0% found this document useful (0 votes)
72 views229 pages

09122024juliana Petition

On Sept. 12, 2024, a group of young people asked the U.S. Supreme Court to revive an old climate change lawsuit.

Uploaded by

Matthew Vadum
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
0% found this document useful (0 votes)
72 views229 pages

09122024juliana Petition

On Sept. 12, 2024, a group of young people asked the U.S. Supreme Court to revive an old climate change lawsuit.

Uploaded by

Matthew Vadum
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 229

No.

24-___

IN THE
Supreme Court of the United States

IN RE KELSEY CASCADIA ROSE JULIANA, et al.,

Petitioners.

ON PETITION FOR A WRIT OF MANDAMUS TO THE


UNITED STATES COURT OF A PPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF MANDAMUS

PHILIP L. GREGORY JULIA A. OLSON


GREGORY LAW GROUP Counsel of Record
1250 Godetia Drive OUR CHILDREN’S TRUST
Redwood City, CA 94062 1216 Lincoln Street
Eugene, OR 97401
A NDREA K. RODGERS [email protected]
OUR CHILDREN’S TRUST (415) 786-4825
3026 NW Esplanade
Seattle, WA 98117

117097

A
(800) 274-3321 • (800) 359-6859
i

QUESTION PRESENTED

When this now nine-year-old case was before the


Court in 2018, this Court denied the Government’s
application for a stay of proceedings in the district court
pending disposition of the Government’s 2018 petition
for a writ of mandamus in this Court. Case No. 18A410.
This Court found “the Government’s petition for a writ
of mandamus does not have a ‘fair prospect’ of success
in this Court . . . . ” App. 167a. In denying the requested
stay without prejudice, this Court instructed that the
conditions set forth in Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367, 380–81 (2004) (“Cheney”) dictate whether
a petition for a writ of mandamus may be granted. App.
165a–66a, 168a.

,QUHVSRQVHWRWKH*RYHUQPHQW·VÀIWKSHWLWLRQIRUD
writ of mandamus in the Ninth Circuit to reverse the
district court’s interlocutory orders granting Plaintiffs
leave to amend and denying in part the Government’s
motion to dismiss Plaintiffs’ second amended complaint,
a motions panel of the Ninth Circuit (the “panel”) issued
a writ of mandamus to the district court to dismiss. The
SDQHOGLGVRKRZHYHUZLWKRXWDSSO\LQJRUÀQGLQJVDWLVÀHG
the three conditions set forth in Cheney, contravening
WKLV&RXUW·VSULRULQVWUXFWLRQDQGWKHÀQDOMXGJPHQWUXOH

The question presented is whether a writ of mandamus


should issue directing the Ninth Circuit to vacate its writ
of mandamus and remand to the district court, where the
Ninth Circuit exceeded its prescribed jurisdiction under
28 U.S.C. § 1651 by ignoring the mandatory Cheney
conditions and reviewing de novo two district court orders
ii

that are fully reviewable on direct appeal under 28 U.S.C.


§ 1292(b) with no cognizable harm to the Government,
thereby depriving Plaintiffs of their clear and indisputable
right to fair process and an appeal before a merits panel
in the court of appeals.
iii

PARTIES TO THE PROCEEDING

Petitioners in this Court (youth “Plaintiffs” in the


district court, and real parties in interest in the Ninth
Circuit) are Kelsey Cascadia Rose Juliana; Xiuhtezcatl
Tonatiuh Martinez; Alexander Loznak; Jacob Lebel;
Zealand Bell; Avery McRae; Sahara Valentine; Miriam
Oommen; Tia Marie Hatton; Isaac Vergun; Miko Vergun;
Hazel Van Ummersen; Sophie Kivlehan; Jaime Butler;
Journey Zephier; Vic Barrett; Nathaniel Baring; Aji
Piper; Levi D., through his Guardian Leigh-Ann Draheim;
Jayden Foytlin; and Nic Venner.

Respondent in this Court, against whom relief is


sought, is the United States Court of Appeals for the Ninth
Circuit (the “Ninth Circuit”).

Real parties in interest in this Court (Defendants in


the district court, and Petitioners in the Ninth Circuit—
the “Government”) are the United States of America; the
2IÀFHRIWKH3UHVLGHQWRIWKH8QLWHG6WDWHVRI$PHULFD
%UHQGD 0DOORU\ LQ KHU RIÀFLDO FDSDFLW\ DV 'LUHFWRU RI
Council on Environmental Quality; Shalanda Young, in her
RIÀFLDOFDSDFLW\DV'LUHFWRURIWKH2IÀFHRI0DQDJHPHQW
DQG%XGJHW$UDWL3UDEKDNDULQKHURIÀFLDOFDSDFLW\DV
'LUHFWRURIWKH2IÀFHRI6FLHQFHDQG7HFKQRORJ\3ROLF\WKH
United States Department of Energy; Jennifer Granholm,
LQKHURIÀFLDOFDSDFLW\DV6HFUHWDU\RI(QHUJ\WKH8QLWHG
States Department of the Interior; Deb Haaland, in her
RIÀFLDO FDSDFLW\ DV 6HFUHWDU\ RI ,QWHULRU WKH 8QLWHG
States Department of Transportation; Pete Buttigieg,
LQ KLV RIÀFLDO FDSDFLW\ DV 6HFUHWDU\ RI 7UDQVSRUWDWLRQ
the United States Department of Agriculture; Thomas
J. Vilsack, in his official capacity as Secretary of
iv

Agriculture; the United States Department of Commerce;


*LQD 5DLPRQGR LQ KHU RIÀFLDO FDSDFLW\ DV 6HFUHWDU\ RI
Commerce; the United States Department of Defense;
/OR\G $XVWLQ LQ KLV RIÀFLDO FDSDFLW\ DV 6HFUHWDU\ RI
Defense; the United States Department of State; Antony
%OLQNHQLQKLVRIÀFLDOFDSDFLW\DV6HFUHWDU\RI6WDWHWKH
United States Environmental Protection Agency; and
0LFKDHO5HJDQLQKLVRIÀFLDOFDSDFLW\DV$GPLQLVWUDWRU
of the EPA.

Respondent in the Ninth Circuit was the United States


District Court for the District of Oregon (“district court”).
v

STATEMENT OF RELATED PROCEEDINGS

United States District Court for the District of Oregon:1

Juliana v. United States,


No. 15-cv-01517 (May 1, 2024).

United States Court of Appeals for the Ninth Circuit:

In re United States,
No. 24-684 (July 12, 2024).

Juliana v. United States,


No. 18-36082 (Feb. 10, 2021).

Juliana v. United States,


No. 18-80176 (Dec. 26, 2018).

1. Plaintiffs refer to the District Court docket as “D. Ct.


'RFµWKH1LQWK&LUFXLWGRFNHWIRUWKH*RYHUQPHQW·VÀUVWSHWLWLRQ
for writ of mandamus as “Ct. App. I Doc.,” No. 17-71692; the Ninth
Circuit docket for the Government’s second petition for writ of
mandamus as “Ct. App. II Doc.,” No. 18-71928; the Ninth Circuit
docket for the Government’s third petition for writ of mandamus in
that court as “Ct. App. III Doc.,” No. 18-72776; the Ninth Circuit
docket for the Government’s fourth petition for writ of mandamus
in that court as “Ct. App. IV Doc.,” No. 18-73014; the Ninth Circuit
docket for the Government’s 2018 Petition for Permission to Appeal
as “Ct. App. V Doc.,” No. 18-80176; the Ninth Circuit docket for
the interlocutory proceedings under 28 U.S.C. § 1292(b) as “Ct.
App. VI Doc.,” No 18-36082; the Ninth Circuit docket for the
*RYHUQPHQW·VÀIWKSHWLWLRQIRUZULWRIPDQGDPXVLQWKDWFRXUWDV
“Ct. App. VII Doc.,” No. 24-684; the Supreme Court docket for the
*RYHUQPHQW·VÀUVWDSSOLFDWLRQIRUVWD\DV´6&W,µ1R$
and the Supreme Court docket for the Government’s October 2018
petition for mandamus as “S. Ct. II,” No. 18-505.
vi

In re United States,
No. 18-73014 (Dec. 26, 2018).

In re United States,
No. 18-72776 (Nov. 2, 2018).

In re United States,
No. 18-71928 (July 20, 2018).

In re United States,
No. 17-71692 (Mar. 7, 2018).

Supreme Court of the United States:

In re United States,
No. 18-505 (July 29, 2019).

In re United States,
No. 18A410 (Nov. 2, 2018).

United States v. U.S. Dist. Ct. for Dist. of Or.,


No. 18A65 (July 30, 2018).
vii

TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . iii

STATEMENT OF RELATED PROCEEDINGS . . . . .v

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . xi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . xiii

PETITION FOR A WRIT OF MANDAMUS . . . . . . . .1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

APPLICABLE OPINIONS . . . . . . . . . . . . . . . . . . . . . . .4

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

R EL E VA N T C ONS T I T U T IONA L A N D
STATUTORY PROVISIONS INVOLVED . . . . . . . .5

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .6

A. Pretrial proceedings in the district court


from 2015-2018. . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

B. The Government’s first six petitions for


ZULWVRIPDQGDPXVDQGÀIWHHQSHWLWLRQVIRU
stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

(1) First petition for writ of mandamus


in the Ninth Circuit. . . . . . . . . . . . . . . . . . . . .7
viii

Table of Contents
Page
(2) Second petition for writ of mandamus
in the Ninth Circuit. . . . . . . . . . . . . . . . . . . . .7

(3) Third petition for writ of mandamus


(first in this Court), styled as an
application for a stay . . . . . . . . . . . . . . . . . . . .8

(4) Fourth petition for writ of mandamus


(third in the Ninth Circuit). . . . . . . . . . . . . . .8

(5) Fifth petition for writ of mandamus


(second in this Court) . . . . . . . . . . . . . . . . . . .8

(6) Sixth petition for writ of mandamus


(fourth in the Ninth Circuit) . . . . . . . . . . . . .9

C. On interlocutory appeal, a divided 2020


Ninth Circuit merits panel dismisses
Pl a i nt i f fs’ 2 015 c ompl a i nt w it hout
prejudice on standing, and is silent on leave
to amend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

D. On remand, the district court grants leave


to amend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

E. A Ninth Circuit motions panel applies


de novo review to grant the seventh
p et it ion for a w r it of m a nd a mu s ,
order i ng i mmed iat e d ism issa l w ith
no Rule 15 analysis on leave to amend . . . . . . . .11

REASONS FOR GRANTING THE PETITION. . . . .13


ix

Table of Contents
Page
I. PLAINTIFFS’ RIGHT TO THE WRIT
IS CLEA R A ND INDISPU TA BLE
BECAUSE THE NINTH CIRCUIT
EXCEEDED ITS JURISDICTION BY
TERMINATING PROCEEDINGS IN
THE DISTRICT COURT PRIOR TO
FINAL JUDGMENT. . . . . . . . . . . . . . . . . . . . . .15

A. The panel’s order did not conduct,


and indeed contravenes, the requisite
inquiry under Cheney. . . . . . . . . . . . . . . . . .16

B. The panel contravened Plaintiffs’


clear and indisputable right to fair
SURFHVV DQG D ULJKW RI DSSHDO DW ÀQDO
judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. T h e p a n e l i g n o r e d t h a t t h e
Government had other adequate
means to obtain full relief and would
suffer no cognizable harm . . . . . . . . . . . . . .22

II. THERE ARE NO OTHER ADEQUATE


MEANS FOR PLAINTIFFS TO OBTAIN
THE RELIEF THEY SEEK . . . . . . . . . . . . . . .24

III. M A N DA M U S I S A P PR OPR I A T E
TO UNDO THE MANIFOLD HARM
CREATED BY THE NINTH CIRCUIT’S
DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
x

Table of Contents
Page
A. Mandamus here would undo the harm
to the orderly functioning of the federal
court system created by the panel’s
writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

B. Ma nda mus wou ld el i m i nat e t he


d i le m m a c r e at e d by t he p a nel
for district courts . . . . . . . . . . . . . . . . . . . . .29

C. Mandamus would undo the panel’s


potent disregard of this district
court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

D. Mandamus would remove unjust


prejudice to the Plaintiffs and correct
uneven treatment . . . . . . . . . . . . . . . . . . . . .31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
xi

TABLE OF APPENDICES
Page
APPENDIX A — Order of the United States
&RXUW RI $SSHDOV IRU WKH 1LQWK &LUFXLW ÀOHG
May 1, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a

APPENDIX B — Judgment of the United States


District Court for the District of Oregon, Eugene
 'LYLVLRQÀOHG0D\ 1, 2024 . . . . . . . . . . . . . . . . . . . . . .6a

APPENDIX C — Supplemental Order of the


United States District Court for the District of
 2UHJRQ(XJHQH'LYLVLRQÀOHG$SULO 19, 2024. . . . . .7a

A PPEN DI X D — O pi n ion a nd O rder of


the United States District Court for the
District of Oregon, Eugene Division, signed
December 29, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . .25a

APPENDIX E — Opinion and Order of the


United States District Court for the District of
Oregon, Eugene Division, signed June 1, 2023 . . . .79a

APPENDIX F — Opinion of the United States


Court of Appeals for the Ninth Circuit, filed
January 17, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101a

APPENDIX G — Opinion of the Supreme Court of


 WKH8QLWHG6WDWHVÀOHG1RYHPEHU 2, 2018. . . . . . .165a
xii

Table of Appendices
Page
APPENDIX H — Opinion of the Supreme Court
 RIWKH8QLWHG6WDWHVÀOHG-XO\ . . . . . . . . .169a

APPENDIX I — Order of the United States


Court of Appeals for the Ninth Circuit,
 ÀOHG-XO\ . . . . . . . . . . . . . . . . . . . . . . . . . . . 170a
xiii

TABLE OF CITED AUTHORITIES


Page
Cases

$OOLHG&KHP&RUSY'DLÁRQ,QF
449 U.S. 33 (1980). . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

$P&RQVW&RY-DFNVRQYLOOH7 .:5\&R
148 U.S. 372 (1893) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

$VKODQGY/LQJ7HPFR9RXJKW,QF
711 F.2d 1431 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . .20

%DFRQY:RRGZDUG
104 F.4th 744 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . .18

%DNHUY&DUU
369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

%DQNRI&ROXPELDY6ZHHQ\
26 U.S. 567 (1828). . . . . . . . . . . . . . . . . . . . . . . . . .16, 23

%DQNHUV/LIH &DV&RY+ROODQG
346 U.S. 379 (1953) . . . . . . . . . . . . . . . . . . . . . .14, 22, 23

%DXPDQY86'LVW&W
557 F.2d 650 (9th Cir. 1977) . . . . . . . . . . . . . . . . . . . .16

&KHQH\Y86'LVW&WIRU'&
542 U.S. 367 (2004). . . . . . . 1-4, 8, 12-17, 20-24, 26, 29

&RKHQY%HQHÀFLDO,QGXV/RDQ&RUS
337 U.S. 541 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
xiv

Cited Authorities
Page
'XSUHHY<RXQJHU
598 U.S. 729 (2023). . . . . . . . . . . . . . . . . . . . . . . . . . . .24

(PLQHQFH&DS//&Y$VSHRQ,QF
316 F.3d 1048 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . .18

([SDUWH&UDQH
30 U.S. 190 (1831) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

([SDUWH)DKH\
332 U.S. 258 (1947). . . . . . . . . . . . . . . . . . . . . . . . .16, 30

([SDUWH8QLWHG6WDWHV
287 U.S. 241 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

)OHFN $VVRFV,QFY3KRHQL[
471 F.3d 1100 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . .18

)RPDQY'DYLV
371 U.S. 178 (1962) . . . . . 3, 11, 12-13, 15, 18-21, 30, 31

)UDQNVY%RZPDQ7UDQVS&R
424 U.S. 747 (1976) . . . . . . . . . . . . . . . . . . . . . . . . .15, 19

+ROOLQJVZRUWKY3HUU\
558 U.S. 183 (2010) . . . . . . . . . . . . . . . . . . . . . .14, 16, 25

,QUH7UDGH &RP%DQN%\ 7KURXJK)LVKHU


890 F.3d 301 (D.C. Cir. 2018). . . . . . . . . . . . . . . . . . . . 17

,QUH8QLWHG6WDWHV
139 S. Ct. 16 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
xv

Cited Authorities
Page
,QUH8QLWHG6WDWHV
140 S. Ct. 16 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

,QUH8QLWHG6WDWHV
791 F.3d 945 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . .16

,QUH8QLWHG6WDWHV
884 F.3d 830 (9th Cir. 2018) . . . . . . . . .7, 14, 22, 23, 28

,QUH8QLWHG6WDWHV
895 F.3d 1101 (9th Cir. 2018) . . . . . . . . . . . .7, 14, 22, 23

-XOLDQDY8QLWHG6WDWHV
217 F. Supp. 3d 1224 (D. Or. 2016) . . . . . . . . . . . . .6, 32

-XOLDQDY8QLWHG6WDWHV
339 F. Supp. 3d 1062 (D. Or. 2018) . . . . . . . . . . . . . . . .6

-XOLDQDY8QLWHG6WDWHV
949 F.3d 1125 (9th Cir. 2018). . . . . . . . . . . . . . .9, 10, 28

-XOLDQDY8QLWHG6WDWHV
986 F.3d 1295 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . .10

-XOLDQDY8QLWHG6WDWHV
No. 6:15-cv-01517-AA,
2018 WL 6303774 (D. Or. Nov. 21, 2018) . . . . . . . . . . .9

-XOLDQDY8QLWHG6WDWHV
No. 6:15-cv-01517-AA,
2024 WL 1695064 (D. Or. Apr. 19, 2024) . . . . . . . . . .12

.DPDOY(GHQ&UHDPHU\//&
88 F.4th 1268 (9th Cir. 2023). . . . . . . . . . . . . . . . . . . .22
xvi

Cited Authorities
Page
.HUUY86'LVW&WIRU1'LVWRI&DO
426 U.S. 394 (1976) . . . . . . . . . . . . . . . . . . . . . . .4, 16, 26

.LVRUY:LONLH
588 U.S. 558 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

0DUEXU\Y0DGLVRQ
5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

0HG,PPXQH,QFY*HQHQWHFK,QF
549 U.S. 118 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . .21

1DW·O&RXQFLORI/D5D]DY&HJDYVNH
800 F.3d 1032 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . .18

3DQDPD&DQDO&RY*UDFH/LQH,QF
356 U.S. 309 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . .19

3LW5LYHU7ULEHY86)RUHVW6HUY
615 F.3d 1069 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 17

3O\OHUY'RH
457 U.S. 202 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . .33

5DPRVY/RXLVLDQD
590 U.S. 83 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

5LYHUVY5RDGZD\([S,QF
511 U.S. 298 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

5RFKHY(YDSRUDWHG0LON$VV·Q
319 U.S. 21 (1943) . . . . . . . . . . .14, 16, 17, 22, 23, 25, 28
xvii

Cited Authorities
Page
6)+HUULQJ$VV·QY'HS·WRIWKH,QWHULRU
946 F.3d 564 (9th Cir. 2019). . . . . . . . . . . . . . . . . .18, 29

6FKODJHQKDXIY+ROGHU
379 U.S. 104 (1964) . . . . . . . . . . . . . . . . . . . . . 22, 23, 26

6HPWHN,QW·O,QFY/RFNKHHG0DUWLQ&RUS
531 U.S. 497 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

6WHHO&RY&LWL]HQVIRUD%HWWHU(QY·W
523 U.S. 83 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

8QLWHG6WDWHVY*RRJOH
No. 20-cv-3010 (APM),
2024 WL 3647498 (D.D.C. Aug. 5, 2024) . . . . . . . . . .28

8]XHJEXQDPY3UHF]HZVNL
592 U.S. 279, 141 S. Ct. 792 (2021) . . . . . . . . . . . . . . .21

9L]FDLQRY86'LVW&WIRU:'LVWRI:DVK
173 F.3d 713 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . .2, 17

:9D6WDWH%GRI(GXFY%DUQHWWH
319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

:KROH:RPDQ·V+HDOWKY-DFNVRQ
595 U.S. 30 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

:LOEXUY8QLWHG6WDWHVH[UHO.DGULH
281 U.S. 206 (1930). . . . . . . . . . . . . . . . . . . . . . . . . . . .19

:LOOY&DOYHUW)LUH,QV&R
437 U.S. 655 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
xviii

Cited Authorities
Page
:LOOY8QLWHG6WDWHV
389 U.S. 90 (1967). . . . . . . . . . . . . . . . . . . . 16, 17, 27, 29

:RUNY8QLWHG6WDWHVH[UHO5LYHV
267 U.S. 175 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Constitutional Provisions

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

U.S. Const. amend. IX . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Statutes, Rules, and Regulations

28 U.S.C. § 1291 . . . . . . . . . . . . . . .13, 14, 15, 20, 24, 25, 32

28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 9

28 U.S.C. § 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 5, 13

28 U.S.C. § 1651(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Energy Policy Act § 201 . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Fed. R. App. P. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 20

Fed. R. App. P. 4 . . . . . . . . . . . . . . . . . . . . . . . . . .14, 20, 25

Fed. R. Civ. P. 15(a) . . . . . . . . . . . . . . . . . . . . .19, 20, 21, 29

Fed. R. Civ. P. 15(a)(2) . . . . . . . . . . . . . . . . . . .14, 18, 20, 21

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 25


xix

Cited Authorities
Page
Sup. Ct. R. 20.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

9th Cir. Gen. Order 3.6(d). . . . . . . . . . . . . . . . . . . . . . . . .32

Other Authorities

3 Blackstone’s Commentaries 110 . . . . . . . . . . . . . . . . . .24

Cong. Rsch. Ser v., /DZVXLWV $JDLQVW WKH


)HGHUDO *RYHUQPHQW %DVLF )HGHUDO &RXUW
3URFHGXUH DQG 7LPHOLQHV (Dec. 22, 2020),
https://crsreports.congress.gov/product/pdf/
IF/IF11349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

U. S . C ou r t s , Ab o u t t h e U. S . Co u r t s of
Appeals, https://w w w.uscourts.gov/about-
federal-courts/court-role-and-structure/
ab out - u s - c ou r t s - app e a l s ( l a st v i s it e d
Sept. 6, 2024). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
1

PETITION FOR A WRIT OF MANDAMUS

Plaintiffs respectfully petition for a writ of mandamus


to the Ninth Circuit directing it to vacate its May 1, 2024
order of a writ of mandamus to the district court and to
remand the case to the district court to recall its judgment
and order of dismissal.

INTRODUCTION

This Petition seeks to redress an egregious misuse of


mandamus jurisdiction by the Ninth Circuit. The Ninth
Circuit’s assertion of mandamus jurisdiction contravenes
this Court’s requirements in Cheney and this Court’s
explicit directions in its 2018 Order in this case to comply
with Cheney. It cannot be the case that the Government
may file successive mandamus petitions whenever it
strongly disagrees with a district court’s interlocutory
order, in this instance an order allowing Plaintiffs to
amend their complaint after an earlier jurisdictional
dismissal for lack of standing. The panel decision makes
a mockery of the jurisdictional framework established
by Congress under 28 U.S.C. § 1292(b) and carefully
preserved by this Court in a long line of cases. This Court
should intervene and overturn this abuse of the mandamus
remedy before the decision below creates more disruption
in the orderly functioning of the federal courts, and to
preserve Plaintiffs’ rights to fair process and a full appeal
LQWKH1LQWK&LUFXLWXSRQÀQDOMXGJPHQW3ODLQWLIIVKDYH
no other adequate remedy but to seek a writ of mandamus
from this Court.

For nearly a decade, these 21 youth Plaintiffs have


sought to vindicate their claims of mounting injuries
2

to their fundamental constitutional rights to life and


liberties resulting from the Government’s national energy
system and Energy Policy Act § 201. In a sustained
effort to evade the Federal Rules of Civil Procedure
DQGWKHÀQDOMXGJPHQWUXOHWKH*RYHUQPHQWDGRSWHGD
OLWLJDWLRQVWUDWHJ\RIÀOLQJUHSHWLWLRXVSHWLWLRQVIRUZULWV
of mandamus that fall far short of the standard set forth
in Cheney86DW²7KH*RYHUQPHQW·VÀUVWVL[
petitions for writs of mandamus were denied—and along
the way, this Court instructed that the requirements set
forth in Cheney dictate whether the Ninth Circuit may
grant a petition for a writ of mandamus. App. 165–66a.

