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

Filing 565

OPINION AND ORDER: Other courts across the United States have noted that "[w]ith each year, the impacts of climate change amplify and the chances to mitigate dwindle." Matter of Hawai'i Elec. Light Co., Inc., 152 Haw. 352, 35 9 (2023). The judicial branch of government can no longer "abdicat[e] responsibility to apply the rule of law." Id. at 365 (Wilson, J., concurring). For the reasons explained, Defendants' motion to dismiss the second amended complai nt 547 is GRANTED in part and DENIED in part. The Court also DENIES defendants' request to certify for interlocutory review this opinion and order; DENIES defendants' motion for an order certifying its prior order 540 for interlocuto ry appeal 551 and DENIES defendants' motion to stay litigation 552 . The Court GRANTS plaintiffs' motion to set a pretrial conference 543 and ORDERS the parties to confer and contact the Court to schedule a telephonic status conference to discuss next steps in this case. Signed on 12/29/2023 by Judge Ann L. Aiken. (ck)

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

KELSEY CASCADIA ROSE JULIANA,
et al.,
Plaintiffs,

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

v.
THE UNITED STATES OF AMERICA,
et al.,
Defendants.

________________________________________
AIKEN, District Judge:
In 2015, twenty-one plaintiffs—a group of young people, including “future
generations”—brought this civil rights action against the federal government,
alleging injury from the devastation of climate change and contending that the
Constitution guarantees the right to a stable climate system that can sustain human
life.

Through the years of litigating this case, plaintiffs maintain that their

Page 1 – OPINION AND ORDER

government, by subsidizing fossil fuel extraction and consumption, is responsible for
destroying the climate system on which all life, liberty, and property depends,
violating plaintiffs’ fundamental rights under the Due Process Clause of the
Constitution and the historical public trust doctrine. On June 1, 2023, the Court
granted plaintiffs’ motion to file a second amended complaint.
Now before the Court is defendants’ motion to dismiss the second amended
complaint. ECF No. 547. For the reasons explained, the Court DENIES defendants’
motion to dismiss, ECF No. 547; DENIES defendants’ motion for an order certifying
its prior order, ECF No. 540, for interlocutory appeal, ECF No. 551; and DENIES
defendants’ motion to stay litigation, ECF No. 552. The Court GRANTS plaintiffs’
motion to set a pretrial conference, ECF No. 543.
INTRODUCTION
The parties do not disagree that the climate crisis threatens our ability to
survive on planet Earth. This catastrophe is the great emergency of our time and
compels urgent action. 1 As this lawsuit demonstrates, young people—too young to
vote and effect change through the political process—are exercising the institutional
procedure available to plead with their government to change course. While facts

See David Wallace-Wells, The Uninhabitable Earth: Life After Warming
(2019); Andrew Freedman & Jason Samenow, Humidity and Heat Extremes Are on
the Verge of Exceeding Limits of Human Survivability, Study Finds, Washington Post
(May 8, 2020) (reporting study warning that highly populated regions of the world
will be rendered uninhabitable sooner than previously thought for parts of the year);
Nafeez Ahmed, New Report Suggests ‘High Likelihood of Human Civilization Coming
to an End’ Starting in 2050, VICE (June 3, 2019).

1

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remain to be proved, lawsuits like this highlight young people’s despair with the
drawn-out pace of the unhurried, inchmeal, bureaucratic response to our most dire
emergency. Top elected officials have declared that the climate emergency spells out
“code red for humanity.” 2 Burning fossil fuels changes the climate more than any
other human activity. 3 The government does not deny that it has promoted fossil fuel
combustion through subsidies; tax exemptions; permits for fossil fuel development
projects; leases on federal lands and offshore areas; permits for imports and exports;
and permits for energy facilities. 4 Despite many climate change suits around the
country, in 2023, the United States witnessed record-breaking levels of oil and gas
production. 5 And recent calculations conservatively estimate that the United States

President Joseph Biden, Remarks on “Actions to Tackle the Climate Crisis” at
Brayton Point Power Station, Somerset, Massachusetts (July 20, 2022),
https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/07/20/remarksby-president-biden-on-actions-to-tackle-the-climate-crisis/ [https://perma.cc/LU2UCTFM].
2

Environmental Protection Agency, Sec. Environmental Topics, Climate
Change, Causes of Climate Change, (last updated April 25, 2023),
https://www.epa.gov/climatechange-science/causes-climate-change
[https://perma.cc/UGU4-B6EF].
3

Juliana v. United States, 947 F.3d 1159, 1167 (9th Cir. 2020) (“The government
affirmatively promotes fossil fuel use in a host of ways, including beneficial tax
provisions, permits for imports and exports, subsidies for domestic and overseas
projects, and leases for fuel extraction on federal land.”).
4

Energy Poverty Prevention and Accountability Act of 2023: Hearing on
H.R.6474 and H.R.6481 before the H. Nat. Resources Subcomm. on Energy and Min.
Resources, 118th Cong. (statement of J. Mijin Cha, Assistant Professor, Univ. of Cal.)
(citing Oliver Milman, “US Oil and Gas Production Set to Break Record in 2023
despite UN Climate Goals,” The Guardian, November 27, 2023, sec. Environment,
https://www.theguardian.com/environment/2023/nov/27/us-oil-gas-record-fossilfuels-cop28-united-nations [https://perma.cc/VJ4C-KZGH]).
5

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provides the oil and gas industry $20,000,000,000.00 annually in an array of
subsidies. 6
Defendants maintain that, because tackling the climate crisis is complex, and
no single remedy may entirely redress plaintiffs’ harms caused by climate change, the
judiciary is constrained by the Constitution from offering any redress at all. See defs.’
mot. to dismiss (“Mot.”) at 11-13. Defendants contend that the issue of climate change
is political in its nature, and that redress of plaintiffs’ alleged injuries must be sought
from Congress. Id. at 28. That unnecessarily narrow view overlooks one clear and
constitutional path to shielding future generations from impacts of the onslaught of
environmental disaster: that it is the responsibility of the judiciary to declare the law
that the government may not deprive the People of their Constitutional guarantee of
the God-given right to life. U.S. CONST. art III; U.S. CONST. amend. V; Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
Plaintiffs’ allegations are that collective resolve at every level and in every
branch of government is critical to reducing fossil fuel emissions and vital to
combating climate change. That curbing climate change requires an all-hands-ondeck approach does not oust the Court from its province or discharge it of its duty
under the Constitution to say what the law is. Marbury 5 U.S. at 170. 7 Combatting

Id. (Statement of J. Mijin Cha) (citing Environmental and Energy Study
Institute, Fact Sheet, “Proposals to Reduce Fossil Fuel Subsidies (2021),” (July 23,
2021)
https://www.eesi.org/papers/view/fact-sheet-proposals-to-reduce-fossil-fuelsubsidies-2021 [https://perma.cc/SD8B-7P6B].
6

See also Edith M. Lederer, UN Chief: World Must Prevent Runaway Climate
Change by 2020, Associated Press News (Sept. 10, 2018) (describing massive

7

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climate change may require all to act in accord, but that does not mean that the courts
must “throw up [our] hands” in defeat. See Juliana v. United States, 947 F.3d 1159,
1175 (9th Cir. 2020) (Staton, J., dissenting).
The legislative and executive branches of government wield constitutional
powers entrusted to those branches by the People through the democratic process.
See U.S. CONST. art. I and art. II. So too, as part of a coequal branch of government,
the Court cannot shrink from its role to decide on the rights of the individuals duly
presenting their case and controversy. Marbury, 5 U.S. at 170. Indeed, courts at
home and abroad are capably grappling with climate change lawsuits seeking redress
against both government and private actors on a range of legal theories, many novel. 8
In Montana, Judge Kathy Seeley presided over the first climate change trial in the
United States, piercing through expert testimony and scientific evidence to provide
factual findings and conclusions of law, ruling that the state’s failure to consider
climate change when approving fossil fuel projects was unconstitutional. See Held v.
Montana, Findings of Fact, Conclusions of Law, and Order, Civil Action CDV-2020307 (Mont. First Jud. D. Ct. Lewis and Clark County, Aug. 14, 2023).

decarbonization effort necessary to avoid climate “tipping points.”),
https://apnews.com/article/floods-united-nations-antonio-guterres-us-news-climate71ab1abf44c14605bf2dda29d6b5ebcc [https://perma.cc/84E6-D24C].
The Sabin Center for Climate Change Law of Columbia University has
assembled for public access the “Climate Change Litigation Database” containing
summaries and court dockets for climate change lawsuits brought in the United States
and abroad. Climate Change Litigation Databases, Colum. L. Sch.: Sabin Ctr. For
Climate Change L., https://climatecasechart.com/ [https://perma.cc/B89Z-YN4M].
8

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The judiciary is capable and duty-bound to provide redress for the irreparable
harm government fossil fuel promotion has caused. Legal scholar and professor Mary
Christina Wood contends that the all-encompassing breadth of ongoing “irreparable
harm” sets the climate emergency apart from any other crisis, in terms of the human
interests at stake.9 As Professor Wood eloquently states: “Because no crisis is as
ominous, imminent, and far reaching, the climate emergency must be considered sui
generis,” that is, “in a class of its own.” 10 The legal approach must “rise to the
emergency rather than repeat a failed past paradigm.” 11 In the context of Australian
youth’s challenge to government approval of a coal mine, Justice Bromberg wrote that
failure to curb climate change is “what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation of humans upon the next.” 12

Mary C. Wood, “On the Eve of Destruction”: Courts Confronting the Climate
Emergency, 97 Ind. L.J. 239, 249 (2022) (hereinafter “Wood, Eve of Destruction”).

