granted in
1. A request for permissive interlocutory appeal is governed
by 28 U.S.C. § 1292(b), which permits a district court to certify
an interlocutory order for immediate appeal if the court is of the
opinion that such order: (1) involves a controlling question of law;
(2) as to which there is substantial ground for difference of opinion;
and (3) that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.
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Appendix E
part and denied in part federal defendants’ motions for
judgment on the pleadings and for summary judgment,
dismissing plaintiffs’ Ninth Amendment claim, dismissing
the President as a defendant, and narrowing plaintiffs’
equal protection claim to a fundamental rights theory.
Juliana v. United States, 339 F. Supp. 3d 1062 1103 (D. Or.
2018), rev’d and remanded, 947 F.3d 1159 (9th Cir. 2020).
Federal defendants unsuccessfully petitioned for
mandamus in the Ninth Circuit and twice sought, and
were twice denied, a stay of proceedings by the United
States Supreme Court. Ultimately, the Ninth Circuit, on
November 8, 2018, issued an order inviting this Court
to certify for interlocutory review its orders on federal
defendants’ dispositive motions. United States v. U.S.
Dist. Court for the Dist. of Or., No. 18-73014. Shortly
thereafter, the Ninth Circuit granted federal defendants’
petition to appeal.
On interlocutory appeal of this Court’s certified
orders denying federal defendants’ motions for dismissal,
judgment on the pleadings, and summary judgment, the
Ninth Circuit agreed with this Court’s determination
that plaintiffs had presented adequate evidence at the
pre-trial stage to show particularized, concrete injuries to
legally protected interests. That court recounted evidence
that one plaintiff was “forced to leave her home because
of water scarcity, separating her from relatives on the
Navajo Reservation[,]” and another “had to evacuate
his coastal home multiple times because of flooding.”
Id. at 1168. The Ninth Circuit also determined that this
Court correctly found plaintiffs had presented sufficient
85a
Appendix E
evidence that their alleged injuries are fairly traceable to
federal defendants’ conduct, citing among its findings that
plaintiffs’ injuries “are caused by carbon emissions from
fossil fuel production, extraction, and transportation” and
that federal subsidies “have increased those emissions,”
with about 25% of fossil fuels extracted in the United
States “coming from federal waters and lands,” an activity
requiring federal government authorization. Id. at 1169.
The court held, however reluctantly, that plaintiffs failed
to show their alleged injuries were substantially likely to
be redressed by any order from an Article III court and
that plaintiffs therefore lacked standing to bring suit. Id.
at 1171.
In so holding, the court stated, “There is much to
recommend the adoption of a comprehensive scheme to
decrease fossil fuel emissions and combat climate change,
both as a policy matter in general and a matter of national
survival in particular,” however, such was “beyond the
power of an Article III court to order, design, supervise,
or implement.” Id. at 1171. Ultimately, based on its
redressability holding alone, the Ninth Circuit reversed
the certified orders of this Court and remanded the
case with instructions to dismiss for lack of Article III
standing. Id. at 1175.
After the Ninth Circuit issued its interlocutory
opinion, plaintiffs notified this Court of what they
identified as an intervening case in the United States
Supreme Court which held that the award of nominal
damages was “a form of declaratory relief in a legal
system with no general declaratory judgment act” and
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Appendix E
that a “request for nominal damages alone satisfies the
redressability element of standing where a plaintiff ’s
claim is based on a completed violation of a legal right.”
Uzuegbunam, 141 S. Ct. at 798, 802. Writing for the
majority, Justice Thomas explained that, even where a
single dollar cannot provide full redress, the ability “to
effectuate a partial remedy” satisfies the redressability
requirement. Id. at 801 (quoting Church of Scientology
of Cal. v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121
L.Ed.2d 313 (1992)) (emphasis added).
Plaintiffs contend that the Supreme Court’s holding
constitutes—as Chief Justice Roberts noted in his
dissent—an “expansion of the judicial power” under
Article III. Uzuegbunam, 141 S. Ct. at 806 (Roberts, C.