The Government’s seventh mandamus petition


challenging two interlocutory orders by the district
court—an order granting leave to amend and an order
denying in part a motion to dismiss—falls equally short
because the Government had “other adequate means to
attain the relief [it] desires,” i.e., “the regular appeals
process.” Cheney, 542 U.S. at 380–81. Even though the
Government’s petition did not come close to satisfying the
Cheney conditions, the panel granted the petition without
performing a Cheney analysis, or even citing Cheney.
Ct. App. VII Doc. 1.1; App. 1a–5a. Instead, the panel
improperly relied on a pre-Cheney Ninth Circuit opinion
to apply “de novo” review of “a district court’s compliance”
with a prior mandate, wholly disregarding &KHQH\·Vthree
conditions and creating a new exception to this Court’s
requirements. App. 2a–3a (citing 9L]FDLQRY86'LVW
&W IRU : 'LVW RI :DVK, 173 F.3d 713 (9th Cir. 1999)).
The panel’s writ of mandamus ordered the district court
WRWHUPLQDWHSURFHHGLQJVEHIRUHÀQDOMXGJPHQWIRUODFN
of jurisdiction. Exceeding its own prescribed jurisdiction,
the panel’s writ divested the district court of its inherent
3

discretion under Foman v. Davis to grant leave to amend


and review thereof under an abuse of discretion standard.
371 U.S. 178, 180–82 (1962). The effect of the panel’s writ
was to deny Plaintiffs any right of appellate review of their
amended complaint, in particular whether amendment
FXUHGWKHMXULVGLFWLRQDOGHÀFLHQF\LGHQWLÀHGLQWKHSULRU
FHUWLÀHGLQWHUORFXWRU\DSSHDORUGHUIURP

Mandamus relief is an “extraordinary remedy”


appropriate for the “exceptional circumstances” now
before this Court, where a lower court’s failure to
follow this Court’s clear instructions has left Plaintiffs
with “no other adequate means” to enforce their “clear
and indisputable” rights. Cheney, 542 U.S. at 380–81
(internal quotation marks omitted). Because the panel’s
grant of mandamus (1) departed drastically from the
law controlling its jurisdiction, (2) is not reviewable on
GLUHFWDSSHDOIURPÀQDOMXGJPHQWDQG  XQGHUPLQHVWKH
federal rules and the orderly functioning of the federal
court system, the panel’s decision should be vacated by
a writ of mandamus from this Court. The extraordinary
misuse of extraordinary petitions by the Government and
an extraordinary writ by the Ninth Circuit have ruptured
the fair process litigants are afforded by the federal
rules. A bedrock of our legal system is that even the most
extraordinary cases are entitled to ordinary procedures.

The merits of Plaintiffs’ underlying case and their


Article III standing to bring it are not before this Court
on this 28 U.S.C. § 1651 petition. Instead, this petition
centers on mandamus jurisdiction’s extraordinarily
circumscribed role in the federal court system. Lower
federal courts must obey this Court’s decision that “three
conditions must EHVDWLVÀHGEHIRUH>DZULWRIPDQGDPXV@
4

may issue.” Cheney, 542 U.S. at 380–81 (emphasis added);


see also .HUUY86'LVW&WIRU1'LVWRI&DO, 426 U.S.
394, 403 (1976). “[O]nce the Court has spoken, it is the
duty of other courts to respect that understanding of the
governing rule of law.” 5LYHUVY5RDGZD\([S,QF, 511
U.S. 298, 312 (1994); Ramos v. Louisiana, 590 U.S. 83, 124
n.5 (2020) (Kavanaugh, J., concurring in part) (“[V]ertical
stare decisis is absolute.”). When lower courts selectively
ignore this Court’s decisions and assert an autonomous
prerogative to deploy “one of the most potent weapons in
the judicial arsenal,” Cheney, 542 U.S. at 380 (internal
quotation marks omitted), interfering with the district
court’s proceedings at will de novo, as the panel did here,
such disobedience disrupts “the evenhanded, predictable,
and consistent development of legal principles” and
undermines “the actual and perceived integrity of the
judicial process.” .LVRUY:LONLH, 588 U.S. 558, 587 (2019).
A decision by this Court to grant the present petition
would correct the Ninth Circuit’s unrestrained issuance of
the writ in contravention of both this Court’s prior order
and Cheney, and is the only means for Plaintiffs to obtain
the relief to which they are entitled.

APPLICABLE OPINIONS

The Ninth Circuit’s May 1, 2024 order granting the


Government’s petition for a writ of mandamus is not
published in the Federal Reporter and is attached at App.
A. The district court’s supplemental order addressing
the petition is unpublished and is attached at App. C.
The district court’s order denying in part and granting
in part the Government’s motion to dismiss Plaintiffs’
second amended complaint is not published in the Federal
Supplement, but is available at 2023 WL 9023339 and
5

attached at App. D. The district court’s order granting


Plaintiffs leave to amend is not published in the Federal
Supplement, but is available at 2023 WL 3750334 and is
attached at App. E. The Ninth Circuit’s 2020 Interlocutory
Opinion is reported at 947 F.3d 1159 and is attached at
App. F. Dispositions of four of the Government’s prior
petitions for writs of mandamus are reported at 884 F.3d
830, 895 F.3d 1101, 139 S. Ct. 1 (App. H), and 140 S. Ct. 16,
respectively. Dispositions of the Government’s applications
in this Court for a stay are reported at 139 S. Ct. 1 (App.
H) and 139 S. Ct. 452 (App. G).

JURISDICTION

The jurisdiction of this Court is invoked under 28


U.S.C. § 1651. “The supreme court has power to issue
a mandamus directed to a circuit court of the United
States.” Ex parte Crane, 30 U.S. 190, 191 (1831) (Marshall,
C.J.). The order of the Ninth Circuit was entered on May
1, 2024. App. 1a–5a. The district court entered judgment
pursuant to the Ninth Circuit’s order the same day.
App. 6a. The Ninth Circuit denied Plaintiffs’ petition for
rehearing en banc on July 12, 2024. App. 170a–71a.

RELEVANT CONSTITUTIONAL AND


STATUTORY PROVISIONS INVOLVED

The All Writs Act, 28 U.S.C. § 1651(a), provides:


“The Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law.”

The Final Judgment Rule, 28 U.S.C. § 1291, provides


in relevant part: “The courts of appeals . . . shall have
6

jurisdiction of appeals from all final decisions of the


district courts of the United States, . . . except where a
direct review may be had in the Supreme Court.”

STATEMENT OF THE CASE

A. Pretrial proceedings in the district court from


2015-2018

Twenty-one children and youth Plaintiffs commenced


this action on August 12, 2015, and filed their First
Amended Complaint, as a matter of course, on September
10, 2015. D. Ct. Doc. 7.

On November 10, 2016, Judge Ann Aiken, then-Chief


Judge for the District of Oregon, adopted the Findings
DQG5HFRPPHQGDWLRQVRI0DJLVWUDWH-XGJH7KRPDV&RIÀQ
and denied the Government’s and former intervenors’
motions to dismiss. Juliana v. United States, 217 F. Supp.
3d 1224 (D. Or. 2016).

On October 15, 2018, in a 62-page opinion, the district


court dismissed the President as a defendant, otherwise
denied the Government’s motion for judgment on the
pleadings, and granted the Government’s motion for
summary judgment in part and denied it in part. Juliana
v. United States, 339 F. Supp. 3d 1062 (D. Or. 2018). Trial
was set for October 29, 2018.

% 7KH *RYHUQPHQW·V ÀUVW VL[ SHWLWLRQV IRU ZULWV RI


PDQGDPXVDQGÀIWHHQSHWLWLRQVIRUVWD\

Between June 9, 2017 and November 5, 2018, the


*RYHUQPHQWÀOHGVL[SHWLWLRQVIRUZULWVRIPDQGDPXVHDFK
7

seeking to avoid the ordinary burdens of discovery and


trial by using mandamus as a substitute for the normal
appeals process. Each petition was denied. Below is a list
of those petitions and their outcomes.

The Government also filed 15 petitions for stays


between March 7, 2017 and February 2, 2024. Those
petitions are listed in Ct. App. VII Doc. 14.2 Ex. 1.

  )LUVW SHWLWLRQ IRU ZULW RI PDQGDPXV LQ WKH


Ninth Circuit

2Q-XQHWKH*RYHUQPHQWÀOHGLWVÀUVWSHWLWLRQ
for a writ of mandamus with the Ninth Circuit seeking
to direct the district court to dismiss the case. Ct. App.
I Doc. 1-1 at 40. On March 7, 2018, then-Chief Judge
Sidney R. Thomas, writing for the Ninth Circuit, denied
WKHSHWLWLRQUXOLQJWKH*RYHUQPHQWKDGQRWVDWLVÀHGDQ\
of the conditions for mandamus. In re United States, 884
F.3d 830, 837 (9th Cir. 2018).

  6HFRQGSHWLWLRQIRUZULWRIPDQGDPXVLQWKH
Ninth Circuit

7KH*RYHUQPHQWÀOHGLWVVHFRQGSHWLWLRQIRUDZULWRI
mandamus in the Ninth Circuit on July 5, 2018, seeking to
compel the district court to dismiss the case. Ct. App. II
Doc. 1-2 at 54. On July 20, 2018, the Ninth Circuit denied
the petition because the Government had not met any of
the conditions to qualify for mandamus relief. In re United
States, 895 F.3d 1101, 1105–06 (9th Cir. 2018).
8

  7KLUGSHWLWLRQIRUZULWRIPDQGDPXV ÀUVWLQ
WKLV&RXUW VW\OHGDVDQDSSOLFDWLRQIRUDVWD\

2Q-XO\WKH*RYHUQPHQWÀOHGDQ$SSOLFDWLRQ
for a Stay with this Court asking the Court “[a]lternatively
. . . [to] construe this application as a petition for a writ
of mandamus to the district court[.]” S. Ct. I, Appl. for
Stay, at 38; see also id. at 32. On July 30, 2018, this Court
denied the application for a stay and denied the “request
for relief.” App. 169a.

  )RXUWKSHWLWLRQIRUZULWRIPDQGDPXV WKLUG
in the Ninth Circuit)

2Q2FWREHUWKH*RYHUQPHQWÀOHGLWVWKLUG
petition for a writ of mandamus in the Ninth Circuit,
again seeking to stay trial. Ct. App. III Doc. 1-2 at 24. On
November 2, 2018, the Ninth Circuit denied the petition
as moot. Ct. App. III Doc. 5.

  )LIWKSHWLWLRQIRUZULWRIPDQGDPXV VHFRQG
in this Court)

On the eve of trial, on October 18, 2018, the


Government filed its second petition for a writ of
mandamus in this Court. S. Ct. II, Pet. for Mandamus.
The next day, Chief Justice John Roberts temporarily
granted an administrative stay pending consideration
of the petition. In re United States, 139 S. Ct. 16 (2018),
vacated, App. 165–68a. On November 2, 2018, this Court
denied the petition for a stay and lifted the temporary
stay. App. 165a–68a. In its denial of the stay, this Court
instructed that a writ of mandamus may issue only when
the three CheneyFRQGLWLRQVDUHVDWLVÀHGZKLFKPXVWÀUVW
be addressed in the court of appeals. Id. at 165a–67a. On
9

July 29, 2019, this Court dismissed the mandamus petition.


In re United States, 140 S. Ct. 16 (2019) (mem.).

  6L[WK SHWLWLRQ IRU ZULW RI PDQGDPXV IRXUWK


in the Ninth Circuit)

2Q1RYHPEHUWKH*RYHUQPHQWÀOHGLWVIRXUWK
petition for a writ of mandamus in the Ninth Circuit (its
sixth overall) seeking to avoid “the impending trial.” Ct.
App. IV Doc. 1-2 at 27.

The same day, the Government moved the district


court to reconsider certifying for interlocutory appeal
its denial of the Governments’ dispositive motions. D.
Ct. Doc. 418. On November 21, 2018, the district court
stated it “stands by its prior rulings on jurisdictional and
merits issues, as well as its belief that this case would be
better served by further factual development at trial,” but
QRQHWKHOHVVFHUWLÀHGLWVRUGHUVGHQ\LQJWKH*RYHUQPHQW·V
dispositive motions for interlocutory appeal under 28
U.S.C. § 1292(b). Juliana v. United States, No. 6:15-cv-
01517-AA, 2018 WL 6303774, at *3 (D. Or. Nov. 21, 2018).

On December 26, 2018, a divided panel of the Ninth


Circuit granted the Government’s petition for permission
to appeal under 28 U.S.C. § 1292(b). Ct. App. V Doc. 1-1;
Juliana v. United States, 949 F.3d 1125, 1126 (9th Cir.
2018). Judge Michelle Friedland dissented, writing:

It is . . . concerning that allowing this appeal


now effectively rewards the Government for
its repeated efforts to bypass normal litigation
procedures by seeking mandamus relief in our
court and the Supreme Court. If anything has
wasted judicial resources in this case, it was
those efforts.
10

Id. at 1127 n.1 (Friedland, J., dissenting) (citations omitted)


(citing six petitions for mandamus and applications for stay
by the Government in the Ninth Circuit and this Court).

On December 26, 2018, the Ninth Circuit denied the


Government’s sixth petition for mandamus. Ct. App. IV
Doc. 15.

& 2Q LQWHUORFXWRU\ DSSHDO D GLYLGHG  1LQWK


Circuit merits panel dismisses Plaintiffs’ 2015
FRPSODLQW ZLWKRXW SUHMXGLFH RQ VWDQGLQJ DQG LV
silent on leave to amend

On January 17, 2020, after oral argument, a three-judge


merits panel of the Ninth Circuit issued its interlocutory
opinion. App. 101a–64a (the “2020 Opinion”). Based solely
on a narrow redressability holding by a 2-1 majority with
a forceful dissent, the 2020 Opinion “remand[ed] this case
to the district court with instructions to dismiss for lack
of Article III standing.” Id. at 127a. The 2020 Opinion did
not address the issue of leave to amend and did not dismiss
the case with prejudice. See generally id.

D. On remand, the district court grants leave to amend

After the Ninth Circuit denied Plaintiffs’ petition for


rehearing en banc, 986 F.3d 1295 (9th Cir. 2021), the Ninth
Circuit mandate issued to the district court on March 5,
2021. Ct. App. VI Doc. 204.

2Q0DUFK3ODLQWLIIVSURPSWO\ÀOHGWKHLUÀUVW
motion for leave to amend their complaint to cure the
MXULVGLFWLRQDOGHÀFLHQFLHVLGHQWLÀHGE\WKH1LQWK&LUFXLW
in its 2020 Opinion. D. Ct. Doc. 462.
11

On June 1, 2023, the district court granted Plaintiffs’


motion for leave to amend after conducting a Rule 15(a)
futility analysis under Foman, 371 U.S. at 180–82. App.
87a–88a, 91a–98a, 100a.

2Q-XQH3ODLQWLIIVÀOHGWKHLU6HFRQG$PHQGHG
Complaint, D. Ct. Doc. 542, which the Government then
moved to dismiss. D. Ct. Doc. 547.

On December 29, 2023, the district court narrowed


the claims in the case by granting the Government’s
motion to dismiss Plaintiffs’ claims for injunctive relief and
Plaintiffs’ claims under the Equal Protection Clause and
the Ninth Amendment, and otherwise denied the motion.
App. 54a, 62a–63a, 68a, 72a–74a, 76a–77a.

On January 18, 2024, the Government moved


the district court for a stay pending resolution of the
*RYHUQPHQW·VH[SHFWHGÀOLQJRILWVVHYHQWKSHWLWLRQIRUD
writ of mandamus. D. Ct. Doc. 571.

E. A Ninth Circuit motions panel applies de novo


UHYLHZWRJUDQWWKHVHYHQWKSHWLWLRQIRUDZULWRI
PDQGDPXVRUGHULQJLPPHGLDWHGLVPLVVDOZLWKQR
5XOHDQDO\VLVRQOHDYHWRDPHQG

2Q)HEUXDU\WKH*RYHUQPHQWÀOHGLWVÀIWK
petition for a writ of mandamus in the Ninth Circuit (its
seventh overall) and moved for another stay. Ct. App. VII
Doc. 1.1. The Government repeated its singular desire
to avoid further discovery and trial, the same argument
rejected in its prior mandamus petitions. Ct. App. VII Doc.
1.1 at 48–49. Absent mandamus relief, the sole “damage or
prejudice” the Government claimed it would suffer is “the
12

[G]overnment will be required to comply with additional


discovery requests and proceed to trial on Plaintiffs’
sweeping claims.” Id. at 48.

The Government answered the Second Amended


Complaint on February 27, 2024, admitting many factual
allegations. D. Ct. Doc. 590.

On February 29, 2024, a motions panel of the Ninth


Circuit directed Plaintiffs to answer the petition for a
writ of mandamus and denied the Government’s stay
request without prejudice, referring the petition to the
next available motions panel. Ct. App. VII Doc. 12.1.

Plaintiffs answered the mandamus petition, Ct. App.


9,,'RFDQGWKHGLVWULFWFRXUWÀOHGDVXSSOHPHQWDO
order addressing the petition. App. 7a–24a. The same day,
the district court denied the Government’s motion for stay,
ÀQGLQJWKHSHWLWLRQIRUPDQGDPXVXQOLNHO\WRVXFFHHGRQ
the merits because it met none of the requirements for
mandamus. Juliana v. United States, No. 6:15-cv-01517-
AA, 2024 WL 1695064, at *2–4 (D. Or. Apr. 19, 2024).

On May 1, 2024, in an unpublished 3-page order on the


papers without oral argument, a different motions panel
of the Ninth Circuit granted the Government’s petition
for a writ of mandamus and ordered the district court to
dismiss the case without leave to amend. App. 1a–5a. The
panel took de novo review of the district court’s compliance
with the prior mandate. App. 3a. The panel neither
cited Cheney nor inquired into whether the mandatory
FRQGLWLRQV IRU PDQGDPXV ZHUH VDWLVÀHG Id. at 2a–5a;
542 U.S. at 380–81. The panel conducted no review of the
district court’s Rule 15(a) futility analysis under Foman,
13

371 U.S. at 180–82 and assigned no error to the district


FRXUW·VÀQGLQJWKDWDPHQGPHQWZRXOGQRWEHIXWLOH7KH
panel conducted no review of Plaintiffs’ second amended
complaint, instead concluding that the prior mandate as
to the ÀUVW amended complaint precluded normal appellate
review of the second amended complaint. App. 2a–5a.
7KH GLVWULFW FRXUW SURPSWO\ GLVPLVVHG DQG LVVXHG ÀQDO
judgment the same day. D. Ct. Doc. 600; App. 6a.

Plaintiffs timely petitioned for rehearing en banc on


June 17, 2024. Ct. App. VII Doc. 27.1. Five amicus curiae
briefs supported the petition for rehearing. Ct. App. VII
Docs. 31.1; 32.1; 33.2; 35.1; 36.1. Plaintiffs also moved to
recall the mandate for violations of the Federal Rules of
Appellate Procedure, Ninth Circuit Rules, and related
Guidelines. Ct. App. VII Doc. 26.1. The panel denied
rehearing and recall on July 12, 2024. App. 170a–71a.

REASONS FOR GRANTING THE PETITION

This Court should grant Plaintiffs’ Petition because


the panel clearly and indisputably exceeded the lawful
exercise of its prescribed jurisdiction under 28 U.S.C.
§ 1651 by issuing a writ of mandamus to the district court
without attempting to satisfy the requisite conditions set
forth in Cheney, under circumstances that indisputably
fell short of the Cheney conditions. Instead, by applying
de novo review, the panel used the writ as an end run
DURXQG WKH ÀQDO MXGJPHQW UXOH  86& § 1291, and
impermissibly “used [the writ] as a substitute for the
regular appeals process.” Cheney, 542 U.S. at 380–81.

Here, by contrast, the three Cheney conditions are


met. Plaintiffs’ right to issuance of the writ is clear
14

and indisputable because, in exceeding its prescribed


jurisdiction, the panel deprived Plaintiffs of (1) their right
to fair process under the federal rules, Fed. R. Civ. P. 15(a)
   WKHLUULJKWWRDGLUHFWDSSHDORIÀQDOMXGJPHQW
U.S.C. §  )HG 5 $SS 3   DQG   VSHFLÀFDOO\
the right to be heard in the court of appeals on whether
their second amended complaint was futile or whether
LWVXIÀFLHQWO\DOOHJHGUHGUHVVDELOLW\LQOLJKWRIWKH
Opinion. Cheney, 542 U.S. at 381 (condition two). The panel
lacked jurisdiction to make the latter determination.

Unlike the Government below, Plaintiffs have no other


right of appeal. A petition for the rare writ of certiorari,
which “is not a matter of right, but of judicial discretion,”
does not provide Plaintiffs “adequate means to attain the
relief [they] desire” and to which the law entitles Plaintiffs:
a fair process in the district court to seek “freely give[n]
OHDYHµWRDPHQGDQGDÀQDOMXGJPHQWIROORZHGE\DIXOO
appeal in the court of appeals as a matter of right. Sup.
Ct. R. 10; cf. 28 U.S.C. § 1291; Cheney, 542 U.S. at 380
(condition one); see also +ROOLQJVZRUWK Y 3HUU\, 558
U.S. 183, 190–91, 199 (2010). Inversely, the Government
can appeal “as a matter of course” every aspect of the
GLVWULFWFRXUW·VRUGHUVRQÀQDOMXGJPHQWDQGPHDQZKLOH
no cognizable harm will befall it. In re United States, 884
F.3d at 836; In re United States, 895 F.3d at 1106; Bankers
/LIH &DV&RY+ROODQG, 346 U.S. 379, 383–84 (1953);
5RFKHY(YDSRUDWHG0LON$VV·Q, 319 U.S. 21, 30 (1943).

“[T]he writ is appropriate” to correct the “exceptional


circumstances” of the panel’s “judicial ‘usurpation of
power.’” Cheney, 542 U.S. at 380–81 (citation omitted;
condition three); Sup. Ct. R. 20.1. The panel disrupted the
judicial hierarchy by commandeering the district court’s
discretionary power to grant or deny leave to amend, see
15

Foman, 371 U.S. at 182; usurping the district court’s role as


WKHGHFLVLRQPDNHURIÀUVWLQVWDQFHsee )UDQNVY%RZPDQ
7UDQVS &R, 424 U.S. 747, 779 (1976); and improperly
depriving Plaintiffs of an appeal as of right related to
DQ\ GHÀFLHQFLHV LQ WKHLU VHFRQG DPHQGHG FRPSODLQW IRU
declaratory relief. See 28 U.S.C. § 1291. Mandamus is
also “appropriate under the circumstances” where the
Government’s alleged harm of expending attorneys’
fees and costs in the ordinary course of litigation is not
cognizable for mandamus, compared to the irreversible
harm of denying due process to these young Plaintiffs
who lack political power and whose lives and health are
being increasingly injured by their Government. Cheney,
542 U.S. at 381; App. 21a, 103a, 107a–09a, 112a–14a. The
panel’s abuse of an extraordinary writ is so exceptional
as to warrant a writ of mandamus from this Court.

Because Plaintiffs meet the three conditions of Cheney


and this Court’s Rule 20.1, a writ of mandamus should
issue directing the Ninth Circuit to vacate its own writ
of mandamus and remand the case to the district court
without delay.

I. PLAINTIFFS’ RIGHT TO THE WRIT IS CLEAR


AND INDISPUTABLE BECAUSE THE NINTH
CIRCUIT EXCEEDED ITS JURISDICTION
BY TERMINATING PROCEEDINGS IN THE
DISTRICT COURT PRIOR TO FINAL JUDGMENT

Plaintiffs’ “right to issuance of the writ is clear and


indisputable” because the panel committed egregious
legal errors. Cheney, 542 U.S. at 381 (internal quotations
omitted).
16

A. The panel’s order did not conduct, and indeed


FRQWUDYHQHV WKH UHTXLVLWH LQTXLU\ XQGHU
Cheney

The panel clearly and indisputably exceeded the lawful


exercise of its prescribed jurisdiction by ignoring the legal
standard for granting a petition for a writ of mandamus.
This Court’s prior order in this very case made clear that
mandamus may issue only when the Cheney conditions are
met. App. 165a–66a (citing +ROOLQJVZRUWK, 558 U.S. at 190;
Cheney, 542 U.S. at 380–81 (2004)); see also Cheney, 542
U.S. at 380 (“[T]hree conditions mustEHVDWLVÀHGEHIRUH
it may issue.”) (emphasis added). The requirements in
Cheney are the culmination of two centuries of this Court’s
precedents. 6HHHJ, .HUU, 426 U.S. at 403; :LOOY8QLWHG
States, 389 U.S. 90, 96 (1967); Ex parte Fahey, 332 U.S.
258, 260 (1947); Roche, 319 U.S. at 30; Am. Const. Co. v.
-DFNVRQYLOOH7 .:5\&R., 148 U.S. 372, 379 (1893);
%DQN RI &ROXPELD Y 6ZHHQ\, 26 U.S. 567, 569 (1828).
Nearly 50 years ago this Court wrote that it is a “rule that
the writ will issue only in extraordinary circumstances”
after the “various conditions for its issuance” have been
satisfied, identifying the same three requirements
VSHFLÀHGLQCheney. .HUU, 426 U.S. at 403.

In contravention of this standard, which allows no


exceptions for wielding the most potent judicial tool, the
panel granted the Government’s seventh petition for a writ
of mandamus without conducting any analysis under, or
even citing, Cheney, its predecessors, or its successors.
App. 2a–5a. The panel also evaded its own circuit’s seminal
mandamus standard set forth in Bauman v. U.S. Dist.
Ct., 557 F.2d 650 (9th Cir. 1977), which the Ninth Circuit
applies in a manner “consistent with” Cheney. In re United
States, 791 F.3d 945, 955 n.7 (9th Cir. 2015).
17

Instead, the panel created its own standard for


mandamus, disassociated from Cheney’s conditions
and relying on an isolated pre-Cheney case involving
DWWHPSWHG´UHOLWLJDWLRQRIÀQDOMXGJPHQWVµon the merits
LQDQRWKHUZLVHXQDSSHDODEOHFODVVFHUWLÀFDWLRQGHFLVLRQ
as justifying de novo review here. App. 2a–3a (citing
9L]FDLQR, 173 F.3d at 719 and misapplying the Court’s
treatment of 9L]FDLQRin 3LW5LYHU7ULEHY86)RUHVW
Serv., 615 F.3d 1069, 1078–80 (9th Cir. 2010)). In creating
a new mandamus test to enforce the prior mandate
EHIRUHÀQDOMXGJPHQWWKHSDQHOGLVUHJDUGHGWKH1LQWK
Circuit’s holding that “[n]othing in Bauman allows for this
[9L]FDLQR] exception.” 3LW5LYHU7ULEH, 615 F.3d at 1079
n.1; VHH DOVR ,Q UH 7UDGH  &RP %DQN %\  7KURXJK
Fisher, 890 F.3d 301, 303 (D.C. Cir. 2018) (rejecting a
9L]FDLQRstyled exception because “[n]either Cheney
nor any later case created an exception for mandamus
actions seeking to enforce a mandate”). By issuing the writ
without analyzing each pre-requisite for mandamus, the
panel “abdicat[ed] . . . the very expository and supervisory
functions” that an appellate court serves, :LOO, 389 U.S.
at 107, and committed “an abuse of judicial power.” Roche,
319 U.S. at 31.