9

10

Id.

11

Id.

Sharma v. Minister for the Env’t [2021] FCA 560 1, 90 (27 May 2021) (Austl.).
The court stated:
12

“It is difficult to characterise in a single phrase the devastation that the
plausible evidence presented in this proceeding forecasts for the
Children. As Australian adults know their country, Australia will be
lost and the World as we know it gone as well. The physical environment
will be harsher, far more extreme and devastatingly brutal when angry.
As for the human experience—quality of life, opportunities to partake in
nature’s treasures, the capacity to grow and prosper—all will be greatly
diminished. Lives will be cut short. Trauma will be far more common
and good health harder to hold and maintain. None of this will be the
fault of nature itself. It will largely be inflicted by the inaction of this
generation of adults, in what might fairly be described as the greatest
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Some may balk at the Court’s approach as errant or unmeasured, 13 but more
likely than not, future generations may look back to this hour and say that the
judiciary failed to measure up at all. In any case over which trial courts have
jurisdiction, where the plaintiffs have stated a legal claim, it is the proper and
peculiar province of the courts to impartially find facts, faithfully interpret and apply
the law, and render reasoned judgment. 14 Such is the case here.
BACKGROUND
I.

Plaintiffs’ Lawsuit
In 2015, plaintiffs filed this civil rights lawsuit that journalists later coined

“The Biggest Case on the Planet.” 15 At the start of this case, the twenty-one plaintiffs
were between the ages of eight and nineteen. They brought suit along with “future
generations” through their guardian, Dr. James Hansen.

Id.

Plaintiffs named as

inter-generational injustice ever inflicted by one generation of humans
upon the next.”

Juliana v. United States, 947 F.3d 1159, 1174 (9th Cir. 2020) (“Not every
problem posing a threat—even a clear and present danger—to the American
Experiment can be solved by federal judges. As Judge Cardozo once aptly warned, a
judicial commission does not confer the power of ‘a knight errant, roaming at will in
pursuit of his own ideal of beauty or of goodness’; rather, we are bound ‘to exercise a
discretion informed by tradition, methodized by analogy, disciplined by system.’”)
(quoting Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921)).
13

14

See The Federalist No. 78 (Alexander Hamilton).

Laura Parker, “Biggest Case on the Planet” Pits Kids v. Climate Change, Nat’l
Geographic (Nov. 9, 2018),
https://www.nationalgeographic.com/science/article/kids-sue-us-governmentclimate-change [https://perma.cc/2J7J-74C2].
15

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defendants all federal agencies that plaintiffs alleged were responsible for the U.S.
energy

policy,

including

the

Department

of

Agriculture,

Department

of

Transportation, Environmental Protection Agency, Department of Interior, the State
Department, Council on Environmental Quality, Department of Defense, and
Department of Commerce. Compl., ECF No. 1; First Am. Compl. (“FAC”), ECF No.
7.
Plaintiffs compiled an abundance of factual evidence to support their claim
that the government has known about the dangers posed by fossil fuel production,
and, despite that knowledge, chose to promote production and consumption of coal,
oil, and gas at increasing levels over decades. The record is extensive. The evidence,
as the Ninth Circuit stated, “leaves little basis for denying that climate change is
occurring at an increasingly rapid pace . . . and stems from fossil fuel combustion.”
Juliana, 947 F.3d at 1166.
From the beginning, plaintiffs alleged that, as early as the year 1899, scientists
understood that CO2 concentration in the atmosphere caused heat retention, global
heating, and climate change. FAC ¶ 131. Plaintiffs stated that for over fifty years,
the United States of America has known that CO2 pollution from burning fossil fuels
was causing global warming and dangerous climate change, and that continuing to
burn fossil fuels would destabilize the climate system on which present and future
generations of our nation depend for survival. Id. ¶¶ 132-35. Recounting over a dozen
signpost junctures, plaintiffs provide letters, memoranda, and reports to the political
branches from scientific experts and government agencies cautioning about the

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danger of carbon pollution and warning that a lack of action would be felt for decades.
Id. ¶¶ 136-50.
Defendants moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6) for lack of standing; failure to state a cognizable
constitutional claim; and failure to state a claim on a public trust theory. ECF No.
27. The Court denied that motion in November 2016. See Nov. 10, 2016 Op. & Order,
ECF No. 83. Defendants also moved for judgment on the pleadings and summary
judgment. ECF Nos. 195, 207. For the most part, the Court denied those motions.
When the Court denied defendants’ motions to certify its dispositive orders for
interlocutory appeal, defendants petitioned the Supreme Court for a writ of
mandamus, ECF No. 390-1, and to stay proceedings, ECF No. 391-1, both which were
denied. Defendants asked the district court to reconsider certifying its orders for
interlocutory appeal, and, that time, the Ninth Circuit invited the district court to do
so. See Nov. 21, 2018 Order, ECF Nos. 444, 445. Defendants then sought permission
to appeal, which the Ninth Circuit granted. Filed Ord., Juliana v. United States, No.
18-36082 (9th Cir. Dec. 26, 2018).
On January 17, 2020, a divided panel of the Ninth Circuit issued a decision
reversing the district court’s certified orders and remanding the case with
instructions to dismiss for lack of Article III standing. Juliana, 947 F.3d at 1175.
Writing for the majority, Judge Hurwitz, joined by Judge Murguia, began with the
basics: “To have standing under Article III, a plaintiff must have (1) a concrete and

Page 9 – OPINION AND ORDER

particularized injury that (2) is caused by . . . challenged conduct and (3) is likely
redressable by a favorable judicial decision.” Id. at 1168.
Agreeing with the district court, Judge Hurwitz found that “[a]t least some
plaintiffs” had claimed “particularized injuries,” since climate change threatened to
harm certain plaintiffs in “concrete and personal” ways if left unchecked. Id. The
appellate court described the dire circumstances faced by one plaintiff who had had
to evacuate his coastal home because of climate change. Id. And some plaintiffs had
also established causation because there was “at least a genuine factual dispute as to
whether” U.S. climate policy was a “substantial factor” in exacerbating plaintiffs’
climate change-related injuries. Id. at 1169. Thus, plaintiffs’ standing turned on
redressability: “whether the plaintiffs’ claimed injuries [were] redressable by an
Article III court.” Id.
Plaintiffs claimed defendants had violated their constitutional right to a
climate system capable of sustaining life, and to redress that violation, sought
injunctive relief, including an order directing defendants to “prepare and implement
an enforceable national remedial plan to phase out fossil fuel emissions and draw
down excess atmospheric CO2 to stabilize the climate system.” FAC at 94 ¶¶ 2, 6, 7.
“Reluctantly,” the panel found such relief “beyond [the district court’s]
constitutional power.” Juliana, 947 F.3d at 1165. To establish redressability, the
appellate court explained, plaintiffs must have identified relief that was both “(1)
substantially likely to redress their injuries” and “(2) within the district court’s power
to award.” Id. at 1170. On the first prong, the panel found that plaintiffs’ own experts

Page 10 – OPINION AND ORDER

had stated that only a comprehensive, government-led plan to reduce U.S.
greenhouse gas emissions could mitigate “the global consequences of climate change”
and thereby bring plaintiffs’ total redress. Id. Turning to the second prong, the panel
found that supervising such a plan “would necessarily require” judges to make “a host
of complex policy decisions.” Id. at 1171.
Plaintiffs told the appellate court that even partial relief would suffice to
redress their injuries, and that the district court “need not itself make policy
decisions,” because if plaintiffs’ request for a remedial plan were granted, the political
branches “could decide what policies” would be best to “draw down excess
atmospheric CO2.” Id. at 1172. But the panel determined that, “even under such a
scenario,” the district court would need to pass judgment on the sufficiency of the
government’s response to the order. In the Ninth Circuit’s view, a district court could
not engage in passing judgment on the sufficiency of the government’s response to a
court order, because it “necessarily would entail a broad range of policymaking.” Id.
The panel continued: “[A] constitutional directive or legal standard[ ] must
guide the court’s exercise of equitable power,” and, on the other hand, “limited and
precise” legal rules simply could not resolve the range of policy-related questions
plaintiffs’ claims raised. Id. at 1173. The appellate court determined that no remedy
subject to limited and precise definition could redress plaintiffs’ injuries and therefore
issuing such relief was not within the district court’s power. Id.
Judge Josephine L. Staton dissented. “Plaintiffs bring suit,” she lamented, “to
enforce the most basic structural principle embedded in our system of ordered liberty:

Page 11 – OPINION AND ORDER

that the Constitution does not condone the Nation’s willful destruction.” Id. at 1175.
In Judge Staton’s view, the district court had the power to award plaintiffs’ relief
unless plaintiffs’ claims ran afoul of the political question doctrine. See id. at 118485. Since plaintiffs’ claims did not pose political questions, she continued, they should
have proceeded.

Id. at 1185-86.