J. dissenting). According to plaintiffs, the Ninth Circuit
was skeptical, but did not decide whether declaratory
relief alone would satisfy redressability, where such relief
only partially redresses injury. Plaintiffs assert that
they should be granted leave to amend to replead factual
allegations demonstrating that relief under the under the
Declaratory Judgment Act, 28 U.S.C. § 2201, is sufficient to
allege redressability, even where a declaration effectuates
a partial remedy, as stated in Uzuegbunam, which the
Ninth Circuit did not have the chance to consider.
LEGAL STANDARD
Federal Rule of Civil Procedure Rule 15 allows a
party to amend its pleading “with the opposing party’s
written consent or the court’s leave.” The rule instructs
that “[t]he court should freely give leave when justice
87a
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so requires.” Fed. R. Civ. P. 15(a)(2). Trial courts have
discretion in deciding whether to grant leave to amend, but
“[i]n exercising this discretion, a court must be guided by
the underlying purpose of Rule 15 to facilitate decision on
the merits, rather than on the pleadings or technicalities.”
United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)
(citing Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957)). The judicial policy of Rule 15 favoring
amendments should be applied with “extreme liberality.”
Id. (citing Rosenberg Brothers & Co. v. Arnold, 283 F.2d
406 (9th Cir. 1960)) (per curiam). Leave to amend should be
granted freely “even if a plaintiff ’s claims have previously
been dismissed.” Hampton v. Steen, No. 2:12-CV-00470AA, 2017 WL 11573592, at *2 (D. Or. Nov. 13, 2017) (citing
Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th
Cir. 2002)).
Courts consider four factors when determining
whether leave to amend should be granted: 1) prejudice to
the opposing party; 2) bad faith; 3) futility of amendment;
and 4) undue delay. Foman v. Davis, 371 U.S. 178, 182, 83
S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Eminence Cap.,
LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Not all factors are equal and only when prejudice or bad
faith is shown should leave to amend be denied. Howey
v. United States, 481 F.2d 1187, 1190-91 (9th Cir. 1973).
Leave to amend should not be denied based only on delay,
id., particularly when that delay is not caused by the party
seeking amendment.
A court may deny leave to amend if the proposed
amendment is futile or would be subject to dismissal.
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Appendix E
Carrico v. City & Cnty. of San Francisco, 656 F.3d 1002,
1008 (9th Cir. 2011). An amendment is “futile” if the
complaint could not be saved by amendment. United States
v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011).
The court must determine whether the deficiencies in the
pleadings “can be cured with additional allegations that
are consistent with the challenged pleading and that do
not contradict the allegations in the original complaint.”
Id. (quotation marks omitted). A party should be allowed
to test his claim on the merits rather than on a motion to
amend unless it appears beyond doubt that the proposed
amended pleading would be subject to dismissal. Roth v.
Garcia Marquez, 942 F.2d 617, 629 (9th Cir. 1991).
DISCUSSION
I.
Ninth Circuit Mandate Permits Court to Consider
Motion to Amend
In its interlocutory opinion, the Ninth Circuit
remanded the case to this Court with instructions to
dismiss. Plaintiffs maintain that the Ninth Circuit did
not state in its instructions whether dismissal was with or
without leave to amend, and therefore, this Court should
freely grant leave to do so. Federal defendants assert that
this Court must dismiss according to the rule of mandate
and because any amendment would be futile. 2
2. There is no material dispute between the parties whether
plaintiffs’ amendments are in bad faith, prejudicial to defendants,
or unduly delayed. Having considered those factors, this Court
finds that none bar plaintiffs’ request to amend.
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Appendix E
Under the “rule of mandate,” a lower court is
unquestionably obligated to “execute the terms of a
mandate.” United States v. Kellington, 217 F.3d 1084,
1092 (9th Cir. 2000). Compliance with the rule of mandate
“preserv[es] the hierarchical structure of the court
system,” Thrasher, 483 F.3d at 982, and thus constitutes
a basic feature of the rule of law in an appellate scheme.
But while “the mandate of an appellate court forecloses
the lower court from reconsidering matters determined
in the appellate court, it ‘leaves to the district court any
issue not expressly or impliedly disposed of on appeal.’”
Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir.
1986) (quoting Stevens v. F/V Bonnie Doon, 731 F.2d 1433,
1435 (9th Cir. 1984)).