B. The panel contravened Plaintiffs’ clear and


indisputable right to fair process and a right
RIDSSHDODWÀQDOMXGJPHQW

In the district courts, the Federal Rules of Civil


Procedure and this Court’s precedent preserve litigants’
ULJKW WR FXUH MXULVGLFWLRQDO GHÀFLHQFLHV OLNH VWDQGLQJ
and, accordingly, jurisdictional dismissals are without
prejudice. 6WHHO&RY&LWL]HQVIRUD%HWWHU(QY·W, 523 U.S.
83, 94 (1998); 6HPWHN,QW·O,QFY/RFNKHHG0DUWLQ&RUS,
18

531 U.S. 497, 505 (2001); Fed. R. Civ. P. 15(a)(2). “If the
underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief,” leave to amend should be
freely given. Foman, 371 U.S. at 182. In recognition of this
foundational procedural rule, Ninth Circuit precedent is
clear that when a dismissal for lack of jurisdiction is silent
on leave to amend, the district court retains discretion to
grant or deny amendment. 6)+HUULQJ$VV·QY'HS·WRI
the Interior, 946 F.3d 564 (9th Cir. 2019); VHHDOVR)OHFN 
$VVRFV,QFY3KRHQL[, 471 F.3d 1100, 1106–07 (9th Cir.
2006) (jurisdictional dismissals are without prejudice). “It
is black-letter law that a district court must give plaintiffs
DWOHDVWRQHFKDQFHWRDPHQGDGHÀFLHQWFRPSODLQWDEVHQW
a clear showing that amendment would be futile.” 1DW·O
&RXQFLORI/D5D]DY&HJDYVNH, 800 F.3d 1032, 1041 (9th
Cir. 2015) (citing (PLQHQFH &DS //& Y $VSHRQ ,QF,
316 F.3d 1048, 1052 (9th Cir. 2003)).

7KHSDQHOÁRXWHGWKHVHUXOHVKHUH:KHQ3ODLQWLIIV·
2015 complaint was dismissed without prejudice solely
on the redressability prong of standing on interlocutory
appeal by the Ninth Circuit in 2020, after finding
Plaintiffs’ burden to show injury in fact and causation
VDWLVÀHG WKH FRXUW ZDV VLOHQW RQ OHDYH WR DPHQG $SS
112a–13a, 127a. Plaintiffs had never previously sought
leave to amend because they had prevailed in the district
court on Defendants’ standing challenges. App. 105a.
Accordingly, on remand, Plaintiffs retained the right per
5XOH D  WRVHHNOHDYHWRDPHQGIRUWKHÀUVWWLPHWR
address the Ninth Circuit’s jurisdictional concern. See
DOVR %DFRQ Y :RRGZDUG, 104 F.4th 744, 753 (9th Cir.
2024) (A “district court should grant leave to amend even
LIQRUHTXHVWWRDPHQGWKHSOHDGLQJZDVPDGH, unless it
determines that the pleading could not be cured by the
19

allegation of other facts.”). Indeed, “Rule 15(a) declares


that leave to amend ‘shall be freely given when justice
so requires’; this mandate is to be heeded.” Foman, 371
U.S. at 182.

Plaintiffs’ right to seek leave to amend is clear and


indisputable under Rule 15. Foman, 371 U.S. at 182.
“[O]utright refusal to grant the leave without any
justifying reason appearing for the denial is . . . abuse of
[ ] discretion and inconsistent with the spirit of the Federal
Rules.” Id-XVWLÀHGUHDVRQVIRUGHQ\LQJOHDYHWRDPHQG
include “undue delay,” “bad faith,” “repeated failure to
FXUH GHÀFLHQFLHV E\ DPHQGPHQWV SUHYLRXVO\ DOORZHGµ
“undue prejudice to the opposing party by virtue of
allowance of the amendment,” or “futility of amendment.”
Id. Absent such circumstances, leave to amend “should,
as the rules require, be ‘freely given.’” Id.

Because “the grant or denial of an opportunity to


amend is within the discretion of the District Court,”
Foman, 371 U.S. at 182, mandamus jurisdiction could not
lie below to “direct the exercise of judgment or discretion
in a particular way.” :LOEXUY8QLWHG6WDWHVH[UHO.DGULH,
281 U.S. 206, 218 (1930); VHHDOVR e.g., :RUNY8QLWHG6WDWHV
ex rel. Rives, 267 U.S. 175, 177 (1925); Panama Canal Co.
Y*UDFH/LQH,QF, 356 U.S. 309, 318 (1958). “Where a
matter is committed to a district court’s discretion, it
cannot be said that a litigant’s right to a particular result
is ‘clear and indisputable.’” :LOOY&DOYHUW)LUH,QV&R,
437 U.S. 655, 665–66 (1978) (plurality); Franks, 424 U.S.
at 779 (“[O]wing to the structure of the federal judiciary
WKHVHFKRLFHVDUHRIFRXUVHOHIWLQWKHÀUVWLQVWDQFHWR
the district courts.”). As a highly discretionary district
court function, orders granting leave to amend are not
20

amenable to the extraordinary conditions of mandamus,


EXWDUHRWKHUZLVHIXOO\UHYLHZDEOHRQDQDSSHDORIÀQDO
judgment.&RKHQY%HQHÀFLDO,QGXV/RDQ&RUS, 337 U.S.
541, 546 (1949) (“Appeal gives the upper court a power of
review, not one of intervention.”).

Nonetheless, while the district court performed this


required and discretionary Rule 15(a)(2) function, carefully
addressing the Foman circumstances, the Ninth Circuit
has never done so, instead presumptively denying leave
to amend via the writ without applying the appropriate
legal standard. App. 2a–5a; $VKODQG Y /LQJ7HPFR
9RXJKW ,QF, 711 F.2d 1431, 1436 (9th Cir. 1983) (“The
trial court’s grant of leave to amend the pleadings under
Fed.R.Civ.P. 15(a) is reviewed for abuse of discretion.”).
On improper de novo review, the panel invoked the “spirit”
of the prior mandate as leaving no room for amendment.
App. 3a–4a. However, writs of mandamus cannot issue on
a panel’s invocation of “spirit” but on mandatory Cheney
conditions. Moreover, the Ninth Circuit’s 2020 Opinion
never questioned nor addressed Foman, futility, or
Rule 15, not even in spirit. See generally App. 101a–64a.
The panel’s writ ignored Foman and Plaintiffs’ second
amended complaint entirely. App. 1a–5a. The effect of
the panel’s writ was to deprive Plaintiffs of their right
to appellate review of their second amended complaint,
ZKLFKWKH\ZRXOGKDYHEHHQDIIRUGHGRQÀQDOMXGJPHQW
28 U.S.C. § 1291; Fed. R. App. P. 3, 4; see App. 23a.

The only court that conducted a futility analysis—the


district court—concluded that amendment would not be
futile. App. 98a. The panel did not review that decision
for an abuse of discretion, nor did it rule that Plaintiffs
GLGQRWFXUHWKHVWDQGLQJGHÀFLHQF\WKURXJKDPHQGPHQW
21

App. 1a–5a. Further, even if a writ of mandamus could


be used to review a discretionary interlocutory order, any
error by the district court on granting leave to amend
was not clear and indisputable where the Ninth Circuit’s
2020 jurisdictional dismissal was silent on amendment,
where district courts have broad discretion to grant
leave to amend under Rule 15(a), and where this Court
issued an intervening Article III redressability opinion in
8]XHJEXQDPY3UHF]HZVNL, 592 U.S. 279, 141 S. Ct. 792,
798, 801 (2021) (construing nominal damages as a form
RIGHFODUDWRU\UHOLHIVXIÀFLHQWIRU$UWLFOH,,,VWDQGLQJ 
Fed. R. Civ. P. 15(a); Foman, 371 U.S. at 182.

In the same vein, any error in the district court’s


redressability analysis regarding Plaintiffs’ claims for
declaratory relief in their second amended complaint
where the Government did not contest injury and causation,
was not clear and indisputable and is subject to review on
GLUHFW DSSHDO RI ÀQDO MXGJPHQW 6HH 0HG,PPXQH ,QF
Y *HQHQWHFK ,QF, 549 U.S. 118, 127 (2007) (A claim
for declaratory judgment is justiciable if it entails “a
substantial controversy, between parties having adverse
OHJDO LQWHUHVWV RI VXIÀFLHQW LPPHGLDF\ DQG UHDOLW\>@µ 
'LVWULFW FRXUWV DUH YHVWHG ´ZLWK GLVFUHWLRQ LQ WKH ÀUVW
instance” to determine whether declaratory judgment is
proper, “because facts bearing on the usefulness of the
GHFODUDWRU\MXGJPHQWUHPHG\DQGWKHÀWQHVVRIWKHFDVH
for resolution, are peculiarly within their grasp.” Id. at
136.

Thus, the panel, in issuing the writ of mandamus


EHIRUH ÀQDO MXGJPHQW GHQLHG 3ODLQWLIIV WKHLU ULJKWV WR
both a Rule 15(a)(2) process and thereafter to appellate
review under Foman’s standard in the court of appeals.
22

C. The panel ignored that the Government had


other adequate means to obtain full relief and
ZRXOGVXIIHUQRFRJQL]DEOHKDUP

The panel did not address the most important


condition precedent to mandamus. If it had, it would have
clearly and indisputably concluded that the Government
had “other adequate means to attain the relief [it] desires,”
i.e., “the regular appeals process.” Cheney, 542 U.S. at
380–81. Moreover, the Government’s reliance on only non-
cognizable reasons for seeking a writ of mandamus as a
substitute for appeal—the loss of attorneys’ fees and time
in the ordinary course of litigation—could not support
mandamus. In re United States, 884 F.3d at 836; In re
United States, 895 F.3d at 1106; 6FKODJHQKDXIY+ROGHU,
379 U.S. 104, 110 (1964); Bankers Life, 346 U.S. at 383–84;
Roche, 319 U.S. at 30.

If “[a] litigant is free to seek review of the propriety


RI >WKH RUGHU LQ TXHVWLRQ@ RQ GLUHFW DSSHDO DIWHU D ÀQDO
judgment has been entered[, . . . ] it cannot be said that
the litigant ‘has no other adequate means to seek the
relief he desires.’” $OOLHG &KHP &RUS Y 'DLÁRQ ,QF,
449 U.S. 33, 36 (1980). This Court has long held “that the
extraordinary writs cannot be used as substitutes for
appeals . . . even though hardship may result from delay
and perhaps unnecessary trial.” Bankers Life, 346 U.S. at
383. Here, the district court’s interlocutory orders subject
to mandamus—grant of leave to amend and order on
PRWLRQWRGLVPLVV³ZHUHUHYLHZDEOHRQDSSHDODIWHUÀQDO
judgment. App. 20a–21a, 23a; .DPDOY(GHQ&UHDPHU\
LLC, 88 F.4th 1268, 1275 (9th Cir. 2023).
23

The panel clearly and indisputably erred because the


Government made no cognizable showing that the regular
appeals process was “[in]adequate.” See Cheney, 542
U.S. at 380. The panel “failed to ask this question.” Id. at
391. The Government’s argument to that effect consisted
only of its desire to avoid trial and the cost of litigating
in the district court. Ct. App. VII Doc. 1.1 at 47–49. The
Government’s position, however, was foreclosed by this
Court’s repeated emphasis that the cost and inconvenience
RIOLWLJDWLRQLVQRWDSHUPLVVLEOHMXVWLÀFDWLRQIRUVHHNLQJ
mandamus as a substitute for appeal. “It is . . . well
settled, that the writ is not to be used as a substitute for
appeal, even though hardship may result from delay and
perhaps unnecessary trial[.]” Schlagenhauf, 379 U.S. at
110 (citations omitted); see also Bankers Life, 346 U.S.
at 383–84. “[W]e must take it Congress contemplated
>HYHQ VLJQLÀFDQW LQFRQYHQLHQFH@ LQ SURYLGLQJ WKDW RQO\
ÀQDO MXGJPHQWV VKRXOG EH UHYLHZDEOHµ 5RFKH 319 U.S.
at 30. “As was pointed out by Chief Justice Marshall, to
grant the writ in such a case would be a ‘plain evasion’ of
WKH &RQJUHVVLRQDO HQDFWPHQW WKDW RQO\ ÀQDO MXGJPHQWV
be brought up for appellate review.” Id. (quoting Bank of
Columbia, 26 U.S. at 569).

The Government’s argument of harm also was


foreclosed twice before by the Ninth Circuit in this
very case. The Ninth Circuit previously rejected the
Government’s earlier petitions for mandamus because
“litigation burdens are part of our legal system[.]” In re
United States, 884 F.3d at 836; see also In re United States,
895 F.3d at 1106 (“The government made this argument
LQLWVÀUVWPDQGDPXVSHWLWLRQDQGZHUHMHFWHGLWµ 7KH
panel ignored this prior precedent.
24

The panel clearly and indisputably exceeded its


jurisdiction by rewarding the Government’s persistence in
raising the same non-colorable argument for mandamus.
Because precedent is clear that the Government’s desire
to avoid further litigation did not justify mandamus under
Cheney, Plaintiffs have a clear and indisputable right to
a writ of mandamus to the Ninth Circuit to remand to
the district court to resume ordinary litigation practice.

II. THERE ARE NO OTHER ADEQUATE MEANS


FOR PLAINTIFFS TO OBTAIN THE RELIEF
THEY SEEK

Plaintiffs meet the conditions for mandamus relief


in this Court because, unlike the Government, they
have “no other adequate means to attain the relief [they]
desire[ ].” Cheney, 542 U.S. at 380. Plaintiffs’ second
amended complaint has not been reviewed on appeal by
the circuit court, nor can it now in light of the panel’s
writ. Only a writ of mandamus to the Ninth Circuit will
preserve Plaintiffs’ right to appellate review of their
VHFRQGDPHQGHGFRPSODLQWLQWKHFRXUWRIDSSHDOVÀUVW
before the merits issues are presented to this Court. Such
mandamus can only issue to a lower court from a higher
court. Marbury v. Madison, 5 U.S. 137, 147 (1803) (citing
3 Blackstone’s Commentaries 110).

In the Ninth Circuit, Plaintiffs have no other adequate


means to attain their relief because the panel’s writ is
not reviewable by a merits panel “on direct appeal after
D ÀQDO MXGJPHQWµ Allied Chem. Corp., 449 U.S. at 36.
5HYLHZ DIWHU ÀQDO MXGJPHQW XQGHU  86& § 1291 is
reserved for “claims of district court error.” Dupree v.
Younger, 598 U.S. 729, 734 (2023) (internal quotations
omitted). In addition, the panel’s writ of mandamus was
25

not an order for which “a statutory method of appeal has


been prescribed,” Roche, 319 at 27–28.

A petition for a writ of certiorari, which “is not


a matter of right, but of judicial discretion,” Sup. Ct.
R. 10, does not provide Plaintiffs adequate means to
attain relief for the cognizable harms argued above. See
+ROOLQJVZRUWK, 558 U.S. at 190–91, 199; cf. 28 U.S.C.
§ 1291. Losing parties in civil litigation in federal court
are entitled to a direct appeal in the court of appeals
without petitioning the court for review. Fed. R. App. P.
4. Litigants have no appeal as of right in this Court where
fewer than two percent of petitions are granted. 2 The rare
possibility of a writ of certiorari is not a bar for satisfying
the requirements for a writ of mandamus in this Court. See
+ROOLQJVZRUWK, 558 U.S. at 190–91, 199 (granting a stay
SHQGLQJWKHÀOLQJRIDSHWLWLRQIRUDZULWRIPDQGDPXVRU
for certiorari, and holding there was “a fair prospect” that
a majority of this Court would grant applicants’ petition
IRU D ZULW RI PDQGDPXV DQG ZRXOG ÀQG WKDW DSSOLFDQWV
had no other adequate means to attain relief, even though
certiorari was also available). Thus, under +ROOLQJVZRUWK,
the potential availability of certiorari is not an adequate
substitute for the mandamus relief Plaintiffs are seeking
here.

Because the full record below encompasses nine years


of litigation spanning eleven dockets in three courts,
including seven decisions by the circuit court, certiorari
is also a much broader writ than necessary to vacate the
panel’s improperly granted writ of mandamus. Thus, a

2. U.S. Courts, About the U.S. Courts of Appeals, https://


www.uscourts.gov/about-federal-courts/court-role-and-structure/
about-us-courts-appeals (last visited Sept. 6, 2024).
26

writ of certiorari does not provide an “avenue far short


of mandamus to achieve precisely the relief [Plaintiffs]
seek.” .HUU, 426 U.S. at 405. Plaintiffs’ petition for a
writ of certiorari, if it becomes necessary because this
petition is denied, would present a different set of legal
questions encompassing a wider set of rights than those
at issue here, including review of the Ninth Circuit’s 2020
2SLQLRQRQUHGUHVVDELOLW\DQGUHYLHZIRUWKHÀUVWWLPHRI
the district court’s decisions to grant leave to amend and
deny in part the Government’s motion to dismiss Plaintiffs’
second amended complaint. Certiorari thus cannot provide
substitute relief for the panel’s improperly granted writ
of mandamus.

III. MANDAMUS IS APPROPRIATE TO UNDO THE


MANIFOLD HARM CREATED BY THE NINTH
CIRCUIT’S DECISION

Here, “the writ is appropriate under the circumstances”


because it would remedy the harm done by the panel’s
writ to the orderly functioning of the federal court
system; eliminate the dilemma created by the panel for
district courts; undo the panel’s potent disregard of the
district court here; and remove the unjust prejudice to
the Plaintiffs. Cheney, 542 U.S. at 381; see Schlagenhauf,
379 U.S. at 111, 120 (finding third Cheney condition
VDWLVÀHGZKHQGLVWULFWFRXUWRUGHUHGPHQWDODQGSK\VLFDO
examinations without a showing of good cause).

$ 0DQGDPXVKHUHZRXOGXQGRWKHKDUPWRWKH
RUGHUO\IXQFWLRQLQJRIWKHIHGHUDOFRXUWV\VWHP
FUHDWHGE\WKHSDQHO·VZULW

A writ of mandamus by this Court is appropriate to


correct the panel’s harm to the orderly functioning of the
27

federal court system. “[T]he writ serves a vital corrective


and didactic function.” :LOO, 389 U.S. at 107. If this Court
allows the panel’s issuance of the writ to stand, it raises
unsettling questions for the lower courts and expands the
MXULVGLFWLRQDOUROHRIFLUFXLWFRXUWVSULRUWRÀQDOMXGJPHQW
May other motions panels use the writ of mandamus to
cut off proceedings in the district court they disagree
ZLWK OHDSIURJJLQJ WKH QRUPDO UXOHV RI FHUWLÀFDWLRQ IRU
LQWHUORFXWRU\ DSSHDO RU DZDLWLQJ ÀQDO MXGJPHQW" :LOO
district courts lose the discretion to interpret and apply
the circuit court’s mandates regarding jurisdictional
dismissals and consider whether leave to amend should be
JUDQWHGRQUHPDQG":KHQWKH*RYHUQPHQWLVGHIHQGLQJ
DJDLQVWDVXLWLWEHOLHYHVZLOOKDYHVLJQLÀFDQWFRQVHTXHQFHV
if plaintiffs prevail on the merits, can it repeatedly pursue
PDQGDPXVEHIRUHÀQDOMXGJPHQWDVD´JHWRXWRIWKHFDVH
free” card merely to avoid the costs of litigation—until it
GUDZVWKHULJKWWKUHHMXGJHSDQHO"3

A writ of mandamus by this Court to the Ninth Circuit


would correct the Department of Justice’s repeated efforts
WRDYRLGWKHÀQDOMXGJPHQWUXOHWKURXJKPXOWLSOHSHWLWLRQV
for writs of mandamus. By granting the Government’s
seventh petition for a writ of mandamus—which contained
the same defects as its previous six failed attempts—the
panel rewarded the Government’s sheer perseverance in
FRQWLQXLQJ WR ÀOH VXFFHVVLYH QRQFRORUDEOH SHWLWLRQV IRU
writs of mandamus as the case proceeded in the district
court. Because “[t]he United States is a defendant in close
WRRQHÀIWKRIWKHFLYLOFDVHVÀOHGLQIHGHUDOFRXUW>@µDQ\
escalation of this strategy by the Department of Justice

3. To date, 12 different Ninth Circuit judges and four


different panels have issued orders or opinions in this case.
28

could easily glut the appellate courts with meritless


mandamus petitions. See In re United States, 884 F.3d
at 836; Juliana, 949 F.3d at 1127 n.1 (Friedland, J.,
dissenting). A writ of mandamus by this Court reversing
the Ninth Circuit’s improper writ would instruct litigants
in federal court—especially the Government—that the
WDFWLF RI SHUVLVWHQWO\ ÀOLQJ PHULWOHVV SHWLWLRQV ZLOO QRW
bear fruit.

Such instruction by this Court would prevent, in


future cases, the waste of time and resources that the
Government’s mandamus strategy created in this case.
The weeks-long trial the government sought mandamus
relief from is not exceptional in important federal cases.
See 8QLWHG6WDWHVY*RRJOH, No. 20-cv-3010 (APM), 2024
WL 3647498, at *5 (D.D.C. Aug. 5, 2024) (DOJ tried a
nine-week-long case). This Court’s jurisprudence is
clear that even the inconvenience and cost of a trial “of
VHYHUDOPRQWKV·GXUDWLRQµLVLQVXIÀFLHQWO\H[WUDRUGLQDU\
for mandamus. Roche, 319 U.S. at 30. Moreover, the
Government’s resort to mandamus proved far more
LQHIÀFLHQWDQGPRUHH[SHQVLYHWKDQWKHRUGLQDU\OLWLJDWLRQ
process would have been. The Government has spent
more time and expense prematurely running to the Ninth
Circuit and this Court for relief than it would have had
the October 2018 trial been allowed to proceed. Compare
Case No. 18A410, Appl. for Stay at 5a (Government counsel
Montero’s declaration that trial would have entailed 7,300
attorney and paralegal hours) ZLWK D. Ct. Doc. 571-1
¶¶ 2–3 (Government counsel Montero’s declaration that
post-October 2018 litigation entailed over 8,000 attorney
and paralegal hours). Those efforts turned this case into
a decade-long procedural, rather than merits, contest,
29

grossly exceeding the median length of civil cases in the


86GLVWULFWFRXUWVRIPRQWKVIURPÀOLQJWRWULDO4

% 0DQGDPXV ZRXOG HOLPLQDWH WKH GLOHPPD


FUHDWHGE\WKHSDQHOIRUGLVWULFWFRXUWV

The panel’s forceful rebuke of the district court under


these circumstances creates an untenable dilemma for
all district courts. On the one hand, if a district court
denies leave to amend after a jurisdictional dismissal, it
risks reversal for abuse of discretion, because Rule 15(a)
mandates that leave shall be “freely” given. On the other
hand, if the district court grants leave to amend after
a jurisdictional dismissal, it now risks mandamus, as
demonstrated by the panel’s issuance of mandamus here.
District courts cannot exercise their discretion and avoid
this predicament simply by relying on binding precedent
on point, because the district court below did exactly that.
See App. 89a–90a (relying on 6)+HUULQJ, 946 F.3d at
574). A writ of mandamus from this Court would eliminate
the dilemma.

& 0DQGDPXV ZRXOG XQGR WKH SDQHO·V SRWHQW


disregard of this district court

Because a writ of mandamus is “one of ‘the most


potent weapons in the judicial arsenal,’” Cheney, 542 U.S.
at 380 (quoting :LOO, 389 U.S. at 107), “[d]ue regard” must
be given “for the extremely awkward position in which
it places the District Judge[.]” :LOO, 389 U.S. at 106–07.

4. Cong. Rsch. Ser v., /DZVXLWV $JDLQVW WKH )HGHUDO


*RYHUQPHQW %DVLF )HGHUDO &RXUW 3URFHGXUH DQG 7LPHOLQHV
(Dec. 22, 2020), https://crsreports.congress.gov/product/pdf/IF/
IF11349.
30

Mandamus constitutes a harsh rebuke of a district judge


because it “ha[s] the unfortunate consequence of making
the judge a litigant.” Ex parte Fahey, 332 U.S. at 260;
VHH :KROH :RPDQ·V +HDOWK Y -DFNVRQ, 595 U.S. 30, 40
(2021) (“Judges exist to resolve controversies about a
law’s meaning or its conformance to the Federal and
State Constitutions, not to wage battle as contestants in
the parties’ litigation.”). Here, the panel unfairly issued
its May 1, 2024 writ of mandamus to the district court
without any inquiry into whether the district court had
clearly and indisputably erred in resolving controversies
before it, in conformance with the Constitution and this
Court’s precedent. The panel never analyzed Plaintiffs’
2023 second amended complaint, and therefore, could
not know if the district court erred in concluding the
DPHQGPHQWFXUHGWKHMXULVGLFWLRQDOGHÀFLHQFLHVWKH1LQWK
Circuit found in 2020.