“[O]ur history is no stranger to widespread,

programmatic changes . . . ushered in by the judiciary[],” Judge Staton concluded,
and the “slow churn” of institutional-reform litigation “should not dissuade us here.”
Id. at 1188-89. At end of the day, the narrower understanding prevailed: that Article
III courts cannot order injunctive relief unless constrained by more “limited and
precise” legal standards, discernable in the Constitution, and that plaintiffs must
make their case to the political branches. Id. at 1175. The Ninth Circuit “reverse[d]
the certified orders of the district court and remand[ed]” the case “with instructions
to dismiss for lack of Article III standing.” Id.
Plaintiffs moved to file an amended complaint, removing from their prayer for
relief the injunction that the Ninth Circuit had found objectionable. ECF No. 462.
The Court granted it because (1) the Ninth Circuit did not foreclose the possibility of
amendment when it mandated dismissal; (2) plaintiffs had notified the Court of a
Supreme Court case providing a new and more expansive interpretation of
declaratory judgments; and (3) plaintiffs’ proposed complaint narrowed the scope of
the injunctive relief it had initially requested. See Juliana v. United States, No. 6:15CV-01517-AA, 2023 WL 3750334 (D. Or. June 1, 2023).
II.

Plaintiffs File a Second Amended Complaint

Page 12 – OPINION AND ORDER

In plaintiffs’ second amended complaint, they maintain earlier factual
allegations, contending that defendants implemented no recommendation provided
to them via scientific reports warning of catastrophic climate change. Second Am.
Compl. (“SAC”) ¶ 153. Plaintiffs contend that, if defendants had not disregarded the
evidence, “CO2 emissions today would be reduced by 35% from 1987 levels.” Id.
Instead, since 1991, plaintiffs state that defendants have allowed CO2 emissions from
fossil fuel combustion to increase. Id. Plaintiffs provide tables setting forth data from
government sources showing that fossil fuel production, fossil fuel energy
consumption, and fossil fuel emissions have climbed substantially since 1965, and
that by 2011, fossil fuel combustion in the U.S. accounted for 94% of CO2 emissions.
Id. ¶¶ 155-58. By 2012, data plaintiffs provide shows that the U.S. was the largest
producer of natural gas, and the second largest producer of coal and energy
production. Id. ¶ 160. By 2014, according to the United States Energy Information
Administration, the U.S. had become the largest producer of total petroleum in the
world. Id. ¶ 161.
Plaintiffs assert that defendants knew the harmful effect of their actions would
significantly endanger many, like plaintiffs, with damage persisting for millennia.
Id. ¶¶ 1, 161. Despite that knowledge, plaintiffs allege defendants continued their
policies and practices of promoting the exploitation of fossil fuels and that defendants
acted with deliberate indifference to the peril they knowingly created. Id.
Plaintiffs’ inventory cataloguing the regulatory permits, export permits, and
approvals for leasing, drilling, and mining on public lands is substantial.

Page 13 – OPINION AND ORDER

The

accounting of exploitation for fossil fuel extraction, coal tracts, and oil and gas leases
is staggering. Id. ¶¶ 164-70. Plaintiffs comprehensively inventory the affirmative
governmental promotion of fossil fuel combustion over decades. Id. ¶¶ 171-78.
Plaintiffs

also

include

allegations

drawing

from

scientific

evidence

documenting the tangible impacts of climate change. Evidence describes rising sea
levels, severe droughts, hurricanes, wildfires, extreme heat, flash flooding,
unprecedented ocean acidification, and rapid depletion of sea ice. Id. ¶¶ 213-41. Such
events alter our air quality, water availability, water quality, crop yields, animal
agriculture, and housing security. Id. Plaintiffs’ allegations about what the future
holds if climate change is unabated are harrowing. Id. ¶¶ 242-55.
As the legal basis for their claims, plaintiffs maintain that defendants have
violated the Due Process Clause and Equal Protection Clause of the Fifth
Amendment; the “unenumerated rights preserved for the people by the Ninth
Amendment”; and the public trust doctrine. FAC at 84, 88, 91, 92; SAC at 133, 137,
140, 141 (bringing same claims for relief).
Plaintiffs seek declaratory relief under the Declaratory Judgment Act, 28
U.S.C. § 2201. SAC ¶ 14. Requested relief includes a declaration that the United
States national energy system that creates the harmful conditions described above
has violated and continues to violate the Fifth Amendment of the U.S. Constitution
and plaintiffs’ constitutional rights to substantive due process and equal protection
of the law. Id. at 143 ¶ 1. Further, plaintiffs seek a declaration that defendants
violated public trust rights and a declaration that the Energy Policy Act, Section 201

Page 14 – OPINION AND ORDER

is unconstitutional. Id. at 143 ¶¶ 2-3. 16 Plaintiffs request injunctive relief only if
necessary and “as appropriate.” Id. at 143 ¶ 4.
III.

The Government Files a Motion to Dismiss
Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(1) and

12(b)(6), asserting that plaintiffs lack standing; that plaintiffs cannot bring claims in
the absence of a statutory right of action; that plaintiffs ask the Court to exercise
authority that exceeds the scope of its power under Article III of the Constitution;
and that all of plaintiffs’ claims fail on the merits. Defendants also assert that, if the
Court denies their motion, it should again certify its decision for interlocutory appeal.
LEGAL STANDARDS
I.

Motion to Dismiss – FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1)
A court reviews a motion to dismiss a complaint for lack of Article III standing

under Rule 12(b)(1). Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018) (quoting
Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011)). If the jurisdictional attack
is facial, courts determine whether the allegations contained in the complaint are
sufficient on their face to invoke federal jurisdiction, accepting all material
allegations in the complaint as true and construing them in favor of the party
asserting jurisdiction. See Warth v. Seldin, 422 U.S. 490, 501 (1975). Once a party
has moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the

As noted earlier, plaintiffs had initially sought injunctive relief, including an
order directing defendants to “prepare and implement an enforceable national
remedial plan to phase out fossil fuel emissions and draw down excess atmospheric
CO2 to stabilize the climate system.” FAC at 94 ¶¶ 2, 6, 7.
16

Page 15 – OPINION AND ORDER

party invoking federal jurisdiction bears the burden of establishing the elements of
standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). “[A] party must
establish an Article III case or controversy before [a court can] exert subject matter
jurisdiction.” Matter of E. Coast Foods, Inc., 66 F.4th 1214, 1218 (9th Cir. 2023). To
satisfy the “irreducible constitutional minimum” of Article III standing, a plaintiff
must establish (1) an injury in fact (2) that is fairly traceable to the challenged
conduct and show that a court can provide (3) a remedy likely to redress that injury.
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
II.

Motion to Dismiss – FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a “claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Id. at 556. The
plausibility standard is not akin to a “probability requirement,” but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Id. The tenet that a
court must accept as true all allegations contained in a complaint is inapplicable to
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice. Id. (citing Twombly, 550 U.S. at 555). “Where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint

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has alleged—but it has not show[n]—that the pleader is entitled to relief.” Iqbal, 556
U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
DISCUSSION
Over the eight years litigating this case, plaintiffs have presented evidence
spanning over 50 years describing defendants’ contribution to climate change through
both inaction and affirmative promotion of fossil fuel use. The Court recalls plaintiffs’
evidence included a letter by a top aide to President Nixon’s domestic policy adviser
emphasizing the effect of rising sea levels in 1969: “Goodbye New York. Goodbye
Washington, for that matter.” 17 In 1986, a Senate subcommittee observed that “there
is a very real possibility that man—through ignorance or indifference, or both—is
irreversibly altering the ability of our atmosphere to perform basic life support
functions for the planet.” 18

Those are but two documents out of hundreds

highlighting the lengthy nature of government knowledge of the dangers of fossil fuel
combustion. By and large, defendants have not disputed the factual premises of
plaintiffs’ claims. Juliana, 947 F.3d at 1167 (so stating). However, plaintiffs have
not legally established that evidence. In reviewing defendants’ motion to dismiss, the
Court notes that, though it has held evidentiary hearings and painstakingly reviewed

Memorandum from Daniel P. Moynihan, Assistant to the President for
Domestic Pol’y, to John Ehrlichman, Assistant to the President for Domestic Affs.
(Sept. 17, 1969), [https://perma.cc/G92P-AKLJ].
17

Ozone Depletion, the Greenhouse Effect, and Climate Change: Hearing Before
the Subcomm. on Env’t Pollution of the Comm. on Env’t & Pub. Works, 99th Cong. 2
(1986) (opening statement of Sen. John H. Chafee, Chairman, Subcomm. on Env’t
Pollution).
18

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thousands of pages of declarations and exhibits, today, its task is solely to decide
whether plaintiffs have standing to bring suit and state a claim upon which relief
may be granted. FED. R. CIV. P. 12(b)(1), (6).
As an initial matter, defendants assert that the Court must consider whether
the rule of mandate, as a jurisdictional rule, requires the Court to dismiss the second
amended complaint. Mot. at 10. Next, defendants maintain that plaintiffs have
failed to bring a justiciable case and that the Court must dismiss plaintiffs’ claims
under Rule 12(b)(1) for lack of subject matter jurisdiction. Id. at 10-16. Finally,
defendants urge the Court to find that plaintiffs’ claims fail on the merits and that
plaintiffs should have brought this action under the Administrative Procedure Act
(“APA”) but failed to do so. Id. at 32.
I.

