Juliana, et al v United States of America, et al

Filing 369

OPINION AND ORDER: Federal defendants' Motion for Judgment on the Pleadings 195 is GRANTED IN PART and DENIED IN PART. Federal defendants' Motion for Summary Judgment 207 is GRANTED in part and DENIED in part. Federal defendants' requests to certify this opinion and order for interlocutory appeal are DENIED. See formal Opinion and Order. Signed on 10/15/2018 by Judge Ann L. Aiken. (rdr) Modified on 10/15/2018 by changing Order to Opinion and Order (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA, et al.,

Case No. 6:15-cv-01517-AA
OPINION AND ORDER

Plaintiffs,
v.

UNITED STATES OF AMERICA, et al.,
Defendants.

AIKEN, Judge: 1
In this civil rights action, plaintiffs-a group of young people who were between the ages
of eight and nineteen when this lawsuit was filed; Earth Guardians, a nonprofit association of
young environmental activists; and Dr. James Hansen, acting as guardian for plaintiff "future

1

As with the Court's previous Order and Opinion on the federal defendants' motions to
dismiss, student externs worked on each stage of the preparation of this opinion. The Court
would be remiss if it did not acknowledge the invaluable contributions of J oAnna Atkinson
(George Washington University Law School), Trevor Byrd (Willamette University Law School),
Doyle Canning (University of Oregon School of Law), Omeed Ghafarri (University of
Washington School of Law), Tyler Hardman (University of Oregon School of Law), Maggie
Massey (University of Oregon School of Law), and Patrick Rosand (Boston University School of
Law), Elise Williard (University of Oregon School of Law).
Page 1 - OPINION AND ORDER

generations"-allege that the federal government 1s violating their rights under the Fifth
Amendment to the United States Constitution.
Before the Court are two dispositive motions: federal defendants' Motion for Judgment
on the Pleadings (doc. 195) and federal defendants' Motion for Summary Judgment (doc. 207).
For the reasons set forth below, the Motion for Judgment on the Pleadings is granted in part and
denied in part, and the Motion for Summary Judgment is granted in part and denied in part.

BACKGROUND
Plaintiffs filed this action in August 2015, naming the United States, President Barack
Obama, and the heads of numerous executive agencies (collectively, "federal defendants") as
defendants. 2 Plaintiffs allege that federal defendants have known for more than fifty years that
carbon dioxide ("C0 2 ") produced by the industrial scale burning of fossil fuels was "causing
global warming and dangerous climate change, and that continuing to bum fossil fuels would
destabilize the climate system on which present and future generations of our nation depend for
their wellbeing and survival."

First Am. Compl.

ii

1.

Plaintiffs further allege that federal

defendants have long "known of the unusually dangerous risks of harm to human life, liberty,
and property that would be caused by continued fossil fuel burning." Id.

ii 5.

Plaintiffs assert

that, rather than responding to this knowledge by "implement[ing] a rational course of effective
action to phase out carbon pollution," federal defendants "have continued to permit, authorize,
and subsidize fossil fuel extraction, development, consumption and exportation[,]" thereby

2

The First Amended Complaint names as defendants the United States, the President,
and the heads of the Council on Environmental Quality, the Office of Management and Budget,
the Office of Science and Technology Policy, the Department of Energy, the Department of the
Interior, the Department of Transportation, the Department of Agriculture, the Department of
Commerce, the Department of Defense, the Department of State, and the Environmental
Protection Agency.
Page 2 - OPINION AND ORDER

"deliberately allow[ing] atmospheric C02 concentrations to escalate to levels unprecedented in
human history[.]" Id.

ifif 5, 7.

Plaintiffs contend that federal defendants' policy on fossil fuels deprives plaintiffs of life,
liberty, and property without due process of law; impermissibly discriminates against "young
citizens, who will disproportionately experience the destabilized climate system in our
country[;]" and fails to live up to federal defendants' obligations to hold certain essential natural
resources in trust for the benefit of all citizens. Id.

if 8. Plaintiffs seek injunctive and declaratory

relief, asserting that there is "an extremely limited amount of time to preserve a habitable climate
system for our country" before "the warming of our nation will become locked in or rendered
increasingly severe." Id.

if 10.

In November 2015, federal defendants moved to dismiss for failure to state a claim under
Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6). (doc. 27) Federal defendants argued
that plaintiffs lacked standing to sue; that plaintiffs' public trust claims failed as a matter of law
because the public trust doctrine does not apply to the federal government; that plaintiffs' equal
protection claims could not proceed because plaintiffs are not members of a protected class and
the government's energy and climate policies have a rational basis; and that plaintiffs' due
process claims were deficient because they had not alleged violation of a fundamental right.
Also in November 2015, three national trade organizations-the National Association of
Manufacturers, American Petroleum Institute,

and American Fuel &

Petrochemical

Manufacturers (collectively, "intervenor-defendants")-moved to intervene under Federal Rule
of Civil Procedure 24(a) and dismiss the complaint. (doc. 14 & 19) Like federal defendants,
intervenor-defendants argued that plaintiffs lacked standing to sue. Intervenor defendants also

Page 3 - OPINION AND ORDER

argued that plaintiffs had failed to identify a cognizable cause of action and that dismissal was
required because the case presented non-justiciable political questions.
In January 2016, Magistrate Judge Coffin granted intervenor-defendants' motion to
intervene. Juliana v. United States, 2016 WL 138903, at *5 (D. Or. Jan. 14, 2016). In April
2016, following oral argument, Judge Coffin issued his Findings and Recommendation ("F&R"),
recommending that the Court deny both motions to dismiss. (doc. 68) Federal defendants and
intervenor-defendants filed objections to the F&R and the Court held oral argument in
September 2016. (doc. 73, 74 & 81) Following that argument, in November 2016, the Court
issued an opinion and order adopting Judge Coffin's F &R and denying the motions to dismiss.
Juliana v. United States, 217 F. Supp. 3d 1224, 1276 (D. Or. 2016).
In January 2017, federal defendants filed their Answer. (doc. 98) They agreed with
many of the scientific and factual allegations in the First Amended Complaint, including that:
•

"for over fifty years some officials and persons employed by the federal government have
been aware of a growing scientific body of research concerning the effects of fossil fuel
em1ss10ns on atmospheric concentrations of C02-including that increased
concentrations of atmospheric C02 could cause measureable long-lasting changes to the
global climate, resulting in an array of severe and deleterious effects to human beings,
which will worsen over time;"

•

"global atmospheric concentrations of C02 , methane, and nitrous oxide are at
unprecedentedly high levels compared to the past 800,000 years of historical data and
pose risks to human health and welfare;"

•

"Federal Defendants . . . permit, authorize, and subsidize fossil fuel extraction,
development, consumption, and exportation;"

•

"fossil fuel extraction, development, and consumption produce C02 emissions and . . .
past emissions of C02 from such activities have increased the atmospheric concentration
of C02;"

•

"EPA has concluded ... that, combined, emissions of six well-mixed [greenhouse gases]
are the primary and best understood drivers of current and projected climate change;"

Page 4 - OPINION AND ORDER

•

"the consequences of climate change are already occurring and, in general, those
consequences will become more severe with more fossil fuel emissions;"

•

"climate change is damaging human and natural systems, increasing the risk of loss of
life, and requiring adaptation on larger and faster scales than current species have
successfully achieved in the past, potentially increasing the risk of extinction or severe
disruption for many species;" and

•

"human activity is likely to have been the dominant cause of observed warming since the
mid-1900s."

Fed. Defs.' Answer to First Am. Compl.

ifif 1; 5; 7; 10; 213; 217. Those admissions and federal

defendants' other filings make clear that plaintiffs and federal defendants agree on the following
contentions: climate change is happening, is caused in significant part by humans, specifically
human induced fossil fuel combustion, and poses a "monumental" danger to Americans' health
and welfare. See Juliana, 217 F. Supp. 3d at 1234 n.3 (quoting federal defendants' objections to
Judge Coffin's F&R recommending denial of the motions to dismiss). The pleadings also make
clear that plaintiffs and federal defendants agree that federal defendants' policies regarding fossil
fuels and greenhouse gas emissions play a role in global climate change, though federal
defendants dispute that their actions can fairly be deemed to have caused plaintiffs' alleged
injuries. 3
In January 2017, Barack Obama left office and Donald J. Trump assumed the
presidency. In March 2017, both federal defendants and intervenor-defendants moved to certify
the opinion and order denying their motion to dismiss for interlocutory appeal, pursuant to 28
U.S.C. § 1292(b).

(doc. 120 & 122) That same day, federal defendants sought a stay of

3

Intervenor-defendants' Answer, by contrast, contained no admissions with respect to
plaintiffs' factual and scientific assertions about climate change. (doc. 93) Intervenordefendants asserted that they lacked sufficient information to admit or deny those allegations. At
a series of status conferences in 2017, Judge Coffin pressed intervenor-defendants to clarify their
position regarding whether the issues to be litigated at trial would include whether climate
change is happening or whether humans play a role in causing climate change. Intervenordefendants withdrew from the lawsuit before taking a position on those questions.
Page 5 - OPINION AND ORDER

proceedings pending this Court's resolution of the motion to certify for interlocutory appeal and
the Ninth Circuit's resolution of that proposed appeal. (doc. 121) In April 2017, Judge Coffin
denied the request for a stay.

(doc. 137)

In May 2017, Judge Coffin issued his F&R

recommending that the Court deny the motions to certify. (doc. 146) Federal defendants and
intervenor-defendants filed objections, and in June 2017, the Court adopted Judge Coffin's F&R
and declined to certify the opinion and order for interlocutory appeal. Juliana v. United States,
2017 WL 2483705, at *2 (D. Or. June 8, 2017).
In May and June 201 7, intervenor-defendants moved to withdraw from this lawsuit.
(docs. 163, 166 & 167) Judge Coffin granted that motion. (doc. 182)
In June 2017, federal defendants filed a petition for writ of mandamus in the Ninth
Circuit, seeking an order directing this Court to dismiss the case. (doc. 177) Federal defendants
asked the Ninth Circuit to stay all proceedings in this Court pending resolution of that petition.

Id. In July 2017, the Ninth Circuit granted the request for a stay and ordered plaintiffs to file a
response to the petition for writ of mandamus. Ninth Circuit Case No. 17-71692.
On March 7, 2018, the Ninth Circuit denied the petition for writ of mandamus. In re
United States, 884 F.3d 830, 833 (9th Cir. 2018). The denial rested on the court's determination

that federal defendants had not satisfied any of the factors justifying the extraordinary remedy of
mandamus. Id. at 834-38.
On May 7, 2018, federal defendants filed a motion for judgment on the pleadings. (doc.
195) In that motion, they seek to dismiss President Trump as a party and to obtain dismissal of
the entire lawsuit on the grounds that plaintiffs failed to state a claim under the Administrative
Procedure Act ("APA"). Additionally, federal defendants argue that plaintiffs' requested relief is
barred by the separation of powers.

Page 6 - OPINION AND ORDER

Federal defendants also moved for a protective order,

seeking a stay of all discovery on the theory that discovery in this case is barred by the AP A.
(doc. 196) Specifically, federal defendants sought a stay of discovery pending the resolution of
the motion for a protective order, the motion for judgment on the pleadings, and a not-yet-filed
motion for summary judgment.

On May 22, 2018, federal defendants filed a motion for

summary judgment. (doc. 207) In that motion, they seek a judgment as a matter of law in their
favor, arguing that (1) there are no genuine issues of material fact; (2) plaintiffs lack Article III
standing to sue; (3) plaintiffs have failed to assert a valid cause of action under the APA; (4)
plaintiffs' claims violate separation of powers principles; (5) plaintiffs have no due process right
to a climate system capable of sustaining human life; and (6) the federal government has no
obligations under the public trust doctrine.
Meanwhile, the Solicitor General was considering seeking Supreme Court review of the
Ninth Circuit's opinion denying mandamus relief. The presumptive deadline to file a petition for
writ of certiorari to review that opinion was June 5, 2018. On May 24, 2018, the Solicitor
General sought to extend the time for filing a petition for writ of certiorari to July 5, 2018. That
request was docketed in United States v. US. District Court for the District of Oregon, Supreme
Court No. 17A13 04. Justice Kennedy granted the extension.
On May 25, 2018, Judge Coffin denied federal defendants' motion for a protective order
and a stay. (doc. 212) On June 1, 2018, federal defendants filed objections to Judge Coffin's
denial of the protective order and requested a stay of discovery pending resolution of those
objections. (doc. 215 & 216) On June 14, 2018, the Court denied that request for a stay by
minute order. (doc. 238)

Page 7 - OPINION AND ORDER

On June 25, 2018, federal defendants sought a second extension of the deadline for filing
a petition for writ of certiorari. Justice Kennedy granted that request and extended the deadline
to August 4, 2018.
On June 29, 2018, the Court affirmed Judge Coffin's denial of federal defendants'
request to stay all discovery. (doc. 300) On July 5, 2018, federal defendants sought review of
that decision through a second petition for writ of mandamus in the Ninth Circuit. In separate
filings, federal defendants asked this Court and the Ninth Circuit to stay all discovery and trial
pending the Ninth Circuit's resolution of that petition. On July 16, 2018, the Ninth Circuit
denied the request for a stay. On July 17, 2018, the Court denied the request for a stay. (doc.
324) That same day, the Solicitor General petitioned Justice Kennedy for a stay of proceedings
pending the Ninth Circuit's resolution of the mandamus petition. That request was docketed at

United States v. US. District Court for the District of Oregon, Supreme Court No. 18A65. In his
application for a stay, the Solicitor General suggested to Justice Kennedy that he could construe
the stay application as a petition for writ of mandamus directing this Court to dismiss the lawsuit
or as a petition for a writ of certiorari to review the Ninth Circuit's first mandamus decision.
On July 18, 2018, the parties appeared for oral argument before this Court on the Motion
for Judgment on the Pleadings and Motion for Summary Judgment.
On July 20, 2018, the Ninth Circuit denied federal defendants' second mandamus
petition, holding that federal defendants had not met the standard to qualify for mandamus relief.