“Absent a mandate which explicitly directs to the
contrary, a district court upon remand can permit the
plaintiff to file additional pleadings. . . . ” San Francisco
Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564, 574
(9th Cir. 2019) (quoting Nguyen, 792 F.2d at 1502; see
also Sierra Club v. Penfold, 857 F.2d 1307, 1312 (9th Cir.
1988)). When mandate in the prior appeal did not expressly
address the possibility of amendment and did not indicate
a clear intent to deny amendment seeking to raise new
issues not decided by the prior appeal, that prior opinion
did not purport “to shut the courthouse doors.” San
Francisco Herring Ass’n, 946 F.3d at 574 (citing Nguyen,
792 F.2d at 1503).
In San Francisco Herring Ass’n, the Ninth Circuit
discussed its issuance of a mandate in a prior appeal,
which vacated the district court’s order entering summary
90a
Appendix E
judgment in the defendants’ favor and directed the
district court to dismiss the complaint. See San Francisco
Herring Ass’n v. U.S. Dep’t of Interior, 683 F. App’x 579,
581 (9th Cir. 2017) (vacating judgment and remanding
case with instructions to dismiss for lack of subject matter
jurisdiction). On remand, the district court allowed the
plaintiff to seek leave to file a second amended complaint.
The Ninth Circuit determined the district court correctly
found that the mandate to dismiss did not prevent the
plaintiff from seeking leave to re-plead. San Francisco
Herring Ass’n, 946 F.3d 574. The court reasoned that in
instructing to dismiss, it had been silent on whether the
dismissal should be with or without leave to amend and
did not preclude the plaintiff from filing new allegations.
Id. at 572-574.
Here, this Court does not take lightly its responsibility
under the rule of mandate. Rather, it considers plaintiffs’
new factual allegations under the Declaratory Judgment
Act, and amended request for relief in light of intervening
recent precedent, to be a new issue that, while discussed,
was not decided by the Ninth Circuit in the interlocutory
appeal. Nor did the mandate expressly state that plaintiffs
could not amend to replead their case—particularly where
the opinion found a narrow deficiency with plaintiffs’
pleadings on redressability. This Court therefore does not
interpret the Ninth Circuit’s instructions as mandating it
“to shut the courthouse doors” on plaintiffs’ case where
they present newly amended allegations. San Francisco
Herring Ass’n, 946 F.3d at 574.
91a
Appendix E
II. Amendment is Not Futile
A.
The Interlocutory Opinion
The Ninth Circuit recited the established rule that,
to demonstrate Article III redressability, plaintiffs must
show that the relief they seek is both (1) substantially
likely to redress their injuries; and (2) within the district
court’s power to award. Juliana, 947 F.3d at 1170. Redress
need not be guaranteed, but it must be more than “merely
speculative.” Id. (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
Here, applying the above rule, the Ninth Circuit
stated that a declaration alone is not relief “substantially
likely to mitigate [plaintiffs’] asserted concrete injuries.”
Juliana, 947 F.3d at 1170. The court considered whether
partial redress suffices to prove the first redressability
prong, concluding that it likely does not, because even if
plaintiffs obtained the sought relief and federal defendants
ceased promoting fossil fuel, such would only ameliorate,
rather than “solve global climate change.” Id. at 1171.
Even so, the court did not decide that plaintiffs had
failed to prove the first prong of redressability: the
court stated, “[w]e are therefore skeptical that the first
redressability prong is satisfied. But even assuming that
it is, [plaintiffs] do not surmount the remaining hurdle—
establishing that the specific relief they seek is within the
power of an Article III court.” Juliana, 947 F.3d at 1171.
(emphasis added).
92a
Appendix E
In addressing whether plaintiffs had proved the
second prong, the court identified the “specific relief ”
plaintiffs sought was an injunction requiring federal
defendants not only to cease permitting, authorizing, and
subsidizing fossil fuel, but also to prepare a plan, subject
to judicial monitoring, to draw down harmful emissions.