Had the district court proceeded on Plaintiffs’ 2015


complaint, which was dismissed by the Ninth Circuit on
standing grounds, such action would have been a clear
and indisputable violation of the Ninth Circuit’s 2020
mandate. However, the district court did not proceed on
the 2015 complaint. It heeded the mandate and considered
Plaintiffs’ motion for leave to amend in light of the 2020
Opinion, as it was required to do, granted leave under a
Foman analysis, in concert with circuit precedent, and
later denied in part and granted in part the Government’s
subsequent motion to dismiss, further narrow ing
Plaintiffs’ second amended complaint. App. 54a, 73a–74a,
87a–94a, 100a. The question of whether that operative
complaint now meets the requirements of Article III
and the Declaratory Judgment Act is a question that can
EH DGGUHVVHG RQ GLUHFW DSSHDO RI ÀQDO MXGJPHQW LQ WKH
ordinary course of litigation.
31

A writ of mandamus from this Court would reverse


the panel’s unfair rebuke of a former chief judge and
senior member of the judiciary, who has never before
received such a writ, and was simply following this
&RXUW·VSUHFHGHQWWRIXOÀOOKHUUROHLQWKHIHGHUDOFRXUW
system. For nine years, the district court has received the
Charlie Brown football treatment because the “breadth of
Plaintiffs’ claims is striking” and justiciability “presents
substantial grounds for difference of opinion.” App. 169a.
While that may be true, it does not excuse, and provides
even more reason to ensure, that the case proceeds strictly
according to the rules and arrives at each level of the
MXGLFLDU\IXOO\GHYHORSHG$IWHUDOOLQÀQGLQJLQMXU\DQG
FDXVDWLRQVDWLVÀHGLQWKH1LQWK&LUFXLWZURWH´$
substantial evidentiary record documents that the federal
government has long promoted fossil fuel use despite
knowing that it can cause catastrophic climate change,
and that failure to change existing policy may hasten an
environmental apocalypse.” App. 103a.

' 0DQGDPXVZRXOGUHPRYHXQMXVWSUHMXGLFHWR
the Plaintiffs and correct uneven treatment

A writ of mandamus from this Court is also appropriate


because it would “aid . . . the appellate jurisdiction which
might otherwise be defeated by the unauthorized action of
the court below.” Ex parte United States, 287 U.S. 241, 246
(1932). Because this case was resolved by a motions panel
in the form of mandamus, rather than by a merits panel
on direct appeal, Plaintiffs’ case has now been dismissed
on jurisdictional grounds without leave to amend and
without appeal as of right to a merits panel—despite the
GLVWULFWFRXUW·VÀQGLQJWKDWOHDYHWRDPHQGZDVZDUUDQWHG
in this case, and without any court having concluded that
amendment would be futile. See Foman, 371 U.S. at 182.
32

The requested writ is appropriate to return the parties


to the status quo that existed before the panel improperly
issued its writ.

Justice requires even-handed treatment of Plaintiffs


and the Government. Having repeatedly invoked the non-
merits jurisdiction of this Court and the Ninth Circuit,
the Government should not be heard to protest when it
is invoked by the other side. A return to the status quo
would restore Plaintiffs’ rights to rely on the integrity of
the rules of civil and appellate procedure and this Court’s
precedent, and compel the Government to also abide by
them. Had the panel denied mandamus, the parties would
HTXDOO\ KDYH ULJKWV DIWHU ÀQDO MXGJPHQW LQ WKH GLVWULFW
court to direct appeal to a merits panel under 28 U.S.C.
§ 1291 of any adverse decision. See 9th Cir. Gen. Order
3.6(d).

The disregard of fair process here involves the matter


of irreversible threats to Plaintiffs’ lives and safety. The
young Plaintiffs’ ongoing physical and mental health
injuries, alongside harms to their homes, sacred tribal
lands, and ways of life, implicate the most fundamental
of rights safeguarded by our Constitution. 6HH e.g., App.
26a, 47a, 68a, 84a, 112a. Each federal judge to review
Plaintiffs’ Fifth Amendment claims thus far, regarding
the serious infringement of their rights to life and personal
security, 5 has deemed their injuries cognizable, even
if Plaintiffs’ initial request for relief was deemed too
5. The district court, the magistrate judge, and the three
judges impaneled by the Ninth Circuit in 2020 all found Plaintiffs’
KDUPVWREHH[LVWHQWLDO'&W'RFDW  PDJLVWUDWHÀQGLQJV 
Juliana, 217 F. Supp. 3d at 1250; App. 103a; id. at 130a–31a (Staton,
J., dissenting).
33

ambitious in the Ninth Circuit’s 2020 Opinion. App. 77a,


84a, 104a, 112a, 131a–40a. Claims brought by children
claiming a lifetime of hardship and disabling injuries
imposed by their Government deserve at least fair process
and due consideration in the courts. See Plyler v. Doe,
457 U.S. 202, 222–23, 227–30 (1982) (reviewing under
heightened scrutiny and declaring unconstitutional a
state law and systemic conduct that discriminated against
undocumented children where there was no fundamental
right or suspect class at issue); VHHDOVR:9D6WDWH%G
of Educ. v. Barnette, 319 U.S. 624 (1943) (reexamining
and reversing precedent to protect children’s liberty
interests).

The very purpose of a Bill of Rights was to


withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond
the reach of majorities and officials and to
establish them as legal principles to be applied
by the courts. One’s right to life, liberty, and . . .
other fundamental rights may not be submitted
to vote; they depend on the outcome of no
elections.

Id. at 638. These rights, when infringed, are for the courts
to declare through fair process.
34

CONCLUSION

As the district court concluded in addressing the


Government’s seventh petition for a writ of mandamus
against her:

This Court has great regard for the judicial


process. It has deliberately considered all
motions the parties brought, and its decisions
are accessible for appellate scrutiny in the
due course of litigation. Trial courts across
the country address complex cases involving
similar jurisdictional, evidentiary, and legal
questions as those presented here without
resorting to interlocutory appeal or petitioning
for a writ of mandamus. As Justice Stewart
noted, “the proper place for the trial is in
the trial court, not here.” Baker v. Carr, 369
U.S. 186, 266 (1962) (Stewart, J., concurring.)
Defendants therefore have other means, such
as a direct appeal, to obtain the desired relief.
This Court recommends denying defendants’
petition for writ of mandamus.

App. 24a.

For the foregoing reasons, Plaintiffs respectfully


ask the Court to issue a writ of mandamus to the United
States Court of Appeals for the Ninth Circuit to vacate
its issuance of a writ of mandamus to the U.S. District
Court for the District of Oregon and to remand this case
to the district court for further proceedings.
35

Respectfully submitted,
PHILIP L. GREGORY JULIA A. OLSON
GREGORY LAW GROUP Counsel of Record
1250 Godetia Drive OUR CHILDREN’S TRUST
Redwood City, CA 94062 1216 Lincoln Street
Eugene, OR 97401
A NDREA K. RODGERS [email protected]
OUR CHILDREN’S TRUST (415) 786-4825
3026 NW Esplanade
Seattle, WA 98117

September 12, 2024


APPENDIX
i

TABLE OF APPENDICES
Page
APPENDIX A — Order of the United States
&RXUW RI $SSHDOV IRU WKH 1LQWK &LUFXLW ÀOHG
May 1, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a

APPENDIX B — Judgment of the United States


District Court for the District of Oregon, Eugene
 'LYLVLRQÀOHG0D\ 1, 2024 . . . . . . . . . . . . . . . . . . . . . .6a

APPENDIX C — Supplemental Order of the


United States District Court for the District of
 2UHJRQ(XJHQH'LYLVLRQÀOHG$SULO 19, 2024. . . . . .7a

A PPEN DI X D — O pi n ion a nd O rder of


the United States District Court for the
District of Oregon, Eugene Division, signed
December 29, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . .25a

APPENDIX E — Opinion and Order of the


United States District Court for the District of
Oregon, Eugene Division, signed June 1, 2023 . . . .79a

APPENDIX F — Opinion of the United States


Court of Appeals for the Ninth Circuit, filed
January 17, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101a

APPENDIX G — Opinion of the Supreme Court of


 WKH8QLWHG6WDWHVÀOHG1RYHPEHU 2, 2018. . . . . . .165a
ii

TABLE OF APPENDICES
Page
APPENDIX H — Opinion of the Supreme Court
 RIWKH8QLWHG6WDWHVÀOHG-XO\ . . . . . . . . .169a

APPENDIX I — Order of the United States


Court of Appeals for the Ninth Circuit,
 ÀOHG-XO\ . . . . . . . . . . . . . . . . . . . . . . . . . . . 170a
1a

Appendix AA
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
-------------------
No. 24-684
D.C. No. 6:15-cv-1517
District of Oregon, Portland
In re: UNITED STATES OF AMERICA.
UNITED STATES OF AMERICA, et al.,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON, EUGENE,
Respondent,
STATE OF ALABAMA,
Defendant,
XIUHTEZCATL TONATIUH M., through his
Guardian Tamara Roske-Martinez, et al.,
Real Parties in Interest,
THE NATIONAL ASSOCIATION OF
MANUFACTURERS, et al.,
Intervenors,
ENVIRONMENTAL JUSTICE CLINIC –
UNIVERSITY OF MIAMI SCHOOL OF LAW, et al.,
Amici Curiae.
-------------------
2a

Appendix A

Filed: May 1, 2024

-------------------

ORDER

-------------------

Before: BENNETT, R. NELSON, and MILLER, Circuit


Judges.

In the underlying case, twenty-one plaintiffs (the


Juliana plaintiffs) claim that—by failing to adequately
respond to the threat of climate change—the government
has violated a putative “right to a stable climate system
that can sustain human life.” Juliana v. United States,
No. 6:15-CV-01517-AA, 2023 WL 9023339, at *1 (D. Or.
Dec. 29, 2023). In a prior appeal, we held that the Juliana
plaintiffs lack Article III standing to bring such a claim.
Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir.
2020). We remanded with instructions to dismiss on
that basis. Id. The district court nevertheless allowed
amendment, and the government again moved to dismiss.
The district court denied that motion, and the government
petitioned for mandamus seeking to enforce our earlier
mandate. We have jurisdiction to consider the petition.
See 28 U.S.C. § 1651. We grant it.

1. “[M]andamus is an extraordinary remedy . . .


reserved for extraordinary situations.” Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289
(1988). “[M]andamus is the appropriate remedy” when
3a

Appendix A

“sought on the ground that the district court failed to


follow the appellate court’s mandate.” Vizcaino v. U.S.
Dist. Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir.
1999); see also United States v. U.S. Dist. Ct. for S. Dist. of
N.Y., 334 U.S. 258, 263 (1948). We review a district court’s
compliance with the mandate de novo. Pit River Tribe v.
U.S. Forest Serv., 615 F.3d 1069, 1080 (9th Cir. 2010).

2. The petition accuses the district court of failing


to execute our mandate on remand. District courts
must “act on the mandate of an appellate court, without
variance or examination, only execution.” United States
v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006).
“[T]he only step” that a district court can take is “to obey
the mandate.” Rogers v. Consol. Rock Prods. Co., 114 F.2d
108, 111 (9th Cir. 1940). A district court must “implement
both the letter and the spirit of the mandate, taking
into account the [prior] opinion and the circumstances it
embraces.” Pit River Tribe, 615 F.3d at 1079 (emphasis
added) (cleaned up).

3. In the prior appeal, we held that declaratory relief


was “not substantially likely to mitigate the plaintiffs’
asserted concrete injuries.” Juliana, 947 F.3d at 1170. To
the contrary, it would do nothing “absent further court
action,” which we held was unavailable. Id. We then clearly
explained that Article III courts could not “step into the[]
shoes” of the political branches to provide the relief the
Juliana plaintiffs sought. Id. at 1175. Because neither
the request for declaratory relief nor the request for
injunctive relief was justiciable, we “remand[ed] th[e] case
4a

Appendix A

to the district court with instructions to dismiss for lack


of Article III standing.” Id. Our mandate was to dismiss.

4. The district court gave two reasons for allowing


amendment. First, it concluded that amendment was not
expressly precluded. Second, it held that intervening
authority compelled a different result. We reject each.

7KHÀUVWUHDVRQIDLOVEHFDXVHZH´UHPDQG>HG@ZLWK
instructions to dismiss for lack of Article III standing.”
Id. Neither the mandate’s letter nor its spirit left room
for amendment. See Pit River Tribe, 615 F.3d at 1079.

7KH VHFRQG UHDVRQ WKH GLVWULFW FRXUW LGHQWLÀHG ZDV


that, in its view, there was an intervening change in the
law. District courts are not bound by a mandate when
a subsequently decided case changes the law. In re
Molasky, 843 F.3d 1179, 1184 n.5 (9th Cir. 2016). The
FDVHWKHFRXUWLGHQWLÀHGZDVUzuegbunam v. Preczewski,
which “ask[ed] whether an award of nominal damages
by itself can redress a past injury.” 141 S. Ct. 792, 796
(2021). Thus, Uzuegbunam was a damages case which says
nothing about the redressability of declaratory judgments.
Damages are a form of retrospective relief. Buckhannon
Bd. & Care Home v. W. Va. Dep’t of Health & Human
Res., 532 U.S. 598, 608–09 (2001). Declaratory relief is
prospective. The Juliana plaintiffs do not seek damages
but seek only prospective relief. Nothing in Uzuegbunam
changed the law with respect to prospective relief.
5a

Appendix A

We held that the Juliana plaintiffs lack standing to


bring their claims and told the district court to dismiss.
Uzuegbunam did not change that. The district court is
instructed to dismiss the case forthwith for lack of Article
III standing, without leave to amend.

PETITION GRANTED.
6a

Appendix BB
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
-------------------
Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
-------------------
Filed: May 1, 2024
-------------------
JUDGMENT
-------------------
AIKEN, District Judge:

For the reasons set forth in the Court’s accompanying


Order, this case is DISMISSED.

It is so ORDERED and DATED this 1st day of May


2024.

/s/ Ann Aiken


Ann Aiken
United States District Judge
7a

Appendix CC
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
-------------------
Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
-------------------
Filed: April 19, 2024
-------------------
SUPPLEMENTAL ORDER
ADDRESSING PETITION FOR WRIT
OF MANDAMUS
-------------------
AIKEN, District Judge:

This supplemental order is issued in response to the


invitation of the United States Court of Appeals for the
Ninth Circuit to address defendants’ Petition for Writ
of Mandamus (“Pet.”), ECF No. 581-1, which is pending
before the appellate court, Case No. 24-684.
8a

Appendix C

INTRODUCTION

The young plaintiffs here have compiled an abundance


of factual evidence to support their claim that the
government has known about the dangers posed by
fossil fuel production, and, despite that knowledge, chose
to promote production and consumption of coal, oil, and
gas at increasing levels over decades. The evidence, as
the Ninth Circuit stated, “leaves little basis for denying
that climate change is occurring at an increasingly rapid
pace . . . and stems from fossil fuel combustion.” Juliana
v. United States, 947 F.3d 1159, 1166 (9th Cir. 2020).

A case about climate change, to be sure, raises legal


LVVXHVRIÀUVWLPSUHVVLRQEXWWKHPDWWHUVWKHGLVWULFWFRXUW
has addressed time and again throughout the pendency
of this case are the bread-and-butter of daily trial court
work: injury, causation, and redressability under Article
III; justiciability; viability of claims under Federal Rules of
Procedure 12(b); standards for injunctive and declaratory
relief—foundational inquiries necessary to proceed to
DQ\ IDFWÀQGLQJ SKDVH UHDFKLQJ WKH KHDUW RI SODLQWLIIV·
novel claims. Plaintiffs note in their response that this
is defendants’ seventh petition for writ of mandamus.
Defendants’ petition challenges the district court’s order
granting leave to amend and denying a motion to dismiss
on the pleadings, assigning error to this Court’s rulings
as one would through the usual appellate process.

As the Ninth Circuit has stated, “[t]here is enduring


value in the orderly administration of litigation by the trial
courts, free of needless appellate interference. In turn,
9a

Appendix C

appellate review is aided by a developed record and full


consideration of issues by the trial courts. If appellate
review could be invoked whenever a district court denied
a motion to dismiss, we would be quickly overwhelmed
with such requests, and the resolution of cases would
be unnecessarily delayed.” In re United States, 884
F.3d 830, 837 (9th Cir. 2018). This Court appreciates its
responsibility in the constitutional scheme to develop a
record, consider the facts, and faithfully interpret the
ODZ)XOÀOOLQJWKLVUROHZLOODLGWKHDSSHOODWHFRXUWLQLWV
review in the normal course of appeal, the proper vehicle
for its analysis of defendants’ assignments of error.

BACKGROUND

A factual background relevant to the parties’


arguments on defendants’ now-pending petition for writ
of mandamus is set forth in the district court’s Order on
defendants’ motion to dismiss, ECF No. 565 (December
29, 2023). Otherwise, it has been briefed extensively by
the parties. In their petition, defendants assert that this
Court violated the Ninth Circuit’s mandate in its 2020
decision. This Court highlights portions of the procedural
KLVWRU\LWÀQGVKHOSIXOWRUHFDOO

I. 2020 Appellate Court Decision

The Ninth Circuit did not reach the merits of


plaintiffs’ claims because it found that plaintiffs lacked
standing. In the appellate court’s 2020 decision, writing
for the majority, Judge Hurwitz, joined by Judge Murguia,
began with the basics: “To have standing under Article
10a

Appendix C

III, a plaintiff must have (1) a concrete and particularized


injury that (2) is caused by . . . challenged conduct and
(3) is likely redressable by a favorable judicial decision.”
Juliana, 947 F.3d at 1168. (9th Cir. 2020).

Agreeing with the district court, Judge Hurwitz found


that “[a]t least some plaintiffs” had claimed “particularized
injuries,” since climate change threatened to harm certain
plaintiffs in “concrete and personal” ways if left unchecked.
Id. And, that some plaintiffs had also established causation
because there was “at least a genuine factual dispute
as to whether” U.S. climate policy was a “substantial
factor” in exacerbating plaintiffs’ climate change-related
injuries. Id. at 1169. Thus, plaintiffs’ standing turned on
redressability: “whether the plaintiffs’ claimed injuries
[were] redressable by an Article III court.” Id.

Plaintiffs claimed defendants had violated their


constitutional right to a climate system capable of
sustaining life, and to redress that violation, sought
injunctive relief, including an order directing defendants
to “prepare and implement an enforceable national
remedial plan to phase out fossil fuel emissions and draw
down excess atmospheric CO2 to stabilize the climate
system.” First. Am. Compl. at 94 ¶¶ 2, 6, 7.

“Reluctantly,” the panel found such relief “beyond


[the district court’s] constitutional power.” Juliana, 947
F.3d at 1165. For injunctive relief, the Ninth Circuit was
“skeptical,” but assumed without deciding that plaintiffs
might show that their injuries could be redressed by an
order in their favor. Id. at 1171. That said, the appellate
11a

Appendix C

court based its ruling on the second redressability


prong, stating that an injunction was “beyond the power
of an Article III court to order, design, supervise, or
implement.” Id. The appellate court explained that Article
III courts cannot order injunctive relief unless constrained
by more “limited and precise” legal standards, discernable
in the Constitution, and that plaintiffs must make their
case to the political branches. Id. at 1175.

As for plaintiffs’ request for declaratory relief, the


Ninth Circuit determined that a declaration would be
“unlikely by itself to remediate [plaintiffs’] alleged
injuries.” Juliana 947 F.3d at 1170. Accordingly, the Ninth
&LUFXLW´UHYHUVH>G@WKHFHUWLÀHGRUGHUVRIWKHGLVWULFWFRXUW
and remand[ed]” the case “with instructions to dismiss
for lack of Article III standing.” Id. at 1175.

II. 2023 District Court Orders

After the Ninth Circuit ordered the district court


WR GLVPLVV WKH FDVH SODLQWLIIV PRYHG WR ÀOH D VHFRQG
amended complaint. ECF No. 462. On June 1, 2023, this
Court granted plaintiffs’ motion to amend their complaint.
Order on Second Am. Compl., ECF No. 540 (June 1, 2023).
3ODLQWLIIVKDGQRWLÀHGWKH&RXUWRIDQLQWHUYHQLQJFDVH
from the United States Supreme Court, Uzuegbunam
v. Preczewski, ___U.S.___, 141 S. Ct. 792 (2021) which
held that, for purposes of Article III standing, nominal
damages—a form of declaratory relief—provide the
necessary redress for a completed violation of a legal right.
Id. at 798, 802. That, with this Court’s understanding
that the Ninth Circuit had not expressly foreclosed the
12a

Appendix C

possibility of amendment, led the Court to grant plaintiffs’


motion to amend. This Court explained:

“Absent a mandate which explicitly directs


to the contrary, a district court upon remand
can permit the plaintiff to file additional
pleadings . . . .” San Francisco Herring Ass’n
v. Dep’t of the Interior, 946 F.3d 564, 574 (9th
Cir. 2019) (quoting Nguyen, 792 F.2d at 1502;
see also Sierra Club v. Penfold, 857 F.2d 1307,
1312 (9th Cir. 1988). When mandate in the prior
appeal did not expressly address the possibility
of amendment and did not indicate a clear intent
to deny amendment seeking to raise new issues
not decided by the prior appeal, that prior
opinion did not purport “to shut the courthouse
doors.” San Francisco Herring Ass’n, 946 F.3d
at 574 (citing Nguyen, 792 F.2d at 1503).

...

“Here, this Court does not take lightly its


responsibility under the rule of mandate.
Rather, it considers plaintiffs’ new factual
allegations under the Declaratory Judgment
Act, and amended request for relief in light
of intervening recent precedent, to be a new
issue that, while discussed, was not decided by
the Ninth Circuit in the interlocutory appeal.
Nor did the mandate expressly state that
plaintiffs could not amend to replead their
case—particularly where the opinion found a
13a

Appendix C

QDUURZGHÀFLHQF\ZLWKSODLQWLIIV·SOHDGLQJVRQ
redressability. This Court therefore does not
interpret the Ninth Circuit’s instructions as
mandating it “to shut the courthouse doors”
on plaintiffs’ case where they present newly
amended allegations. San Francisco Herring
Ass’n, 946 F.3d at 574.

ECF No. 540 at 10-11.

Defendants quickly moved to dismiss plaintiffs’ second


amended complaint, ECF No. 547, and this Court denied
defendants’ motion. Order on Mot. to Dismiss, ECF No.
565 (December 29, 2023). Defendant had again asserted
that the district court had violated the rule of mandate
and this Court again explained its due regard for the rule:

Because it is jurisdictional error to contravene


a rule of mandate, the Court duly reconsiders
the mandate of the Ninth Circuit and does not
take the matter lightly. “A district court that
has received the mandate of an appellate court
cannot vary or examine that mandate for any
purpose other than executing it.” Hall v. City
of Los Angeles, 697 F.3d 1059, 1067 (9th Cir.
2012). “Violation of the rule of mandate is a
jurisdictional error.” Id. at 1067.

“But while the mandate of an appellate court


forecloses the lower court from reconsidering
matters determined in the appellate court,
it leaves to the district court any issue not
14a

Appendix C

expressly or impliedly disposed of on appeal.”


S.F. Herring Ass’n v. Dep’t of the Interior, 946
F.3d 564, 574 (9th Cir. 2019) (quoting Nguyen
v. United States, 792 F.2d 1500, 1502 (9th
Cir. 1986)). In determining which matters fall
within the compass of a mandate, “[d]istrict
courts must implement both the letter and the
spirit of the mandate, taking into account the
appellate court’s opinion and the circumstances
it embraces.” Vizcaino v. U.S. Dist. Ct. for W.
Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999)
(as amended) (quoting Delgrosso v. Spang & Co.,
903 F.2d 234, 240 (3d Cir. 1990)).

“Absent a mandate which explicitly directs


to the contrary, a district court upon remand
can permit the plaintiff to file additional
pleadings . . . ” S.F. Herring, 946 F.3d at 574
(quoting Nguyen, 792 F.2d at 1502); see also
Sierra Club v. Penfold, 857 F.2d 1307, 1312
(9th Cir. 1988). When the mandate in the
prior appeal does not expressly address the
possibility of amendment and does not indicate
a clear intent to deny amendment seeking to
raise new issues not decided, that mandate does
not purport “to shut the courthouse doors.” S.F.
Herring, 946 F.3d at 574.

In S.F. Herring, the Ninth Circuit discussed


its mandate in a prior appeal, which vacated
the district court’s order entering summary
judgment in the defendants’ favor and directed
15a

Appendix C

the district court to dismiss the complaint.


See S.F. Her r ing Ass’n v. U.S. Dep’t of
Interior, 683 F. App’x 579, 581 (9th Cir. 2017)
(vacating judgment and remanding case with
instructions to dismiss for lack of subject
matter jurisdiction). On remand, the district
court allowed the plaintiff to file a second
amended complaint.

In the later appeal, the Ninth Circuit determined


that the district court correctly found that the
earlier mandate to dismiss did not prevent
the plaintiff from seeking leave to re-plead.
S.F. Herring, 946 F.3d at 574. The appellate
court reasoned that in instructing the district
court to dismiss, the mandate was silent on
whether dismissal should be with or without
leave to amend, and the mandate therefore did
not preclude the district court from allowing
SODLQWLIIWRÀOHDPHQGHGSOHDGLQJVId. 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 inter vening recent
precedent, to be a new issue that, while
discussed, was not decided by the Ninth Circuit
in the interlocutory appeal.” Juliana v. United
States, No. 6:15 -CV- 01517-A A, 2023 WL
3750334, at *5 (D. Or. June 1, 2023).
16a

Appendix C

The Court once again finds that the Ninth


Circuit’s mandate did not address whether
amendment, if permitted, would cure the
GHÀFLHQF\LWLGHQWLÀHGLQSODLQWLIIV·FRPSODLQW
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,
ÀQGV WKDW LQ SHUPLWWLQJ SODLQWLIIV WR SURFHHG
with their second amended complaint, the rule
of mandate is not contravened. S.F. Herring,
946 F.3d at 574; see also Creech v. Tewalt, 84
F.4th 777, 783 (9th Cir. 2023) (where appellate
court remanded and stated that plaintiff should
have leave to amend, district court did not
violate rule of mandate by dismissing without
leave to amend, because appellate court did not
expressly foreclose that option).