In re United States,_F.3d_, 2018 WL 3484444, at *1 (9th Cir. July 20, 2018). The court
concluded that because "no new circumstances justify this second petition," it "remains the case
that the issues the government raises in its petition are better addressed through the ordinary
course oflitigation." Id.

Page 8 - OPINION AND ORDER

That same day, the Solicitor General wrote to Justice Kennedy to reiterate his request that
he construe the application for a stay in Supreme Court Case No. 18A65 as a petition for a writ
of certiorari to review the Ninth Circuit's first mandamus decision. Alternatively, he suggested
that Justice Kennedy could construe the application as a petition for a writ of certiorari to review
the Ninth Circuit's second mandamus decision. On July 30, 2018, Justice Kennedy referred the
application for a stay to the entire Supreme Court. In a summary order, the Supreme Court
denied as the Solicitor General's application as premature.
This leaves two substantive motions before the Court, which the Court now addresses in
Sections I and II below: federal defendants' motion for judgment on the pleadings, and federal
defendants' motion for summary judgment.

Defendants have also requested that the Court

certify any portion of this opinion and order denying their substantive motions for interlocutory
appeal, this is addressed in Section III. Plaintiffs' Motion in Limine, (doc. 254) seeking judicial
notice of certain documents, is addressed in Section IV.
STANDARDS

A party may move for judgment on the pleadings after the pleadings are closed but early
enough not to delay trial. Fed. R. Civ. P. 12(c). "Analysis under Rule 12(c) is substantially
identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine
whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy."
Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155 (9th Cir. 2015) (citation and

quotation marks omitted). Accordingly, "[a] judgment on the pleadings is properly granted
when, taking all allegations in the pleadings as true, the moving party is entitled to judgment as a
matter of law." Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)
(quotation marks omitted).

To survive a motion for judgment on the pleadings, "the non-

Page 9 - OPINION AND ORDER

conclusory 'factual content' [of the complaint]," and reasonable inferences from that content,
"must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. US. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007)).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556
U.S. at 678. "[O]nce a claim has been stated adequately, it may be supported by showing any set
of facts consistent with the allegations in the complaint." Bell At!. Corp. v. Twombly, 550 U.S.
544, 563 (2007).
Summary judgment is appropriate if "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving
party has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine

issue of material fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial. Id. at 324. Summary judgment is inappropriate if a
rational trier of fact, drawing all inferences in favor of the nonmoving party, could return a
verdict in the nonmoving party's favor. Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207
(9th Cir. 2008). Any doubt as to the existence of a genuine issue for trial should be resolved
against the moving party. Celotex, 477 U.S. at 339. Finally, even if the standards of Rule 56 are
met, a court has discretion to deny a motion for summary judgment if it believes that "the better
course would be to proceed to a full trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).

II I
II I

Page 10 - OPINION AND ORDER

DISCUSSION

There are two motions before the Court in this now three year old case:

federal

defendants' Motion for Judgment on the Pleadings (doc. 195) and Motion for Summary
Judgment (doc. 207). Many of the issues raised in these motions are interrelated. Given the
nature of the arguments presented, it is more efficient and likely to avoid confusion to deal with
all of the pending issues in a single opinion and order. Thus, the Court addresses each motion in
turn.
I.

Motion for Judgment on the Pleadings 4
Federal defendants' motion for judgment on the pleadings rests on four grounds, two of

which they raise for the first time in their 12(c) motion and two of which the Court has already
considered and ruled upon. First, federal defendants move to dismiss President Trump as a
defendant, arguing that he is not essential to effective relief and his presence in the lawsuit
violates the separation of powers. Second, federal defendants seek dismissal of the lawsuit in its
entirety, on the theory that the AP A governs all challenges to federal agency action and plaintiffs
have failed to state a claim under the AP A.

Third, federal defendants invite the Court to

reconsider all aspects of its opinion and order denying their November 2016 motion to dismiss
4

Even though federal defendants could have raised each argument in its 12(c) motion in
its initial motion to dismiss, that fai~ure is not a bar to asserting the arguments now. See Fed. R.
Civ. P. 12(g) (prohibiting subsequent Rule 12 motions "based on [a] defense or objection ...
omitted" in a prior Rule 12 motion "except ... as provided in subdivision (h)(2)"); Fed. R. Civ.
P. 12(h)(2) ("A defense of failure to state a claim upon which relief can be granted ... may be
made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the
pleadings, or at the trial on the merits."). There are reasons to question the wisdom of permitting
failure-to-state-a-claim defenses to be raised on different legal theories in back-to-back 12(b)(6)
and 12(c) motions. See Sprint Telephony PCS) L.P. v. Cty. of San Diego, 311 F. Supp. 2d 898,
905 (S.D. Cal. 2004) ("It is a waste of judicial resources to consider motion after motion in
which defendants raise the same defense over and over, each time testing a new argument.
Allowing such a tactic means that defendants potentially could stall litigation indefinitely as long
as they can conjure up a new argument on which to base a failure to state a claim defense."). But
as presently written, the rules plainly permit such successive motions.
Page 11 - OPINION AND ORDER

and urge dismissal of the lawsuit on the grounds raised in that motion.

Finally, echoing

arguments raised two years ago by intervenor-defendants, federal defendants contend that
dismissal of this action is required because the Court cannot redress plaintiffs' injuries without
violating the separation of powers.
A.

Motion to Dismiss President Trump as a Defendant

Federal defendants first move to dismiss President Trump as a defendant. The Ninth
Circuit declined to address federal defendants' argument on that point in its denial of the 2017
mandamus petition because defendants had not first raised the issue in this Court. See In re
United States, 884 F.3d at 836 ("First, to the extent the defendants argue that the President

himself has been named as a party unnecessarily and that defending this litigation would
unreasonably burden him, this argument is premature because the defendants never moved in the
district court to dismiss the President as a party.").
At oral argument, the parties reported that plaintiffs were willing to stipulate to the
dismissal of the President without prejudice. Federal defendants rejected that offer and request
dismissal with prejudice. In the absence of a stipulation, the Court must address both whether
dismissal is warranted and, if it is, whether that dismissal should be with or without prejudice.
Federal defendants assert that it would violate separation of powers principles for this
Court to issue an injunction or declaration against President Trump in connection with his
official duties. The extent to which a federal court may issue equitable relief against a sitting
President is unsettled and hotly contested. As Justice O'Connor, writing for a plurality of the
Court, explained twenty-five years ago:
While injunctive relief against executive officials like the Secretary of Commerce
is within the courts' power, see Youngstown Sheet & Tube Co. v. Sawyer, [343
U.S. 579 (1952),] the District Court's grant of injunctive relief against the
President himself is extraordinary, and should have raised judicial eyebrows. We
Page 12 - OPINION AND ORDER

have left open the question whether the President might be subject to a judicial
injunction requiring the performance of a purely "ministerial" duty, Mississippi v.
Johnson, 4 Wall. 475, 498-499 (1867), and we have held that the President may
be subject to a subpoena to provide information relevant to an ongoing criminal
prosecution, United States v. Nixon, 418 U.S. 683 (1974), but in general "this
court has no jurisdiction of a bill to enjoin the President in the performance of his
official duties." Mississippi v. Johnson, [4 Wall. at 501]. At the threshold, the
District Court should have evaluated whether injunctive relief against the
President was available, and, if not, whether appellees' injuries were nonetheless
redressable.
Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality op.) (parallel citations

omitted). Justice O'Connor ultimately concluded that it was unnecessary to "decide whether
injunctive relief against the President was appropriate" because "the injury alleged [wa]s likely
to be redressed by declaratory relief against the Secretary [of Commerce] alone." Id. at 803.
Since Franklin, subsequent cases have made clear that there is no absolute bar on
issuance of declaratory and injunctive relief against a sitting president, even with regard to the
exercise of his official duties. For example, in Clinton v. City of New York, 524 U.S. 417, 449
(1998), the Supreme Court affirmed a declaratory judgment holding that certain actions taken by
President Clinton under the Line Item Veto Act violated the Constitution's allocation of
lawmaking authority between Congress and the President.
In its recent decision on President Trump's second "travel ban" executive order, the
Ninth Circuit cited Franklin for the proposition that when adequate equitable relief is likely
available from some inferior governmental official (or group of officials) the President ought to
be dismissed out of respect for separation of powers:
Finally, the Government argues that the district court erred by issuing an
injunction that runs against the President himself. This position of the
Government is well taken. Generally, we lack "jurisdiction of a bill to enjoin the
President in the performance of his official duties." Franklin v. Massachusetts,
505 U.S. 788, 802-03 (1992) (quoting Mississippi v. Johnson, 71 U.S. (4 Wall. )
475, 501 (1866)); see id. at 802 ("[I]njunctive relief against the President himself
is extraordinary, and should ... raise [ ] judicial eyebrows."). Injunctive relief,
however, may run against executive officials, including the Secretary of
Page 13 - OPINION AND ORDER

Homeland Security and the Secretary of State. See, e.g., Youngstown Sheet &
Tube Co., 343 U.S. at 588-89 (holding that President Truman did not act within
his constitutional power in seizing steel mills and affirming the district court's
decision enjoining the Secretary of Commerce from carrying out the order);
Franklin, 505 U.S. at 802-03.
We conclude that Plaintiffs' injuries can be redressed fully by injunctive relief
against the remaining Defendants, and that the extraordinary remedy of enjoining
the President is not appropriate here. See Franklin, 505 U.S. at 803. We
therefore vacate the district court's injunction to the extent the order runs against
the President, but affirm to the extent that it runs against the remaining
"Defendants and all their respective officers, agents, servants, employees, and
attorneys, and persons in active concert or participation with them."
Hawaii v. Trump, 859 F.3d 741, 788 (9th Cir. 2017), vacated and remanded on mootness
grounds, 138 S. Ct. 377 (2017). Hawaii makes Franklin's plurality opinion on this point binding

Ninth Circuit precedent. The inquiry is not into the President's action or inaction in relationship
to the injuries complained of, but rather into the relief requested, and whether or not equitable
remedies involving the President himself are essential to that relief. As adopted in Hawaii,
Franklin's rule on when the President is an appropriate defendant is best understood as a strain

of the canon of constitutional avoidance: because granting equitable relief against the President
of the United States raises serious constitutional questions, dismissal of the President as a
defendant is appropriate whenever it appears likely that the plaintiffs' injuries can be redressed
through relief against another defendant.
Plaintiffs' opposition to dismissing President Trump boils down to a general assertion
that complete relief may be unavailable without the President as a defendant. They argue that
further development of the factual record is necessary to determine whether injunctive or
declaratory relief is available against President Trump and whether plaintiffs' injuries are
redressable in the absence of such relief. The Court is not persuaded. This lawsuit is, at its
heart, a challenge to the environmental and energy policies of the federal government as

Page 14- OPINION AND ORDER

expressed through the action (or inaction) of federal agencies. Because the Supreme Court and
Ninth Circuit have spoken so clearly about the separation of powers concerns inherent in
awarding equitable relief against a sitting president, the burden is on plaintiffs to explain with
specificity why relief against President Trump is essential to redressing their injuries. They have
failed to carry that burden.
In an attempt to demonstrate why President Trump is necessary to effective equitable
relief, plaintiffs cite a number of specific presidential actions in their Amended Complaint and
briefs. For example, plaintiffs cite:
•

An Executive Order in which President Trump directed a rollback of the Clean Power
Plan by rescinding the moratorium on coal mining on federal lands and six other Obamaera executive orders aimed at curbing climate change and regulating emissions;

•

An Executive Order in which President Trump ordered the expedition of environmental
reviews and approvals for infrastructure projects;

•

An Executive Order in which President Trump ordered a review of the "Waters of the
United States" Rule; and

•

Presidential memoranda encouraging approval of the Dakota Access Pipeline and the
Keystone XL Pipeline.
The problem with those examples is that it is not enough, under Hawaii, to show that the

President was involved in the challenged action; plaintiffs must show that effective relief is
unavailable unless it is awarded against the President.

Like the "travel ban" challenged in

Hawaii, each of the foregoing orders and memoranda included express directives to be carried
out by other governmental officials. See, e.g. Exec. Order No. 13783, 82 Fed. Reg. 16093 (Mar.
28, 2017) (issuing orders to "[t]he heads of agencies" including to the "Administrator of the
Environmental Protection Agency" and the "Secretary of the Interior"); Exec. Order No. 13766,
82 Fed. Reg. 8657 (directing the Chairman of the White House Council on Environmental
Quality the Director of the Office of Management and Budget to take certain actions); Exec.
Page 15 - OPINION AND ORDER

Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017) (addressing "the Administrator, the
Assistant Secretary, and the heads of all executive departments and agencies" including the
Administrator of the Environmental Protection Agency); President Trump Takes Action to
Expedite

Priority

Energy

and

Infrastructure

Projects

(Jan.

24,

2017),

https://www.whitehouse.gov/briefings-statements/president-trump-takes-action-expeditepriority-energy-infrastructure-projects/ (summarizing memoranda addressed to "relevant Federal
agencies"). Thus, with respect to the propriety of the President as a defendant, this case is
indistinguishable from Hawaii and Franklin: because lower governmental officials are charged
with executing the challenged presidential policies, equitable relief against President Trump is
not essential to redressability.
Plaintiffs note that Hawaii concerned injunctive relief only, and certainly injunctive relief
implicates more serious separation of powers concerns than declaratory relief. But as articulated
in Franklin, any equitable relief awarded against a sitting president with respect to his official
duties raises constitutional concerns. Accordingly, when effective relief is available against
lower administration officials, the Court concludes that dismissal of the President is the correct
decision for either type of equitable relief. See Franklin, 505 U.S. at 827-828 (Stevens, J.,
concurring) (arguing that declaratory relief against the president, like injunctive relief, "would
produce needless head-on confrontations between district judges and the Chief Executive"). On
the current record, the Court concludes that President Trump is not essential to effective relief
because "[p]laintiffs' injuries can be redressed fully by injunctive [or declaratory] relief against
the remaining [d]efendants." Hawaii, 859 F.3d at 788. Due respect for separation of powers
therefore requires dismissal of President Trump as a defendant.