That specific relief, the court determined, was not within
the power of an Article III court to award. Id. The court
explained that for the district court to “order, design,
supervise, or implement” plaintiffs’ requested remedial
plan, any effective plan would require a “host of complex
policy decisions” entrusted under constitutional separation
of powers to the executive and legislative branches. Id.
In essence, the court found plaintiffs’ injuries beyond
redress because, in its view, plaintiffs’ requested relief
requires the district court to evaluate “competing policy
considerations” and supervise implementation over many
years. Id. at 1171-73
Summarizing what the court did—and did not—
identify as the legal defects in plaintiffs’ case, the court
did not decide whether plaintiffs’ requested declaratory
relief failed or satisfied the redressability requirement
for standing, and did not consider that issue under
Uzuegbunam or the Declaratory Judgment Act. Rather,
the court resolved that plaintiffs failed to demonstrate
redressability on grounds that plaintiffs’ requested
remedial and injunctive relief was beyond the power of
an Article III court to provide. The court was also silent
on whether dismissal was to be with or without leave to
amend.
93a
Appendix E
B. Plaintiffs’ Proposed Amendments
Plaintiffs assert that their proposed amendments
cure the defects the Ninth Circuit identified and that
they should be given opportunity to amend. Plaintiffs
explain that the amended allegations demonstrate that
relief under the Declaratory Judgment Act alone would be
substantially likely to provide partial redress of asserted
and ongoing concrete injuries, and that partial redress is
sufficient, even if further relief is later found unavailable.
Plaintiffs also amended their factual allegations
directly linking how a declaratory judgment alone will
redress of plaintiffs’ individual ongoing injuries. (See doc.
514-2 ¶¶ 19-A, 22-A, 30-A, 34-A, 39-A, 43-A, 46-A, 49-A,
52-A, 56-A, 59-A, 62-A, 64-A, 67-A, 70-A, 72-A, 76-A, 80A, 85-A, 88-A, 90-A.). Plaintiffs assert that declaratory
relief is within a court’s Article III power to provide.
Plaintiffs also omitted the “specific relief ” the Ninth
Circuit majority found to be outside Article III authority
to award. Among other deletions, plaintiffs eliminated
their requests for this Court to order federal defendants to
prepare and implement a remedial plan and prepare a list
of U.S. CO2 emissions. Plaintiffs also omitted their request
for this Court to monitor and enforce the remedial plan.
Plaintiffs’ Second Amended Complaint thus requests
this Court to: (1) declare that the United States’ national
energy system violates and continues to violate the Fifth
Amendment of the U.S. Constitution and Plaintiffs’
constitutional rights to substantive due process and equal
protection of the law; (2) enter a judgment declaring the
94a
Appendix E
United States’ national energy system has violated and
continues to violate the public trust doctrine; and (3) enter
a judgment declaring that § 201 of the Energy Policy Act
has violated and continues to violate the Fifth Amendment
of the U.S. Constitution and plaintiffs’ constitutional rights
to substantive due process and equal protection of the law.
While declaratory relief was part of plaintiffs’
prayer in the operative complaint, plaintiffs did not cite
Uzuegbunam—recent authority affirming that partial
declaratory relief satisfies redressability for purposes of
Article III standing. Plaintiffs contend that they should
be granted leave to amend based on the Supreme Court’s
holding that a request for nominal damages alone (a form
of declaratory relief ) satisfies the redressability element
necessary for Article III standing, where the plaintiff ’s
claim is based on a completed violation of a legal right, and
the plaintiff establishes the first two elements of standing.
Uzuegbunam, 141 S. Ct. at 801-02.
C.
Plaintiffs’ A mended Pleadings Satisf y
Redressability
This Court adamantly agrees with the Ninth Circuit
that its ability to provide redress is animated by two
inquiries, one of efficacy and one of power. Juliana, 947
F.3d at 1169. Plaintiffs’ proposed amendments allege that
a declaration under the Declaratory Judgment Act is
substantially likely to remediate their ongoing injuries,
and that such relief is within this Court’s power to award.
95a
Appendix E
1.
Declaratory Relief Alone is Substantially
Likely to Redress Injury
The court can grant declaratory relief in the first
instance and later consider further necessary or proper
relief, if warranted, under the Declaratory Judgment Act.