ECF No. 565 at 19-20.

2Q)HEUXDU\GHIHQGDQWVÀOHGQRWLFHZLWKWKH
district court of their petition for writ of mandamus in
the Ninth Circuit. Pet., ECF No. 585, 585-1. Defendants
contend that the Ninth Circuit should issue a writ of
mandamus to this Court, directing it to dismiss this case
for lack of jurisdiction and without leave to amend. The
Ninth Circuit invited the district court to address the
petition.
17a

Appendix C

LEGAL STANDARD

“The writ of mandamus is a drastic and extraordinary


remedy reserved for really extraordinary causes.”
In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011)
(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947))
(internal quotation marks omitted). “[O]nly exceptional
circumstances amounting to a judicial usurpation of power
or a clear abuse of discretion will justify the invocation of
this extraordinary remedy.” Cheney v. U.S. Dist. Ct., 542
U.S. 367 (2004) (internal quotation marks and citations
omitted).

In considering whether to grant a writ of mandamus,


DSSHOODWHFRXUWVDUHJXLGHGE\WKHÀYHIDFWRUVLGHQWLÀHG
in Bauman v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir. 1977):
(1) whether the petitioner has no other means, such as
a direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in any
way not correctable on appeal; (3) whether the district
court’s order is clearly erroneous as a matter of law; (4)
whether the district court’s order is an oft repeated error
or manifests a persistent disregard of the federal rules;
and (5) whether the district court’s order raises new and
LPSRUWDQWSUREOHPVRULVVXHVRIÀUVWLPSUHVVLRQPerry
v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010)
(citing Bauman, 557 F.2d at 654-55). “All factors are
not relevant in every case and the factors may point in
different directions in any one case.” Christensen v. U.S.
Dist. Ct., 844 F.2d 694, 697 (9th Cir. 1988).
18a

Appendix C

DISCUSSION

Defendants maintain that mandamus is warranted


because (1) the district court violated the Ninth Circuit’s
mandate which required dismissal and foreclosed
DPHQGPHQW   WKH GLVWULFW FRXUW HUUHG LQ ÀQGLQJ WKDW
plaintiffs have Article III standing; and (3) the district
FRXUWHUUHGLQÀQGLQJWKDWSODLQWLIIVKDGVWDWHGSODXVLEOH
claims for relief under due process clause and public trust
doctrine.

I. Standing & Merits

This Court has addressed the merits of the parties’


arguments on Article III standing and the viability of
plaintiffs’ due process and public trust claims, and as
before, “stands by its prior rulings on jurisdictional and
merits issues, as well as its belief that this case would
be best served by further factual development at trial.”
Juliana v. United States, No. 6:15-CV-01517-AA, 2018
WL 6303774, at *3 (D. Or. Nov. 21, 2018); see also ECF
No. 565 at 21-34 (discussing redressability for purposes
of Article III standing), id. at 35-36 (discussing the
political question doctrine and justiciability), id. at 36-
44 (discussing plaintiffs’ due process claim), id. at 46-48
(discussing plaintiffs’ public trust claim and incorporating
analysis from prior orders).

As in their motion to dismiss, defendants maintain that


the relief plaintiffs seek is “sweeping” and “unprecedented”
and that plaintiffs must make their demands to the
political branches. See Pet. For Writ of Mandamus (“Pet.”)
19a

Appendix C

at 1, Doc. 585-1. In any case over which trial courts have


jurisdiction, where the plaintiffs have stated a legal claim,
it is the proper and peculiar province of the courts to
LPSDUWLDOO\ÀQGIDFWVIDLWKIXOO\LQWHUSUHWDQGDSSO\WKH
law, and render reasoned judgment. See The Federalist
No. 78 (Alexander Hamilton).

As this Court stated in its 2023 Order denying


defendants’ motion to dismiss, “[t]he judiciary is capable
and duty-bound to provide redress for the irreparable
harm government fossil fuel promotion has caused.”
ECF No. 565 at 6. This Court draws from that 49-page
Order to answer why the remedies plaintiffs seek are not
“sweeping” or “unprecedented.” In its Order, this Court
explained why plaintiffs’ proposed remedy is one typical
for a district court to fashion and over which it can provide
jurisdictional oversight while the parties implement the
plans, practices, and policies they together devise. Id.
at 31-34. As to the merits of plaintiffs constitutional and
public trust doctrine claims, the assignments of errors
defendants raise in their petition are better suited to an
appeal in the regular course.

II. Propriety of Writ of Mandamus

This Court maintains, as do plaintiffs and amici,


that the issues defendants raise on mandamus are better
addressed through the ordinary course of litigation.

7KHÀUVWBauman factor is whether the petitioner will


“ha[ve] no other means . . . to obtain the desired relief.”
Perry, 591 F.3d at 1156. This factor ensures that a writ
20a

Appendix C

of mandamus will not “be used as a substitute for appeal


even though hardship may result from delay and perhaps
unnecessary trial.” Schlagenhauf v. Holder, 379 U.S. 104,
110 (1964) (internal citation omitted).

Defendants argue that a writ of mandamus is the


only means to ensure that the district court complies with
the Ninth Circuit’s 2020 decision holding that plaintiffs’
claims are beyond the judicial power to redress. Pet. at
29. That said, the Court has explained that its Orders duly
regarded and complied with the Ninth Circuit’s decision
and found plaintiffs’ amended complaint demonstrated
redress was within the district court’s constitutional
authority. ECF No. 540 at 14-18; ECF No. 565 at 28-34.
Further, challenges to standing “may be raised by a
party, or by a court on its own initiative, at any stage in
the litigation, even after trial and the entry of judgment.”
Wood v. City of San Diego, 678 F.3d 1075, 1082 (9th Cir.
2012) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 506
(2006)). Therefore, defendants’ argument that it has no
other means to raise a challenge based on redressability—
an element of standing—does not succeed.

The second Bauman factor is whether the petitioner


“will be damaged or prejudiced in any way not correctable
on appeal.” Perry, 591 F.3d at 1156. To satisfy this factor,
the defendants “must demonstrate some burden . . . other
than the mere cost and delay that are the regrettable,
yet normal, features of our imperfect legal system.”
DeGeorge v. U.S. Dist. Ct., 219 F.3d 930, 935 (9th Cir. 2000)
(alteration in original) (quoting Calderon v. U.S. Dist.
Ct., 163 F.3d 530, 535 (9th Cir. 1998) (en banc)). Prejudice
21a

Appendix C

serious enough to warrant mandamus relief “includes


situations in which one’s ‘claim will obviously be moot by
the time an appeal is possible,’ or in which one ‘will not
have the ability to appeal.’” Id. (quoting Calderon, 163
F.3d at 535).

Defendants argue that holding a trial on the plaintiffs’


FODLPVWKUHDWHQVWKHVHSDUDWLRQRISRZHUVDQGÁRXWVWKH
Ninth Circuit’s mandate. To the extent that defendants
DUHDVVHUWLQJWKDWH[HFXWLYHEUDQFKRIÀFLDOVDQGDJHQFLHV
in general should not be burdened by an unmeritorious
lawsuit, “Congress has not exempted the government from
the normal rules of appellate procedure, which anticipate
that sometimes defendants will incur burdens of litigating
cases that lack merit but still must wait for the normal
appeals process to contest rulings against them.” In re
United States, 884 F.3d 830, 836 (9th Cir. 2018).

´7KH ÀUVW WZR FULWHULD DUWLFXODWHG LQ Bauman are


designed to [ensure] that mandamus, rather than some
other form of relief, is the appropriate remedy.” In
re Cement Antitrust Litig. (MDL No. 296), 688 F.2d
1297, 1301 (9th Cir. 1982), aff’d sub nom. Arizona v.
U.S. Dist. Ct., 459 U.S. 1191 (1983) (mem.). This Court’s
determination that the mandate did not foreclose dismissal
is a legal conclusion, along with the district court’s
determinations on the plausibility of plaintiffs’ claims
under Federal Rules of Civil Procedure 12(b)(1) and (6),
and those determinations, if in error, are correctable
through the ordinary course of litigation. In this Court’s
YLHZGHIHQGDQWVKDYHQRWVDWLVÀHGWKHVHFRQGBauman
factor.
22a

Appendix C

The third Bauman factor is whether the district


court’s order “is clearly erroneous as a matter of law.”
Perry, 591 F.3d at 1156. Appellate review of that factor
´LVVLJQLÀFDQWO\GHIHUHQWLDODQGLVQRWPHWXQOHVVWKH
UHYLHZLQJFRXUWLVOHIWZLWKDGHÀQLWHDQGÀUPFRQYLFWLRQ
that a mistake has been committed.” In re Bundy, 840 F.3d
1034, 1041 (9th Cir. 2016) (quoting In re United States, 791
F.3d 945, 955 (9th Cir. 2015)). “The absence of controlling
SUHFHGHQWZHLJKVVWURQJO\DJDLQVWDÀQGLQJRIFOHDUHUURU
[for mandamus purposes].” In re Van Dusen, 654 F.3d 838,
845 (9th Cir. 2011).

Here, this Court provided authority from the Ninth


Circuit in support of its determination that it had not
violated the rule of mandate. See ECF No. 540 at 10-11,
ECF No. 565 19-20. The Court also thoroughly analyzed
plaintiffs’ claims on the merits, as described above (p.
9). Defendants do not put forth any other controlling
Ninth Circuit authority on any of the theories asserted
by plaintiffs. Defendants argue that the theories are
unprecedented. Thus, the lack of controlling precedent
KHUHZHLJKVVWURQJO\DJDLQVWDÀQGLQJRIFOHDUHUURUId.

The fourth Bauman factor is whether the district


court’s order is “an oft repeated error or manifests a
persistent disregard of the federal rules.” Perry, 591 F.3d
DW7KLV&RXUWÀQGVQRRIWUHSHDWHGHUURUKHUHDQG
defendants do not contend that the district court violated
any federal rule. The defendants do not satisfy the fourth
factor.

7KHÀQDOIDFWRULVZKHWKHUWKHGLVWULFWFRXUW·VRUGHU
´UDLVHV QHZ DQG LPSRUWDQW SUREOHPV RU LVVXHV RI ÀUVW
23a

Appendix C

impression.” Perry, 591 F.3d at 1156. The Ninth Circuit


has relied on this factor when there is a “novel and
important question” that “may repeatedly evade review.”
Id. at 1159; see also In re Cement Antitrust Litig., 688 F.2d
DW² ´>$@QLPSRUWDQWTXHVWLRQRIÀUVWLPSUHVVLRQ
will evade review unless it is considered under our
supervisory mandamus authority. Moreover, that question
may continue to evade review in other cases as well.”).

As this Court has found, the legal theories asserted


UDLVHLVVXHVRIÀUVWLPSUHVVLRQ³LHH[LVWHQFHRIIHGHUDO
public trust doctrine and whether the right to a climate
that can sustain human life is fundamental under the
Constitution. The merits of those claims are suitable for
DSSHDODIWHUÀQDOMXGJPHQW:KHWKHUDGLVWULFWFRXUWPD\
grant leave to amend a complaint after a reviewing court
RUGHUV GLVPLVVDO LV QRW D PDWWHU RI ÀUVW LPSUHVVLRQ DV
discussed in this Court’s prior orders. See ECF No. 540 at
9-11; ECF No. 565 at 18-21. Accordingly, this Court’s order
granting amendment and denying a motion to dismiss on
the pleadings does not present the possibility that those
issues will evade appellate review. In this Court’s view,
GHIHQGDQWV KDYH QRW VDWLVÀHG WKH ÀIWK Bauman factor.
Under the test, a writ of mandamus is not necessary.

III. Staying Litigation

Defendants also ask the Ninth Circuit to stay litigation


while deciding their petition for writ of mandamus.
Defendants have moved to stay litigation several times
DQG KDYH ÀOHG PXOWLSOH SHWLWLRQV IRU ZULW RI PDQGDPXV
ECF Nos. 177, 308, 365, 390, 420, 585. In this iteration,
24a

Appendix C

defendants maintain that the case must be stayed because


there is a substantial likelihood that the Ninth Circuit will
grant their petition. Pet. at 5-6. Defendants have not met
their burden to show the petition for writ of mandamus is
warranted or likely to be granted. The Court has analyzed
WKHDSSURSULDWHIDFWRUVDQGÀQGVWKDWDVWD\VKRXOGQRW
be granted.

CONCLUSION

This Court has great regard for the judicial process.


It has deliberately considered all motions the parties
brought, and its decisions are accessible for appellate
scrutiny in the due course of litigation. Trial courts across
the country address complex cases involving similar
jurisdictional, evidentiary, and legal questions as those
presented here without resorting to interlocutory appeal
or petitioning for a writ of mandamus. As Justice Stewart
noted, “the proper place for the trial is in the trial court,
not here.” Baker v. Carr, 369 U.S. 186, 266 (1962) (Stewart,
J., concurring.) Defendants therefore have other means,
such as a direct appeal, to obtain the desired relief. This
Court recommends denying defendants’ petition for writ
of mandamus.

SUPPLEMENTAL ORDER DATED this 19th day of


April 2024.

/s/ Ann Aiken


Ann Aiken
United States District Judge
25a

Appendix DD
APPENDIX
2023 WL 9023339

UNITED STATES DISTRICT COURT FOR THE


DISTRICT OF OREGON, EUGENE DIVISION

-------------------

Civ. No. 6:15-cv-01517-AA

KELSEY CASCADIA ROSE JULIANA, et al.,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA, et al.,

Defendants.

-------------------

Signed: December 29, 2023

-------------------

OPINION AND ORDER

-------------------

AIKEN, District Judge:

In 2015, twenty-one plaintiffs—a group of young


people, including “future generations”—brought this
civil rights action against the federal government,
alleging injury from the devastation of climate change
26a

Appendix D

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 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
SODLQWLIIV·PRWLRQWRÀOHDVHFRQGDPHQGHGFRPSODLQW

Now before the Court is defendants’ motion to dismiss


the second amended complaint. ECF No. 547. For the
reasons explained, the Court DENIES defendants’
motion to dismiss, ECF No. 547; DENIES defendants’
motion for an order certifying its prior order, ECF No.
540, for interlocutory appeal, ECF No. 551; and DENIES
defendants’ motion to stay litigation, ECF No. 552.
The Court GRANTS plaintiffs’ motion to set a pretrial
conference, ECF No. 543.

INTRODUCTION

The parties do not disagree that the climate crisis


threatens our ability to survive on planet Earth. This
catastrophe is the great emergency of our time and
compels urgent action.1 As this lawsuit demonstrates,

1. See David Wallace-Wells, The Uninhabitable Earth: Life


After Warming (2019); Andrew Freedman & Jason Samenow,
Humidity and Heat Extremes Are on the Verge of Exceeding
Limits of Human Survivability, Study Finds, Washington Post
(May 8, 2020) (reporting study warning that highly populated
27a

Appendix D

young people—too young to vote and effect change


through the political process—are exercising the
institutional procedure available to plead with their
government to change course. While facts remain to be
proved, lawsuits like this highlight young people’s despair
with the drawn-out pace of the unhurried, inchmeal,
bureaucratic response to our most dire emergency. Top
HOHFWHGRIÀFLDOVKDYHGHFODUHGWKDWWKHFOLPDWHHPHUJHQF\
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
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).
2. President Joseph Biden, Remarks on “Actions to Tackle
the Climate Crisis” at Brayton Point Power Station, Somerset,
Massachusetts (July 20, 2022), https://www.whitehouse.gov/
brief ing-room /speeches-remarks/2022 /07/20/remarks-by-
president-biden-on-actions-to-tackle-the-climate-crisis/ [https://
perma.cc/LU2U-CTFM].
3. Environmental Protection Agency, Sec. Environmental
Topics, Climate Change, Causes of Climate Change, (last updated
April 25, 2023), https://www.epa.gov/climatechange-science/
causes-climate-change [https://perma.cc/UGU4-B6EF].
4. Juliana v. United States, 947 F.3d 1159, 1167 (9th Cir.
  ´7KH JRYHUQPHQW DIÀUPDWLYHO\ SURPRWHV IRVVLO IXHO XVH
LQDKRVWRIZD\VLQFOXGLQJEHQHÀFLDOWD[SURYLVLRQVSHUPLWVIRU
imports and exports, subsidies for domestic and overseas projects,
28a

Appendix D

climate change suits around the country, in 2023, the


United States witnessed record-breaking levels of oil and
gas production. 5 And recent calculations conservatively
estimate that the United States provides the oil and
gas industry $20,000,000,000.00 annually in an array of
subsidies.6

Defendants maintain that, because tackling the climate


crisis is complex, and no single remedy may entirely
redress plaintiffs’ harms caused by climate change, the
judiciary is constrained by the Constitution from offering
any redress at all. See defs.’ mot. to dismiss (“Mot.”) at
11-13. Defendants contend that the issue of climate change
is political in its nature, and that redress of plaintiffs’
alleged injuries must be sought from Congress. Id. at 28.
That unnecessarily narrow view overlooks one clear and
constitutional path to shielding future generations from

and leases for fuel extraction on federal land.”).


5. Energy Poverty Prevention and Accountability Act
of 2023: Hearing on H.R.6474 and H.R.6481 before the H. Nat.
Resources Subcomm. on Energy and Min. Resources, 118th
Cong. (statement of J. Mijin Cha, Assistant Professor, Univ. of
Cal.) (citing Oliver Milman, “US Oil and Gas Production Set to
Break Record in 2023 despite UN Climate Goals,” The Guardian,
November 27, 2023, sec. Environment, https://www.theguardian.
com/environment/2023/nov/27/us-oil-gas-record-fossil-fuels-
cop28-united-nations [https://perma.cc/VJ4C-KZGH]).
6. Id. (Statement of J. Mijin Cha) (citing Environmental
and Energy Study Institute, Fact Sheet, “Proposals to Reduce
Fossil Fuel Subsidies (2021),” (July 23, 2021)) https://www.eesi.
org/papers/view/fact-sheet-proposals-to-reduce-fossil-fuel-
subsidies-2021 [https://perma.cc/SD8B-7P6B].
29a

Appendix D

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-on-deck approach does not oust the Court
from its province or discharge it of its duty under the
Constitution to say what the law is. Marbury 5 U.S. at
170.7 Combatting climate change may require all to act in
accord, but that does not mean that the courts must “throw
up [our] hands” in defeat. See Juliana v. United States,
947 F.3d 1159, 1175 (9th Cir. 2020) (Staton, J., dissenting).

The legislative and executive branches of government


wield constitutional powers entrusted to those branches
by the People through the democratic process. See U.S.
Const. art. I and art. II. So too, as part of a coequal branch
of government, the Court cannot shrink from its role to
decide on the rights of the individuals duly presenting
their case and controversy. Marbury, 5 U.S. at 170. Indeed,

7. See also Edith M. Lederer, UN Chief: World Must Prevent


Runaway Climate Change by 2020, Associated Press News (Sept.
10, 2018) (describing massive decarbonization effort necessary to
DYRLGFOLPDWH´WLSSLQJSRLQWVµ KWWSVDSQHZVFRPDUWLFOHÁRRGV
united-nations-antonio-guterres-us-news-climate-71ab1abf44c14
605bf2dda29d6b5ebcc [https://perma.cc/84E6-D24C].
30a

Appendix D

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
RYHUWKHÀUVWFOLPDWHFKDQJHWULDOLQWKH8QLWHG6WDWHV
SLHUFLQJWKURXJKH[SHUWWHVWLPRQ\DQGVFLHQWLÀFHYLGHQFH
WRSURYLGHIDFWXDOÀQGLQJVDQGFRQFOXVLRQVRIODZUXOLQJ
that the state’s failure to consider climate change when
approving fossil fuel projects was unconstitutional. See
Held v. Montana, Findings of Fact, Conclusions of Law,
and Order, Civil Action CDV-2020-307 (Mont. First Jud.
D. Ct. Lewis and Clark County, Aug. 14, 2023).

The judiciary is capable and duty-bound to provide


redress for the irreparable harm government fossil fuel
promotion has caused. Legal scholar and professor Mary
Christina Wood contends that the all-encompassing
breadth of ongoing “irreparable harm” sets the climate
emergency apart from any other crisis, in terms of the
human interests at stake.9 As Professor Wood eloquently
states: “Because no crisis is as ominous, imminent, and
far reaching, the climate emergency must be considered

8. The Sabin Center for Climate Change Law of Columbia


University has assembled for public access the “Climate Change
Litigation Database” containing summaries and court dockets for
climate change lawsuits brought in the United States and abroad.
Climate Change Litigation Databases, Colum. L. Sch.: Sabin Ctr.
For Climate Change L., https://climatecasechart.com/ [https://
perma.cc/B89Z-YN4M].
9. Mary C. Wood, “On the Eve of Destruction”: Courts
Confronting the Climate Emergency, 97 Ind. L.J. 239, 249 (2022)
(hereinafter “Wood, Eve of Destruction”).
31a

Appendix D

sui generis,” that is, “in a class of its own.”10 The legal
approach must “rise to the emergency rather than
repeat a failed past paradigm.” 11 In the context of
Australian youth’s challenge to government approval of
a coal mine, Justice Bromberg wrote that failure to curb
climate change is “what might fairly be described as the
JUHDWHVWLQWHUJHQHUDWLRQDOLQMXVWLFHHYHULQÁLFWHGE\RQH
generation of humans upon the next.”12

10. Id.
11. Id.

12. Sharma v. Minister for the Env’t [2021] FCA 560 1, 90 (27
May 2021) (Austl.). The court stated:
´,WLVGLIÀFXOWWRFKDUDFWHULVHLQDVLQJOHSKUDVHWKH
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
LQÁLFWHGE\WKHLQDFWLRQRIWKLVJHQHUDWLRQRIDGXOWVLQ
what might fairly be described as the greatest inter-
JHQHUDWLRQDOLQMXVWLFHHYHULQÁLFWHGE\RQHJHQHUDWLRQ
of humans upon the next.”
Id.
32a

Appendix D

Some may balk at the Court’s approach as errant or


unmeasured,13 but more likely than not, future generations
may look back to this hour and say that the judiciary
failed to measure up at all. In any case over which trial
courts have jurisdiction, where the plaintiffs have stated
a legal claim, it is the proper and peculiar province of the
FRXUWVWRLPSDUWLDOO\ÀQGIDFWVIDLWKIXOO\LQWHUSUHWDQG
apply the law, and render reasoned judgment.14 Such is
the case here.

BACKGROUND

I. Plaintiffs’ Lawsuit

In 2015, plaintiffs filed this civil rights lawsuit


that journalists later coined “The Biggest Case on
the Planet.”15 At the start of this case, the twenty-one

13. Juliana v. United States, 947 F.3d 1159, 1174 (9th Cir.
2020) (“Not every problem posing a threat—even a clear and
present danger—to the American Experiment can be solved by
federal judges. As Judge Cardozo once aptly warned, a judicial
commission does not confer the power of ‘a knight errant, roaming
at will in pursuit of his own ideal of beauty or of goodness’; rather,
we are bound ‘to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system.’ ”) (quoting
Benjamin N. Cardozo, The Nature of the Judicial Process 141
(1921)).
14. See The Federalist No. 78 (Alexander Hamilton).
15. Laura Parker, “Biggest Case on the Planet” Pits Kids
v. Climate Change, Nat’l Geographic (Nov. 9, 2018), https://www.
nationalgeographic.com/science/article/kids-sue-us-government-
climate-change [https://perma.cc/2J7J-74C2].
33a

Appendix D

plaintiffs were between the ages of eight and nineteen.


They brought suit along with “future generations”
through their guardian, Dr. James Hansen. Plaintiffs
named as defendants all federal agencies that plaintiffs
alleged were responsible for the U.S. energy policy,
including the Department of Agriculture, Department
of Transportation, Environmental Protection Agency,
Department of Interior, the State Department, Council
on Environmental Quality, Department of Defense, and
Department of Commerce. Compl., ECF No. 1; First Am.
Compl. (“FAC”), ECF No. 7.

Plaintiffs compiled an abundance of factual evidence


to support their claim that the government has known
about the dangers posed by fossil fuel production, and,
despite that knowledge, chose to promote production
and consumption of coal, oil, and gas at increasing levels
over decades. The record is extensive. The evidence, as
the Ninth Circuit stated, “leaves little basis for denying
that climate change is occurring at an increasingly rapid
pace ... and stems from fossil fuel combustion.” Juliana,
947 F.3d at 1166.

From the beginning, plaintiffs alleged that, as


early as the year 1899, scientists understood that CO2
concentration in the atmosphere caused heat retention,
global heating, and climate change. FAC ¶ 131. Plaintiffs
VWDWHG WKDW IRU RYHU ÀIW\ \HDUV WKH 8QLWHG 6WDWHV RI
America has known that CO2 pollution from burning
fossil fuels was causing global warming and dangerous
climate change, and that continuing to burn fossil fuels
would destabilize the climate system on which present and
34a

Appendix D

future generations of our nation depend for survival. Id.


¶¶ 132-35. Recounting over a dozen signpost junctures,
plaintiffs provide letters, memoranda, and reports to the
SROLWLFDOEUDQFKHVIURPVFLHQWLÀFH[SHUWVDQGJRYHUQPHQW
agencies cautioning about the danger of carbon pollution
and warning that a lack of action would be felt for decades.
Id. ¶¶ 136-50.