Page 16 - OPINION AND ORDER

The next question is whether dismissal should be with or without prejudice. Across a
host of contexts, the default rule is dismissal without prejudice. See, e.g., Lopez v. Smith, 203
F.3d 1122, 1127 (9th Cir. 2000) (stating that dismissal under Federal Rule of Civil Procedure
12(b)(6) should be with prejudice only if the court determines that the pleading "could not
possibly be cured by the allegation of other facts"); Hamilton Copper & Steel Corp. v. Primary
Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990) (explaining that, even when a party's misconduct

justifies the sanction of dismissal, dismissal with prejudice is "extreme" and rarely deployed);
Fed. R. Civ. P. 41(a)(2) (providing that dismissal at the plaintiffs request shall be without
prejudice unless the dismissal order states otherwise); In re Fresenius Granujlo/Naturalyte
Dialysate Prods. Liability Litig., 111 F. Supp. 3d 103, 106 (D. Mass. 2015) (explaining that

dismissal with prejudice under Rule 41(a)(2) generally is justified only in situations where it is
clear that there is "no way for any plaintiff to bring the same claim" in the future, for example
when the applicable statute of limitations has "conclusively run"); Lepesh v. Barr, 2001 WL
34041885, *3 (D. Or. 2001) (citing Ninth Circuit precedent governing when amendment of a
pleading would be futile for the proposition that dismissal should be with prejudice only if it
"appear[s] to a certainty that Plaintiff would not be entitled to relief under any set of facts that
could be proven").
Federal defendants argue that President Trump should be dismissed with prejudice
because Supreme Court and Ninth Circuit precedent is clear that federal courts lack jurisdiction
to issue equitable relief in connection with a sitting president's performance of his official duties.
As explained above, however, neither the Supreme Court nor the Ninth Circuit has gone so far.
Indeed, it is clear that under some limited circumstances and when required by the constitution,
such equitable relief is available.

Page 17 - OPINION AND ORDER

Clinton, for example, involved a challenge to President

Clinton's use of the line-item veto. Clinton, 524 U.S. at 449. The veto power is, of course,
exercised directly by the President and not by subordinate agencies, so no other federal official
would have been an appropriate defendant in that case. More recently, in a case involving
alleged violations of the Foreign and Domestic Emoluments Clauses of the Constitution, the U.S.
District Court for the District of Maryland addressed the availability of equitable relief against
President Trump:
The Court also disagrees that the President's status as the sole defendant changes
this analysis, given that no official other than he could be sued to enforce the
purported violations at issue. "[I]t would be exalting form over substance if the
President's acts were held to be beyond the reach of judicial scrutiny when he
himself is the defendant, but held within judicial control when he and/or the
Congress has delegated the performance of duties to federal officials subordinate
to the President and one or more of them can be named as a defendant." Nat'!
Treasury Emps. Union v. Nixon, 492 F.2d 587, 613 (D.C. Cir. 1974).
District of Columbia v. Trump, 291 F. Supp. 3d 725, 751-52 (D. Md. 2018). The Emoluments

Clauses, like the veto power, are specific to the President. A lawsuit asserting violation of those
clauses therefore could not be directed to federal agency heads or other federal officials.
As explained above, on the current record, it appears that this is a case in which effective
relief is available through a lawsuit addressed only to lower federal officials. It is not possible to
know how developments to the record in the course of the litigation may change the analysis.
The Court cannot conclude with certainty that President Trump will never become essential to
affording complete relief. For that reason, the Court concludes that dismissal without prejudice
is the appropriate course. Any harm the President will suffer from the continuing hypothetical
possibility that he might be joined as a defendant in the future is minimal. Moreover, that

minimal harm is further mitigated by the fact that federal defendants would be free to oppose any
future motion for leave to amend the complaint and add the President as a defendant on the

Page 18- OPINION AND ORDER

grounds that permitting such amendment would cause "undue prejudice to the opposing party."
Foman v. Davis, 371 U.S. 178, 182 (1962).

Federal defendants' motion to dismiss President Trump from this lawsuit is granted. The
dismissal is without prejudice.
B.

Motion to Dismiss for Failure to State a Claim under the APA

Federal defendants next argue that this entire case must be dismissed because plaintiffs
are challenging the actions (and inactions) of federal agencies, and thus must bring their suit, if at
all, under the APA. 5 The APA provides a right of judicial review to "[a] person suffering legal
wrong because of agency action, or adversely affected or aggrieved by agency action." 5 U.S.C.
§ 702. "Agency action made reviewable by statute and final agency action for which there is no
other adequate remedy in court are subject to judicial review." Id. § 704. A reviewing court has
authority both to "compel agency action unlawfully withheld or unreasonably delayed" and to
5

As a threshold matter, plaintiffs contend that this Court already has rejected federal
defendants' APA argument, and that the Ninth Circuit affirmed that rejection under the "no clear
error' standard. Neither contention is correct. First, this Court has not addressed federal
defendants' AP A argument. Federal defendants argued in their motion to dismiss that plaintiffs
had failed to identify a viable cause of action, but they did not argue that the AP A was the
exclusive vehicle for claims that a federal agency has violated a plaintiffs constitutional rights.
Second, the Ninth Circuit did not "affirm" any of this Court's determinations under the "clear
error" standard. It is true that in both mandamus opinions, the Ninth Circuit held that the
government had not shown that this Court's order was "clearly erroneous as a matter oflaw," as
required to satisfy the third factor of the five-factor test for mandamus relief. In re United States,
884 F.3d at 837-38; see also In re United States, 2018 WL 3484444, at *2 ("As detailed in our
opinion denying the first mandamus petition, the government does not satisfy the third, fourth, or
fifth Bauman factors."). But in finding that the third factor had not been satisfied, the Ninth
Circuit declined to take a position on whether this Court's rulings were clearly erroneous. See In
re United States, 884 F.3d at 837 ("[W]e decline to exercise our discretion to intervene at this
stage of the litigation to review preliminary legal decisions made by the district court or
otherwise opine on the merits."). Because this is the first time either this Court or the Ninth
Circuit has addressed federal defendants' AP A argument, the Court will address the argument on
its merits. See Sprint Telephony, 311 F. Supp. 2d at 905 (holding that application of the law of
the case doctrine was inappropriate because, "although the court previously considered
defendants' failure to state a claim defense in its earlier order, the court has not considered the
issues defendants now raise in their motion presently before the court").
Page 19- OPINION AND ORDER

"set aside agency action" on several grounds, including that the action is "arbitrary, capricious,
[or] an abuse of discretion;" is "contrary to constitutional right, power, privilege, or immunity";
or exceeds the agency's statutory authority. Id. § 706(1) & (2)(A)-(C). The APA's judicial
review provisions apply only in limited circumstances such as when agency action is final or
"otherwise reviewable by statute." Navajo Nation v. Dep 't of the Interior, 876 F.3d 1144, 1171
(9th Cir. 2017).
When a plaintiff asserts an AP A claim, the court must determine whether the plaintiff has
identified a final agency action subject to judicial review. Lujan v. Nat'! Wildlife Fed., 497 U.S.
871, 882 (1990). But here, plaintiffs have not asserted APA claims; their claims are brought
directly under the United States Constitution, which has no "final agency action" requirement.
As a general rule, plaintiffs are "master[s] of [their] complaint" and may choose which claims to
assert and which legal theories to press. Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99
(1987). Federal defendants' APA argument succeeds only if they can demonstrate that the APA
is the only available avenue to judicial review of the government's conduct that plaintiffs
challenge in this lawsuit.
Federal defendants' argument that the APA is the exclusive means to challenge any
agency action rests on the proposition that "[w]here Congress has created a remedial scheme for
the enforcement of a particular federal right," courts "have, in suits against federal officers,
refused to supplement that scheme with one created by the judiciary." Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 74 (1996). Federal defendants indiscriminately cite cases involving both

claims for damages and claims for equitable relief in arguing that the AP A is a comprehensive
statutory scheme demonstrating Congressional intent to cut off common law claims. But in
order to properly analyze federal defendants' argument, it is critical to avoid conflating the

Page 20 - OPINION AND ORDER

Supreme Court's treatment of claims for damages with its treatment of claims for equitable
relief.
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388,
396 (1971), the Supreme Court broke new ground by permitting a suit for damages against
federal officials for violations of the Fourth Amendment, even though no federal statute created
such a cause of action. The Court subsequently extended Bivens to two other contexts. In Davis
v. Passman, 442 U.S. 228, 247 (1979), the Court recognized an implied right of action to sue for

damages based on an allegation that a U.S. Congressman had discriminated against an employee
on the basis of sex, in violation of the Due Process Clause of the Fifth Amendment. And in
Carlson v. Green, 446 U.S. 14, 20 (1980), the Court recognized a Bivens cause of action for a

federal prisoner alleging violations of his rights under the Eighth Amendment.
"Since Carlson, however, the Supreme Court has consistently refused to extend Bivens
liability to any new context or new category of defendants." Western Radio Servs. Co. v. US.
Forest Serv., 578 F.3d 1116, 1119 (9th Cir. 2009); see also, Armstrong v. Exceptional Child Ctr.,
Inc.,_U.S._, 135 S. Ct. 1378, 1384 (2015) (rejecting the argument that the Supremacy

Clause creates an implied cause of action for every violation of federal law). As the Ninth
Circuit has explained, whether to recognize a Bivens cause of action in a new context involves a
two-step inquiry:
First, the Court determines whether there is any alternative, existing process for
protecting the plaintiffs interests. Such an alternative remedy would raise the
inference that Congress expected the Judiciary to stay its Bivens hand and refrain
from providing a new and freestanding remedy in damages. The Court has
explained that, when the design of a Government program suggests that Congress
has provided what it considers adequate remedial mechanisms for constitutional
violations that may occur in the course of its administration, we have not created
additional Bivens remedies ....

Page 21- OPINION AND ORDER

Second, if the Court cannot infer that Congress intended a statutory
remedial scheme to take the place of a judge-made remedy, the Court next asks
whether there nevertheless are factors counseling hesitation before devising such
an implied right of action. Even where Congress has given plaintiffs no damages
remedy for a constitutional violation, the Court has declined to create a right of
action under Bivens when doing so would be plainly inconsistent with Congress'
authority in this field.
Id. at 1120-21 (citations and internal quotation marks omitted).

Applying that two-step inquiry in Western Radio, the Ninth Circuit determined that the
AP A is the sort of "comprehensive remedial scheme" that indicates "Congress's intent that
courts should not devise additional, judicially crafted default remedies." Id. at 1123. Based on
that determination, the court held "that the AP A leaves no room for Bivens claims based on
agency action or inaction." Id. Federal defendants cite Western Radio for its broad language on
the comprehensiveness of the AP A. However, Ninth Circuit and Supreme Court precedent make
clear that the analysis for Bivens claims is specific to the availability ofremediesfor damages.
The process for determining whether Congress intended to cut off common law claims
for equitable relief-such as those contained in plaintiffs' petition-is substantially different.

With respect to equitable relief, the Supreme Court has expressly required a "heightened"
showing of clear legislative intent to displace constitutional claims in part to avoid the "serious
constitutional question" that would arise "if a federal statute were construed to deny any judicial
forum for a colorable constitutional claim." Webster v. Doe, 486 U.S. 592, 603 (1988). In
Webster, the Supreme Court expressly rejected the argument that the APA provided the only

available route to judicial review of agency action and inaction. Id. That rejection is brought
into sharp relief by Justice Scalia' s assertion, in dissent, that "at least with respect to all entities
that come within the [AP A]' s definition of 'agency,' if review is not available under the AP A it
is not available at all." Id. at 607 n. * (Scalia, J., dissenting).
Page 22 - OPINION AND ORDER

The AP A contains no express language suggesting that Congress intended it to displace
constitutional claims for equitable relief. Indeed, the Ninth Circuit has held that § 702 of the
AP A "is an unqualified waiver of sovereign immunity in actions seeking nonmonetary relief
against legal wrongs for which governmental agencies are accountable"-whether such actions
are asserted under the AP A or under the general federal question jurisdiction statute.

The

Presbyterian Church (US.A.) v. United States, 870 F.2d 518, 525 & n.9 (9th Cir. 1989).

Recognition of causes of action against federal agencies that fall outside the AP A is implicit in
Presbyterian Church; it makes little sense to hold that the AP A waives sovereign immunity for

both APA and non-APA claims against federal agencies if the only viable claims are subject to
the APA' s judicial review provisions.
In a recent case involving a challenge to "the confinement conditions imposed on illegal
aliens pursuant to a high-level executive policy," the Supreme Court underscored the difference
between claims for damages and claims for equitable relief:
It is of central importance, too, that this is not a case like Bivens or Davis in which

it is damages or nothing. Unlike the plaintiffs in those cases, respondents do not
challenge individual instances of discrimination or law enforcement overreach,
which due to their very nature are difficult to address except by way of damages
actions after the fact. Respondents instead challenge large-scale policy decisions
concerning the conditions of confinement imposed on hundreds of prisoners. To
address those kinds of decisions, detainees may seek injunctive relief
Ziglar v. Abbasi,_U.S._137 S. Ct. 1843, 1862 (2017) (citations and internal quotation marks

omitted) (emphasis added). The Court expressly noted that separation-of-powers concerns "are .
. . more pronounced when the judicial inquiry comes in the context of a claim seeking money
damages rather than a claim seeking injunctive or other equitable belief' because "the risk of
personal damages liability is more likely to cause an official to second-guess difficult but
necessary decisions[.]" Id. at 1861.