28 U.S.C. §§ 2201, et seq. “In a case of actual controversy
within its jurisdiction, [ ] any court of the United States,
upon the filing of an appropriate pleading, may declare
the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is
or could be sought. Any such declaration shall have the
force and effect of a final judgment or decree and shall be
reviewable as such.” 28 U.S.C. § 2201. “Further necessary
or proper relief based on a declaratory judgment or
decree may be granted, after reasonable notice and
hearing, against any adverse party whose rights have
been determined by such judgment.” 28 U.S.C. § 2202.
The Supreme Court has long recognized that
declaratory judgment actions can provide redressability,
even where relief obtained is a declaratory judgment
alone. Well-known cases involve the census, Franklin
v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120
L.Ed.2d 636 (1992), and Utah v. Evans, 536 U.S. 452, 122
S.Ct. 2191, 153 L.Ed.2d 453 (2002).
In each of the census cases, a state objected to the way
the Census Bureau counted people and sued government
officials. In Franklin v. Massachusetts, the Supreme
Court stated, “For purposes of establishing standing,” it
did not need to decide whether injunctive relief against
96a
Appendix E
was appropriate where “the injury alleged is likely to
be redressed by declaratory relief ” and the court could
“assume it is substantially likely that the President and
other executive and congressional officials would abide by
an authoritative interpretation of the census statute and
constitutional provision by the District Court.” 505 U.S.
at 803, 112 S.Ct. 2767.
In Utah v. Evans, the Supreme Court referenced
Franklin, explaining that, in terms of its “standing”
precedent, declaratory relief affects a change in legal
status, and the practical consequence of that change would
“amount to a significant increase in the likelihood that
the plaintiff would obtain relief that directly redresses
the injury suffered.” 536 U.S. 452, 122 S.Ct. 2191, 153
L.Ed.2d 453 (2002).
Similarly, the Supreme Court has determined that
a plaintiff had standing to sue the Nuclear Regulatory
Commission for a declaration that the Price-Anderson Act,
which limited the liability of nuclear power companies,
was unconstitutional. Duke Power Co. v. Carolina Envtl.
Study Grp., Inc., 438 U.S. 59, 81, 98 S.Ct. 2620, 57 L.Ed.2d
595 (1978).
Other cases recognized the role of declaratory relief
in resolving constitutional cases. See, e.g., Evers v. Dwyer,
358 U.S. 202, 202-04, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958)
(ongoing governmental enforcement of segregation laws
created actual controversy for declaratory judgment);
Powell v. McCormack, 395 U.S. 486, 499, 89 S.Ct. 1944,
23 L.Ed.2d 491 (1969) (“A court may grant declaratory
97a
Appendix E
relief even though it chooses not to issue an injunction or
mandamus.”).
Finally, the Supreme Court held that, for the purpose
of Article III standing, nominal damages—a form of
declaratory relief—provide the necessary redress for
a completed violation of a legal right, even where the
underlying unlawful conduct had ceased. Uzuegbunam, —
U.S. —, 141 S. Ct. 792, 802, 209 L.Ed.2d 94. Uzuegbunam
illustrates that when a plaintiff shows a completed
violation of a legal right, as plaintiffs have shown here,
standing survives, even when relief is nominal or trivial.
Here, this Court notes that, in its determination
of standing, the Ninth Circuit was “skeptical” that
declaratory relief alone would remediate plaintiffs’
injuries, Juliana, 947 F.3d at 1171. The court noted that
even if all plaintiffs’ requests for relief were granted
against federal defendants, such would not solve the
problem of climate change entirely. But for redressability
under Article III standing, plaintiffs need not allege that
a declaration alone would solve their every ill. To plead
a justiciable case, a court need only evaluate “whether
the facts alleged, under all the circumstances, show that
there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127,
127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (quoting Md. Cas.
Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510,
85 L.Ed. 826 (1941)). There is nothing in § 2201 preventing
a court from granting declaratory relief even if it is the
only relief awarded.
98a
Appendix E
In light of that determination, by pleading a claim
under § 2201, plaintiffs establish that the text of the
statute itself resolves the uncertainty posed by the Ninth
Circuit, given that plaintiffs have established an active
case and controversy showing injury and causation.