Mandate of the Court of Appeals for the Ninth Circuit
Defendants state that the Ninth Circuit was clear when it remanded the case

to the Court with instructions to dismiss. Id. at 11. Defendants argue that, when the
scope of the remand is clear, a district court cannot vary or examine the mandate of
an appellate court “for any other purpose than execution.” Id. at 10 (citing In re
Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895)). Defendants contend that, rather
than examine whether plaintiffs’ amended pleadings establish redressability to
satisfy the requirement of standing, the Court should reconsider the Ninth Circuit’s
mandate and dismiss the second amended complaint.

Id. at 11.

Because it is

jurisdictional error to contravene a rule of mandate, the Court duly reconsiders the
mandate of the Ninth Circuit and does not take the matter lightly.

Page 18 – OPINION AND ORDER

“A district court that has received the mandate of an appellate court cannot
vary or examine that mandate for any purpose other than executing it.” Hall v. City
of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). “Violation of the rule of mandate
is a jurisdictional error.” Id. at 1067. “But while the mandate of an appellate court
forecloses the lower court from reconsidering matters determined in the appellate
court, it leaves to the district court any issue not expressly or impliedly disposed of
on appeal.” S.F. Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564, 574 (9th Cir.
2019) (quoting Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir. 1986)). In
determining which matters fall within the compass of a mandate, “[d]istrict courts
must implement both the letter and the spirit of the mandate, taking into account the
appellate court’s opinion and the circumstances it embraces.” Vizcaino v. U.S. Dist.
Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999) (as amended) (quoting
Delgrosso v. Spang & Co., 903 F.2d 234, 240 (3d Cir. 1990)).
“Absent a mandate which explicitly directs to the contrary, a district court
upon remand can permit the plaintiff to file additional pleadings . . . ” S.F. Herring,
946 F.3d at 574 (quoting Nguyen, 792 F.2d at 1502); see also Sierra Club v. Penfold,
857 F.2d 1307, 1312 (9th Cir. 1988). When the mandate in the prior appeal does not
expressly address the possibility of amendment and does not indicate a clear intent
to deny amendment seeking to raise new issues not decided, that mandate does not
purport “to shut the courthouse doors.” S.F. Herring, 946 F.3d at 574.
In S.F. Herring, the Ninth Circuit discussed its mandate in a prior appeal,
which vacated the district court’s order entering summary judgment in the

Page 19 – OPINION AND ORDER

defendants’ favor and directed the district court to dismiss the complaint. See S.F.
Herring Ass’n v. U.S. Dep’t of Interior, 683 F. App’x 579, 581 (9th Cir. 2017) (vacating
judgment and remanding case with instructions to dismiss for lack of subject matter
jurisdiction). On remand, the district court allowed the plaintiff to file a second
amended complaint. In the later appeal, the Ninth Circuit determined that the
district court correctly found that the earlier mandate to dismiss did not prevent the
plaintiff from seeking leave to re-plead. S.F. Herring, 946 F.3d at 574. The appellate
court reasoned that in instructing the district court to dismiss, the mandate was
silent on whether dismissal should be with or without leave to amend, and the
mandate therefore did not preclude the district court from allowing plaintiff to file
amended pleadings. Id. at 572-574.
When this Court granted plaintiffs’ motion for leave to amend, it “consider[ed]
plaintiffs’ new factual allegations under the Declaratory Judgment Act and plaintiffs’
amended request for relief, in light of intervening recent precedent, to be a new issue
that, while discussed, was not decided by the Ninth Circuit in the interlocutory
appeal.” Juliana v. United States, No. 6:15-CV-01517-AA, 2023 WL 3750334, at *5
(D. Or. June 1, 2023). The Court once again finds that the Ninth Circuit’s mandate
did not address whether amendment, if permitted, would cure the deficiency it
identified in plaintiffs’ complaint.
The Ninth Circuit also did not instruct the Court to dismiss without leave to
amend. Accordingly, its mandate to dismiss did not foreclose that opportunity, and
the Court, on reconsideration, finds that in permitting plaintiffs to proceed with their

Page 20 – OPINION AND ORDER

second amended complaint, the rule of mandate is not contravened. S.F. Herring,
946 F.3d at 574; see also Creech v. Tewalt, 84 F.4th 777, 783 (9th Cir. 2023) (where
appellate court remanded and stated that plaintiff should have leave to amend,
district court did not violate rule of mandate by dismissing without leave to amend,
because appellate court did not expressly foreclose that option).
II.

Standing
The Ninth Circuit determined that plaintiffs had established an injury in fact,

traceable to defendants—the first two elements of constitutional standing. Juliana
947 F.3d at 1168-70. For completeness in its standing analysis, this Court adopts the
Ninth Circuit’s determination. Defendants reserve the right to “oppose” the Ninth
Circuit’s ruling. Mot. at 12.
Defendants contend that plaintiffs have not satisfied the third element of
standing, because they failed to demonstrate that their injuries are “redressable” and
that they are entitled to injunctive or declaratory relief. Defendants maintain that
plaintiffs’ requested relief fails, because plaintiffs cannot show that the relief they
seek is (1) substantially likely to redress their injuries or (2) within the Court’s power
to award. Id. at 4-5, 12; see also Spokeo, 578 U.S. at 338.
A plaintiff must support each element of the standing test “with the manner
and degree of evidence required at the successive stages of the litigation.” Lujan, 504
U.S. at 561 (1992). Accordingly, at the motion-to-dismiss stage, “general allegations”
suffice to establish standing because those allegations are presumed to “embrace
those specific facts that are necessary to support the claim.” Id. A plaintiff need not

Page 21 – OPINION AND ORDER

show a favorable decision is “certain” to redress his injury but must show a
substantial likelihood it will do so. Washington Env’t Council v. Bellon, 732 F.3d
1131, 1146 (9th Cir. 2013). The injury need not be completely redressable; it is
sufficient that the injury be partially redressed. Meese v. Keene, 481 U.S. 465, 476
(1987) (“enjoining the application of the words political propaganda to the films would
at least partially redress the reputational injury of which appellee complains.”).
As for plaintiffs’ request for declaratory relief, the Ninth Circuit determined
that a declaration would be “unlikely by itself to remediate [plaintiffs’] alleged
injuries.” Juliana 947 F.3d at 1170. For injunctive relief, the Ninth Circuit was
“skeptical,” but assumed without deciding that plaintiffs might be able to show that
their injuries could be redressed by an order in their favor. Id. at 1171. That said,
the appellate court based its ruling on the second redressability prong, stating that
an injunction was “beyond the power of an Article III court to order, design, supervise,
or implement.” Id. Plaintiffs’ second amended complaint scales down the requested
injunctive relief, seeking “an injunction restraining [d]efendants from carrying out
policies, practices, and affirmative actions that render the national energy system
unconstitutional in a manner that harms [p]laintiffs,” and only “if deemed necessary,
just and proper.” SAC at 143 ¶ 4.
Accordingly, for plaintiffs’ claim for both injunctive relief and declaratory
relief, the Court will evaluate whether each form of relief is (1) substantially likely to
redress their injuries and (2) within the Court’s power to award. Spokeo, 578 U.S. at
338.

Page 22 – OPINION AND ORDER

A.

Injunctive Relief
1.

Substantial Likelihood of Redress

Defendants assert that an order enjoining defendants’ fossil fuel activities will
not stop catastrophic climate change or even partially ameliorate plaintiffs’ injuries,
and therefore, any such injunction is not substantially likely to redress plaintiffs’
injuries and satisfy standing. Mot. at 12.
Whether a court order will halt all climate change by restraining defendants
from carrying out fossil fuel activities is the wrong inquiry for at least two reasons.
First, redressability does not require certainty, it requires only a substantial
likelihood that the Court could provide meaningful relief. Spokeo, 578 U.S. at 338.
Second, the possibility that some other individual or entity might cause the same
injury does not defeat standing—the question is whether the injury caused by the
defendant can be redressed.
Defendants have not disputed plaintiffs’ factual allegations that they produce
a quarter of all emissions on Earth. Juliana, 947 F.3d at 169. Based on plaintiffs’
alleged facts, an order to defendants to refrain from certain fossil fuel activities which
are causing plaintiffs’ injuries would redress those injuries. On the spectrum of likely
to unlikely, a favorable court order is much closer to likely, i.e., substantially likely,
to redress plaintiffs’ harm.
“Substantially likely” is a legal characterization, not an evidence based,
scientific number. Quantifying a threshold datapoint at which plaintiffs’ harm would
be remedied would involve rigorous, disciplined fact-finding, and inevitably would

Page 23 – OPINION AND ORDER

raise a host of questions: What part of plaintiffs’ injuries stem from causes beyond
defendants’ control?

Even if emissions increase elsewhere, will the extent of

plaintiffs’ injuries be less if they obtain the relief they seek in this lawsuit? When
would we reach this “point of no return” that plaintiffs’ evidence describes, and do
defendants have it within their power to avert reaching it, even without cooperation
from third parties? All these questions are inextricably bound up in an evidentiary
inquiry, and none of them can be answered at the motion-to-dismiss stage. At this
junction, the Court finds that plaintiffs have shown that a favorable decision from
this Court would be substantially likely to redress plaintiffs’ injuries. Defendants’
motion to dismiss is denied as to this issue.
2.