Page 23 - OPINION AND ORDER

Supreme Court, Ninth Circuit, and other cases plainly show that challenge to federal
agency action may, depending on the circumstances, be stated as an AP A claim or a
constitutional claim.

See, e.g., Franklin, 505 U.S. at 801 ("Although the apportionment

challenge is not subject to review under the standards of the AP A, that does not dispose of
appellees' constitutional claims."); Webster, 486 U.S. at 603 (holding that § 102(c) of the
National Security Act rendered the CIA director's personnel decisions unreviewable under the
AP A, but rejecting that argument that the same statute precluded a claim that those decisions
violated the Constitution); Navajo Nation, 876 F.3d at 1170 ("Claims not grounded in the APA,
like . . . constitutional claims . . . , do not depend on the cause of action found in the first
sentence of§ 702 [of the APA] and thus § 704's limitation does not apply to them.") (internal
quotation marks omitted and alterations normalized); Stone v. Trump, 280 F. Supp. 3d 747, 772
(D. Md. 2017) (dismissing the plaintiffs' APA claim but permitting equal protection and due
process claims to proceed in a case challenging the ban on transgender individuals serving in the
military); L. v. US. Immigration & Customs Enforcement, 302 F. Supp. 3d 1149, 1168 (S.D. Cal.
2018) (dismissing the plaintiffs' APA claim but permitting their due process claim to proceed in
a case challenging the federal practice of separating migrant children from their parents at the
border).
Plaintiffs' claims simply do not fall within the scope of the APA. As federal defendants
correctly point out, the Supreme Court has made clear that review under the APA requires a
"case-by-case approach" to determine whether "a specific final agency action has an actual or
immediately threatened effect." Lujan, 497 U.S. at 892. By its terms, the APA contains no
provisions by which plaintiffs may "seek wholesale improvement of [an agency] program by
court decree[.]" Id. at 891 (emphasis in original). But that case law does not support the

Page 24 - OPINION AND ORDER

conclusion that plaintiffs' claims must be dismissed; it simply underscores that plaintiffs' claims
are not AP A claims. Plaintiffs do not contend that any single agency action is causing their
asserted injuries-nor could they, given the complex chain of causation involved in climate
They seek review of aggregate action by multiple agencies, something the APA's

change.

judicial review provisions do not address. The AP A does not govern plaintiffs' claims. As a
result, plaintiffs' failure to state a claim under the AP A is not a ground for dismissal of this
action.
C.

Motion to Dismiss on Separation ofPowers Grounds & Request to Reconsider the
November 2016 Denial of the Government's 12(b)(6) Motion

Finally, federal defendants raise a set of arguments on which this Court already has ruled.
First, federal defendants open their Rule 12(c) motion by asserting "that [they are] entitled to
judgment as a matter of law for the reasons set forth in [their] November 2015 motion to
dismiss." Defs.' Mot. for J. on the Pleadings 6. Federal defendants ask the Court to "revisit its
order denying the motion to dismiss and grant judgment to Defendants on some or all of
Plaintiffs' claims." Id. at 7. Second and more specifically, federal defendants argue that any
claim brought outside the AP A's framework is foreclosed by the separation of powers.
As an initial matter, the Court acknowledges now, as it did in 2016, that the allocation of
power among the branches of government is a critical consideration in this case and reiterate
that, "[s]hould plaintiffs prevail on the merits, this Court would no doubt be compelled to
exercise great care to avoid separation-of-powers problems in crafting a remedy." Juliana, 217
F. Supp. 3d at 1241. The Court recognizes that there are limits to the power of the judicial
branch, as demonstrated by the Court's determination that President Trump is not a proper
defendant in this case.

Page 25 - OPINION AND ORDER

This is the first time that federal defendants have highlighted separation of powers
concerns; they did not raise that argument, except in passing, in their 12(b)( 6) motion. But
former defendant-intervenors raised and fully briefed separation-of-powers arguments in the
section of their motion to dismiss addressing the political question doctrine. Although this is the
first time federal defendants are raising a political question challenge, their brief on the subject
largely reiterates arguments considered and rejected in the opinion and order on the motion to
dismiss. And obviously, the invitation to reconsider the November 2016 order and opinion
necessarily implicates issues on which this Court has already ruled.
In order to determine how to address federal defendants' attempt to re-raise these issues,
the Court begins by considering the application of the law of the case doctrine. Under that
doctrine, "a court is ordinarily precluded from reexamining an issue previously decided by the
same court." Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002). The doctrine is
"founded upon the sound public policy that litigation must come to end." Jeffries v. Wood, 114
F.3d 1484, 1489 (9th Cir. 1997) (en bane). It also "serves to maintain consistency." Id. The
doctrine has three exceptions: reconsideration is permitted when "(l) the decision is clearly
erroneous and its enforcement would work a manifest injustice, (2) intervening controlling
authority makes reconsideration appropriate, or (3) substantially different evidence was adduced
at a subsequent trial." Old Person, 114 F.3d at 1039. Although the federal rules permit back-toback motions to dismiss for failure to state a claim, see Section I n.3, supra, courts are under no
obligation to give full consideration to a rehash of arguments already presented in a 12(b)(6)
motion. See Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 434 (M.D.N.C. 2011)
(declining to "reconsider issues that it addressed fully at the Rule 12(b)(6) stage" in adjudicating
a Rule 12(c) motion).

Page 26 - OPINION AND ORDER

To the extent that federal defendants seek reconsideration on questions unrelated to the
Court's subject matter jurisdiction, the Court declines to revisit its earlier rulings. The Court
gave full and fair consideration to the arguments federal defendants now raise in their November
2016 opinion. Nothing has changed to warrant expending judicial resources in retreading that
ground at this juncture. The same legal standard applies to motions under Rules 12(b)(6) and
12(c) and federal defendants have cited no intervening changes in the law.
To the extent that federal defendants' arguments challenge subject matter jurisdiction, the
law of the case doctrine does not apply. United States v. Houser, 804 F.2d 565, 569 (9th Cir.
1986).

But federal defendants have pointed to no relevant change in circumstances or the

governing law between November 2016 and today. Accordingly, the Court has little to add to
the prior opinion, which addressed the separation of powers issue at length. See Juliana, 217 F.
Supp. 3d at 1235-42, 1270-71. The separation of powers did not require dismissal of this
lawsuit in November 2016, and it does not require dismissal of this lawsuit now.
Due respect for the separation of powers has informed, and will continue to inform, the
Court's approach to this case at every step of the litigation.

The Court remains mindful,

however, that it is "emphatically the province and duty of the judicial department to say what the
law is." Marbury v. Madison, 5 U.S. 137, 177 (1803). Courts have an obligation not to overstep
the bounds of their jurisdiction, but they have an equally important duty to fulfill their role as a
check on any unconstitutional actions of the other branches of government.

II I
II I
II I
II I

Page 27 - OPINION AND ORDER

II.

Motion for Summary Judgment6

Federal defendants raise several arguments in their motion for summary judgment, many
of which were previously considered in the November 2016 Order. Namely, federal defendants
reiterate their contention that plaintiffs lack Article III standing because their injuries are not
concrete and particularized; the harms alleged by plaintiffs are not fairly traceably to federal
defendants; and plaintiffs' claims are not redressable by this Court. Federal defendants also
argue that plaintiffs have failed to adequately state a claim under the AP A and that plaintiffs'
claims would violate separation of powers principles. Federal defendants further argue, as they
did in their previous motion to dismiss, that there is no fundamental right to a climate system
capable of sustaining human life; that plaintiffs cannot establish a state-created danger claim; and
that the public trust doctrine does not apply to the federal government.
In response, plaintiffs proffer the declarations of the named plaintiffs as well as
declarations from eighteen expert witnesses. 7 They argue that genuine issues of material fact
exist as to standing, separation of powers, and their due process and public trust claims.
6

Subsequent to Oral Argument in July 2018, plaintiffs filed what they style as a Notice
of Supplemental Disputed Facts Raised by federal defendants' Expert Reports in Support of
Plaintiffs' Opposition to Defendants' Motion for Summary Judgment. (doc. 338) Essentially,
plaintiffs submit excerpts from defendant's expert reports and argue that these submissions show
that genuine issues of material fact remain for trial. However, the Court declines to consider the
notice as it is untimely and prohibited under the District's Local Rules. L.R. 7-l(f).
7

Many of documents referenced by plaintiffs' in their response to the motion for
summary judgment, and supporting declarations, are subject to their motion in limine (doc. 254)
seeking judicial notice of certain documents. The Court has examined which of those documents
are judicially noticeable in a contemporaneous opinion. Further, at oral argument plaintiffs
requested that the Court take judicial notice of the announcement of the Department of Interior's
plan to offer 78 million acres offshore of the Gulf Coast for oil and gas exploration and
development. The Court has located the announcement of the plan available on the
Department's public website. https://www.doi.gov/pressreleases/interior-announces-region-wideoil-and-gas-lease-sale-gulf-mexico. Consistent with the Court's analysis the contemporaneous
opinion regarding plaintiffs' first motion in limine, the Court takes judicial notice of the
announcement.
Page 28 - OPINION AND ORDER

Many of these arguments raised in the present motion are substantially similar to those
raised in federal defendants' and the former defendant-intervenors' motions to dismiss.
However, federal defendants correctly note that the standard for this Court in reviewing a motion
for summary judgment is different than the standard which was applied in the previous order.
Thus the Court must review the briefing and record to determine whether there is any genuine
dispute as to any material fact and the government is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
A.

Standing

Federal defendants argue, as they did at the pleadings stage, that plaintiffs lack Article III
standing to bring their claims. While many of the arguments offered in the present summary
judgment motion are substantially similar to those offered in the federal defendants' previous
motion to dismiss, a different standard applies at this stage of the proceedings.
To avoid summary judgment, plaintiffs need not establish that they in fact have standing
but only that there is a genuine question of material fact as to the standing elements. Cent. Delta

Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002).

To demonstrate standing, a

plaintiff must show that (1) she suffered an injury in fact that is concrete, particularized, and
actual or imminent; (2) the injury is fairly traceable to the defendant's challenged conduct; and
(3) the injury is likely to be redressed by a favorable court decision. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must support each element of the standing test
"with the manner and degree of evidence required at the successive stages of the litigation." Id.
at 561. General factual allegations of injury resulting from the defendant's conduct will suffice
in responding to a motion to dismiss. Id. In responding to a motion for summary judgment,
however, a plaintiff can no longer rest on '"mere allegations,' but must 'set forth' by affidavit or

Page 29 - OPINION AND ORDER

other evidence 'specific facts,' Fed. Rule Civ. Proc. 56(e), which for purposes of the summary
judgment motion will be taken to be true." Id. And at the final stage of standing evaluation,
those facts (if controverted) must be supported adequately by the evidence adduced at trial. Id.
1.

Injury in Fact

In an environmental case, a plaintiff cannot demonstrate injury in fact merely by alleging
injury to the environment; there must be an allegation that the challenged conduct is harming (or
imminently will harm) the plaintiff. Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (I'OC),
Inc., 528 U.S. 167, 181 (2000). For example, a plaintiff may meet the injury in fact requirement

by alleging that the challenged activity "impairs his or her economic interests or aesthetic and
environmental well-being." Wash. Envt 'l Council v. Bellon, 732 F.3d 1131, 1140 (9th Cir.
2013) (quotation marks omitted and alterations normalized).
Plaintiffs have filed sworn declarations attesting to a broad range of personal injuries
caused by human induced climate change. For example, plaintiff Jayden F. attests to being
injured by extreme weather events in 2016 and 2017 which led to the flooding in both 2016 and
2017 of her home in Rayne, Louisiana. Jayden Deel.

if 2-16; if 26; if 28-32. This has caused

emotional trauma, lost recreational opportunities, as well as lost personal and economic security.
Id. at if 36; 39-42. Other plaintiffs also attest to injuries caused by flooding caused by sea level

rise and extreme weather events. See Journey Deel. ifif 21-27; Levi Deel.
9; Victoria Deel.

ifif 3; 12-16; Tia Deel. if

ifif 8-9. Similarly, plaintiff Journey attests that harm to his health, personal

safety, cultural practices, economic stability, food security and recreation interests have occurred
due to climate destabilization and ocean acidification. Journey Deel.
Journey Deel. 21-27; Levi Deel.

ifif 1; 11-20;; See also

ifif 3; 12-16; Tia Deel. if 9; Victoria Deel. ifif 8-9; Jacob Deel. if

20; Wanless Deel. Ex. 1 at 30.

Page 30 - OPINION AND ORDER

Plaintiff Kelsey Juliana attests that climate change has harmed her recreational interests
in Oregon's freshwater lakes, rivers, forests, and mountains and has degraded the quality of local
food sources and drinking water. Kelsey Deel. ifif 10-12. She, like other plaintiffs, also alleges
adverse health and recreation impacts caused by the increased occurrence and intensity of
seasonal wildfires. Id. if 15; Aji Deel. ifif 2-3; Alexander Deel. ifif 33-41; Jaime Deel. if 17; Kirin
Deel. ifif 6-8; Xiuhtezcatl Deel. if 15; Zealand Deel. if 6. Some plaintiffs attest that they are
suffering psychological trauma as result of fossil-fuel induced climate change caused by federal
defendants. See Levi Deel. if 5; Victoria Deel. ifif 8-10, 16-18; Jayden Deel. if 42; Nicholas Deel.
ifif 4, 7, 17.