Section 2201 also provides that declaratory relief may
be granted “whether or not further relief is or could be
sought.” Id. Under the statute, the relief plaintiffs seek
fits like a glove, where plaintiffs request consideration
of declaratory relief independently of other forms of
relief, such as an injunction. See Steffel v. Thompson,
415 U.S. 452, 475, 94 S.Ct. 1209, 39 L.Ed.2d 505, (1974)
(stating in a different context that “regardless of whether
injunctive relief may be appropriate, federal declaratory
relief is not precluded.”). This Court finds that plaintiffs’
proposed amendments are not futile: a declaration that
federal defendants’ energy policies violate plaintiffs’
constitutional rights would itself be significant relief.
2.
Redress is Within Power of Article III
Courts
It is a foundational doctrine that when government
conduct catastrophically harms American citizens, the
judiciary is constitutionally required to perform its
independent role and determine whether the challenged
conduct, not exclusively committed to any branch by the
Constitution, is unconstitutional. Marbury v. Madison, 5
U.S. (1 Cranch) 137, 176-78, 2 L.Ed. 60 (1803). The judicial
role in cases like this is to apply constitutional law, declare
rights, and declare the government’s responsibilities. No
other branch of government can perform this function
99a
Appendix E
because the “judicial Power” is exclusively in the hands
of Article III courts. U.S. Const. Art. III, § 1. The issue
before this Court now is not to determine what relief,
specifically, is in its power to provide. This Court need
only decide whether plaintiffs’ amendments—alleging that
declaratory relief is within an Article III court’s power
to award—“would be subject to dismissal.” Carrico, 656
F.3d 1002.
The Declaratory Judgment Act authorizes this
Court’s determination in its embrace of both constitutional
and prudential concerns where the text is “deliberately
cast in terms of permissive, rather than mandatory,
authority.” Pub. Serv. Comm’n of Utah v. Wycoff Co., 344
U.S. 237, 250, 73 S.Ct. 236, 97 L.Ed. 291 (1952) (J. Reed,
concurring). The Act gives “federal courts competence to
make a declaration of rights.” Pub. Affairs Associates v.
Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 7 L.Ed.2d 604
(1962). The Supreme Court has found it “consistent with
the statute . . . to vest district courts with discretion in the
first instance, because facts bearing on the usefulness of
the declaratory judgment remedy, and the fitness of the
case for resolution, are peculiarly within their grasp.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136,
127 S.Ct. 764, 166 L.Ed.2d 604 (2007).
Here, plaintiffs seek declaratory relief that “the United
States’ national energy system that creates the harmful
conditions described herein has violated and continues to
violate the Fifth Amendment of the U.S. Constitution and
Plaintiffs’ constitutional rights to substantive due process
and equal protection of the law.” (Doc. 514-1 ¶ 1). This relief
100a
Appendix E
is squarely within the constitutional and statutory power
of Article III courts to grant. Such relief would at least
partially, and perhaps wholly, redress plaintiffs’ ongoing
injuries caused by federal defendants’ ongoing policies and
practices. Last, but not least, the declaration that plaintiffs
seek would by itself guide the independent actions of the
other branches of our government and cures the standing
deficiencies identified by the Ninth Circuit. This Court
finds that the complaint can be saved by amendment. See
Corinthian Colleges, 655 F.3d at 995.
CONCLUSION
For the reasons stated above, plaintiffs’ Motion to File
a Second Amended Complaint, doc. 462, is GRANTED.
101a
Appendix FF
APPENDIX
947 F.3d 1159
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
------------------No. 18-36082
K elsey Cascadia Rose Juliana; Xiuhtezcatl Tonatiuh
M., through his Guardian Tamara Roske-Martinez;
A lexander Loznak; Jacob Lebel; Zealand B., through
his Guardian Kimberly Pash-Bell; Avery M., through
her Guardian Holly McRae; Sahara V., through her
Guardian Toa Aguilar; K iran Isaac Oommen; Tia M arie
Hatton; Isaac V., through his Guardian Pamela Vergun;
Miko V., through her Guardian Pamel Vergun; Hazel
V., through her Guardian Margo Van Ummerson; Sophie
K., through her Guardian Dr. James Hansen; Jaime B.,
through her Guardian Jamescita Peshlakai; Journey
Z., through his Guardian Erika Schneider; Victoria B.,
through her Guardian Daisy Calderon; Nathaniel B.,
through his Guardian Sharon Baring; A ji P., through
his Guardian Helaina Piper; Levi D., through his
Guardian Leigh-Ann Draheim; Jayden F., through her
Guardian Cherri Foytlin; Nicholas V., through his
Guardian Marie Venner; Earth Guardians, a nonprofit
organization; Future Generations, through their
Guardian Dr. James Hansen,
Plaintiffs-Appellees,
v.