The Court’s Power to Provide Redress

Defendants assert that the Ninth Circuit determined that the injunction
plaintiffs sought in their first amended complaint would “necessarily require a host
of complex policy decisions entrusted . . . to the wisdom and discretion of the executive
and legislative branches,” Juliana, 947 F.3d at 1171, decisions “which must be made
by the People’s elected representatives.” Id. at 1172. Defendants maintain that, even
with amendment, plaintiffs’ requested injunctive relief is unavailable, because it
would “enjoin the executive branch from exercising discretionary authority” granted
to it by statute, and would enjoin Congress from exercising power expressly granted
to it by the Constitution. Mot. at 13 (citing the Property Clause, U.S. CONST. art. IV,
§ 3, cl. 2). In defendants’ view, the requested injunction remains beyond a district
court’s power to award. Id.

Page 24 – OPINION AND ORDER

While crafting and implementing injunctions in cases involving longstanding
agency shortcomings may require rigorous, adversarial fact-finding to penetrate
questions of science, there is nothing exceptional about a federal court issuing
injunctions against federal agencies. See e.g., Nw. Env’t Def. Ctr. v. United States
Army Corps of Engineers, No. 3:18-CV-00437-HZ, 2021 WL 3924046 (D. Or. Sept. 1,
2021) (injunction requiring U.S. Army Corps of Engineers to implement drawdown,
spill, and specific fish management actions at its facilities; establishing an expert
panel to craft implementation plans; and requiring status reports from agency).
Other federal district courts have similarly ordered agency action, and
appellate courts have affirmed that granting this type of injunctive relief falls within
the “broad equitable powers” of district courts. Cobell VI, 240 F.3d 1081, 1108 (D.C.
Cir. 2001); Gautreaux v. Romney, 457 F.2d 124, 132 (7th Cir. 1972). Courts may also
issue injunctions even when “ordering what is in effect nationwide relief.” Bresgal v.
Brock, 843 F.2d 1163, 1171 (9th Cir. 1987).
Without any explicit statutory command to the contrary, no court has held that
these powers categorically fail on separation-of-powers grounds.

See Samuel

Buckberry Joyce, Climate Injunctions: The Power of Courts to Award Structural
Relief Against Federal Agencies, 42 Stan. Env’tl. L.J. 241, 268-281, May 2023
(compiling cases featuring structural injunctions against the federal government).

Page 25 – OPINION AND ORDER

Familiar instances of large-scale institutional litigation in modern American
history include cases that ordered busing to desegregate schools; 19 the treaty rights
cases that assured a fair share of fish for American Indian treaty fishers; 20 cases
instituting prison condition reform; 21 and cases relating to land use and low-income
housing. 22 Legal scholars have cited those cases and explained that injunctions in
those cases “aimed to break down, scrutinize, and reform institutional dynamics and
practices that caused the government to repeatedly violate fundamental rights of
citizens to bring about enduring constitutional and civil rights compliance.” 23
In their first amended complaint, plaintiffs’ requested remedy was an
injunction requiring the government not only to “cease permitting, authorizing, and
subsidizing” fossil fuel use, but also to “prepare a remedial plan subject to judicial
approval to draw down harmful emissions.” Juliana, 947 F.3d at 1170.
When it determined that plaintiffs’ requested relief was beyond the power of
an Article III court to order, the Ninth Circuit did not offer any explicit guidance on

See, e.g., Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954); Swann v.
Charlotte- Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Milliken v. Bradley, 418 U.S.
717 (1974); Green v. Cnty. Sch. Bd. of New Kent Cnty., 391 U.S. 430 (1968).
19

See, e.g., United States v. Washington, 520 F.2d 676 (9th Cir. 1975);
Washington v. Washington State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658
(1979).
20

See, e.g., Brown v. Plata, 563 U.S. 493 (2011); Hudson v. McMillian, 503 U.S.
1 (1992); Hutto v. Finney, 437 U.S. 678 (1978).
21

22

See Hills v. Gautreaux, 425 U.S. 284, 298 (1976).

23

Wood, Eve of Destruction, at 262.

Page 26 – OPINION AND ORDER

how to distinguish other structural injunction cases, where the district court has
power to order specific, injunctive relief, from this case, where the relief necessary to
redress plaintiffs’ injuries is held to be too broad.
Plaintiffs have scaled back the specific directives they at first sought in the
injunction in their first amended complaint. At this point in the litigation, where the
facts alleged are accepted as true, the Court can only identify one distinction between
the injunction plaintiffs’ request and the injunctions issued in the structural reform
cases described above. In other reform cases, those plaintiffs’ obtained injunctions
against a single agency for a discreet violation of law. In this case, plaintiffs seek
relief on constitutional grounds and historical trust principles against a host of
governmental defendants.
The Court appreciates that, under existing precedent, an injunction of the
scope plaintiffs first requested, and the “scaled down” request plaintiffs make now,
against every named defendant in this suit, would be more expansive than any case
of which the Court is aware.
On the other hand, requiring plaintiffs to bring piecemeal statutory actions
against individual agencies perpetuates a status quo unlikely to bring about the allout course correction necessary to avoid the impending crisis. Requiring plaintiffs to
file individual suits premised on discreet agency shortcomings may be a viable path
to achieving protections for the environment. However, a court order directing the
agencies to work together, outside their silos to oversee resolution of a complex,

Page 27 – OPINION AND ORDER

multiagency problem may prove especially constructive where a practical solution
has eluded the entire government for decades.
Such an order has not proven to be necessary—and is perhaps premature—at
this point in the case. Plaintiffs’ amended request for injunction, though narrower,
still treads on ground over which Ninth Circuit cautioned the Court not to step. If
the reform plaintiffs seek is to prod a negotiated change of behavior, it is unnecessary
to seek injunctive relief at this point to do so. Defendants’ motion to dismiss plaintiffs’
claim for injunctive relief is granted.
B.

Declaratory Relief

Plaintiffs’ second amended complaint seeks a declaration that “the national
energy system” violates the Constitution and the public trust doctrine. SAC at 143,
¶¶ 1-3. Defendants contend that plaintiffs’ claim for declaratory relief must be
dismissed, asserting that the declaration is not materially distinct from the
declaration plaintiffs sought in their first amended complaint. And defendants argue
that plaintiffs cannot satisfy the two prongs for redressability, because an
“unbounded declaration” alone will not redress plaintiffs’ injuries, and declaring an
“energy system” unconstitutional would “functionally declare unconstitutional
unspecified laws, regulations, and policies,” and such a declaration is therefore not
within the power of a federal court. Mot. at 14.
1.

Substantial Likelihood of Redress

Under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq., courts can
grant declaratory relief in the first instance and later consider if further relief is

Page 28 – OPINION AND ORDER

warranted. “In a case of actual controversy within its jurisdiction, [ ] any court of the
United States, upon the filing of an appropriate pleading, may declare the rights and
other legal relations of any interested party seeking such declaration, whether or not
further relief is or could be sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be reviewable as such.” 28 U.S.C. §
2201. “Further necessary or proper relief based on a declaratory judgment or decree
may be granted, after reasonable notice and hearing, against any adverse party
whose rights have been determined by such judgment.” 28 U.S.C. § 2202.
The Supreme Court has long recognized that declaratory judgment actions can
provide redressability, even where relief obtained is a declaratory judgment alone.
See generally Franklin v. Massachusetts, 505 U.S. 788, 803 (1992) and Utah v. Evans,
536 U.S. 452 (2002). In Franklin and Evans, states objected to the technique used by
the Census Bureau to count people and those states sued government officials.
In Franklin v. Massachusetts, the Supreme Court stated that “[f]or purposes of
establishing standing,” it did not need to decide whether injunctive relief was
appropriate where “the injury alleged is likely to be redressed by declaratory relief,”
and the court could “assume it is substantially likely that the President and other
executive and congressional officials would abide by an authoritative interpretation
of the census statute and constitutional provision by the District Court.” 505 U.S. at
803. In Utah v. Evans, the Supreme Court referenced Franklin, explaining that, in
terms of its “standing” precedent, declaratory relief affects a change in legal status,
and the practical consequence of that change would “amount to a significant increase

Page 29 – OPINION AND ORDER

in the likelihood that the plaintiff would obtain relief that directly redresses the
injury suffered.” 536 U.S. 452 (2002).
Other cases recognize the role of declaratory relief in resolving Constitutional
cases. See, e.g., Evers v. Dwyer, 358 U.S. 202, 202-04 (1958) (ongoing governmental
enforcement of segregation laws created actual controversy for declaratory
judgment); Powell v. McCormack, 395 U.S. 486, 499 (1969) (“A court may grant
declaratory relief even though it chooses not to issue an injunction or mandamus.”).
Finally, the Supreme Court held that, for the purpose of Article III standing,
nominal damages—a form of declaratory relief—provide the necessary redress for a
completed violation of a legal right, even where the underlying unlawful conduct had
ceased. Uzuegbunam, 592 U.S. 279, ---, 141 S. Ct. 792, 802. Uzuegbunam illustrates
that when a plaintiff shows a completed violation of a legal right, as plaintiffs have
shown here, standing survives, even when relief is nominal, trivial, or partial. As
Justice Thomas stated, in the context of nominal damages, “True, a single dollar often
cannot provide full redress, but the ability to effectuate a partial remedy satisfies the
redressability requirement. 592 U.S. at --- ,141 S. Ct. at 801 (quoting Church of
Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992).
To satisfy redressability under Article III, plaintiffs need not allege that a
declaration alone would solve their every ill. To plead a justiciable case, a court need
only evaluate “whether the facts alleged, under all the circumstances, show that there
is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

Page 30 – OPINION AND ORDER

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (quoting Md. Cas. Co.
v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)).
There is nothing in § 2201 preventing a court from granting declaratory relief
even if it is the only relief awarded. Section 2201 provides that declaratory relief may
be granted “whether or not further relief is or could be sought.” Id. Under the statute,
the relief plaintiffs seek fits like a glove where plaintiffs’ request declaratory relief
independently of other forms of relief, such as an injunction. See Steffel v. Thompson,
415 U.S. 452, 475, (1974) (stating in a different context that “regardless of whether
injunctive relief may be appropriate, federal declaratory relief is not precluded.”). A
declaration that defendants are violating plaintiffs’ constitutional rights may be
enough to bring about relief by changed conduct.
2.