Other plaintiffs attest to injuries to their indigenous and cultural practices and

values. Miko Deel. ifif, 6-7, Jamie Deel. ifif 12-14; Xiuhtezcatl Deel. ifif6-8. These are merely a
selection of the many injuries alleged.
Plaintiffs further offer expert testimony tying injuries alleged by plaintiffs to fossil fuel
I

induced global warming. See Trenberth Deel. 23 ("[I]t is my expert opinion that Plaintiffs
including Jayden, Levi, Xiuhtezcatl, Victoria, Jaime, Journey, Zealand, and Nathan are already
experiencing extreme weather events that have been exacerbated due to anthropogenic climate
change."); Frumpkin Deel. Ex. 1, 2 & 11; Running Deel. 13 ("This will impact the many
Plaintiffs in the West who suffer increased risk and severity of impacts from wildfires near their
homes, in places that they visit for recreation, and in the air they breathe during the extended fire
season, including Xiuhtezcatl, Jaime Lynn, Jacob, Sahara, Kelsey, Alex, Zealand, Nick, Aji,
Nathan, Hazel and Avery."); Van Sustem Deel. Ex. 1, 17 ("The Plaintiffs I interviewed are
suffering a range of emotional injuries from acute and chronic exposure to climate change - from
being personally harmed by climate change impacts like drought and extreme weather events, to
empathic identification with others who are harmed by climate change, to profound fears about

Page 31 - OPINION AND ORDER

future harm - consistent with those injuries described in the literature."); Stiglitz Deel. Ex. 1 if 29
("Youth Plaintiffs themselves will suffer the disproportionate, increased financial burdens of
climate change as the impacts of climate change propagate throughout the economy.").
Federal defendants argue that these declarations fail to show that plaintiffs' injuries are
concrete and particularized to them; rather federal defendants' contend that the injuries alleged
are generalized widespread environmental phenomena which affect all other humans on the
planet, making them nonjusticiable.

See Lexmark Int'!, Inc. v. Static Control Components,

Inc.,_U.S._134 S. Ct. 1377, 1387 n.3 (2014) (explaining that generalized grievances do not
meet Article Ill's case or controversy requirement).
However, as the Court noted in its November 2016 order:
The government misunderstands the generalized grievance rule. As the Ninth
Circuit recently explained, federal courts lack jurisdiction to hear a case when the
harm at issue is "not only widely shared, but is also of an abstract and indefinite
nature - for example, harm to the common concern for obedience to the law."
Novak v. United States, 795 F.3d 1012, 1018 (9th Cir. 2015) (quoting Fed Elec.
Comm 'n v. Akins, 524 U.S. 11, 23 (1998)). Standing alone, "the fact that a harm
is widely shared does not necessarily render it a generalized grievance." Jewel,
673 F .3d at 909; see also Massachusetts v. EPA, 549 U.S. 497, 517 (2007) ("[I]t
does not matter how many persons have been injured by the challenged action" so
long as "the party bringing suit shows that the action injures him in a concrete and
personal way." (quotation marks omitted and alterations normalized)); Akins, 524
U.S. at 24 ("[A]n injury .... widely shared ... does not, by itself, automatically
disqualify an interest for Article III purposes. Such an interest, where sufficiently
concrete, may count as an 'injury in fact."); Covington v. Jefferson Cnty., 358 F.3d
626, 651 (9th Cir. 2004) (Gould, J., concurring) ("[T]he most recent Supreme
Court precedent appears to have rejected the notion that injury to all is injury to
none for standing purposes."); Pye v. United States, 269 F.3d 459, 469 (4th Cir.
2001) ("So long as the plaintiff ... has a concrete and particularized injury, it does
not matter that legions of other persons have the same injury."). Indeed, even if
the experience at the root of [the] complaint was shared by virtually every
American," the inquiry remains whether that shared experience caused an injury
that is concrete and particular to the plaintiff. Jewel, 673 F.3d at 910.

Juliana, 217 F. Supp.3d at 1243-44.

Page 32 - OPINION AND ORDER

Further, denying "standing to persons who are in fact injured simply because many others
are also injured, would mean that the most injurious and widespread Government actions could
be questioned by nobody."

United States v. Students Challenging Regulatory Agency

Procedures, 412 U.S. 669, 687 (1973). Federal defendants have presented no new controlling

authority or other evidence which changes the Court's previous analysis.
As to imminence, plaintiffs must demonstrate standing for each claim they seek to press
and for each form of relief sought. DaimlerChrysler Corp. v. Cuna, 547 U.S. 332, 352 (2006).
Because plaintiffs seek injunctive relief, they must show that their injuries are "ongoing or likely
to recur."

Consumer Fin. Prat. Bureau v. Gordon, 819 F.3d 1179, 1197 (9th Cir.

2016) (quoting FTC v. Evans Prods. Co., 775 F.2d 1084, 1087 (9th Cir. 1985)). Plaintiffs have
met this requirement under the summary judgment standard.
Plaintiffs submit evidence that fossil fuel emissions are responsible for most of the
increase in atmospheric C02 , and that increasing C02 , in turn, is the main cause of global
warming, and that atmospheric concentrations of greenhouse gasses, due to fossil fuel
combustion, are increasing quickly such that planetary warming is accelerating at rates never
before seen in human history. Hansen Deel. Ex. A, at 38. Further, not only are concentrations of
atmospheric C02 continuing to increase, but the rate of increase has also nearly doubled since
measurements began being recorded pushing humanity closer to the "point of no return." Id. at
29, 38. Estimates show that extreme weather events are likely to continue to increase as the
global surface temperature continues to rise. Id. at 35; Trenberth Deel. Ex. 1, at 1, 8, 13. Indeed,
the five hottest years in the 123 years of record-keeping in the United States have all occurred in
the past decade. Trenberth Deel. Ex. 1, at 3. Plaintiffs present evidence that 2017 saw record

Page 33 - OPINION AND ORDER

setting events such as extreme wildfires in the western United States8 and abnormally strong
hurricanes in the southeastern United States and Gulf of Mexico (Hurricanes Harvey, Irma, and
Maria), all of which were exacerbated by climate change. Id. at 7-11.
Further, plaintiffs offer that global sea level rise will continue unabated under current
conditions. Plaintiffs' expert Dr. James Hansen has submitted video animations showing how
the future impacts of seal level rise will flood or impact the livability of the homes of plaintiffs in
Louisiana, Oregon, Washington, Florida, New York, and Hawaii based on current assumptions
about carbon emission. Hansen Deel. Ex. E-R. The most recent projections from the National
Oceanic and Atmospheric Administration ("NOAA") provide that global mean sea level will rise
between 1.5-2.5 m (5- 8.2 ft.) by 2100 and that it is expected to continue to rise and even
accelerate more after 2100. Wanless Deel. Ex. 1at12.
In sum, the Court is left with plaintiffs' sworn affidavits attesting to their specific
injuries, as well as a swath of extensive expert declarations showing those injuries are linked to
fossil fuel-induced climate change and if current conditions remain unchanged, these injuries are
likely to continue or worsen. Federal defendants offer nothing to contradict these submissions,
and merely recycle arguments from their previous motion. Thus, for the purposes of this case,
the declarations submitted by plaintiffs and their experts have provided "specific facts," of
immediate and concrete injuries. Lujan, 504 U.S. at 561; See Bellon, 732 F.3d at 1141.

II I
8

"By 2006, scientists documented that the wildfire season in the western United States
was 87 days longer than it was in the 1980s (Westerling et al. 2006). The number of large fires,
> 1000 acres, had grown four times, and the number of acres burned per year had increased six
times. Recent studies have found the global wildfire season increased 19 [percent] globally from
1979-2013, and the global area vulnerable to wildfire increased 108 [percent] (Jolly et al.
2015)." Running Deel. Ex. 1, 13. Future wildfire activity may be 200- 600 [percent] higher than
today in the Pacific Northwest alone. Id. at 28.
Page 34 - OPINION AND ORDER

11.

Causation

A plaintiff must show the injury alleged is "fairly traceable" to the challenged action of
the defendant and not the result of the independent action of some third party not before the
court." Lujan, 504 U.S. at 560 (citation and quotation marks omitted). Although a defendant's
action need not be the sole source of injury to support standing, Barnum Timber Co. v. EPA, 633
F.3d 894, 901 (9th Cir. 2011), "[t]he line of causation between the defendant's action and the
plaintiffs harm must be more than attenuated," Native Vil!. of Kivalina v. ExxonMobil Corp., 696
F.3d 849, 867 (9th Cir. 2012) (citations and quotation marks omitted). However, a "causal chain
does not fail simply because it has several links, provided those links are not hypothetical or
tenuous and remain plausible." Id. (citations, quotation marks, and alterations omitted). At the
summary judgment stage, the "causal connection put forward for standing purposes cannot be
too speculative, or rely on conjecture about the behavior of other parties, but need not be so
airtight at this stage of the litigation as to demonstrate that the plaintiffs would succeed on the
merits." Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1152 (9th Cir. 2000)
Here, federal defendants argue again that the association between the conduct of which
plaintiffs complain, namely the government's subsidizing the fossil fuel industry; allowing the
transportation, exportation, and importation of fossil fuels; setting of energy and efficiency
standards for vehicles, appliances, and buildings; reducing carbon sequestration capacity and
expanding areas for fossil fuel extraction and production through federal land leasing policies is
tenuous and filled with many intervening actions by third parties. Thus, they argue that plaintiffs
have failed to tether their injuries, both direct and indirect, to specific actions of the United
States.

Page 35 - OPINION AND ORDER

Federal defendants again rely on the Ninth Circuit's holding in Bellon to support their
argument that "the causal chain is too weak to support standing" for plaintiffs' injuries. Bellon,
732 F.3d at 1142. The Court discussed Bellon in detail in its November 2016 Order on the
motions to dismiss. See Juliana, 217 F. Supp. 3d at 1244-1246. Briefly, the court in Bellon
found that the five oil refineries at issue in that case were responsible for just under six percent of
total greenhouse gas emissions produced in the State of Washington. The court quoted the state's
expert's declaration that the effect of those emissions on global climate change was
"scientifically indiscernible, given the emission levels, the dispersal of greenhouse gases worldwide, and the absence of any meaningful nexus between Washington refinery emissions and
global greenhouse gases concentrations now or as projected in the future." Bellon, 732 F.3d at
1144 (quotation marks omitted).
Previously, the Court distinguished Bellon on the procedural basis that it was considering
motions to dismiss, while the court in Bellon reviewed an order on a motion for summary
judgment. Now on summary judgment in this case, the Court still finds that Bellon does not
foreclose standing for plaintiffs. The court in Bellon relied on the scientific evidence, presented
in an "unchallenged declaration" from the defendants' expert that showed that the causal
connection between the regulatory actions of the defendants, the greenhouse gas emissions in
question, and the injuries complained of by the plaintiffs were too tenuous to support standing.
Id. at 1143-44 (emphasis added). The Ninth Circuit later clarified, "causation was lacking [in
Bellon] because the defendant oil refineries were such minor contributors to greenhouse gas

emissions, and the independent third-party causes of climate change were so numerous, that the
contribution of the defendant oil refineries was 'scientifically indiscernible."' WildEarth

Page 36 - OPINION AND ORDER

Guardians

v.

US.

Dep't

of Agric.,

795

F.3d

1148,

1158

(9th

Cir.

2015)

(quoting Bellon, 732 F.3d at 1144).
Unlike in Bellon, plaintiffs' claims· do not challenge the global impact of such specific
em1ss10ns.

Rather, plaintiffs have proffered uncontradicted evidence showing that the

government has historically known about the dangers of greenhouse gases but has continued to
take steps promoting a fossil fuel based energy system, thus increasing greenhouse gas
em1ss10ns. As the Court noted in the November 2016 Order, climate science and our ability to
understand the effects of climate change are constantly evolving. Juliana, 217 F.Supp 3d at
1245 (quoting Kirsten Engel & Jonathan Overpeck, Adaptation and the Courtroom: Judging

Climate Science, 3 Mich. J. Envt'l & Admin. L. 1, 25 (2013) (although "climate impacts at the
regional and local levels are subject, among other things, to the uncertainties of downscaling
techniques [,] ... our knowledge of the climate is developing at a breakneck pace.")). Bellon does
not foreclose standing in any suit simply because it is based on actions causing dangerous levels
atmospheric carbon emissions.
In further contrast to Bellon, the pattern of federally authorized emissions challenged by
plaintiffs in this case do make up a significant portion of global emissions. Federal defendants
have admitted that "from 1850 to 2012, C02 emissions from sources within the United States
including from land use "comprised more than 25 [percent] of cumulative global C02
emissions."

Answer at

if

151.

At oral argument, federal defendants noted that plaintiffs'

evidence only shows "United States' current global contribution to current emissions is around
14 to 15 percent." July 18, 2018 Hearing Trans. 29. In a different context the Supreme Court
held that United States motor-vehicle emissions which were responsible for six percent of
worldwide C02 "make a meaningful contribution to greenhouse gas concentrations" when

Page 37 - OPINION AND ORDER

"judged by any standard." 9 Mass. v. EPA, 549 U.S. at 524-25. The emissions implicated by
federal defendants' conduct in the case outstrip either of those considered in either Bellon or

Massachusetts.
Still, federal defendants contend that plaintiffs do not adequately show a causal
connection between a specific action taken by federal defendants and their climate change
related injuries. They argue that plaintiffs' causal connection is based on the actions of thirdparty emitters. However, plaintiffs challenge not only the direct emissions of federal defendants
through their use of fossil fuels to power its buildings and vehicles 10, but also the emissions that
are caused and supported by their policies.