102a
Appendix F
United States Of A merica; M ary B. Neumayr, in her
capacity as Chairman of Council on Environmental
Quality; Mick Mulvaney, in his official capacity as
Director of the Office of Management and the Budget;
K elvin K. Droegemeir, in his official capacity as
Director of the Office of Science and Technology Policy;
Dan Brouillette, in his official capacity as Secretary
of Energy; U.S. Department of the Interior; David
L. Bernhardt, in his official capacity as Secretary
of Interior; U.S. Department of Transportation;
Elaine L. Chao, in her official capacity as Secretary
of Transportation; United States Department of
Agriculture; Sonny Perdue, in his official capacity as
Secretary of Agriculture; United States Department
of Commerce; Wilbur Ross, in his official capacity as
Secretary of Commerce; United States Department
of Defense; M ark T. Esper, in his official capacity as
Secretary of Defense; United States Department of
State; Michael R. Pompeo, in his official capacity as
Secretary of State; A ndrew Wheeler, in his official
capacity as Administrator of the EPA; Office of the
President of the United States; U.S. Environmental
Protection Agency; U.S. Department of Energy;
Donald J. Trump, in his official capacity as President of
the United States,
Defendants-Appellants.
------------------Filed:
January 17, 2020
-------------------
103a
Appendix F
OPINION
------------------Appeal from the United States District Court for the
District of Oregon, Ann L. Aiken, District Judge,
Presiding, D.C. No. 6:15-cv-01517-AA.
------------------Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit
Judges, and Josephine L. Staton,* District Judge.
Dissent by Judge Staton
HURWITZ, Circuit Judge:
In the mid-1960s, a popular song warned that we were
“on the eve of destruction.”1 The plaintiffs in this case
have presented compelling evidence that climate change
has brought that eve nearer. A substantial evidentiary
record documents that the federal government has long
promoted fossil fuel use despite knowing that it can cause
catastrophic climate change, and that failure to change
existing policy may hasten an environmental apocalypse.
The plaintiffs claim that the government has violated
their constitutional rights, including a claimed right under
* The Honorable Josephine L. Staton, United States District
Judge for the Central District of California, sitting by designation.
1. Barry McGuire, Eve of Destruction, on Eve of Destruction
(Dunhill Records, 1965).
104a
Appendix F
the Due Process Clause of the Fifth Amendment to a
“climate system capable of sustaining human life.” The
central issue before us is whether, even assuming such a
broad constitutional right exists, an Article III court can
provide the plaintiffs the redress they seek—an order
requiring the government to develop a plan to “phase out
fossil fuel emissions and draw down excess atmospheric
CO2.” Reluctantly, we conclude that such relief is beyond
our constitutional power. Rather, the plaintiffs’ impressive
case for redress must be presented to the political
branches of government.
I.
The plaintiffs are twenty-one young citizens, an
environmental organization, and a “representative of
future generations.” Their original complaint named as
defendants the President, the United States, and federal
agencies (collectively, “the government”). The operative
complaint accuses the government of continuing to
“permit, authorize, and subsidize” fossil fuel use despite
long being aware of its risks, thereby causing various
climate-change related injuries to the plaintiffs. Some
plaintiffs claim psychological harm, others impairment
to recreational interests, others exacerbated medical
conditions, and others damage to property. The complaint
asserts violations of: (1) the plaintiffs’ substantive rights
under the Due Process Clause of the Fifth Amendment;
(2) the plaintiffs’ rights under the Fifth Amendment to
equal protection of the law; (3) the plaintiffs’ rights under
the Ninth Amendment; and (4) the public trust doctrine.