Defendants moved to dismiss the complaint under


Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) for
lack of standing; failure to state a cognizable constitutional
claim; and failure to state a claim on a public trust
theory. ECF No. 27. The Court denied that motion in
November 2016. See Nov. 10, 2016 Op. & Order, ECF No.
83. Defendants also moved for judgment on the pleadings
and summary judgment. ECF Nos. 195, 207. For the most
part, the Court denied those motions.

When the Court denied defendants’ motions to certify


its dispositive orders for interlocutory appeal, defendants
petitioned the Supreme Court for a writ of mandamus,
ECF No. 390-1, and to stay proceedings, ECF No. 391-1,
both which were denied. Defendants asked the district
court to reconsider certifying its orders for interlocutory
appeal, and, that time, the Ninth Circuit invited the
district court to do so. See Nov. 21, 2018 Order, ECF Nos.
444, 445. Defendants then sought permission to appeal,
which the Ninth Circuit granted. Filed Ord., Juliana v.
United States, No. 18-36082 (9th Cir. Dec. 26, 2018).

On January 17, 2020, a divided panel of the Ninth


Circuit issued a decision reversing the district court’s
35a

Appendix D

FHUWLÀHGRUGHUVDQGUHPDQGLQJWKHFDVHZLWKLQVWUXFWLRQV
to dismiss for lack of Article III standing. Juliana, 947
F.3d at 1175. Writing for the majority, Judge Hurwitz,
joined by Judge Murguia, began with the basics: “To
have standing under Article III, a plaintiff must have (1)
a concrete and particularized injury that (2) is caused by
... challenged conduct and (3) is likely redressable by a
favorable judicial decision.” Id. at 1168.

Agreeing with the district court, Judge Hurwitz


found that “[a]t least some plaintiffs” had claimed
“particularized injuries,” since climate change threatened
to harm certain plaintiffs in “concrete and personal” ways
if left unchecked. Id. The appellate court described the
dire circumstances faced by one plaintiff who had had
to evacuate his coastal home because of climate change.
Id. And some plaintiffs had also established causation
because there was “at least a genuine factual dispute
as to whether” U.S. climate policy was a “substantial
factor” in exacerbating plaintiffs’ climate change-related
injuries. Id. at 1169. Thus, plaintiffs’ standing turned on
redressability: “whether the plaintiffs’ claimed injuries
[were] redressable by an Article III court.” Id.

Plaintiffs claimed defendants had violated their


constitutional right to a climate system capable of
sustaining life, and to redress that violation, sought
injunctive relief, including an order directing defendants
to “prepare and implement an enforceable national
remedial plan to phase out fossil fuel emissions and draw
down excess atmospheric CO2 to stabilize the climate
system.” FAC at 94 ¶¶ 2, 6, 7.
36a

Appendix D

“Reluctantly,” the panel found such relief “beyond [the


district court’s] constitutional power.” Juliana, 947 F.3d
at 1165. To establish redressability, the appellate court
H[SODLQHGSODLQWLIIVPXVWKDYHLGHQWLÀHGUHOLHIWKDWZDV
both “(1) substantially likely to redress their injuries” and
“(2) within the district court’s power to award.” Id. at 1170.
2Q WKH ÀUVW SURQJ WKH SDQHO IRXQG WKDW SODLQWLIIV· RZQ
experts 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


UHOLHI ZRXOG VXIÀFH WR UHGUHVV WKHLU LQMXULHV DQG WKDW
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
MXGJPHQWRQWKHVXIÀFLHQF\RIWKHJRYHUQPHQW·VUHVSRQVH
to the order. In the Ninth Circuit’s view, a district court
FRXOGQRWHQJDJHLQSDVVLQJMXGJPHQWRQWKHVXIÀFLHQF\
of the government’s response to a court order, because it
“necessarily would entail a broad range of policymaking.”
Id.

The panel continued: “[A] constitutional directive


or legal standard[ ] must guide the court’s exercise of
37a

Appendix D

equitable power,” and, on the other hand, “limited and


precise” legal rules simply could not resolve the range
of policy-related questions plaintiffs’ claims raised. Id.
at 1173. The appellate court determined that no remedy
VXEMHFW WR OLPLWHG DQG SUHFLVH GHÀQLWLRQ FRXOG UHGUHVV
plaintiffs’ injuries and therefore issuing such relief was
not within the district court’s power. Id.

Judge Josephine L. Staton dissented. “Plaintiffs bring


suit,” she lamented, “to enforce the most basic structural
principle embedded in our system of ordered liberty: that
the Constitution does not condone the Nation’s willful
destruction.” Id. at 1175. In Judge Staton’s view, the
district court had the power to award plaintiffs’ relief
unless plaintiffs’ claims ran afoul of the political question
doctrine. See id. at 1184-85. Since plaintiffs’ claims did not
pose political questions, she continued, they should have
proceeded. Id. at 1185-86. “[O]ur history is no stranger
to widespread, programmatic changes ... ushered in by
the judiciary[ ],” Judge Staton concluded, and the “slow
churn” of institutional-reform litigation “should not
dissuade us here.” Id. at 1188-89. At end of the day, the
narrower understanding prevailed: that Article III courts
cannot order injunctive relief unless constrained by more
“limited and precise” legal standards, discernable in the
Constitution, and that plaintiffs must make their case
to the political branches. Id. at 1175. The Ninth Circuit
´UHYHUVH>G@WKHFHUWLÀHGRUGHUVRIWKHGLVWULFWFRXUWDQG
remand[ed]” the case “with instructions to dismiss for
lack of Article III standing.” Id.

Plaintiffs moved to file an amended complaint,


removing from their prayer for relief the injunction that
38a

Appendix D

the Ninth Circuit had found objectionable. ECF No.


462. The Court granted it because (1) the Ninth Circuit
did not foreclose the possibility of amendment when it
PDQGDWHGGLVPLVVDO  SODLQWLIIVKDGQRWLÀHGWKH&RXUWRI
a Supreme Court case providing a new and more expansive
interpretation of declaratory judgments; and (3) plaintiffs’
proposed complaint narrowed the scope of the injunctive
relief it had initially requested. See Juliana v. United
States, No. 6:15-CV-01517-AA, 2023 WL 3750334 (D. Or.
June 1, 2023).

II. Plaintiffs File a Second Amended Complaint

In plaintiffs’ second amended complaint, they


maintain earlier factual allegations, contending that
defendants implemented no recommendation provided to
WKHPYLDVFLHQWLÀFUHSRUWVZDUQLQJRIFDWDVWURSKLFFOLPDWH
change. Second Am. Compl. (“SAC”) ¶ 153. Plaintiffs
contend that, if defendants had not disregarded the
evidence, “CO2 emissions today would be reduced by 35%
from 1987 levels.” Id. Instead, since 1991, plaintiffs state
that defendants have allowed CO2 emissions from fossil
fuel combustion to increase. Id. Plaintiffs provide tables
setting forth data from government sources showing that
fossil fuel production, fossil fuel energy consumption,
and fossil fuel emissions have climbed substantially since
1965, and that by 2011, fossil fuel combustion in the U.S.
accounted for 94% of CO2 emissions. Id. ¶¶ 155-58. By
2012, data plaintiffs provide shows that the U.S. was the
largest producer of natural gas, and the second largest
producer of coal and energy production. Id. ¶ 160. By
2014, according to the United States Energy Information
39a

Appendix D

Administration, the U.S. had become the largest producer


of total petroleum in the world. Id. ¶ 161.

Plaintiffs assert that defendants knew the harmful


HIIHFWRIWKHLUDFWLRQVZRXOGVLJQLÀFDQWO\HQGDQJHUPDQ\
like plaintiffs, with damage persisting for millennia.
Id. ¶¶ 1, 161. Despite that knowledge, plaintiffs allege
defendants continued their policies and practices of
promoting the exploitation of fossil fuels and that
defendants acted with deliberate indifference to the peril
they knowingly created. Id.

Plaintiffs’ inventory cataloguing the regulatory


permits, export permits, and approvals for leasing,
drilling, and mining on public lands is substantial. The
accounting of exploitation for fossil fuel extraction, coal
tracts, and oil and gas leases is staggering. Id. ¶¶ 164-
3ODLQWLIIVFRPSUHKHQVLYHO\LQYHQWRU\WKHDIÀUPDWLYH
governmental promotion of fossil fuel combustion over
decades. Id. ¶¶ 171-78.

Plaintiffs also include allegations drawing from


VFLHQWLÀFHYLGHQFHGRFXPHQWLQJWKHWDQJLEOHLPSDFWVRI
climate change. Evidence describes rising sea levels,
VHYHUHGURXJKWVKXUULFDQHVZLOGÀUHVH[WUHPHKHDWÁDVK
ÁRRGLQJ XQSUHFHGHQWHG RFHDQ DFLGLÀFDWLRQ DQG UDSLG
depletion of sea ice. Id. ¶¶ 213-41. Such events alter our
air quality, water availability, water quality, crop yields,
animal agriculture, and housing security. Id. Plaintiffs’
allegations about what the future holds if climate change
is unabated are harrowing. Id. ¶¶ 242-55.
40a

Appendix D

As the legal basis for their claims, plaintiffs maintain


that defendants have violated the Due Process Clause and
Equal Protection Clause of the Fifth Amendment; the
“unenumerated rights preserved for the people by the
Ninth Amendment”; and the public trust doctrine. FAC
at 84, 88, 91, 92; SAC at 133, 137, 140, 141 (bringing same
claims for relief).

Plaintiffs seek declaratory relief under the Declaratory


Judgment Act, 28 U.S.C. § 2201. SAC ¶ 14. Requested
relief includes a declaration that the United States national
energy system that creates the harmful conditions
described above has violated and continues to violate the
Fifth Amendment of the U.S. Constitution and plaintiffs’
constitutional rights to substantive due process and equal
protection of the law. Id. at 143 ¶ 1. Further, plaintiffs seek
a declaration that defendants violated public trust rights
and a declaration that the Energy Policy Act, Section 201
is unconstitutional. Id. at 143 ¶¶ 2-3.16 Plaintiffs request
injunctive relief only if necessary and “as appropriate.”
Id. at 143 ¶ 4.

III. The Government Files a Motion to Dismiss

Defendants move to dismiss under Federal Rule


of Civil Procedure 12(b)(1) and 12(b)(6), asserting that
plaintiffs lack standing; that plaintiffs cannot bring claims

16. As noted earlier, plaintiffs had initially sought injunctive


relief, including an order directing defendants to “prepare and
implement an enforceable national remedial plan to phase out
fossil fuel emissions and draw down excess atmospheric CO2 to
stabilize the climate system.” FAC at 94 ¶¶ 2, 6, 7.
41a

Appendix D

in the absence of a statutory right of action; that plaintiffs


ask the Court to exercise authority that exceeds the scope
of its power under Article III of the Constitution; and that
all of plaintiffs’ claims fail on the merits. Defendants also
assert that, if the Court denies their motion, it should
again certify its decision for interlocutory appeal.

LEGAL STANDARDS

I. Motion to Dismiss – Federal Rule of Civil Procedure


12(b)(1)

A court reviews a motion to dismiss a complaint for


lack of Article III standing under Rule 12(b)(1). Naruto
v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018) (quoting
Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011)).
If the jurisdictional attack is facial, courts determine
whether the allegations contained in the complaint are
VXIÀFLHQW RQ WKHLU IDFH WR LQYRNH IHGHUDO MXULVGLFWLRQ
accepting all material allegations in the complaint as
true and construing them in favor of the party asserting
jurisdiction. See Warth v. Seldin, 422 U.S. 490, 501 (1975).
Once a party has moved to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), the party invoking
federal jurisdiction bears the burden of establishing the
elements of standing. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992). “[A] party must establish an Article III
case or controversy before [a court can] exert subject
matter jurisdiction.” Matter of E. Coast Foods, Inc., 66
F.4th 1214, 1218 (9th Cir. 2023). To satisfy the “irreducible
constitutional minimum” of Article III standing, a plaintiff
must establish (1) an injury in fact (2) that is fairly
42a

Appendix D

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


FRQWDLQ VXIÀFLHQW IDFWXDO PDWWHU DFFHSWHG DV WUXH WR
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
VXIÀFHId. (citing Twombly, 550 U.S. at 555). “Where the
well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint
has alleged—but it has not show[n]—that the pleader is
entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R.
Civ. P. 8(a)(2)).

DISCUSSION

Over the eight years litigating this case, plaintiffs have


presented evidence spanning over 50 years describing
43a

Appendix D

defendants’ contribution to climate change through


ERWK LQDFWLRQ DQG DIÀUPDWLYH SURPRWLRQ RI IRVVLO IXHO
use. The Court recalls plaintiffs’ evidence included a
letter by a top aide to President Nixon’s domestic policy
adviser emphasizing the effect of rising sea levels in
1969: “Goodbye New York. Goodbye Washington, for
that matter.”17 In 1986, a Senate subcommittee observed
that “there is a very real possibility that man—through
ignorance or indifference, or both—is irreversibly altering
the ability of our atmosphere to perform basic life support
functions for the planet.”18 Those are but two documents
out of hundreds highlighting the lengthy nature of
government knowledge of the dangers of fossil fuel
combustion. By and large, defendants have not disputed
the factual premises of plaintiffs’ claims. Juliana, 947
F.3d at 1167 (so stating). However, plaintiffs have not
legally established that evidence. In reviewing defendants’
motion to dismiss, the Court notes that, though it has
held evidentiary hearings and painstakingly reviewed
thousands of pages of declarations and exhibits, today, its
task is solely to decide whether plaintiffs have standing
to bring suit and state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(1), (6).

17. Memorandum from Daniel P. Moynihan, Assistant to the


President for Domestic Pol’y, to John Ehrlichman, Assistant to
the President for Domestic Affs. (Sept. 17, 1969), [https://perma.
cc/G92P-AKLJ].
18. Ozone Depletion, the Greenhouse Effect, and Climate
Change: Hearing Before the Subcomm. on Env’t Pollution of
the Comm. on Env’t & Pub. Works, 99th Cong. 2 (1986) (opening
statement of Sen. John H. Chafee, Chairman, Subcomm. on Env’t
Pollution).
44a

Appendix D

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. DW  )LQDOO\ GHIHQGDQWV XUJH WKH &RXUW WR ÀQG
that plaintiffs’ claims fail on the merits and that plaintiffs
should have brought this action under the Administrative
Procedure Act (“APA”) but failed to do so. Id. at 32.

I. Mandate of the Court of Appeals for the Ninth


Circuit

Defendants state that the Ninth Circuit was clear


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

“A district court that has received the mandate of an


appellate court cannot vary or examine that mandate for
45a

Appendix D

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
SODLQWLIIWRÀOHDGGLWLRQDOSOHDGLQJVµS.F. Herring, 946
F.3d at 574 (quoting Nguyen, 792 F.2d at 1502); see also
Sierra Club v. Penfold, 857 F.2d 1307, 1312 (9th Cir. 1988).
When the mandate in the prior appeal does not expressly
address the possibility of amendment and does not indicate
a clear intent to deny amendment seeking to raise new
issues not decided, that mandate does not purport “to
shut the courthouse doors.” S.F. Herring, 946 F.3d at 574.

In S.F. Herring, the Ninth Circuit discussed its


mandate in a prior appeal, which vacated the district court’s
order entering summary judgment in the defendants’ favor
46a

Appendix D

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
DOORZHGWKHSODLQWLIIWRÀOHDVHFRQGDPHQGHGFRPSODLQW
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
SODLQWLIIWRÀOHDPHQGHGSOHDGLQJVId. 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 (D. Or. June 1, 2023). The Court
RQFHDJDLQÀQGVWKDWWKH1LQWK&LUFXLW·VPDQGDWHGLGQRW
address whether amendment, if permitted, would cure the
GHÀFLHQF\LWLGHQWLÀHGLQSODLQWLIIV·FRPSODLQW

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,
DQGWKH&RXUWRQUHFRQVLGHUDWLRQÀQGVWKDWLQSHUPLWWLQJ
47a

Appendix D

plaintiffs to proceed with their second amended complaint,


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

II. Standing

The Ninth Circuit determined that plaintiffs had


established an injury in fact, traceable to defendants—the
ÀUVWWZRHOHPHQWVRIFRQVWLWXWLRQDOVWDQGLQJJuliana 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.

'HIHQGDQWVFRQWHQGWKDWSODLQWLIIVKDYHQRWVDWLVÀHG
the third element of standing, because they failed to
demonstrate that their injuries are “redressable” and
that they are entitled to injunctive or declaratory relief.
Defendants maintain that plaintiffs’ requested relief fails,
because plaintiffs cannot show that the relief they seek
is (1) substantially likely to redress their injuries or (2)
within the Court’s power to award. Id. at 4-5, 12; see also
Spokeo, 578 U.S. at 338.

A plaintiff must support each element of the standing


test “with the manner and degree of evidence required at
the successive stages of the litigation.” Lujan, 504 U.S. at
48a

Appendix D

561 (1992). Accordingly, at the motion-to-dismiss stage,


´JHQHUDODOOHJDWLRQVµVXIÀFHWRHVWDEOLVKVWDQGLQJEHFDXVH
WKRVHDOOHJDWLRQVDUHSUHVXPHGWR´HPEUDFHWKRVHVSHFLÀF
facts that are necessary to support the claim.” Id. A
plaintiff need not show a favorable decision is “certain” to
redress his injury but must show a substantial likelihood
it will do so. Washington Env’t Council v. Bellon, 732
F.3d 1131, 1146 (9th Cir. 2013). The injury need not be
FRPSOHWHO\UHGUHVVDEOHLWLVVXIÀFLHQWWKDWWKHLQMXU\EH
partially redressed. Meese v. Keene, 481 U.S. 465, 476
(1987) (“enjoining the application of the words political
SURSDJDQGDWRWKHÀOPVZRXOGDWOHDVWSDUWLDOO\UHGUHVV
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
FDUU\LQJRXWSROLFLHVSUDFWLFHVDQGDIÀUPDWLYHDFWLRQV
that render the national energy system unconstitutional
in a manner that harms [p]laintiffs,” and only “if deemed
necessary, just and proper.” SAC at 143 ¶ 4.
49a

Appendix D

Accordingly, for plaintiffs’ claim for both injunctive


relief and declaratory relief, the Court will evaluate
whether each form of relief is (1) substantially likely to
redress their injuries and (2) within the Court’s power to
award. Spokeo, 578 U.S. at 338.

A. Injunctive Relief

1. Substantial Likelihood of Redress

Defendants assert that an order enjoining defendants’


fossil fuel activities will not stop catastrophic climate
change or even partially ameliorate plaintiffs’ injuries,
and therefore, any such injunction is not substantially
likely to redress plaintiffs’ injuries and satisfy standing.
Mot. at 12.

Whether a court order will halt all climate change


by restraining defendants from carrying out fossil fuel
activities is the wrong inquiry for at least two reasons.
First, redressability does not require certainty, it requires
only a substantial likelihood that the Court could provide
meaningful relief. Spokeo, 578 U.S. at 338. Second, the
possibility that some other individual or entity might
cause the same injury does not defeat standing—the
question is whether the injury caused by the defendant
can be redressed.

Defendants have not disputed plaintiffs’ factual


allegations that they produce a quarter of all emissions
on Earth. Juliana, 947 F.3d at 169. Based on plaintiffs’
alleged facts, an order to defendants to refrain from
50a

Appendix D

certain fossil fuel activities which are causing plaintiffs’


injuries would redress those injuries. On the spectrum of
likely to unlikely, a favorable court order is much closer to
likely, i.e., substantially likely, to redress plaintiffs’ harm.

“Substantially likely” is a legal characterization,


QRWDQHYLGHQFHEDVHGVFLHQWLÀFQXPEHU4XDQWLI\LQJD
threshold datapoint at which plaintiffs’ harm would be
UHPHGLHGZRXOGLQYROYHULJRURXVGLVFLSOLQHGIDFWÀQGLQJ
and inevitably would raise a host of questions: What part
of plaintiffs’ injuries stem from causes beyond defendants’
control? Even if emissions increase elsewhere, will the
extent of plaintiffs’ injuries be less if they obtain the relief
they seek in this lawsuit? When would we reach this “point
of no return” that plaintiffs’ evidence describes, and do
defendants have it within their power to avert reaching
it, even without cooperation from third parties? All these
questions are inextricably bound up in an evidentiary
inquiry, and none of them can be answered at the motion-
WRGLVPLVV VWDJH $W WKLV MXQFWLRQ WKH &RXUW ÀQGV WKDW
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


WKDWWKHLQMXQFWLRQSODLQWLIIVVRXJKWLQWKHLUÀUVWDPHQGHG
complaint would “necessarily require a host of complex
policy decisions entrusted ... to the wisdom and discretion
of the executive and legislative branches,” Juliana, 947
51a

Appendix D

F.3d at 1171, decisions “which must be made by the


People’s elected representatives.” Id. at 1172. Defendants
maintain that, even with amendment, plaintiffs’ requested
injunctive relief is unavailable, because it would “enjoin
the executive branch from exercising discretionary
authority” granted to it by statute, and would enjoin
Congress from exercising power expressly granted to it
by the Constitution. Mot. at 13 (citing the Property Clause,
U.S. Const. art. IV, § 3, cl. 2). In defendants’ view, the
requested injunction remains beyond a district court’s
power to award. Id.

While crafting and implementing injunctions in cases


involving longstanding agency shortcomings may require
ULJRURXVDGYHUVDULDOIDFWÀQGLQJWRSHQHWUDWHTXHVWLRQV
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
RI(QJLQHHUVWRLPSOHPHQWGUDZGRZQVSLOODQGVSHFLÀF
ÀVKPDQDJHPHQWDFWLRQVDWLWVIDFLOLWLHVHVWDEOLVKLQJDQ
expert panel to craft implementation plans; and requiring
status reports from agency).

Other federal district courts have similarly ordered


DJHQF\ DFWLRQ DQG DSSHOODWH FRXUWV KDYH DIÀUPHG WKDW
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
52a

Appendix D

nationwide relief.” Bresgal v. Brock, 843 F.2d 1163, 1171


(9th Cir. 1987).

Without any explicit statutory command to the


contrary, no court has held that these powers categorically
fail on separation-of-powers grounds. See Samuel
Buckberry Joyce, Climate Injunctions: The Power of
Courts to Award Structural Relief Against Federal
Agencies, 42 Stan. Env’tl. L.J. 241, 268-281, May 2023
(compiling cases featuring structural injunctions against
the federal government).

Familiar instances of large-scale institutional


litigation in modern American history include cases
that ordered busing to desegregate schools;19 the treaty
ULJKWVFDVHVWKDWDVVXUHGDIDLUVKDUHRIÀVKIRU$PHULFDQ
,QGLDQWUHDW\ÀVKHUV20 cases instituting prison condition
reform;21 and cases relating to land use and low-income
housing. 22 Legal scholars have cited those cases and
explained that injunctions in those cases “aimed to break
down, scrutinize, and reform institutional dynamics and

19. See, e.g., Brown v. Bd. of Educ. of Topeka, 347 U.S. 483
(1954); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971); Milliken v. Bradley, 418 U.S. 717 (1974); Green v. Cnty.
Sch. Bd. of New Kent Cnty., 391 U.S. 430 (1968).
20. See, e.g., United States v. Washington, 520 F.2d 676 (9th
Cir. 1975); Washington v. Washington State Com. Passenger
Fishing Vessel Ass’n, 443 U.S. 658 (1979).
21. See, e.g., Brown v. Plata, 563 U.S. 493 (2011); Hudson v.
McMillian, 503 U.S. 1 (1992); Hutto v. Finney, 437 U.S. 678 (1978).
22. See Hills v. Gautreaux, 425 U.S. 284, 298 (1976).
53a

Appendix D

practices that caused the government to repeatedly violate


fundamental rights of citizens to bring about enduring
constitutional and civil rights compliance.” 23

,QWKHLUÀUVWDPHQGHGFRPSODLQWSODLQWLIIV·UHTXHVWHG
remedy was an injunction requiring the government not
only to “cease permitting, authorizing, and subsidizing”
fossil fuel use, but also to “prepare a remedial plan subject
to judicial approval to draw down harmful emissions.”
Juliana, 947 F.3d at 1170.

When it determined that plaintiffs’ requested relief


was beyond the power of an Article III court to order, the
Ninth Circuit did not offer any explicit guidance on how
to distinguish other structural injunction cases, where
WKHGLVWULFWFRXUWKDVSRZHUWRRUGHUVSHFLÀFLQMXQFWLYH
relief, from this case, where the relief necessary to redress
plaintiffs’ injuries is held to be too broad.

3ODLQWLIIVKDYHVFDOHGEDFNWKHVSHFLÀFGLUHFWLYHVWKH\
DW ÀUVW VRXJKW LQ WKH LQMXQFWLRQ LQ WKHLU ÀUVW DPHQGHG
complaint. At this point in the litigation, where the facts
alleged are accepted as true, the Court can only identify
one distinction between the injunction plaintiffs’ request
and the injunctions issued in the structural reform cases
described above. In other reform cases, those plaintiffs’
obtained injunctions against a single agency for a discreet
violation of law. In this case, plaintiffs seek relief on
constitutional grounds and historical trust principles
against a host of governmental defendants.

23. Wood, Eve of Destruction, at 262.


54a

Appendix D

The Court appreciates that, under existing precedent,


DQLQMXQFWLRQRIWKHVFRSHSODLQWLIIVÀUVWUHTXHVWHGDQGWKH
“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 all-
out course correction necessary to avoid the impending
FULVLV5HTXLULQJSODLQWLIIVWRÀOHLQGLYLGXDOVXLWVSUHPLVHG
on discreet agency shortcomings may be a viable path
to achieving protections for the environment. However,
a court order directing the agencies to work together,
outside their silos to oversee resolution of a complex,
multiagency problem may prove especially constructive
where a practical solution has eluded the entire government
for decades.