Plaintiffs have alleged that federal defendants'

systematic conduct, which includes "government policies practices, and actions, showing how
each Defendant permits, licenses, leases, authorizes, and/or incentivizes the extraction,
development, processing, combustion, and transportation of fossil fuel" caused plaintiffs'
injuries. Plaintiffs' Resp. to Mot. for Summ J. 11. And plaintiffs provide evidence that federal
defendants' actions (or inaction), such as coal leasing, oil development, fossil fuel industry
subsidies, and the setting of fuel efficiency standards for vehicles, led to plaintiffs' injuries.
For example, regarding federal leasing policy, more than five million acres of National
Forest lands are currently leased for oil, natural gas, coal, and phosphate development. Olsen
Deel. Ex. 73. In 2016, the Department of Interior administered some 5000 active oil and gas
9

The court in Bellon declined to extend the rationale of Massachusetts in part because
while the 6 percent of Washington state emissions at issue in that case might be significant in
that state, the plaintiffs did not "provide any evidence that places this statistic in national or
global perspective to assess whether the refineries' emissions are a meaningful contribution to
global greenhouse gas levels." 732 F.3d 1131, 1146 (9th Cir. 2013) (internal citation omitted).
10

These emissions are not insignificant. In 2016, the federal government had 1,340,000
cars and 1,810,000 trucks in its fleet. Olson Deel. Ex.136. In 2015, the federal fleet consumed
310,416 gallons of gasoline and 66,736 gallons of diesel. Id. The Department of Defense uses
enough electricity to power 2.6 million average American homes. Id. at Ex. 217
Page 38 - OPINION AND ORDER

leases on nearly 27 million acres in the Outer Continental Shelf. Id. Ex. 215. In 2015, 782
million barrels of crude oil, five trillion cubic feet of natural gas, and 421 million tons of coal
were produced on federal lands managed by the Department of Interior.

See Id. Ex. 74.

Between 1905 and 2016, the United States Department of Agriculture authorized the harvest of
525,484,148 billion board feet of timber from federal land, thus reducing the country's carbon
sequestration capacity.

Id. Ex. 45. Federal defendants permit livestock grazing on over 95

million acres of National Forest lands in 26 states, further reducing carbon sequestration capacity
and increasing methane emissions. Id. 42, 46, 52, 50-55, 70. It is uncontested that federal
defendants control leasing and permitting on federal land. Third parties could not extract fossil
fuels or make other use of the land without Federal Defendants' permission.
Federal defendants also set energy and efficiency standards that do impact the rate at
which individual and businesses emit greenhouse gases. The Department of Energy sets energy
conservation standards for more than 60 categories of appliances and equipment, which covers
roughly 90 percent of home energy use. Id Ex. 92. Likewise, passenger cars and light trucks
cannot be sold in the United States unless they comply with the Fuel Economy Standards set by
the Department of Transportation, which historically have been lower in the United States than
other developed nations. Id. Ex. 151.
Federal defendants' actions impact the import, export, and transport of fossil fuels. For
example, in 2015, Congress lifted a ban on crude oil exports and exports rose rapidly thereafter.
Id. Ex. 96. No offshore liquefied natural gas or oil import and export facility can legally operate

without a license from the Department of Transportation. Id. at 120 189. The Federal Energy
Regulatory Commission must approve interstate transport of fossil fuel, and Department of
Transportation permitting is required for transportation of hazardous material including fossil

Page 39 - OPINION AND ORDER

fuels. Id. at 384, 385. These examples are merely illustrative of the evidence proffered by
plaintiffs.
Plaintiffs' expert declarations also provide evidence that federal defendants' actions have
led to led to plaintiffs' complained of injuries. Plaintiffs' expert Dr. James Hansen asserts that
"[t]he United States is, by far, the nation most responsible for the associated increase in global
temperatures.

The [United States] alone is responsible for a 0.15°C increase in global

temperature." Hansen Deel. 28. Plaintiffs' expert Dr. Joseph Stiglitz offers that "the current
national energy system, in which approximately 80 percent of energy comes from fossil fuels, is
a direct result of decisions and actions taken by Defendants." Stiglitz Deel. Ex. 1 if 27. That is
echoed by plaintiffs' expert Dr. Mark Jacobson who notes that "fossil fuels supply more than 80
[percent] of our all-purpose energy in the United States, not out of necessity, but because of
political preference and historic government support that led to the development and
maintenance of a widespread fossil-fuel infrastructure." Jacobson Deel. Ex. 1, 5. Plaintiffs'
expert Peter Erickson submitted that by subsidizing the low cost of oil the United States
government has historically and is currently substantially expanding the country's future oil
production relative to the production that would occur if these subsidies were not in place.
Erickson Deel. Ex.1, 15.
Plaintiffs' experts tether plaintiffs' specific injuries to climate change and climate change
related weather events. See generally Section 2.A.ii. Plaintiffs' expert Dr. Harold Wanless
opines that sea level rise solely caused by fossil fuel-induced climate change poses clear and
irreversible harm to plaintiffs like Levi whose community will likely be uninhabitable in future.
Wanless Deel. Ex. 1 at 1-2. Likewise, plaintiffs' expert Dr. Kevin Trenberth offers, as an
example of climate change related weather events harming plaintiffs, localized extreme weather

Page 40 - OPINION AND ORDER

events like the flooding affecting plaintiff Jayden and her home were heightened by climate
change. Trenberth Deel. Ex. 1 at 20-22. The magnitude of rainfall and the extent of flooding
near Jayden's home would not have occurred without fossil fuel-induced climate change. Id. Dr.
Steven Running notes that the pattern of drought that led plaintiff Jaime to move from her home
on the Navajo Reservation in New Mexico is directly linked to climate change. Running Deel. 6.
At this stage of the proceedings, the Court finds that plaintiffs have provided sufficient
evidence showing that causation for their claims is more than attenuated. Plaintiffs' "need not
connect each molecule" of domestically emitted carbon to their specific injuries to meet the
causation standard. Bellon, 732 F.3d 1142-43. The ultimate issue of causation will require
perhaps the most extensive evidence to determine at trial, but at this stage of the proceedings,
plaintiffs have proffered sufficient evidence to show that genuine issues of material fact remain
on this issue. A final ruling on this issue will benefit from a fully developed factual record
where the Court can consider and weigh evidence from both parties.
ni.

Redressability

The final prong of the standing inquiry is redressability. The causation and redressability
prongs of the standing inquiry "overlap and are two facets of a single causation requirement."
Bellon, 732 F.3d at 1146 (citation and quotation marks omitted).

They are distinct in that

causation "examines the connection between the alleged misconduct and injury, whereas
redressability analyzes the connection between the alleged injury and requested judicial relief."
Id. A plaintiff need not show that a favorable decision is certain to redress her injury, but must

show a substantial likelihood that it will do so. Id. For the redressability inquiry, it is sufficient

Page 41- OPINION AND ORDER

to show that the requested remedy would "slow or reduce" the harm. 11 Mass. v. EPA, 549 U.S. at
525 (citing Larson v. Valente, 456 U.S. 228, 243 n.15 (1982)).
Federal defendants contend that there is no possible redress in this case because the
remedies sought by plaintiffs are beyond the Court's authority to provide. 12 Further, they argue
that even if this Court did find in favor of plaintiffs, any remedy it fashioned would not redress
the harms alleged by plaintiffs, because fossil fuel emissions from other entities would still
contribute to continuing global warming. Thus, they argue that there is no evidence that any
immediate reduction in emissions caused by the United States would manifest in a reduction of
climate change induced weather phenomena. As the Court has stated before, whether the Court
could guarantee a reduction in greenhouse gas emission is the wrong inquiry because
redressability does not require certainty. Rather, at this stage, it only requires a substantial
likelihood that the Court could provide meaningful relief. Moreover, the possibility that some
other individual or entity might later cause the same injury does not defeat standing; the question
remains whether the injury caused by the defendants in this suit can be redressed. Juliana, 217
F. Supp. 3d at 1247; See also WildEarth Guardians v. US. Dep't of Agric., 795 F.3d 1148, 1157
(9th Cir. 2015) ("[T]he mere existence of multiple causes of an injury does not defeat
redressability, particularly for a procedural injury. So long as a defendant is at least partially

11

"[A] plaintiff satisfies the redressability requirement when he shows that a favorable
decision will relieve a discrete injury to himself. He need not show that a favorable decision will
relieve his every injury." Mass. v. EPA, 549 U.S. at 525
12

Federal defendants rely on Norton v. Southern Utah Wilderness Alliance for the
proposition that the Court may only compel ministerial action. 542 U.S. 55, 57-58 (2004).
However, that case involved a claim brought under the AP A. The Court has already held that
these claims are not governed by the APA. See Sections l.B. and 2.C.
Page 42 - OPINION AND ORDER

causing the alleged injury, a plaintiff may sue that defendant, even if the defendant is just one of
multiple causes of the plaintiffs injury.").
Here, plaintiffs request declaratory and injunctive relief as well as any other relief as the
Court deems just and proper. They ask the Court, inter alia, to "[o]rder Defendants to prepare
and implement an enforceable national remedial plan to phase out fossil fuel emission and draw
down excess atmospheric C02 ." First Am. Compl.

if 94. Plaintiffs dispute federal defendants'

contention, however, that they are asking this Court to create a highly specific plan that federal
defendants must use remedy any constitutional violations.

Instead, plaintiffs urge that their

request for relief, at its core, is one for a declaration that their constitutional rights have been
violated and an order for federal defendants to develop their own plan, using existing resources,
capacities, and legal authority, to bring their conduct into constitutional compliance. Plaintiffs
point to various statutory authorities by which they claim federal defendants could affect the
relief they request. Plaintiffs' Resp. to Mot. for Summ. J. 24-25. See inter alia 30 U.S.C §§ 351359; 33 U.S.C. § 1344; 42 U.S.C. §§ 7112; 6291-6296; 7401-7431; 13 49 U.S.C. § 32902; 33
U.S.C. § 1344.
Plaintiffs also offer evidence that the injuries they allege can be redressed through actions
by federal defendants. See Hansen Deel. Ex. 1, 4 (staving off the effects of catastrophic climate
change "remains possible if [the United States] phases out [greenhouse gas emissions] within
several decades and actively draw[ s] down excess atmospheric C02

[,]"

which can be largely

achieved "via reforestation of marginal lands with improved forestry and agricultural
13

Judge Coffin cited to§ 7409 (providing the Environmental Protection Agency with the
authority to regulate national ambient air quality standards for the attainment and maintenance of
the public welfare) in his F&R as supporting a "strong link between all the supposedly
independent and numerous third party decisions given the government's regulation of C0 2
emissions." (doc. 68 at *10); See also Mass. v. EPA, 549 U.S. 497, 524 (2007). (A "reduction in
domestic emissions would slow the pace of global emissions increases, no matter what happens
elsewhere.")
Page 43 - OPINION AND ORDER

practices."); Robertson Deel. Ex 1 at 6 ("All told, technology is available today to store carbon
or avoid future greenhouse gas emissions from agriculture in the U.S. equivalent to more than 30
[gigatonnes of carbon] by 2100); Jacobson Deel. Ex. 1 at 7 ("[I]t is technologically and
economically possible to electrify fully the energy infrastructures of all 50 United States and
provide that electricity with 100 [percent] clean, renewable wind, water, and sunlight (WWS) at
low cost by 2030 or 2050."); Williams Deel. Ex. 1 at 3 & 64 ("[I]t is technically feasible to
develop and implement a plan to achieve an 80 [percent] greenhouse gas reduction below 1990
levels by 2050 in the United States ... with overall net [greenhouse gas] emissions of no more
than 1,080 [million tons of carbon], and fossil fuel combustion emissions of no more than 750
[million tons of carbon]."); Stiglitz Deel. Ex. 1,

ifil

44-49 (explaining that transitioning the

United States economy away from fossil fuels is feasible and beneficial).
It is clearly within a district court's authority to declare a violation of plaintiffs'

constitutional rights. See, e.g., Obergefell v. Hodges,_U.S. __ 135 S. Ct. 2584 (2015); Brown

v. Bd of Educ., 347 U.S. 483 (1954); Lawrence v. Texas, 539 U.S. 558 (2003). "Once a right and
a violation have been shown, the scope of a district court's equitable powers to remedy past
wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v.

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15. (1970). As mentioned elsewhere in this
opinion, should the Court find a constitution violation, it would need to exercise great care in
fashioning any form relief, even if it were primarily declaratory in nature. 14

The Court has

considered the summary judgment record regarding traceability and plaintiffs' experts' opinions
that reducing domestic emissions, which plaintiffs contend are controlled by federal defendants'

14

Indeed, the "remedial powers of an equity court ... are not unlimited." Whitcomb v.
Chavis, 403 U.S. 124, 161 (1971).

Page 44 - OPINION AND ORDER

actions, could slow or reduce the harm plaintiffs are suffering. The Court concludes, for the
purposes of this motion, that plaintiffs have shown an issue of material fact that must be
considered at trial on full factual record.
Regarding standing, federal defendants have offered similar legal arguments to those in
their motion to dismiss.

Plaintiffs, in contrast, have gone beyond the pleadings to submit

sufficient evidence to show genuine issues of material facts on whether they satisfy the standing
elements. The Court has considered all of the arguments and voluminous summary judgment
record, and the Court finds that plaintiffs show that genuine issues of material fact exist as to
each element. As the Court notes elsewhere in this opinion, the Court will revisit all of the
elements of standing after the factual record has been fully developed at trial. For now, the
Court simply holds that plaintiffs have met their burden to avoid summary judgment at this time.
B.

Failure to State a Claim under the APA

Federal defendants next argue that even if the Court finds that plaintiffs have established
standing, plaintiffs still have not identified a valid right of action. Essentially, federal defendants
argue once again that this case must be dismissed because the AP A provides the "sole
mechanism" by which plaintiffs must bring their claims. Defs.' Mot. for Summ. J. 18. This
issue is substantively explored in Section LB, infra, and applies with equal force to this motion
for summary judgment.

Plaintiffs' claims are not governed by the AP A.

Thus, federal

defendants are not entitled to summary judgment on this issue.
C.

Separation ofPowers

Federal defendants contend, once again that plaintiffs' claims and the relief sought are
broader than what can be entertained as a case or controversy under Article III of the United

Page 45 - OPINION AND ORDER

States Constitution. The Court has already discussed similar arguments in the November 2016
Order and in Section I. C of this Opinion.
Federal defendants offer no new evidence or controlling authority on this issue that
warrant reconsideration of the Court's previous analysis. 15 Nor do they offer a rationale as to
why the outcome should be different under the summary judgment standard.