The plaintiffs seek declaratory relief and an injunction
105a
Appendix F
ordering the government to implement a plan to “phase out
fossil fuel emissions and draw down excess atmospheric
[carbon dioxide].” 2
The district court denied the government’s motion
to dismiss, concluding that the plaintiffs had standing to
sue, raised justiciable questions, and stated a claim for
infringement of a Fifth Amendment due process right to
a “climate system capable of sustaining human life.” The
court defined that right as one to be free from catastrophic
climate change that “will cause human deaths, shorten
human lifespans, result in widespread damage to property,
threaten human food sources, and dramatically alter the
planet’s ecosystem.” The court also concluded that the
plaintiffs had stated a viable “danger-creation due process
claim” arising from the government’s failure to regulate
third-party emissions. Finally, the court held that the
plaintiffs had stated a public trust claim grounded in the
Fifth and the Ninth Amendments.
The government unsuccessfully sought a writ of
mandamus. In re United States, 884 F.3d 830, 837-38
(9th Cir. 2018). Shortly thereafter, the Supreme Court
denied the government’s motion for a stay of proceedings.
2. The plaintiffs also assert that section 201 of the Energy Policy
Act of 1992, Pub. L. No. 102-486, § 201, 106 Stat. 2776, 2866 (codified
at 15 U.S.C. § 717b(c)), which requires expedited authorization for
certain natural gas imports and exports “without modification or
delay,” is unconstitutional on its face and as applied. The plaintiffs
also challenge DOE/FE Order No. 3041, which authorizes exports
of liquefied natural gas from the proposed Jordan Cove terminal in
Coos Bay, Oregon.
106a
Appendix F
United States v. U.S. Dist. Court for Dist. of Or., 139 S.
Ct. 1, 201 L. Ed. 2d 1112 (2018). Although finding the stay
request “premature,” the Court noted that the “breadth of
respondents’ claims is striking . . . and the justiciability of
those claims presents substantial grounds for difference
of opinion.” Id.
The government then moved for summary judgment
and judgment on the pleadings. The district court granted
summary judgment on the Ninth Amendment claim,
dismissed the President as a defendant, and dismissed the
equal protection claim in part. 3 But the court otherwise
denied the government’s motions, again holding that
the plaintiffs had standing to sue and finding that they
had presented sufficient evidence to survive summary
judgment. The court also rejected the government’s
argument that the plaintiffs’ exclusive remedy was under
the Administrative Procedure Act (“APA”), 5 U.S.C. § 702
et seq.
The district court initially declined the government’s
request to certify those orders for interlocutory appeal.
But, while considering a second mandamus petition from
the government, we invited the district court to revisit
certification, noting the Supreme Court’s justiciability
concerns. United States v. U.S. Dist. Court for the Dist. of
Or., No. 18-73014, Dkt. 3; see In re United States, 139 S. Ct.
452, 453, 202 L. Ed. 2d 344 (2018) (reiterating justiciability
concerns in denying a subsequent stay application from the
3. The court found that age is not a suspect class, but allowed
the equal protection claim to proceed on a fundamental rights theory.
107a
Appendix F
government). The district court then reluctantly certified
the orders denying the motions for interlocutory appeal
under 28 U.S.C. § 1292(b) and stayed the proceedings,
while “stand[ing] by its prior rulings . . . as well as its
belief that this case would be better served by further
factual development at trial.” Juliana v. United States,
No. 6:15-cv-01517-AA, 2018 WL 6303774, at *3 (D. Or.
Nov. 21, 2018). We granted the government’s petition for
permission to appeal.
II.
The plaintiffs have compiled an extensive record,
which at this stage in the litigation we take in the light
most favorable to their claims. See Plumhoff v. Rickard,
572 U.S. 765, 768, 134 S. Ct. 2012, 188 L. Ed. 2d 1056
(2014). The record leaves little basis for denying that
climate change is occurring at an increasingly rapid pace.
It documents that since the dawn of the Industrial Age,
atmospheric carbon dioxide has skyrocketed to levels
not seen for almost three million years. For hund
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