The Court’s Power to Provide Redress

As expressed in Marbury v. Madison: “It is emphatically the province and duty
of the judicial department to say what the law is.” 5 U.S. at 177. Over the course
of American history, courts have corrected longstanding, systemic wrongs of
political branches that encroach on the fundamental rights of citizens.
The judiciary has the unique and singular duty to both declare constitutional
rights and prevent political acts that would curb or violate those rights. Id. at
167. It is a foundational doctrine that when government conduct harms American
citizens, the judiciary is constitutionally required to perform its independent role and
determine whether the challenged conduct, not exclusively committed to any branch
by the Constitution, is unconstitutional. Id. at 176-78.

Page 31 – OPINION AND ORDER

The Act gives “federal courts competence to make a declaration of rights.” Pub.
Affairs Associates v. Rickover, 369 U.S. 111, 112 (1962). The Supreme Court has
found it “consistent with the statute . . . to vest district courts with discretion in the
first instance, because facts bearing on the usefulness of the declaratory judgment
remedy, and the fitness of the case for resolution, are peculiarly within their grasp.”
MedImmune, 549 U.S. at 136.
A declaratory judgment need not be “unbound” as defendants assert but may
precisely describe and quantify the government’s obligations. For example, in the
landmark treaty fishing cases, courts declared the tribes right to take up to 50 percent
of the harvestable quantities of fish. United States v. Washington, 520 F.2d 676, 687
(9th Cir. 1975).
Declaratory judgments are thus firmly sited within the core competences of the
courts in a way that structural injunctions are not. Declaratory judgments ask courts
to declare actions lawful or unlawful, applying legal standards to a set of facts. Unlike
structural injunctions, which envision an on-going dialogue between the court and
the parties, the declaratory relief model facilitates a dialogue between the parties.
Following a court’s declaration of rights, which serves as the baseline below which a
defendant may not fall, the various stakeholders are left to handle the details. 24

See generally Emily Chiang, Reviving the Declaratory Judgment: A New Path
to Structural Reform, 63 Buff. L. Rev. 549 (May 2015) (discussing models of structural
reform and encouraging public interest lawyers to consider declaratory relief as an
effective and uniquely suited tool for structural reform in the modern age).
24

Page 32 – OPINION AND ORDER

From the beginning, the Court has envisioned that the government defendants
would be interested in collectively developing a remedial plan of their own making—
not of the Court’s making—containing measures that they decide are appropriate to
bring the agencies into constitutional compliance.
Following a declaratory judgment outlining the constitutional benchmark, a
fact-finding stage often requires scientific analysis (a proficiency in which defendants
are well-equipped) along with production of data defendants most likely already
possess. To avoid complex remedial issues from clouding the foundational task of
defining plaintiffs’ basic rights and defendants’ consequent obligations, the Court
would bifurcate the case into a “liability” stage and a “remedy” stage.
The liability stage may allow the Court to specify legal obligations in a
declaratory judgment, while the remedy stage demands a more innovative judicial
role to supervise the parties in crafting a plan. During the remedy stage, the Court
could invoke the usual standards of deference to the agency, while the case remains
open under its ongoing jurisdiction so that parties can challenge aspects of the
remedy implementation without bringing a new lawsuit.
One model of supervision involves the appointment of a special master to
handle complex factual issues, make determinations on recurring issues, and make
recommendations to the court. Consent decrees are used in many contexts of longlasting government violations. Professor Wood points out one notable example in the
environmental context that arose from a treaty fishing case, United States v. Oregon,

Page 33 – OPINION AND ORDER

handled by Judge Belloni, U.S. District Court of Oregon. 25 The litigation “culminated
in a consent decree” and the Columbia River Fish Management Plan (“CRFMP”)
became “a model of judicial administration that gained nationwide acclaim.” 26
The CRFMP established a system of co-management between nine sovereigns
(states, tribes, and the federal government) managing treaty fisheries in the
Columbia River Basin. See United States v. Oregon, 699 F. Supp. at 1469 (describing
and approving Columbia River Fish Management Plan).

The CRFMP set forth

detailed management criteria for each fishery, established technical and policy
committees, and created a dispute resolution process that involved the court only as
a last resort. Professor Wood argues that by “allowing the sovereign parties to
identify points of agreement and work out the details of a remedy using their own
administrative and scientific expertise, the consent decree process can create an
enduring

remedy

structure

to

fit

complex

institutional

and

biological

circumstances.” 27
Defendants have not shown that plaintiffs’ claim for declaratory relief falls
outside the scope of the Court’s authority, where “facts bearing on the usefulness of
the declaratory judgment remedy, and the fitness of the case for resolution, are
peculiarly within [its] grasp.” MedImmune, 549 U.S. at 136. Accordingly, defendants’
motion to dismiss is denied as to this issue.

Wood, Eve of Destruction, at 264 (citing United States v. Oregon, 699 F. Supp.
1456, 1469 (D. Or. 1988) (describing and approving the CRFMP)).
25

26
27

Id.
Id.

Page 34 – OPINION AND ORDER

III.

Political Question Doctrine
Defendants maintain that plaintiffs’ claims present political questions over

which the Court lacks jurisdiction. Mot. at 12-19. In defendants’ view, plaintiffs ask
the Court to “review and assess the entirety of Congress’s and the Executive Branch’s
programs and regulatory decisions relating to climate change and then to pass on the
comprehensive constitutionality of all of those policies, programs, and inaction in the
aggregate.” Id. at 17. Defendants assert that no federal court “has ever purported to
use the judicial [p]ower to perform such a sweeping policy review.” Id.
Defendants appear to misunderstand the function of the Court acting within
its prescribed authority to declare what the law is—it is not the Court which will
perform “a sweeping policy review,” it is defendants.
There is no need for the Court to step outside its prescribed role to decide this
case. At its heart, this lawsuit asks the Court to determine whether defendants have
violated plaintiffs’ constitutional rights.

That question is squarely within the

purview of the judiciary. See INS v. Chadha, 462 U.S. 919, 941 (1983) (the judiciary
is bound to determine whether the political branches have “chosen a constitutionally
permissible means of implementing [their] power”); Jewel v. Nat’l Sec. Agency, 673
F.3d 902, 912 (9th Cir. 2011) (although lawsuit challenging federal agencies’
surveillance practices “strikes at the heart of a major public policy controversy,”
claims were justiciable because they were “straightforward claims of statutory and
constitutional rights, not political questions.”).

Page 35 – OPINION AND ORDER

The Court previously analyzed whether plaintiffs’ claims presented a political
question under Baker v. Carr, 369 U.S. 186 (1962) and adopts that analysis here. See
Juliana v. United States, 217 F. Supp. 3d 1224, 1235-42 (D. Or. 2016) rev’d and
remanded on other grounds, 947 F.3d 1159 (9th Cir. 2020).

The Ninth Circuit

explicitly stated that it did not find that plaintiffs had presented a political question.
Juliana, 947 F.3d at 1174 n.9 (“Contrary to the dissent, we do not find this to be a
political question, although that doctrine’s factors often overlap with redressability
concerns”).
Here the Constitution entrusts defendants with the power to oversee
departments and agencies in the executive branch in their administration of the
broad range of laws committed to their implementation. Mot. at 18. Speculation
about the remedial stage does not support dismissal. Baker, 369 U.S. at 198 (“Beyond
noting that we have no cause at this stage to doubt the District Court will be able to
fashion relief if violations of constitutional rights are found, it is improper now to
consider what remedy would be most appropriate if appellants prevail at trial.”).
Because the Court finds that under Baker, the political question doctrine does not
impede plaintiffs’ claims, defendants’ motion to dismiss is denied on this issue.
IV.