Indeed, they

contend that the issue here is "purely legal" in nature and that "factual development" is not
relevant to whether plaintiffs' requested remedy violates separation of powers issues. Defs.'
Reply to Mot. for Summ. J. 26.
As the Court noted above, the allocation of powers between the branches of government
is a critical consideration in this case, but it is the clear province of the judiciary to say what the
law is. Marbury, 5 U.S. at 177. After a fuller development of the record and weighing of
evidence presented at trial, should the Court find a constitutional violation, then it would exercise
great care in fashioning a remedy determined by the nature and scope of that violation.
Additionally, many potential outcomes and remedies remain at issue in this case. The Court
15

Federal defendants point to a recent public nuisance case from the Northern District of
California to support their position that this case violates separation of powers principles. See
City of Oakland v. BP P.L.C., et al., 2018 WL 3109726 (N.D. Cal. 2018). There, a district court
dismissed claims brought by certain cities in California against several large oil and natural gas
producers. The plaintiffs alleged that the worldwide production and sale of fossil fuels by the
defendants were causing climate change, the effects of which caused damage to the cities. City
of Oakland is readily distinguishable. Here, plaintiffs allege constitutional violations against the
federal government based on federal defendants' domestic carbon emissions as well as a
promulgation of a domestic energy market based on fossil fuels in spite of their awareness of the
dangers of such emissions. The court in City of Oakland focused on nuisance claims, brought for
money damages, and the resulting balancing test, as well as extraterritoriality concerns stemming
from the plaintiffs' attempt to impose liability on the defendants for the production and sale of
fossil fuels worldwide. Id at *7. ("Because this relief would effectively allow plaintiffs to
govern conduct and control energy policy on foreign soil, we must exercise great caution.")
Here, plaintiffs' claims are limited to the territorial boundaries of the United States. The Court is
not persuaded that City of Oakland offers relevant guidance for the Court's consideration of this
motion given the vastly different nature of the claims, requested remedies, and parties.
Page 46 - OPINION AND ORDER

could find that there is no violation of plaintiffs' rights; that plaintiffs fail to meet one or more of
the requirements of standing; or, after the full development of the factual record, that the
requested remedies would indeed violate the separation of powers doctrine. As has been noted
before, even should plaintiffs prevail at trial, the Court, in fashioning an appropriate remedy,
need not micro-manage federal agencies or make policy judgments that the Constitution leaves
to other branches.

The record before the Court at this stage of the proceedings, however, does

not warrant summary dismissal.

To grant summary judgment on these grounds at this stage-

when plaintiffs have supplied ample evidence to show genuine issues of material fact-would be
premature. 16
Federal defendants also contend that merely participating in ongoing discovery and a
court trial violates separation of powers principles. Federal defendants previously made this
argument in their Motion for Protective Order and Stay of All Discovery. (doc. 196) This
rationale was rejected by Judge Coffin in his Order denying the motion (doc. 212), which the
Court later affirmed over Federal Defendant's objections.

(doc. 300) Moreover, the Ninth

Circuit considered this argument in federal defendant's latest petition for mandamus. The panel
noted in its opinion that the government made the same argument in their first mandamus
petition, and the panel "rejected" it for the purposes of the mandamus.

In re United

States,_F.3d_, 2018 WL 3484444 at *9 (citing In re United States, 884 F.3d at 836). Once
again, the Court does not find federal defendants' argument persuasive and concludes that
generally participating in discovery and trial here does not in and of itself violate separation of
16

Respect for separation of powers might, for example, permit the Court to grant
declaratory relief, directing federal defendants to ameliorate plaintiffs' injuries without limiting
its ability to specify precisely how to do so. That said, federal courts retain broad authority "to
fashion practical remedies when confronted with complex and intractable constitutional
violations." Brown v. Plata, 563 U.S. 493, 526 (2011). Here the Court has not yet determined
the scope, if any, of federal defendants' constitutional violations or plaintiffs' injuries.
Page 47-0PINION AND ORDER

powers concerns. Federal defendants have been free to raise objections to specific discovery
requests and orders which they believe implicate separation of powers concerns.
D.

Due Process Claims

Federal defendants argue that plaintiffs' individual due process claims fail as a matter of
law. The Court addresses each in tum.
1.

Fundamental Right to an Environment Capable of Sustaining Human Life

Federal defendants argue, as they did in their previous motion to dismiss that there is no
right to a climate system capable of sustaining human life. They note that this issue is "a purely
legal question" and that factual development at trial is not necessary to resolve it. Defs.' Reply
to Mot. for Summ. J. 29. Federal defendants offer substantially similar arguments to those from
their motion dismiss here. 17 The Court addressed these arguments in the previous order, and
nothing in the current briefing persuades the Court to change its previous rationale. As stated in
the November 2016 order, this Court has simply held that:
where a complaint alleges knowing 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.
Juliana, 217 F. Supp. 3d at 1250.
17

Federal defendants do cite a recent case from D.C. Circuit Court of Appeals arguing
that it rejected the notion of a federal due process right to a stable environment. Delaware
Riverkeeper Network v. Fed. Energy Regulatory Comm 'n, 895 F.3d 102, (D.C. Cir. 2018).
However, the analysis in that case involved the Environmental Rights Amendment to the
Pennsylvania State Constitution, and the court ultimately held that the rights created by the
amendment in question bound only "only state and local governments." Id. at 110. The court
noted that the plaintiffs grounded their claims on the right outlined in the Pennsylvania
Constitution as creating "a protected liberty or property interest as a matter of federal due
process." Id. at 108. The court found that "the Amendment is too vague and indeterminate to
create a federally cognizable property interest." Id. at 109. Because the court's analysis centered
on the specific Pennsylvania Environmental Rights Amendment, it is not controlling here.
Page 48 - OPINION AND ORDER

Reviewing the summary judgment record, plaintiffs have offered expert testimony on the
catastrophic harms of climate change. See Section 2.A. They also submitted evidence, in the
form of expert declarations and government documents, supporting their argument that the
federal defendants' actions have led to these changes and are linked to the harms alleged by
plaintiffs. At this stage, federal defendants have offered no legal or factual rationale significantly
different from those offered in their previous motion to dismiss. As such, the Court finds no
reason to re-examine the previous ruling on the existence of this due process right. Moreover,
further factual development of the record will help this Court and other reviewing courts better
reach a final conclusion as to plaintiffs' claims under this theory.
11.

State-Created Danger Theory

Federal defendants urge that plaintiffs' claims based on the state created danger doctrine
must fail. First, they argue that plaintiffs do not show a special relationship between themselves
and the government. More importantly, federal defendants argue that plaintiffs cannot show that
government conduct proximately caused a dangerous situation in deliberate indifference to
plaintiffs' safety or that harm or loss of life has resulted from such conduct.

Plaintiffs contend

that they have proffered ample evidence to show genuine issues of material fact as to whether
federal defendants have liability for the conduct alleged in their complaint.
With limited exceptions, the Due Process Clause does not impose an affirmative
obligation on the government to act, even when "such aid may be necessary to secure life,
liberty, or property interests of which the government itself may not deprive the individual."
DeShaney v. Winnebago Cnty. Dep 't of Soc. Servs., 489 U.S. 189, 196 (1989). This rule is

subject to two exceptions: "(1) the 'special relationship' exception; and (2) the 'danger creation'
exception." L. W v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). The "special relationship"
Page 49 - OPINION AND ORDER

exception provides that when the government takes an individual into custody against his or her
will, it assumes some responsibility to ensure that individual's safety. Id. The "danger creation"
exception permits a substantive due process claim when government conduct "places a person in
peril in deliberate indifference to their safety[.]" Penilla v. City of Huntington Park, 115 F.3d
707, 709 (9th Cir. 1997).
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).
Federal defendants' mam argument is that plaintiffs' allegations regarding the
government's knowledge of the dangers posed to plaintiffs by climate change do not rise to the
required level of "deliberate indifference." Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir.
2011) ("Deliberate indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action."

(internal citation and

quotations omitted.)). Plaintiffs' point to their expert declarations to demonstrate that federal

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defendants have known of, and disregarded, the consequences of continued fossil fuel use on the
United States and its citizens.

Federal defendants do not meaningfully refute the factual

allegations, but instead deny their bearing on the issue. Therefore, there is a genuine issue of
disputed facts surrounding the government's knowledge of climate change's dangers and
summary judgment before trial, is inappropriate.
Plaintiffs specifically refer to the declaration from their expert Gus Speth, former
chairman of the Council on Environmental Quality under President Jimmy Carter. Mr. Speth' s
declaration examines a historical record spanning ten presidential administrations and references
a number of documents, statements of government officials, and federal policy actions that go
directly to the government's knowledge of the links between fossil fuels and increasing global
mean temperature and the dangers associated therein, such as sea level rise to Americans at the
time and in future.
For example, in 1969 Daniel Moynihan, then counselor to the President Richard Nixon,
wrote to John Ehrlichman, President Nixon's Assistant for Domestic Affairs, summarizing the
climate problem:
The process is a simple one. Carbon dioxide in the atmosphere has the effect of a
pane of glass in a greenhouse. The C02 content is normally in a stable cycle, but
recently man has begun to introduce instability through the burning of fossil fuels.
At the tum of the century several persons raised the question whether this would
change the temperature of the atmosphere. Over the years the hypothesis has been
refined, and more evidence has come along to support it. It is now pretty clearly
agreed that the C02 content will rise 25 [percent] by 2000. This could increase the
average temperature near the earth's surface by 7 degrees Fahrenheit. This in turn
could raise the level of the sea by 10 feet. Goodbye New York. Goodbye
Washington, for that matter.
Speth Deel.~ 18. (citing Olsen Dec. Ex. 2) (emphasis added)
In 1977, President Jimmy Carter's science advisor Frank Press wrote to the President explaining:

Page 51- OPINION AND ORDER

Fossil fuel combustion has increased at an exponential rate over the last 100
years. As a result, the atmospheric concentration of C02 is now 12 percent above
the pre-industrial revolution level and may grow 1.5 to 2.0 times that level within
60 years. Because of the greenhouse effect of atmospheric C02 , the increased
concentration will induce a global climatic warming of anywhere from 0.5° to 5°
C.... The urgency of the problem derives from our inability to shift rapidly to
non-fossil fuel sources once the climatic effects become evident not long after the
year 2000; the situation could grow out of control before alternate energy sources
and other remedial actions become effective.
Id.

if 21 (citing Olsen Deel. Ex. 4.)
Another example of the alleged knowledge and deliberate indifference of the federal

defendants cited by plaintiffs is the United Nations Framework Convention on Climate Change,
which was signed by the President George H.W. Bush and ratified by the U.S. Senate in 1992.
Speth Deel.

if 44. The preamble to the Convention provided that:

[H]uman activities have been substantially increasing the atmospheric
concentrations of greenhouse gases, that these increases enhance the natural
greenhouse effect, and that this will result on average in an additional warming of
the Earth's surface and atmosphere and may adversely affect natural ecosystems
and humankind
Olson Deel. Ex. 23
Plaintiffs further contend that the dangers of global warming were well known during the
administration of Presidents William Clinton and George W. Bush. In 1996, the Council on
Environmental Quality reported to Congress: "[t]he average global temperature is projected to
rise 2 to 6 degrees over the next century ... the longer we wait to reduce our emissions, the more
difficult the job, and the greater the risks." Olson Deel., Ex. 25, at xi. Further, a 2007 report
from the House of Representatives Committee on Oversight and Government Reform alleged
that the Bush Administration misled the public regarding the effects of climate change,
concluding:
The Committee's 16-month investigation reveals a systematic White House effort
to censor climate scientists by controlling their access to the press and editing
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testimony to Congress. The White House was particularly active in stifling
discussions of the link between increased hurricane intensity and global warming.
The White House also sought to minimize the significance and certainty of
climate change by extensively editing government climate change reports. Other
actions taken by the White House involved editing EPA legal opinions and op-eds
on climate change.
Olson Deel., Ex. 34, at ii.
In June 2009, the U.S. Global Change Research Program ("USGCRP"), government
advisory council, released its Second National Climate Assessment which noted that "[c]limate
change is likely to exacerbate these challenges as changes in temperature, precipitation, sea
levels, and extreme weather events increasingly affect homes, communities, water supplies, land
resources, transportation, urban infrastructure, and regional characteristics that people have come
to value and depend on." Olson Deel. Ex. 35 at 100. Recently, in August 2017, the USGCRP
Fifth National Climate Assessment found "that reversing course on climate, as expected with the
passage of time, is more urgent than ever." Speth Deel.~ 76.
At this stage of the proceedings, plaintiffs have introduced sufficient evidence and
experts' opinions to demonstrate a question of material fact as to federal defendants' knowledge,
actions, and alleged deliberate indifference. Once this claim is reviewed with a full factual
record, plaintiffs must still clear a very high bar to ultimately succeed.
Additionally, based on the proffered evidence and the complex issues involved in this
claim, the Court exercises its discretion to "deny summary judgment in a case where there is
reason to believe that the better course would be to proceed to a full trial." Anderson, 477 U.S.
at 256.
The Ninth Circuit has reserved summary judgment in the past to obtain a more robust
record. See Anderson v. Hodel, 899 F.2d 766, 770 (9th Cir 1990) ("[A]ppellate courts, including
the Supreme Court, have reversed summary judgments where the lower court records have not
Page 53 - OPINION AND ORDER

been sufficiently developed to allow the courts to make fully informed decisions on particularly
difficult and far reaching issues." (internal quotation marks omitted) (alterations omitted)); see
also Eby v. Reb Realty, Inc., 495 F.2d 646, 649 (9th Cir. 1974) ("In certain cases summary

judgment may be inapposite because the legal issue is so complex, difficult, or insufficiently
highlighted that further factual elucidation is essential for its prudently considered resolution.").
The Ninth Circuit has further explained that
[C]ourts must not rush to dispose summarily of cases-especially novel, complex,
or otherwise difficult cases of public importance-unless it is clear that more
complete factual development could not possibly alter the outcome and that the
credibility of the witnesses' statements or testimony is not at issue. Even when
the expense of further proceedings is great and the moving party's case seems to
the court quite likely to succeed, speculation about the facts must not take the
place of investigation, proof, and direct observation.
TransWorld Airlines, Inc. v. American Coupon Exchange, Inc., 913 F.2d 676, 684 (9th

Cir. 1990)
Undoubtedly, this claim involves complicated and novel questions about standing,
historical context, and constitutional rights.