Such an order has not proven to be necessary—and is


perhaps premature—at this point in the case. Plaintiffs’
amended request for injunction, though narrower, still
treads on ground over which Ninth Circuit cautioned the
Court not to step. If the reform plaintiffs seek is to prod
a negotiated change of behavior, it is unnecessary to seek
injunctive relief at this point to do so. Defendants’ motion
to dismiss plaintiffs’ claim for injunctive relief is granted.

B. Declaratory Relief

Plaintiffs’ second amended complaint seeks a


declaration that “the national energy system” violates
55a

Appendix D

the Constitution and the public trust doctrine. SAC at


143, ¶¶ 1-3. Defendants contend that plaintiffs’ claim for
declaratory relief must be dismissed, asserting that the
declaration is not materially distinct from the declaration
SODLQWLIIV VRXJKW LQ WKHLU ÀUVW DPHQGHG FRPSODLQW $QG
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
ZRXOG´IXQFWLRQDOO\GHFODUHXQFRQVWLWXWLRQDOXQVSHFLÀHG
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
WKH ÀUVW LQVWDQFH DQG ODWHU FRQVLGHU LI IXUWKHU UHOLHI LV
warranted. “In a case of actual controversy within its
jurisdiction, [ ] any court of the United States, upon the
ÀOLQJRIDQDSSURSULDWHSOHDGLQJPD\GHFODUHWKHULJKWV
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
HIIHFWRIDÀQDOMXGJPHQWRUGHFUHHDQGVKDOOEHUHYLHZDEOH
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.
56a

Appendix D

The Supreme Court has long recognized that


declaratory judgment actions can provide redressability,
even where relief obtained is a declaratory judgment
alone. See generally Franklin v. Massachusetts, 505 U.S.
788, 803 (1992) and Utah v. Evans, 536 U.S. 452 (2002).
In Franklin and Evans, states objected to the technique
used by the Census Bureau to count people and those
VWDWHVVXHGJRYHUQPHQWRIÀFLDOV

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
RWKHUH[HFXWLYHDQGFRQJUHVVLRQDORIÀFLDOVZRXOGDELGHE\
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
´DPRXQWWRDVLJQLÀFDQWLQFUHDVHLQWKHOLNHOLKRRGWKDWWKH
plaintiff would obtain relief that directly redresses the
injury suffered.” 536 U.S. 452 (2002).

Other cases recognize the role of declaratory


relief in resolving Constitutional cases. See, e.g.,
Evers v. Dwyer, 358 U.S. 202, 202-04 (1958) (ongoing
governmental enforcement of segregation laws created
actual controversy for declaratory judgment); Powell v.
McCormack, 395 U.S. 486, 499 (1969) (“A court may grant
57a

Appendix D

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
UHPHG\VDWLVÀHVWKHUHGUHVVDELOLW\UHTXLUHPHQW86
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
LQWHUHVWVRIVXIÀFLHQWLPPHGLDF\DQGUHDOLW\WRZDUUDQW
the issuance of a declaratory judgment.” MedImmune,
Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (quoting
Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273
(1941)).

There is nothing in § 2201 preventing a court from


granting declaratory relief even if it is the only relief
58a

Appendix D

awarded. Section 2201 provides that declaratory relief


may be granted “whether or not further relief is or could
be sought.” Id. Under the statute, the relief plaintiffs
VHHNÀWVOLNHDJORYHZKHUHSODLQWLIIV·UHTXHVWGHFODUDWRU\
relief independently of other forms of relief, such as an
injunction. See Steffel v. Thompson, 415 U.S. 452, 475,
(1974) (stating in a different context that “regardless
of whether injunctive relief may be appropriate, federal
declaratory relief is not precluded.”). A declaration that
defendants are violating plaintiffs’ constitutional rights
may be enough to bring about relief by changed conduct.

2. The Court’s Power to Provide Redress

A s expressed in Marbur y v. Madison: “It is


emphatically the province and duty of the judicial
department to say what the law is.” 5 U.S. at 177. Over
the course of American history, courts have corrected
longstanding, systemic wrongs of political branches that
encroach on the fundamental rights of citizens.

The judiciary has the unique and singular duty to


both declare constitutional rights and prevent political
acts that would curb or violate those rights. Id. at 167. It
is a foundational doctrine that when government conduct
harms American citizens, the judiciary is constitutionally
required to perform its independent role and determine
whether the challenged conduct, not exclusively committed
to any branch by the Constitution, is unconstitutional. Id.
at 176-78.

The Act gives “federal courts competence to make a


declaration of rights.” Pub. Affairs Associates v. Rickover,
59a

Appendix D

369 U.S. 111, 112 (1962). The Supreme Court has found it
“consistent with the statute ... to vest district courts with
GLVFUHWLRQLQWKHÀUVWLQVWDQFHEHFDXVHIDFWVEHDULQJRQ
the usefulness of the declaratory judgment remedy, and
WKHÀWQHVVRIWKHFDVHIRUUHVROXWLRQDUHSHFXOLDUO\ZLWKLQ
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
WKH ODQGPDUN WUHDW\ ÀVKLQJ FDVHV FRXUWV GHFODUHG WKH
tribes right to take up to 50 percent of the harvestable
TXDQWLWLHVRIÀVKUnited States v. Washington, 520 F.2d
676, 687 (9th Cir. 1975).

'HFODUDWRU\MXGJPHQWVDUHWKXVÀUPO\VLWHGZLWKLQ
the core competences of the courts in a way that structural
injunctions are not. Declaratory judgments ask courts
to declare actions lawful or unlawful, applying legal
standards to a set of facts. Unlike structural injunctions,
which envision an on-going dialogue between the court
and the parties, the declaratory relief model facilitates
a dialogue between the parties. Following a court’s
declaration of rights, which serves as the baseline below
which a defendant may not fall, the various stakeholders
are left to handle the details. 24

24. See generally Emily Chiang, Reviving the Declaratory


Judgment: A New Path to Structural Reform, 63 Buff. L. Rev.
549 (May 2015) (discussing models of structural reform and
encouraging public interest lawyers to consider declaratory relief
as an effective and uniquely suited tool for structural reform in
the modern age).
60a

Appendix D

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
WDVN RI GHÀQLQJ SODLQWLIIV· EDVLF ULJKWV DQG GHIHQGDQWV·
consequent obligations, the Court would bifurcate the case
into a “liability” stage and a “remedy” stage.

The liability stage may allow the Court to specify legal


obligations in a declaratory judgment, while the remedy
stage demands a more innovative judicial role to supervise
the parties in crafting a plan. During the remedy stage,
the Court could invoke the usual standards of deference to
the agency, while the case remains open under its ongoing
jurisdiction so that parties can challenge aspects of the
remedy implementation without bringing a new lawsuit.

One model of supervision involves the appointment


of a special master to handle complex factual issues,
make determinations on recurring issues, and make
recommendations to the court. Consent decrees are used
in many contexts of long-lasting government violations.
Professor Wood points out one notable example in the
61a

Appendix D

HQYLURQPHQWDO FRQWH[W WKDW DURVH IURP D WUHDW\ ÀVKLQJ


case, United States v. Oregon, handled by Judge Belloni,
U.S. District Court of Oregon. 25 The litigation “culminated
in a consent decree” and the Columbia River Fish
Management Plan (“CRFMP”) became “a model of judicial
administration that gained nationwide acclaim.” 26

The CRFMP established a system of co-management


between nine sovereigns (states, tribes, and the federal
JRYHUQPHQW PDQDJLQJWUHDW\ÀVKHULHVLQWKH&ROXPELD
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
PDQDJHPHQWFULWHULDIRUHDFKÀVKHU\HVWDEOLVKHGWHFKQLFDO
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
VFLHQWLÀFH[SHUWLVHWKHFRQVHQWGHFUHHSURFHVVFDQFUHDWH
DQHQGXULQJUHPHG\VWUXFWXUHWRÀWFRPSOH[LQVWLWXWLRQDO
and biological circumstances.” 27

Defendants have not shown that plaintiffs’ claim for


declaratory relief falls outside the scope of the Court’s
authority, where “facts bearing on the usefulness of

25. Wood, Eve of Destruction, at 264 (citing United States


v. Oregon, 699 F. Supp. 1456, 1469 (D. Or. 1988) (describing and
approving the CRFMP)).
26. Id.
27. Id.
62a

Appendix D

WKHGHFODUDWRU\MXGJPHQWUHPHG\DQGWKHÀWQHVVRIWKH
case for resolution, are peculiarly within [its] grasp.”
MedImmune, 549 U.S. at 136. Accordingly, defendants’
motion to dismiss is denied as to this issue.

III. Political Question Doctrine

Defendants maintain that plaintiffs’ claims present


political questions over which the Court lacks jurisdiction.
Mot. at 12-19. In defendants’ view, plaintiffs ask the
Court to “review and assess the entirety of Congress’s
and the Executive Branch’s programs and regulatory
decisions relating to climate change and then to pass
on the comprehensive constitutionality of all of those
policies, programs, and inaction in the aggregate.” Id.
at 17. Defendants assert that no federal court “has ever
purported to use the judicial [p]ower to perform such a
sweeping policy review.” Id.

Defendants appear to misunderstand the function of


the Court acting within its prescribed authority to declare
what the law is—it is not the Court which will perform “a
sweeping policy review,” it is defendants.

There is no need for the Court to step outside its


prescribed role to decide this case. At its heart, this
lawsuit asks the Court to determine whether defendants
have violated plaintiffs’ constitutional rights. That question
is squarely within the purview of the judiciary. See INS v.
Chadha, 462 U.S. 919, 941 (1983) (the judiciary is bound
to determine whether the political branches have “chosen
a constitutionally permissible means of implementing
63a

Appendix D

[their] power”); Jewel v. Nat’l Sec. Agency, 673 F.3d 902,


912 (9th Cir. 2011) (although lawsuit challenging federal
agencies’ surveillance practices “strikes at the heart of a
major public policy controversy,” claims were justiciable
because they were “straightforward claims of statutory
and constitutional rights, not political questions.”).

The Court previously analyzed whether plaintiffs’


claims presented a political question under Baker v. Carr,
369 U.S. 186 (1962) and adopts that analysis here. See
Juliana v. United States, 217 F. Supp. 3d 1224, 1235-42
(D. Or. 2016) rev’d and remanded on other grounds, 947
F.3d 1159 (9th Cir. 2020). The Ninth Circuit explicitly
VWDWHGWKDWLWGLGQRWÀQGWKDWSODLQWLIIVKDGSUHVHQWHGD
political question. Juliana, 947 F.3d at 1174 n.9 (“Contrary
WRWKHGLVVHQWZHGRQRWÀQGWKLVWREHDSROLWLFDOTXHVWLRQ
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.”).
%HFDXVHWKH&RXUWÀQGVWKDWXQGHUBaker, the political
question doctrine does not impede plaintiffs’ claims,
defendants’ motion to dismiss is denied on this issue.
64a

Appendix D

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
LQDOLHQDEOH ULJKWVµ UHÁHFW WKH EDVLF VRFLHWDO FRQWUDFW RI
the Constitution to protect citizens and “posterity”—
future generations—from government infringement upon
basic freedoms and basic rights. Id. Plaintiffs state that
GHIHQGDQWV·DIÀUPDWLYHDJJUHJDWHDFWVKDYHEHHQDQGDUH
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
GHIHQGDQWV·DIÀUPDWLYHDFWLRQV i.e., leasing land, issuing
permits) cannot proceed because plaintiffs have failed
to identify infringement of a fundamental right or
discrimination against a suspect class of persons.

Second, they argue plaintiffs cannot challenge


defendants’ inaction (i.e., failure to prevent third parties
from emitting CO 2 at dangerous levels). Defendants
maintain that the Constitution “does not impose an
DIÀUPDWLYHGXW\WRSURWHFWLQGLYLGXDOVDQGSODLQWLIIVKDYH
failed to allege a cognizable claim under the “state-created
danger” exception to that rule. Mot. at 21.
65a

Appendix D

Defendants state that the Supreme Court has


repeatedly instructed courts considering novel due
process claims to “exercise the utmost care whenever
 DVNHG WR EUHDN QHZ JURXQG LQ WKLV ÀHOG  OHVW WKH
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.

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.

:KHQDSODLQWLIIFKDOOHQJHVDIÀUPDWLYHJRYHUQPHQW
action under the Due Process Clause, the threshold
inquiry is the applicable level of judicial scrutiny. Witt v.
Dep’t of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008).
The default level of scrutiny is rational basis, which
requires a reviewing court to uphold the challenged
governmental action so long as it “implements a rational
means of achieving a legitimate governmental end[.]”
Kim v. United States, 121 F.3d 1269, 1273 (9th Cir.
1997) (quotation marks omitted). When the government
66a

Appendix D

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


LVFOHDUWRWKLV&RXUWWKDWGHIHQGDQWV·DIÀUPDWLYHDFWLRQV
would survive rational basis review. Resolution of this
part of the motion to dismiss therefore hinges on whether
plaintiffs have alleged infringement of a fundamental
right.

Fundamental liberty rights include both rights


enumerated elsewhere in the Constitution and rights and
liberties which are either (1) “deeply rooted in this Nation’s
history and tradition” or (2) “fundamental to our scheme
of ordered liberty[.]” McDonald v. City of Chicago, 561
U.S. 742, 767 (2010) (internal citations, quotations, and
emphasis omitted). Seemingly “new” fundamental rights
are not out of bounds. When the Supreme Court broke
new legal ground by recognizing a constitutional right to
same-sex marriage, Justice Kennedy wrote that

The nature of injustice is that we may not


always see it in our own times. The generations
WKDWZURWHDQGUDWLÀHGWKH%LOORI5LJKWVGLG
not presume to know the extent of freedom
in all its dimensions, and so they entrusted to
future generations a charter protecting the
67a

Appendix D

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]


KH LGHQWLÀFDWLRQ DQG SURWHFWLRQ RI IXQGDPHQWDO ULJKWV
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.WKH&RXUWÀQGV


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
KDYHFRQVLVWHQWO\UHMHFWHGDWWHPSWVWRGHÀQHVXFKULJKWV
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
68a

Appendix D

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


DFRPSODLQWDOOHJHVJRYHUQPHQWDODFWLRQLVDIÀUPDWLYHO\
and substantially damaging the climate system in a way
that will cause human deaths, shorten human lifespans,
damage property, threaten human food sources, and
dramatically alter the planets ecosystem, it states a claim
for a due process violation. To hold otherwise would be
to say that the Constitution affords no protection against
a government’s knowing decision to poison the air its
citizens breathe or the water its citizens drink.

How can the judiciary uphold the Constitution’s


guarantee that the government shall not deprive its
citizens of life without due process, while also upholding
government “actions that could leave [future generations]
a world with an environment on the brink of ruin and no
mechanism to assert their rights.” Aji P. v. State, 198
Wash. 2d 1025, 497 P.3d 350, 351 (2021) (Gonzalez, C.J.)
(dissenting). We cannot vow to uphold the Constitution’s
protection of a God-given right to life, and at the same
time, exercise “judicial restraint” by telling plaintiffs
that “life” cannot possibly include the right to be free
from knowing government destruction of their ability
to breathe, to drink, or to live. “It cannot be presumed
that any clause in the [C]onstitution is intended to be
without effect.” Marbury, 5 U.S. at 174. Plaintiffs have
adequately alleged infringement of a fundamental right
and defendants’ motion to dismiss is denied on this issue.
69a

Appendix D

B. Government Inaction Under the Due Process


Clause

Plaintiffs allege that “[a]cting with full appreciation


of the consequences of their acts, defendants knowingly
caused, and continue to cause, dangerous interference with
our atmosphere and climate system.” SAC ¶ 280. They
allege this danger stems, “in substantial part, [from] [d]
efendants’ historic and continuing permitting, authorizing,
and subsidizing of fossil fuel extraction, production,
transportation, and utilization.” Id. ¶ 279. Plaintiffs allege
defendants acted “with full appreciation” of the consequences
of their acts. Id. ¶¶ 278–79. Plaintiffs challenge defendants’
failure to limit third-party CO2 emissions under the danger
creation exception stated in DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189 (1989).

The Due Process Clause imposes no duty on the


JRYHUQPHQW WR SURWHFW SHUVRQV IURP KDUP LQÁLFWHG E\
WKLUGSDUWLHVWKDWZRXOGYLRODWHGXHSURFHVVLILQÁLFWHGE\
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
IDLUO\ EH H[WHQGHG WR LPSRVH DQ DIÀUPDWLYH
obligation on the State to ensure that those
interests do not come to harm through other
means.
70a

Appendix D

DeShaney, 489 U.S. at 194-95. The Ninth Circuit


recognizes two narrow exceptions to the no-duty-to-
protect rule from DeShaney: (1) the “special-relationship”
exception, which applies to individuals involuntarily
placed in state custody; and (2) the state-created danger
exception. Murguia v. Langdon, 61 F.4th 1096, 1106 (9th
Cir. 2023).

In the Ninth Circuit, a plaintiff challenging government


LQDFWLRQRQDGDQJHUFUHDWLRQWKHRU\PXVWÀUVWVKRZWKH
“state actor create[d] or expose[d] an individual to a
danger which he or she would not have otherwise faced.”
.HQQHG\Y&LW\RI5LGJHÀHOG, 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
71a

Appendix D

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
DQDFWE\DJRYHUQPHQWRIÀFLDOWKDWFUHDWHGDQREYLRXV
LPPHGLDWHDQGSDUWLFXODUL]HGGDQJHUWRDVSHFLÀFSHUVRQ
NQRZQWRWKDWRIÀFLDOµ0RWDWPauluk, 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.
'HIHQGDQWV· DUJXPHQWV GR QRW UHÁHFW WKDW 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)
72a

Appendix D

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
DUH VXIÀFLHQW VDIHJXDUGV DJDLQVW WKH ÁRRG RI OLWLJDWLRQ
concerns raised by defendants.

At the motion-to-dismiss stage, the Court accepts the


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

V. Second Claim for Relief: Equal Protection Under


the Fifth Amendment

Plaintiffs allege that both unborn members of “future


generations” and minor children who cannot vote are a
VXVSHFW FODVVLÀFDWLRQ 6$& ˆˆ  3ODLQWLIIV VWDWH
that, for purposes of this action, they should be treated as
protected classes because many harmful effects caused
by the acts of defendants will occur again. Id. ¶ 297.
Plaintiffs maintain that the Court should determine they
must be treated as protected classes, and federal laws and
actions that disproportionately discriminate against and
endanger them must be invalidated. Id.
73a

Appendix D

Defendants assert that “[n]one of the government


actions that [p]laintiffs complain of classify or affect
youth or posterity any differently than they affect other
persons.” Mot. at 29. While plaintiffs’ allegations are to
the contrary, asserting that future generations will be
decidedly more effected by climate change, defendants
assert that their actions furthering fossil fuel combustion
survive rational basis review, because plaintiffs cannot
allege that there is no conceivable set of facts that could
provide a rational basis for defendants’ actions. Id.

Both the Supreme Court and the Ninth Circuit


have held that age is not a suspect class. City of Dallas
v. Stanglin, 490 U.S. 19, 25 (1989); United States v.
Flores-Villar, 536 F.3d 990, 998 (9th Cir. 2008). Stanglin
and Flores-Villar both applied rational basis review to
governmental action that discriminated against teenagers
of a similar age to plaintiffs here. In both cases, that
discrimination was found to be permissible if it had a
rational basis.

Even if plaintiffs’ suspect-class argument were not


foreclosed by precedent, the Court would not be persuaded
to break new ground in this area. See Cunningham v.
Beavers, 858 F.2d 269, 273 (5th Cir. 1988) (“No cases
have ever held, and we decline to hold, that children are
a suspect class.”).

Accordingly, defendants’ motion to dismiss plaintiffs’


equal protection claim based on plaintiffs’ constituting a
suspect class is granted.
74a

Appendix D

VI. Third Claim for Relief: Unenumerated Rights


Under the Ninth Amendment

Plaintiffs’ third claim for relief, which is pleaded


as a freestanding claim under the Ninth Amendment,
alleges that the Nation’s founders intended that the
federal government would have both the authority and the
responsibility to be a steward of our country’s essential
natural resources. SAC ¶ 303. This stewardship, plaintiffs
assert, is clear from the delegation of powers to manage
lands and the conveyed authority to address major
challenges facing our nation. Id. Plaintiffs allege that
among the “implicit liberties protected from government
intrusion by the Ninth Amendment” is the right to
be “sustained by our country’s vital natural systems,
including our climate system.” Id.

Defendants assert that the Ninth Amendment has


never been recognized as independently securing any
constitutional right, and that this claim must be dismissed.
Mot. at 21; Strandberg v. City of Helena, 791 F.2d 744, 748
(9th Cir. 1986).

Defendants are correct. Plaintiffs’ Ninth Amendment


claim is not viable. Id. Defendants’ motion to dismiss
plaintiffs’ third claim for relief is granted.

VII. Fourth Claim for Relief: Rights Under Public


Trust Doctrine

Plaintiffs’ public trust claim arises from the particular


application of the public trust doctrine to essential natural
75a

Appendix D

resources. The complaint alleges that the overarching


public trust resource is our country’s life-sustaining
climate system, which encompasses our atmosphere,
waters, oceans, and biosphere. SAC ¶ 308. Plaintiffs
DVVHUW WKDW GHIHQGDQWV PXVW WDNH DIÀUPDWLYH VWHSV WR
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. ˆ  7KH DIÀUPDWLYH DJJUHJDWH DFWV RI
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
DQGIXWXUHEHQHÀFLDULHVRIWKHSXEOLFWUXVWDQGWKDWVXFK
an abdication of duty abrogates the ability of succeeding
members of the Executive Branch and Congress to provide
for the survival and welfare of our citizens and to promote
the endurance of our nation. Id.

Defendants assert that plaintiffs’ fourth claim for


relief, asserting public trust claims, should be dismissed
for two independent reasons. Mot. at 24. First, any
public trust doctrine is a creature of state law that
applies narrowly and exclusively to particular types of
state-owned property not at issue here. Id.; U.S. Const.
art. IV, § 3, cl. 2 (“The Congress shall have Power to
dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging
to the United States.”). Defendants contend there is no
76a

Appendix D

basis for plaintiffs’ public trust claim against the federal


government under federal law. Second, the “climate
system” or atmosphere is not within any conceivable
federal public trust. Id.

The Court has expended innumerable hours in


research and analysis of plaintiffs’ public trust claim and,
in prior orders, determined that plaintiffs have alleged
violations of the public trust doctrine in connection with
the territorial sea. See Juliana v. United States, 217 F.
Supp. 3d 1224, 1255 (D. Or. 2016), rev’d and remanded
on other grounds, 947 F.3d 1159 (9th Cir. 2020). Because
the Ninth Circuit did not reach the merits of plaintiffs’
claims, the Court incorporates its analysis and legal
conclusions, as stated in Juliana, 217 F. Supp at 1255-61
ÀQGLQJWKDWSODLQWLIIV·DOOHJHGLQMXULHVUHODWHWRWKHHIIHFWV
RIRFHDQDFLGLÀFDWLRQDQGULVLQJRFHDQWHPSHUDWXUHVWKXV
pleadings adequately alleged harm to public trust assets;
the public trust doctrine applies to the federal government;
the federal government, like the states, holds public assets,
including the territorial seas, in trust for the people;
environmental statutes have not displaced the venerable
public trust doctrine; and plaintiffs’ claims rest “directly
on the Due Process Clause of the Fifth Amendment and
are enforceable against the federal government.”).

Accordingly, the Court finds that plaintiffs have


stated a claim under a purported public trust doctrine.
Defendants’ motion to dismiss plaintiffs’ fourth claim for
relief is denied.
77a

Appendix D

VIII. Action Under Administrative Procedure Act

Defendants argue that plaintiffs needed to bring their


claims under the Administrative Procedure Act (“APA”)
and failed to do so. Mot. at 32.

The Court finds that the APA does not govern


plaintiffs’ claims, and that, as a result, plaintiffs’ failure to
state a claim under the APA is not a ground for dismissing
this action. The Ninth Circuit found that “[w]hatever
the merits of the plaintiffs’ claims, they may proceed
independently of the review procedures mandated by the
APA.” Juliana, 947 F.3d at 1167-68. Defendants’ motion to
dismiss is denied as to this issue. Defendants reserve their
right to disagree with the Ninth Circuit’s determination
on this point but concede that the Ninth Circuit’s decision
governs, and respectfully preserve their arguments on
the applicability of the APA for potential further review.