First Claim for Relief – Due Process Clause of the Fifth Amendment
Plaintiffs allege that the Due Process Clause of the Fifth Amendment

recognizes and preserves the fundamental right of citizens to be free from government
actions that harm “life, liberty, and property.” SAC ¶ 278. Plaintiffs maintain that
these “inherent and inalienable rights” reflect the basic societal contract of the

Page 36 – OPINION AND ORDER

Constitution

to

protect

citizens

and

“posterity”—future

generations—from

government infringement upon basic freedoms and basic rights. Id. Plaintiffs state
that defendants’ affirmative aggregate acts have been and are infringing on plaintiffs’
liberties, by knowingly creating a destabilized climate system that is causing
irreversible harm.
Defendants challenge plaintiffs’ due process claims on two grounds. First, they
assert any challenge to defendants’ affirmative actions (i.e., leasing land, issuing
permits) cannot proceed because plaintiffs have failed to identify infringement of a
fundamental right or discrimination against a suspect class of persons.
Second, they argue plaintiffs cannot challenge defendants’ inaction (i.e., failure
to prevent third parties from emitting CO2 at dangerous levels).

Defendants

maintain that the Constitution “does not impose an affirmative duty to protect
individuals, and plaintiffs have failed to allege a cognizable claim under the “statecreated danger” exception to that rule. Mot. at 21.
Defendants state that the Supreme Court has repeatedly instructed courts
considering novel due process claims to “exercise the utmost care whenever . . . asked
to break new ground in this field, . . . lest the liberty protected by the Due Process
Clause be subtly transformed” into judicial policy preferences. Id. at 19-20 (quoting
Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). Defendants maintain that
plaintiffs’ request to recognize an implied fundamental right to a stable climate
system, SAC ¶ 304, “contradicts that directive, because such a purported right is
without basis in the Nation’s history or tradition.” Mot. at 20.

Page 37 – OPINION AND ORDER

A.

Affirmative Government Action and Due Process

The Due Process Clause of the Fifth Amendment to the United States
Constitution bars the federal government from depriving a person of “life, liberty, or
property” without due process of law. U.S. CONST. amend. V.
When a plaintiff challenges affirmative government action under the Due
Process Clause, the threshold inquiry is the applicable level of judicial scrutiny. Witt
v. Dep’t of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008). The default level of
scrutiny is rational basis, which requires a reviewing court to uphold the challenged
governmental action so long as it “implements a rational means of achieving a
legitimate governmental end[.]” Kim v. United States, 121 F.3d 1269, 1273 (9th Cir.
1997) (quotation marks omitted). When the government infringes on a “fundamental
right,” however, a reviewing court applies strict scrutiny. Witt, 527 F.3d at 817.
Substantive due process “forbids the government to infringe certain fundamental
liberty interests at all, no matter what process is provided, unless the infringement
is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S.
292, 302, (1993).
It appears undisputed by plaintiffs, and in any event is clear to this Court, that
defendants’ affirmative actions would survive rational basis review. Resolution of
this part of the motion to dismiss therefore hinges on whether plaintiffs have alleged
infringement of a fundamental right.
Fundamental liberty rights include both rights enumerated elsewhere in the
Constitution and rights and liberties which are either (1) “deeply rooted in this

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Nation’s history and tradition” or (2) “fundamental to our scheme of ordered liberty[.]”
McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (internal citations, quotations,
and emphasis omitted). Seemingly “new” fundamental rights are not out of bounds.
When the Supreme Court broke new legal ground by recognizing a constitutional
right to same-sex marriage, Justice Kennedy wrote that
The nature of injustice is that we may not always see it in our own times.
The generations that wrote and ratified the Bill of Rights ... did not
presume to know the extent of freedom in all its dimensions, and so they
entrusted to future generations a charter protecting the right of all
persons to enjoy liberty as we learn its meaning. When new insight
reveals discord between the Constitutions central protections and a
received legal stricture, a claim to liberty must be addressed.
Obergefell v. Hodges, 576 U.S. 644, 664 (2015).

Thus, “[t]he identification and

protection of fundamental rights is an enduring part of the judicial duty to interpret
the Constitution . . . [that] has not been reduced to any formula.” Id. at 663-64
(citation and quotation marks omitted).

In determining whether a right is

fundamental, courts must exercise “reasoned judgment,” keeping in mind that
“[h]istory and tradition guide and discipline this inquiry but do not set its outer
boundaries.” Id. at 664. The genius of the Constitution is that its text allows “future
generations [to] protect . . . the right of all persons to enjoy liberty as we learn its
meaning.” Id.
Exercising “reasoned judgment,” id., the Court finds that the right to a climate
system that can sustain human life is fundamental to a free and ordered society.
Defendants contend plaintiffs are asserting a right to be free from pollution or
climate change, and that courts have consistently rejected attempts to define such

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rights as fundamental. Mot. at 20. Defendants mischaracterize the right plaintiffs
assert. Plaintiffs do not object to the government’s role in producing any pollution or
in causing any climate change; they assert the government has caused pollution and
climate change on a catastrophic level, and that if the government’s actions continue
unchecked, they will permanently and irreversibly damage plaintiffs’ property, their
economic livelihood, their recreational opportunities, their health, and ultimately
their (and their children’s) ability to live.
In this opinion, this Court simply holds that where a complaint alleges
governmental action is affirmatively and substantially damaging the climate system
in a way that will cause human deaths, shorten human lifespans, damage property,
threaten human food sources, and dramatically alter the planets ecosystem, it states
a claim for a due process violation. To hold otherwise would be to say that the
Constitution affords no protection against a government’s knowing decision to poison
the air its citizens breathe or the water its citizens drink.
How can the judiciary uphold the Constitution’s guarantee that the
government shall not deprive its citizens of life without due process, while also
upholding government “actions that could leave [future generations] a world with an
environment on the brink of ruin and no mechanism to assert their rights.” Aji P. v.
State, 198 Wash. 2d 1025, 497 P.3d 350, 351 (2021) (Gonzalez, C.J.) (dissenting). We
cannot vow to uphold the Constitution’s protection of a God-given right to life, and at
the same time, exercise “judicial restraint” by telling plaintiffs that “life” cannot
possibly include the right to be free from knowing government destruction of their

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ability to breathe, to drink, or to live. “It cannot be presumed that any clause in the
[C]onstitution is intended to be without effect.” Marbury, 5 U.S. at 174. Plaintiffs
have adequately alleged infringement of a fundamental right and defendants’ motion
to dismiss is denied on this issue.
B.

Government Inaction Under the Due Process Clause

Plaintiffs allege that “[a]cting with full appreciation of the consequences of
their acts, defendants knowingly caused, and continue to cause, dangerous
interference with our atmosphere and climate system.” SAC ¶ 280. They allege this
danger stems, “in substantial part, [from] [d]efendants’ historic and continuing
permitting, authorizing, and subsidizing of fossil fuel extraction, production,
transportation, and utilization.” Id. ¶ 279. Plaintiffs allege defendants acted “with
full appreciation” of the consequences of their acts.

Id. ¶¶ 278–79.

Plaintiffs

challenge defendants’ failure to limit third-party CO2 emissions under the danger
creation exception stated in DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489
U.S. 189 (1989).
The Due Process Clause imposes no duty on the government to protect persons
from harm inflicted by third parties that would violate due process if inflicted by the
government. Id. at 196; accord Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir.
2011). As a general matter:
[The Due Process Clause] is phrased as a limitation on the State’s power
to act, not as a guarantee of certain minimal levels of safety and security.
It forbids the State itself to deprive individuals of life, liberty, or
property without “due process of law,” but its language cannot fairly be
extended to impose an affirmative obligation on the State to ensure that
those interests do not come to harm through other means.

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DeShaney, 489 U.S. at 194-95. The Ninth Circuit recognizes two narrow exceptions
to the no-duty-to-protect rule from DeShaney: (1) the “special-relationship” exception,
which applies to individuals involuntarily placed in state custody; and (2) the statecreated danger exception. Murguia v. Langdon, 61 F.4th 1096, 1106 (9th Cir. 2023).
In the Ninth Circuit, a plaintiff challenging government inaction on a danger
creation theory must first show the “state actor create[d] or expose[d] an individual
to a danger which he or she would not have otherwise faced.” Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). The state action must place the
plaintiff “in a worse position than that in which he would have been had the state not
acted at all.” Pauluk v. Savage, 836 F.3d 1117, 1125 (9th Cir. 2016) (quotation marks
omitted and alterations normalized).
Second, the plaintiff must show the “state actor . . . recognize[d]” the
unreasonable risks to the plaintiff and “actually intend[ed] to expose the plaintiff to
such risks without regard to the consequences to the plaintiff.” Campbell v. Wash.
Dep’t of Soc. & Health Servs., 671 F.3d 837, 846 (9th Cir. 2011) (brackets and
quotation marks omitted).

The defendant must have acted with “[d]eliberate

indifference,” which “requires a culpable mental state more than gross negligence.”
Pauluk, 836 F.3d at 1125 (quotation marks omitted).
Defendants assert that applying the DeShaney exception to the circumstances
of this case would cause the exception to swallow the rule, arguing that “[e]very
instance” in which the Ninth Circuit has “permitted a state-created danger theory to
proceed has [also] involved an act by a government official that created an obvious,

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immediate, and particularized danger to a specific person known to that official.”
Mot. at 22; Pauluk, 836 F.3d at 1129-30 (Murguia, J., concurring in part and
dissenting in part) (internal quotation marks omitted).