To allow a summary judgment decision

without cultivating the most exhaustive record possible during a trial would be a
disservice to the case, which is certainly a complex case of "public importance." 18 Id.
E.

Public Trust Doctrine

Federal defendants again ask this Court to reconsider the previous ruling on the
applicability of the public trust doctrine to the federal government.

They allege no new

circumstances or any substantially new arguments for the Court to consider on summary
judgment. Indeed, federal defendants repeatedly stresses that "[n]o discovery or expert opinion
is necessary" for this Court to decide "the purely legal question of whether the public trust
18

This analysis applies with equal force to all of the issues raised in federal defendants'
motion for summary judgment.
Page 54 - OPINION AND ORDER

doctrine provides a cause of action against the federal government." Defs.' Reply to Mot. for
Summ. J. 38.
Similar to the issues discussed in Sections LC, II.C, and II.D, the November 2016 Order
extensively covered this legal argument, and the Court finds no need to revisit its analysis based
on the nearly identical arguments in this motion. See Juliana, 217 F. Supp. 3d at 1252-1261.
The Court does not find that its previous order, holding that the public trust doctrine is deeply
rooted in our nation's history and that plaintiffs' claims are viable was clearly erroneous. Id. at
125 9, 1261. There have been no changes in the factual record or legal authority that would
justify a different outcome given the current record and the fact that the arguments presented by
federal defendants in this motion are substantively the same, the Court declines to revisit its
previous ruling. Genuine issues of material fact remain as to the specific allegations made by
plaintiffs. The application of the public trust doctrine to these claims would be better served
with a full factual record to help guide this Court and any reviewing courts.
F.

Plaintiffs Remaining Claims
J

In their motion for summary judgment, federal defendants state that "[t]his Court's order
[denying the motions to dismiss] did not address [federal d]efendants' arguments concerning
[p]laintiffs' Equal Protection claim under the Fifth Amendment or Plaintiffs' Ninth Amendment
Claim." Defs.' Mem. of Law in Supp. of Mot. for Summ. J. 4. They assert that "the Equal
Protection and Ninth Amendment claims are no longer at issue." Id. 24 n.8. Although federal
defendants overstate their position with respect to the equal protection and Ninth Amendment
claims, they are correct that the prior opinion and order was somewhat unclear with respect to
those claims and some clarification is warranted.

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The Court begins with plaintiffs' third claim for relief, which is pleaded as a freestanding
claim under the Ninth Amendment. This claim is not viable as a matter of law. The Ninth
Amendment "has never been recognized as independently securing any constitutional right, for
purposes of pursuing a civil rights claim." Strandberg v. City of Helena, 791 F.2d 744, 748 (9th
Cir. 1986). Federal defendants are therefore entitled to summary judgment on plaintiffs' third
claim for relief.
Plaintiffs' equal protection claim requires a more substantive discussion, as it is linked to
the allegation of fundamental rights violations.
When a federal court is presented with an equal protection claim, the first step is to
"ascertain the appropriate level of scrutiny to employ[.]" Aleman v. Glickman, 217 F.3d 1191,
1197 (9th Cir. 2000).

The default level of scrutiny is rational basis review, which affords

governmental classifications "a strong presumption of validity." Id. at 1200 (quoting Heller v.
Doe, 509 U.S. 312, 319 (1993)). The applicable analysis changes, however, when the plaintiff

alleges either discrimination against a "suspect or semi-suspect class" or infringement of a
fundamental right. Wright v. Incline Vil!. Gen. Improvement Dist., 665 F.3d 1128, 1141 (9th Cir.
2011 ). A classification withstands rational basis review so long as "there is any reasonably
conceivable state of facts that could provide a rational basis for the classification." Id. at 1201
(quoting FCC v. Beach Commc 'ns, 508 U.S. 307, 313 (1993)).
Plaintiffs contend that "posterity"-which they defined to include both unborn members
of plaintiff "future generations" and minor children who cannot vote-is a suspect classification.
They contend that, for decades, federal defendants have prioritized present-day political and
economic advantage over prevention of future environmental damage.

Plaintiffs assert that

young people and future generations will be disproportionately harmed by climate change

Page 56 - OPINION AND ORDER

because climate change and its effects are worsenmg over time.

They assert that federal

defendants' climate and energy policy treats "posterity" differently than other, similarly situated
individuals, in violation of the Equal Protection Clause.
Judge Coffin recommended against recognizing "a new separate suspect class based on
posterity." Juliana, 217 F. Supp. 3d at 1271 n.8. Although the Court stated in the introduction
to the opinion and order that the Court was adopting Judge Coffin's findings and
recommendation "as elaborated in this opinion," the Court expressly declined to decide whether
youth or future generations were suspect classes. Id. at 1233 & 1249 n.7.
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). Plaintiffs argue that the Supreme Court has rejected only old age as a
suspect classification, but that is not the case. Stanglin upheld "modest impairment of the liberty
of teenagers"-specifically, 14- to 18-year-olds-in the form of an age-based restriction on entry
to a dance hall.

490 U.S. at 28 (Stevens, J., concurring).

Flores-Villar addressed the

constitutionality of an immigration policy that treated United States citizen fathers differently
depending on whether they lived in the United States for at least five years after the age of
fourteen. 19 536 F.3d at 993. Stang/in and Flores-Villar both applied rational basis review to
governmental action that discriminated against teenagers of a similar age to plaintiffs in this
case. 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
19

Flores-Villar also upheld the immigration policy in question against the argument that
it impermissibly treated mothers and fathers differently. Sessions v. Morales-Santana, 137 S. Ct.
1698 (2017), abrogated Flores-Villar's gender-discrimination holding but left untouched its agediscrimination holding.

Page 57 - OPINION AND ORDER

269, 273 (5th Cir. 1988) ("No cases have ever held, and we decline to hold, that children are a
suspect class.").

Suspect classification triggers strict scrutiny, a famously difficult test to

survive. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 832
(2007) (discussing strict scrutiny's somewhat-exaggerated reputation as "strict in theory, but
fatal in fact").

Balancing competing interests is at the heart of executive and especially

legislative decision-making, and it is the rare governmental decision that does not have some
effect on children or posterity. Holding that "posterity" or even just minor children are a suspect
class would hamstring governmental decision-making, potentially foreclosing even run-of-themill decisions such as prioritizing construction of a new senior center over construction of a new
playground or allocating state money to veterans' healthcare rather than to the public schools.
Applying strict scrutiny to every governmental decision that treats young people differently than
others is unworkable and unsupported by precedent.
However, the rejection of plaintiffs' proposed suspect class does not fully resolve their
equal protection claim.

As explained above, strict scrutiny is also triggered by alleged

infringement of a fundamental right.

Wright, 665 F.3d at 1141. Plaintiffs' equal protection

claim rests on alleged interference with their right to a climate system capable of sustaining
human life-a right the Court has already held to be fundamental. Juliana, 217 F. Supp. 3d at
1249-5.0; see also id. at 1271 n.8 ("Nonetheless, the complaint does allege discrimination against
a class of younger individuals with respect to a fundamental right protected by substantive due
process."); Stop H-3 Ass'n v. Dole, 870 F.2d 1419, 1430 (9th Cir. 1989) (stopping short of
identifying a fundamental right but stating that "[h]uman life, itself a fundamental right, will
vanish if we continue our heedless exploitation of this planet's natural resources"). Plaintiffs'
equal protection and due process claims both involve violation of a fundamental right and, as

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such, must be evaluated through the lens of strict scrutiny, which would be aided by further
development of the factual record.
III.

Request to Certify for Interlocutory Appeal

Federal defendants seek certification for interlocutory appeal any portion of this opinion
and order denying their motions for judgment on the pleadings or summary judgment.
The final judgment rule gives the federal courts of appeal jurisdiction over "appeals from
all final decisions of the district courts of the United States." 28 U.S.C. § 1291. Congress
created a narrow exception to this rule: a district judge may certify for appeal an order that
"involves a controlling question of law as to which there is substantial ground for difference of
opinion" if "an immediate appeal from the order may materially advance the ultimate
termination of the litigation[.]" Id. § 1292(b). The requirements of§ 1292(b) are jurisdictional,
so a district court may not certify an order for interlocutory appeal if they are not met. Couch v.
Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010). Congress did not intend district courts to

certify interlocutory appeals "merely to provide review of difficult rulings in hard cases." US.
Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). Rather, certification pursuant to

§ 1292(b) is reserved for "the most extraordinary situations." Penk v. Or. State Bd. of Higher
Educ., 99 F.R.D. 508, 509 (D. Or. 1982). Even when all three of§ 1292(b)'s criteria are met, the

district court retains unfettered discretion to deny a motion to certify for interlocutory review.
Mowat Constr. Co. v. Dorena Hydro, LLC, 2015 WL 5665302, at *5 (D. Or. Sept. 23, 2015).

As a preliminary matter, the Court notes that to the extent federal defendants seek to
certify for interlocutory appeal the legal rulings contained in the November 2016 Opinion and
Order denying the motion to dismiss, the Court already declined to certify those questions for
interlocutory appeal. Juliana, 2017 WL 2483705, at *2. That denial is now the law of the case.

Page 59 - OPINION AND ORDER

The Court therefore denies federal defendants' request to certify the rulings on standing, the
political question doctrine, the viability of public trust claims against the federal government,
and the existence of a fundamental right to a climate system capable of sustaining human life.
As to the argument that plaintiffs' claims must proceed (if at all) under the APA, the
"substantial ground for difference of opinion" standard is not met.
To determine if a 'substantial ground for difference of opinion' exists under
§ 1292(b), courts must examine to what extent the controlling law is unclear.
Courts traditionally will find that a substantial ground for difference of opinion
exists where "the circuits are in dispute on the question and the court of appeals of
the circuit has not spoken on the point, if complicated questions arise under
foreign law, or if novel and difficult questions of first impression are presented."

Couch, 611 F.3d at 631 (quoting 3 Federal Procedure, Lawyers Edition § 3:212 (2010)). As
explained in Section LB, supra, Supreme Court and Ninth Circuit precedent make it abundantly
clear that plaintiffs may (and frequently do) challenge agency action outside the framework of
the AP A. Moreover, even if the "substantial ground for difference of opinion" standard were
met, certification of the AP A issue in isolation would not materially advance the litigation.
Instead, it would protract the litigation by requiring the parties to proceed on dual tracks.
The request for interlocutory appeal as to the issues raised in the summary judgment
motion must also fail. As to standing, the issues presented are not purely legal questions, but
rather implicate mixed questions of law and fact regarding all three prongs of the standing
inquiry. As genuine issues of material fact remain, this case would benefit from the further
development of the factual record both for this Court and any reviewing court on final appeal.
This is also true for plaintiffs' state created danger theory, which directly implicates disputed
factual questions.
The Court has already explained why it would be inappropriate to certify an appeal on the
issue of the applicability of the AP A. As to the legal questions involving in federal defendants'
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arguments regarding separation of powers, the viability of public trust claims against the federal
government, and the existence of a due process right to a climate system capable of supporting
human life, the Court has already denied certification on these issues. 20 Moreover, certifying a
narrow piecemeal appeal on some of these legal issues would not materially advance this
litigation, rather it would merely reshuffle the procedural deck and force the parties to proceed
on separate tracks for separate claims, which is precisely what the final judgment rule seeks to
prevent. 21 Accordingly, the requests to certify for interlocutory appeal made both in the motion
for judgment on the pleadings and motion for summary judgment are denied.

II I
II I
II I
II I
II I

2

°

Federal defendants argue in their motion that this Court's previous holding is at odds
with certain out of circuit cases. The Court has addressed these concerns in this order and see no
need to revisit the Court's analysis of those cases. Federal defendants also argue in a Notice to
this the Court (doc. 330) that the Supreme Court's recent ruling denying their application implies
that this Court should certify an interlocutory appeal. The Court has considered the concerns
raised in the one paragraph order, both in this order and previous orders. The Court does not find
that Order removes the Court's discretion to deny the request for interlocutory appeal.
21

The Supreme Court has cautioned that:

[i]t would seem to us to be a disservice to the Court, to litigants in general and to
the idea of speedy justice if we were to succumb to enticing suggestions to
abandon the deeply-held distaste for piecemeal litigation in every instance of
temptation. Moreover, to find appealability in those close cases where the merits
of the dispute may attract the deep interest of the court would lead, eventually, to
a lack of principled adjudication or perhaps the ultimate devitalization of the
finality rule as enacted by Congress.
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440 (1985) (internal quotations omitted)

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CONCLUSION

Federal defendants' Motion for Judgment on the Pleadings (doc. 195) is GRANTED IN
PART and DENIED IN PART as follows:

the motion to dismiss President Trump as a

defendant is granted, without prejudice, and is otherwise denied. Federal defendants' Motion
for Summary Judgment (doc. 207) is GRANTED in part and DENIED in part as explained in
this opinion. Federal defendants' requests to certify this opinion and order for interlocutory
appeal are DENIED.
IT IS SO ORDERED.
Dated this 15th day of October 2018.

.J

Ann Aiken

United States District Judge

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