Defendants assert that

plaintiffs fail to identify immediate harm to their personal security or bodily integrity
and identify no government actions or actors that put them in danger—only general
degradation of the climate, without the immediate, direct, physical, and personal
harms at issue in the above referenced cases. Mot. at 20.
Plaintiffs’ allegations include “[harm to] plaintiffs’ dignity, including their
capacity to provide for their basic human needs, safely raise families, practice their
religious and spiritual beliefs, maintain their bodily integrity, and lead lives with
access to clean air, water, shelter, and food.” SAC ¶ 283. In the face of these risks,
plaintiffs allege defendants “have had longstanding, actual knowledge of the serious
risks of harm and have failed to take necessary steps to address and ameliorate the
known, serious risk to which they have exposed [p]laintiffs.” Id. ¶ 285.
Accepting the allegations of the complaint as true, plaintiffs have adequately
alleged a danger creation claim. Defendants’ arguments do not reflect that DeShaney
imposes rigorous proof requirements. A plaintiff asserting a danger-creation due
process claim must show (1) the government’s acts created the danger to the plaintiff;
(2) the government knew its acts caused that danger; and (3) the government with
deliberate indifference failed to act to prevent the alleged harm. These stringent
standards are sufficient safeguards against the flood of litigation concerns raised by
defendants.

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At the motion-to-dismiss stage, the Court accepts the factual allegations in the
complaint as true. Plaintiffs have alleged that defendants helped create the current
climate crisis, that defendants acted with full knowledge of the consequences of their
actions, and that defendants have failed to correct or mitigate the harms they helped
create in deliberate indifference to the injuries caused by climate change. Plaintiffs
may therefore proceed with their substantive due process challenge to defendants’
failure to adequately regulate CO2 emissions and defendants’ motion to dismiss is
denied as to this issue.
V.
Second
Amendment

Claim

for

Relief:

Equal

Protection

Under

the

Fifth

Plaintiffs allege that both unborn members of “future generations” and minor
children who cannot vote are a suspect classification. SAC ¶¶ 290-301. Plaintiffs
state that, for purposes of this action, they should be treated as protected classes
because many harmful effects caused by the acts of defendants will occur again. Id.
¶ 297. Plaintiffs maintain that the Court should determine they must be treated as
protected classes, and federal laws and actions that disproportionately discriminate
against and endanger them must be invalidated. Id.
Defendants assert that “[n]one of the government actions that [p]laintiffs
complain of classify or affect youth or posterity any differently than they affect other
persons.” Mot. at 29. While plaintiffs’ allegations are to the contrary, asserting that
future generations will be decidedly more effected by climate change, defendants
assert that their actions furthering fossil fuel combustion survive rational basis

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review, because plaintiffs cannot allege that there is no conceivable set of facts that
could provide a rational basis for defendants’ actions. Id.
Both the Supreme Court and the Ninth Circuit have held that age is not a
suspect class. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989); United States v.
Flores-Villar, 536 F.3d 990, 998 (9th Cir. 2008). Stanglin and Flores-Villar both
applied rational basis review to governmental action that discriminated against
teenagers of a similar age to plaintiffs here. In both cases, that discrimination was
found to be permissible if it had a rational basis.
Even if plaintiffs’ suspect-class argument were not foreclosed by precedent, the
Court would not be persuaded to break new ground in this area. See Cunningham v.
Beavers, 858 F.2d 269, 273 (5th Cir. 1988) (“No cases have ever held, and we decline
to hold, that children are a suspect class.”).
Accordingly, defendants’ motion to dismiss plaintiffs’ equal protection claim
based on plaintiffs’ constituting a suspect class is granted.
VI.
Third Claim for Relief: Unenumerated Rights Under the Ninth
Amendment
Plaintiffs’ third claim for relief, which is pleaded as a freestanding claim under
the Ninth Amendment, alleges that the Nation’s founders intended that the federal
government would have both the authority and the responsibility to be a steward of
our country’s essential natural resources. SAC ¶ 303. This stewardship, plaintiffs
assert, is clear from the delegation of powers to manage lands and the conveyed
authority to address major challenges facing our nation. Id. Plaintiffs allege that
among the “implicit liberties protected from government intrusion by the Ninth

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Amendment” is the right to be “sustained by our country’s vital natural systems,
including our climate system.” Id.
Defendants assert that the Ninth Amendment has never been recognized as
independently securing any constitutional right, and that this claim must be
dismissed. Mot. at 21; Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986).
Defendants are correct. Plaintiffs’ Ninth Amendment claim is not viable. Id.
Defendants’ motion to dismiss plaintiffs’ third claim for relief is granted.
VII.

Fourth Claim for Relief: Rights Under Public Trust Doctrine
Plaintiffs’ public trust claim arises from the particular application of the public

trust doctrine to essential natural resources.

The complaint alleges that the

overarching public trust resource is our country’s life-sustaining climate system,
which encompasses our atmosphere, waters, oceans, and biosphere. SAC ¶ 308.
Plaintiffs assert that defendants must take affirmative steps to protect those trust
resources. Id. As sovereign trustees, plaintiffs contend that defendants have a duty
to refrain from “substantial impairment” of these essential natural resources. Id. ¶
309. The affirmative aggregate acts of defendants, in plaintiffs’ view, in fossil fuel
production and consumption have “unconstitutionally caused, and continue to cause,
substantial impairment to the essential public trust resources.” Id.
Plaintiffs allege that defendants have failed in their duty of care to safeguard
plaintiffs’ interest as the present and future beneficiaries of the public trust, and that
such an abdication of duty abrogates the ability of succeeding members of the

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Executive Branch and Congress to provide for the survival and welfare of our citizens
and to promote the endurance of our nation. Id.
Defendants assert that plaintiffs’ fourth claim for relief, asserting public trust
claims, should be dismissed for two independent reasons. Mot. at 24. First, any
public trust doctrine is a creature of state law that applies narrowly and exclusively
to particular types of state-owned property not at issue here. Id; U.S. CONST. art. IV,
§ 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to the United
States.”). Defendants contend there is no basis for plaintiffs’ public trust claim
against the federal government under federal law. Second, the “climate system” or
atmosphere is not within any conceivable federal public trust. Id.
The Court has expended innumerable hours in research and analysis of
plaintiffs’ public trust claim and, in prior orders, determined that plaintiffs have
alleged violations of the public trust doctrine in connection with the territorial sea.
See Juliana v. United States, 217 F. Supp. 3d 1224, 1255 (D. Or. 2016), rev’d and
remanded on other grounds, 947 F.3d 1159 (9th Cir. 2020). Because the Ninth Circuit
did not reach the merits of plaintiffs’ claims, the Court incorporates its analysis and
legal conclusions, as stated in Juliana, 217 F. Supp at 1255-61 (finding that plaintiffs’
alleged injuries relate to the effects of ocean acidification and rising ocean
temperatures, thus pleadings adequately alleged harm to public trust assets; the
public trust doctrine applies to the federal government; the federal government, like
the states, holds public assets, including the territorial seas, in trust for the people;

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environmental statutes have not displaced the venerable public trust doctrine; and
plaintiffs’ claims rest “directly on the Due Process Clause of the Fifth Amendment
and are enforceable against the federal government.”).
Accordingly, the Court finds that plaintiffs have stated a claim under a
purported public trust doctrine. Defendants’ motion to dismiss plaintiffs’ fourth claim
for relief is denied.
VIII. Action Under Administrative Procedure Act
Defendants argue that plaintiffs needed to bring their claims under the
Administrative Procedure Act (“APA”) and failed to do so. Mot. at 32.
The Court finds that the APA does not govern plaintiffs’ claims, and that, as a
result, plaintiffs’ failure to state a claim under the APA is not a ground for dismissing
this action. The Ninth Circuit found that “[w]hatever the merits of the plaintiffs’
claims, they may proceed independently of the review procedures mandated by the
APA.” Juliana, 947 F.3d at 1167-68. Defendants’ motion to dismiss is denied as to
this issue.

Defendants reserve their right to disagree with the Ninth Circuit’s

determination on this point but concede that the Ninth Circuit’s decision governs,
and respectfully preserve their arguments on the applicability of the APA for
potential further review.
CONCLUSION
Other courts across the United States have noted that “[w]ith each year, the
impacts of climate change amplify and the chances to mitigate dwindle.” Matter of
Hawai'i Elec. Light Co., Inc., 152 Haw. 352, 359 (2023). The judicial branch of

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government can no longer “abdicat[e] responsibility to apply the rule of law.” Id. at
365 (Wilson, J., concurring).

For the reasons explained, Defendants’ motion to

dismiss the second amended complaint, ECF No. 547, is GRANTED in part and
DENIED in part.

The Court also DENIES defendants’ request to certify for

interlocutory review this opinion and order; DENIES defendants’ motion for an order
certifying its prior order, ECF No. 540, for interlocutory appeal, ECF No. 551; and
DENIES defendants’ motion to stay litigation, ECF No. 552. The Court GRANTS
plaintiffs’ motion to set a pretrial conference, ECF No. 543, and ORDERS the parties
to confer and contact the Court to schedule a telephonic status conference to discuss
next steps in this case.

It is so ORDERED on this day, December 29, 2023.

Ann L. Aiken
/s/Ann L. Aiken
_______________________
UNITED STATES DISTRICT JUDGE

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