CONCLUSION

Other courts across the United States have noted


that “[w]ith each year, the impacts of climate change
amplify and the chances to mitigate dwindle.” Matter of
Hawai‘i Elec. Light Co., Inc., 152 Haw. 352, 359 (2023). The
judicial branch of government can no longer “abdicat[e]
responsibility to apply the rule of law.” Id. at 365 (Wilson,
J., concurring). For the reasons explained, Defendants’
motion to dismiss the second amended complaint, ECF
No. 547, is GRANTED in part and DENIED in part.
The Court also DENIES defendants’ request to certify
for interlocutory review this opinion and order; DENIES
78a

Appendix D

defendants’ motion for an order certifying its prior order,


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

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


79a

Appendix EE
APPENDIX
2023 WL 3750334
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF OREGON, EUGENE DIVISION
-------------------
Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
-------------------
Signed: June 1, 2023
-------------------
OPINION AND ORDER
-------------------
AIKEN, District Judge:

In this civil rights action, plaintiffs—a group of young


people between the ages of eight and nineteen when
WKLVODZVXLWZDVÀOHGDQG´IXWXUHJHQHUDWLRQVµWKURXJK
their guardian Dr. James Hansen—allege injury from
the devastation of climate change and contend that the
Constitution guarantees the right to a stable climate
system capable of sustaining human life. Plaintiffs
80a

Appendix E

maintain that federal defendants have continued to


permit, authorize, and subsidize fossil fuel extraction and
consumption, despite knowledge that those actions cause
catastrophic global warming. This case returns to this
Court on remand from the Ninth Circuit Court of Appeals,
ZKHUHSODLQWLIIVGHPRQVWUDWHGWKHLU´LQMXU\LQIDFWµZDV
´IDLUO\ WUDFHDEOHµ WR IHGHUDO GHIHQGDQWV· DFWLRQV³WZR
of three requirements necessary to establish standing
under Article III. However, the Ninth Circuit reversed
ZLWKLQVWUXFWLRQVWRGLVPLVVSODLQWLIIV·FDVHKROGLQJWKDW
SODLQWLIIV IDLOHG WR GHPRQVWUDWH ´UHGUHVVDELOLW\µ³WKH
WKLUGÀQDOUHTXLUHPHQWWRHVWDEOLVK$UWLFOH,,,VWDQGLQJ
The Ninth Circuit determined that plaintiffs did not
´VXUPRXQWWKHUHPDLQLQJKXUGOHµWRSURYHWKDWWKHUHOLHI
they seek is within the power of an Article III court to
provide. Juliana v. United States, 947 F.3d 1159, 1171 (9th
&LU $IWHUWKDWFRXUW·VGHFLVLRQSODLQWLIIVPRYHGWR
amend, notifying this Court of an intervening change in
controlling law, Uzuegbunam v. Preczewski, — U.S. —,
141 S. Ct. 792, 209 L.Ed.2d 94 (2021), asserting abrogation
RI WKH 1LQWK &LUFXLW·V UXOLQJ RQ UHGUHVVDELOLW\ 1RZ
plaintiffs contend that permitting amendment will allow
SODLQWLIIVWRFOHDUWKHKXUGOHWKH1LQWK&LUFXLWLGHQWLÀHG
so that the case may proceed to a decision on the merits.
)RUWKHUHDVRQVH[SODLQHGWKLV&RXUWJUDQWVSODLQWLIIV·
PRWLRQIRUOHDYHWRÀOHDVHFRQGDPHQGHGFRPSODLQW 'RF
462).

BACKGROUND

In August 2015, plaintiffs brought this action asserting


that the federal government has known for decades that
81a

Appendix E

carbon dioxide pollution was causing catastrophic climate


change and that large-scale emission reduction was
QHFHVVDU\ WR SURWHFW SODLQWLIIV· FRQVWLWXWLRQDO ULJKW WR D
climate system capable of sustaining human life. (Doc. 7
at 51). As the Ninth Circuit recognized, plaintiffs provided
compelling evidence, largely undisputed by federal
GHIHQGDQWV WKDW ´OHDYHV OLWWOH EDVLV IRU GHQ\LQJ WKDW
FOLPDWHFKDQJHLVRFFXUULQJDWDQLQFUHDVLQJO\UDSLGSDFHµ
Juliana, 947 F.3d at 1166. The substantial evidentiary
record supports that since the dawn of the Industrial
$JH DWPRVSKHULF FDUERQ GLR[LGH KDV ´VN\URFNHWHG WR
OHYHOV QRW VHHQ IRU DOPRVW WKUHH PLOOLRQ \HDUVµ ZLWK DQ
astonishingly rapid increase in the last forty years. Id.
DW7KH1LQWK&LUFXLWVXPPDUL]HGZKDWSODLQWLIIV·
expert evidence establishes: that this unprecedented rise
VWHPVIURPIRVVLOIXHOFRPEXVWLRQDQGZLOO´ZUHDNKDYRF
RQWKH(DUWK·VFOLPDWHLIXQFKHFNHGµId. The problem is
DSSURDFKLQJ ´WKH SRLQW RI QR UHWXUQµ WKH FRXUW VWDWHG
ÀQGLQJ WKDW WKH UHFRUG FRQFOXVLYHO\ GHPRQVWUDWHG WKDW
the federal government has long understood the risks of
fossil fuel use. See id. (cataloguing, as early as 1965, urgent
ZDUQLQJVDQGUHSRUWVIURPJRYHUQPHQWRIÀFLDOVLPSORULQJ
swift nationwide action to reduce carbon emissions before
it was too late).

,QWKHLUÀUVWDPHQGHGFRPSODLQWÀOHGLQWKH'LVWULFW
Court for the District of Oregon, plaintiffs alleged
violations of their substantive rights under the Due
Process Clause of the Fifth Amendment; the Fifth
Amendment right to equal protection of the law; the
Ninth Amendment; and the public trust doctrine. (Doc.
7). Plaintiffs also sought several forms of declaratory
82a

Appendix E

relief and an injunction ordering federal defendants to


LPSOHPHQWDSODQWR´SKDVHRXWIRVVLOIXHOHPLVVLRQVDQG
GUDZGRZQH[FHVVDWPRVSKHULF>FDUERQGLR[LGH@µId. at
94-95.

Federal defendants moved to dismiss for lack of


standing, failure to state a cognizable constitutional claim,
and failure to state a claim on a public trust theory. (Doc.
 $GRSWLQJWKHÀQGLQJVDQGUHFRPPHQGDWLRQRI)HGHUDO
Magistrate Judge Thomas Coffin, this Court denied
IHGHUDO GHIHQGDQWV· PRWLRQ FRQFOXGLQJ WKDW SODLQWLIIV
had standing to sue, raised justiciable questions, and had
stated a claim for infringement of a Fifth Amendment due
process right:

In this opinion, this Court simply holds that


where a complaint alleges governmental action
LV DIÀUPDWLYHO\ DQG VXEVWDQWLDOO\ GDPDJLQJ
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
WKH SODQHW·V HFRV\VWHP LW VWDWHV D FODLP IRU
a due process violation[.] To hold otherwise
would be to say that the Constitution affords
QRSURWHFWLRQDJDLQVWDJRYHUQPHQW·VNQRZLQJ
decision to poison the air its citizens breathe
or the water its citizens drink. Plaintiffs
have adequately alleged infringement of a
fundamental right.

Juliana v. United States, 217 F. Supp. 3d 1224, 1250 (D. Or.


2016), rev’d and remanded, 947 F.3d 1159 (9th Cir. 2020).
83a

Appendix E

At that stage of litigation, this Court also determined


that plaintiffs had stated a viable due process claim arising
IURPIHGHUDOGHIHQGDQWV·IDLOXUHWRUHJXODWHWKLUGSDUW\
emissions and had stated a public trust claim grounded in
the Fifth and the Ninth Amendments. Id. at 1252, 1259.

Federal defendants moved to certify to the Ninth


Circuit for interlocutory appeal 1 WKLV &RXUW·V RUGHU
GHQ\LQJ IHGHUDO GHIHQGDQWV· PRWLRQ WR GLVPLVV 'RF
120. This Court denied the motion to certify. (Doc. 172).
Federal defendants petitioned the Ninth Circuit for
:ULWRI0DQGDPXVFRQWHQGLQJWKDWWKLV&RXUW·VRSLQLRQ
and order denying their motion to dismiss was based
on clear error. (Doc. 177). The Ninth Circuit denied the
petition, concluding mandamus relief was unwarranted
DW WKDW VWDJH RI OLWLJDWLRQ ZKHQ SODLQWLIIV· FODLPV FRXOG
EH´QDUURZHGµLQIXUWKHUSURFHHGLQJVSee In re United
States, 884 F.3d 830, 833 (9th Cir. 2018).

Federal defendants then filed several motions so


DLPHGDWQDUURZLQJSODLQWLIIV·FODLPVLQFOXGLQJPRWLRQV
for judgment on the pleadings, doc. 195; a protective order
barring discovery, doc. 196; and for summary judgment,
GRF  7KLV &RXUW GHQLHG GHIHQGDQWV· PRWLRQ IRU D
protective order. (Doc. 212). But this Court granted in

1. A request for permissive interlocutory appeal is governed


by 28 U.S.C. § 1292(b), which permits a district court to certify
an interlocutory order for immediate appeal if the court is of the
opinion that such order: (1) involves a controlling question of law;
(2) as to which there is substantial ground for difference of opinion;
and (3) that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.
84a

Appendix E

SDUWDQGGHQLHGLQSDUWIHGHUDOGHIHQGDQWV·PRWLRQVIRU
judgment on the pleadings and for summary judgment,
GLVPLVVLQJSODLQWLIIV·1LQWK$PHQGPHQWFODLPGLVPLVVLQJ
WKH 3UHVLGHQW DV D GHIHQGDQW DQG QDUURZLQJ SODLQWLIIV·
equal protection claim to a fundamental rights theory.
Juliana v. United States, 339 F. Supp. 3d 1062 1103 (D. Or.
2018), rev’d and remanded, 947 F.3d 1159 (9th Cir. 2020).

Federal defendants unsuccessfully petitioned for


mandamus in the Ninth Circuit and twice sought, and
were twice denied, a stay of proceedings by the United
States Supreme Court. Ultimately, the Ninth Circuit, on
November 8, 2018, issued an order inviting this Court
to certify for interlocutory review its orders on federal
GHIHQGDQWV· GLVSRVLWLYH PRWLRQV United States v. U.S.
Dist. Court for the Dist. of Or., No. 18-73014. Shortly
WKHUHDIWHUWKH1LQWK&LUFXLWJUDQWHGIHGHUDOGHIHQGDQWV·
petition to appeal.

2Q LQWHUORFXWRU\ DSSHDO RI WKLV &RXUW·V FHUWLILHG


RUGHUVGHQ\LQJIHGHUDOGHIHQGDQWV·PRWLRQVIRUGLVPLVVDO
judgment on the pleadings, and summary judgment, the
1LQWK &LUFXLW DJUHHG ZLWK WKLV &RXUW·V GHWHUPLQDWLRQ
that plaintiffs had presented adequate evidence at the
pre-trial stage to show particularized, concrete injuries to
legally protected interests. That court recounted evidence
WKDWRQHSODLQWLIIZDV´IRUFHGWROHDYHKHUKRPHEHFDXVH
of water scarcity, separating her from relatives on the
1DYDMR 5HVHUYDWLRQ>@µ DQG DQRWKHU ´KDG WR HYDFXDWH
KLV FRDVWDO KRPH PXOWLSOH WLPHV EHFDXVH RI ÁRRGLQJµ
Id. at 1168. The Ninth Circuit also determined that this
&RXUWFRUUHFWO\IRXQGSODLQWLIIVKDGSUHVHQWHGVXIÀFLHQW
85a

Appendix E

evidence that their alleged injuries are fairly traceable to


IHGHUDOGHIHQGDQWV·FRQGXFWFLWLQJDPRQJLWVÀQGLQJVWKDW
SODLQWLIIV·LQMXULHV´DUHFDXVHGE\FDUERQHPLVVLRQVIURP
IRVVLOIXHOSURGXFWLRQH[WUDFWLRQDQGWUDQVSRUWDWLRQµDQG
WKDWIHGHUDOVXEVLGLHV´KDYHLQFUHDVHGWKRVHHPLVVLRQVµ
with about 25% of fossil fuels extracted in the United
6WDWHV´FRPLQJIURPIHGHUDOZDWHUVDQGODQGVµDQDFWLYLW\
requiring federal government authorization. Id. at 1169.
The court held, however reluctantly, that plaintiffs failed
to show their alleged injuries were substantially likely to
be redressed by any order from an Article III court and
that plaintiffs therefore lacked standing to bring suit. Id.
at 1171.

,Q VR KROGLQJ WKH FRXUW VWDWHG ´7KHUH LV PXFK WR
recommend the adoption of a comprehensive scheme to
decrease fossil fuel emissions and combat climate change,
both as a policy matter in general and a matter of national
VXUYLYDO LQ SDUWLFXODUµ KRZHYHU VXFK ZDV ´EH\RQG WKH
power of an Article III court to order, design, supervise,
RU LPSOHPHQWµ Id. at 1171. Ultimately, based on its
redressability holding alone, the Ninth Circuit reversed
the certified orders of this Court and remanded the
case with instructions to dismiss for lack of Article III
standing. Id. at 1175.

After the Ninth Circuit issued its interlocutory


opinion, plaintiffs notified this Court of what they
LGHQWLÀHG DV DQ LQWHUYHQLQJ FDVH LQ WKH 8QLWHG 6WDWHV
Supreme Court which held that the award of nominal
GDPDJHV ZDV ´D IRUP RI GHFODUDWRU\ UHOLHI LQ D OHJDO
V\VWHP ZLWK QR JHQHUDO GHFODUDWRU\ MXGJPHQW DFWµ DQG
86a

Appendix E

WKDWD´UHTXHVWIRUQRPLQDOGDPDJHVDORQHVDWLVÀHVWKH
UHGUHVVDELOLW\ HOHPHQW RI VWDQGLQJ ZKHUH D SODLQWLII ·V
FODLPLVEDVHGRQDFRPSOHWHGYLRODWLRQRIDOHJDOULJKWµ
Uzuegbunam, 141 S. Ct. at 798, 802. Writing for the
majority, Justice Thomas explained that, even where a
VLQJOHGROODUFDQQRWSURYLGHIXOOUHGUHVVWKHDELOLW\´WR
effectuate a partial remedyµVDWLVÀHVWKHUHGUHVVDELOLW\
requirement. Id. at 801 (quoting Church of Scientology
of Cal. v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121
L.Ed.2d 313 (1992)) (emphasis added).

3ODLQWLIIVFRQWHQGWKDWWKH6XSUHPH&RXUW·VKROGLQJ
constitutes—as Chief Justice Roberts noted in his
GLVVHQW³DQ ´H[SDQVLRQ RI WKH MXGLFLDO SRZHUµ XQGHU
Article III. Uzuegbunam, 141 S. Ct. at 806 (Roberts, C.
J. dissenting). According to plaintiffs, the Ninth Circuit
was skeptical, but did not decide whether declaratory
relief alone would satisfy redressability, where such relief
only partially redresses injury. Plaintiffs assert that
they should be granted leave to amend to replead factual
allegations demonstrating that relief under the under the
'HFODUDWRU\-XGJPHQW$FW86&†LVVXIÀFLHQWWR
allege redressability, even where a declaration effectuates
a partial remedy, as stated in Uzuegbunam, which the
Ninth Circuit did not have the chance to consider.

LEGAL STANDARD

Federal Rule of Civil Procedure Rule 15 allows a


SDUW\WRDPHQGLWVSOHDGLQJ´ZLWKWKHRSSRVLQJSDUW\·V
ZULWWHQFRQVHQWRUWKHFRXUW·VOHDYHµ7KHUXOHLQVWUXFWV
WKDW ´>W@KH FRXUW VKRXOG IUHHO\ JLYH OHDYH ZKHQ MXVWLFH
87a

Appendix E

VR UHTXLUHVµ )HG 5 &LY 3  D   7ULDO FRXUWV KDYH


discretion in deciding whether to grant leave to amend, but
´>L@QH[HUFLVLQJWKLVGLVFUHWLRQDFRXUWPXVWEHJXLGHGE\
the underlying purpose of Rule 15 to facilitate decision on
WKHPHULWVUDWKHUWKDQRQWKHSOHDGLQJVRUWHFKQLFDOLWLHVµ
United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)
(citing Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957)). The judicial policy of Rule 15 favoring
DPHQGPHQWVVKRXOGEHDSSOLHGZLWK´H[WUHPHOLEHUDOLW\µ
Id. (citing Rosenberg Brothers & Co. v. Arnold, 283 F.2d
406 (9th Cir. 1960)) (per curiam). Leave to amend should be
JUDQWHGIUHHO\´HYHQLIDSODLQWLII ·VFODLPVKDYHSUHYLRXVO\
EHHQGLVPLVVHGµHampton v. Steen, No. 2:12-CV-00470-
AA, 2017 WL 11573592, at *2 (D. Or. Nov. 13, 2017) (citing
Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th
Cir. 2002)).

Courts consider four factors when determining


whether leave to amend should be granted: 1) prejudice to
the opposing party; 2) bad faith; 3) futility of amendment;
and 4) undue delay. Foman v. Davis, 371 U.S. 178, 182, 83
S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Eminence Cap.,
LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Not all factors are equal and only when prejudice or bad
faith is shown should leave to amend be denied. Howey
v. United States, 481 F.2d 1187, 1190-91 (9th Cir. 1973).
Leave to amend should not be denied based only on delay,
id., particularly when that delay is not caused by the party
seeking amendment.

A court may deny leave to amend if the proposed


amendment is futile or would be subject to dismissal.
88a

Appendix E

Carrico v. City & Cnty. of San Francisco, 656 F.3d 1002,


 WK &LU   $Q DPHQGPHQW LV ´IXWLOHµ LI WKH
complaint could not be saved by amendment. United States
v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011).
7KHFRXUWPXVWGHWHUPLQHZKHWKHUWKHGHÀFLHQFLHVLQWKH
SOHDGLQJV´FDQEHFXUHGZLWKDGGLWLRQDODOOHJDWLRQVWKDW
are consistent with the challenged pleading and that do
QRWFRQWUDGLFWWKHDOOHJDWLRQVLQWKHRULJLQDOFRPSODLQWµ
Id. (quotation marks omitted). A party should be allowed
to test his claim on the merits rather than on a motion to
amend unless it appears beyond doubt that the proposed
amended pleading would be subject to dismissal. Roth v.
Garcia Marquez, 942 F.2d 617, 629 (9th Cir. 1991).

DISCUSSION

I. Ninth Circuit Mandate Permits Court to Consider


Motion to Amend

In its interlocutory opinion, the Ninth Circuit


remanded the case to this Court with instructions to
dismiss. Plaintiffs maintain that the Ninth Circuit did
not state in its instructions whether dismissal was with or
without leave to amend, and therefore, this Court should
freely grant leave to do so. Federal defendants assert that
this Court must dismiss according to the rule of mandate
and because any amendment would be futile. 2

2. There is no material dispute between the parties whether


SODLQWLIIV·DPHQGPHQWVDUHLQEDGIDLWKSUHMXGLFLDOWRGHIHQGDQWV
or unduly delayed. Having considered those factors, this Court
ÀQGVWKDWQRQHEDUSODLQWLIIV·UHTXHVWWRDPHQG
89a

Appendix E

8QGHU WKH ´UXOH RI PDQGDWHµ D ORZHU FRXUW LV


XQTXHVWLRQDEO\ REOLJDWHG WR ´H[HFXWH WKH WHUPV RI D
PDQGDWHµ United States v. Kellington, 217 F.3d 1084,
1092 (9th Cir. 2000). Compliance with the rule of mandate
´SUHVHUY>HV@ WKH KLHUDUFKLFDO VWUXFWXUH RI WKH FRXUW
V\VWHPµThrasher, 483 F.3d at 982, and thus constitutes
a basic feature of the rule of law in an appellate scheme.
%XWZKLOH´WKHPDQGDWHRIDQDSSHOODWHFRXUWIRUHFORVHV
the lower court from reconsidering matters determined
in the appellate court, it ‘leaves to the district court any
LVVXHQRWH[SUHVVO\RULPSOLHGO\GLVSRVHGRIRQDSSHDO·µ
Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir.
1986) (quoting Stevens v. F/V Bonnie Doon, 731 F.2d 1433,
1435 (9th Cir. 1984)).

´$EVHQW D PDQGDWH ZKLFK H[SOLFLWO\ GLUHFWV WR WKH


contrary, a district court upon remand can permit the
SODLQWLIIWRÀOHDGGLWLRQDOSOHDGLQJVµSan Francisco
Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564, 574
(9th Cir. 2019) (quoting Nguyen, 792 F.2d at 1502; see
also Sierra Club v. Penfold, 857 F.2d 1307, 1312 (9th Cir.
1988)). When mandate in the prior appeal did not expressly
address the possibility of amendment and did not indicate
a clear intent to deny amendment seeking to raise new
issues not decided by the prior appeal, that prior opinion
GLG QRW SXUSRUW ´WR VKXW WKH FRXUWKRXVH GRRUVµ San
Francisco Herring Ass’n, 946 F.3d at 574 (citing Nguyen,
792 F.2d at 1503).

In San Francisco Herring Ass’n, the Ninth Circuit


discussed its issuance of a mandate in a prior appeal,
ZKLFKYDFDWHGWKHGLVWULFWFRXUW·VRUGHUHQWHULQJVXPPDU\
90a

Appendix E

MXGJPHQW LQ WKH GHIHQGDQWV· IDYRU DQG GLUHFWHG WKH


district court to dismiss the complaint. See San Francisco
Herring Ass’n v. U.S. Dep’t of Interior)$SS·[
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
SODLQWLIIWRVHHNOHDYHWRÀOHDVHFRQGDPHQGHGFRPSODLQW
The Ninth Circuit determined the district court correctly
found that the mandate to dismiss did not prevent the
plaintiff from seeking leave to re-plead. San Francisco
Herring Ass’n, 946 F.3d 574. The court reasoned that in
instructing to dismiss, it had been silent on whether the
dismissal should be with or without leave to amend and
GLGQRWSUHFOXGHWKHSODLQWLIIIURPÀOLQJQHZDOOHJDWLRQV
Id. at 572-574.

Here, this Court does not take lightly its responsibility


XQGHUWKHUXOHRIPDQGDWH5DWKHULWFRQVLGHUVSODLQWLIIV·
new factual allegations under the Declaratory Judgment
Act, and amended request for relief in light of intervening
recent precedent, to be a new issue that, while discussed,
was not decided by the Ninth Circuit in the interlocutory
appeal. Nor did the mandate expressly state that plaintiffs
could not amend to replead their case—particularly where
WKH RSLQLRQ IRXQG D QDUURZ GHÀFLHQF\ ZLWK SODLQWLIIV·
pleadings on redressability. This Court therefore does not
LQWHUSUHWWKH1LQWK&LUFXLW·VLQVWUXFWLRQVDVPDQGDWLQJLW
´WRVKXWWKHFRXUWKRXVHGRRUVµRQSODLQWLIIV·FDVHZKHUH
they present newly amended allegations. San Francisco
Herring Ass’n, 946 F.3d at 574.
91a

Appendix E

II. Amendment is Not Futile

A. The Interlocutory Opinion

The Ninth Circuit recited the established rule that,


to demonstrate Article III redressability, plaintiffs must
show that the relief they seek is both (1) substantially
likely to redress their injuries; and (2) within the district
FRXUW·VSRZHUWRDZDUGJuliana, 947 F.3d at 1170. Redress
QHHGQRWEHJXDUDQWHHGEXWLWPXVWEHPRUHWKDQ´PHUHO\
VSHFXODWLYHµId. (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

Here, applying the above rule, the Ninth Circuit


VWDWHGWKDWDGHFODUDWLRQDORQHLVQRWUHOLHI´VXEVWDQWLDOO\
OLNHO\WRPLWLJDWH>SODLQWLIIV·@DVVHUWHGFRQFUHWHLQMXULHVµ
Juliana, 947 F.3d at 1170. The court considered whether
SDUWLDOUHGUHVVVXIÀFHVWRSURYHWKHÀUVWUHGUHVVDELOLW\
prong, concluding that it likely does not, because even if
plaintiffs obtained the sought relief and federal defendants
ceased promoting fossil fuel, such would only ameliorate,
UDWKHUWKDQ´VROYHJOREDOFOLPDWHFKDQJHµId. at 1171.

Even so, the court did not decide that plaintiffs had
failed to prove the first prong of redressability: the
FRXUWVWDWHG´>Z@HDUHWKHUHIRUHVNHSWLFDOWKDWWKHÀUVW
UHGUHVVDELOLW\SURQJLVVDWLVÀHG%XWHYHQassuming that
it is, [plaintiffs] do not surmount the remaining hurdle—
HVWDEOLVKLQJWKDWWKHVSHFLÀFUHOLHIWKH\VHHNLVZLWKLQWKH
SRZHURIDQ$UWLFOH,,,FRXUWµJuliana, 947 F.3d at 1171.
(emphasis added).
92a

Appendix E

In addressing whether plaintiffs had proved the


VHFRQG SURQJ WKH FRXUW LGHQWLÀHG WKH ´VSHFLÀF UHOLHI µ
plaintiffs sought was an injunction requiring federal
defendants not only to cease permitting, authorizing, and
subsidizing fossil fuel, but also to prepare a plan, subject
to judicial monitoring, to draw down harmful emissions.
7KDWVSHFLÀFUHOLHIWKHFRXUWGHWHUPLQHGZDVQRWZLWKLQ
the power of an Article III court to award. Id. The court
H[SODLQHG WKDW IRU WKH GLVWULFW FRXUW WR ´RUGHU GHVLJQ
VXSHUYLVHRULPSOHPHQWµSODLQWLIIV·UHTXHVWHGUHPHGLDO
SODQDQ\HIIHFWLYHSODQZRXOGUHTXLUHD´KRVWRIFRPSOH[
SROLF\GHFLVLRQVµHQWUXVWHGXQGHUFRQVWLWXWLRQDOVHSDUDWLRQ
of powers to the executive and legislative branches. Id.
,Q HVVHQFH WKH FRXUW IRXQG SODLQWLIIV· LQMXULHV EH\RQG
UHGUHVV EHFDXVH LQ LWV YLHZ SODLQWLIIV· UHTXHVWHG UHOLHI
UHTXLUHVWKHGLVWULFWFRXUWWRHYDOXDWH´FRPSHWLQJSROLF\
FRQVLGHUDWLRQVµDQGVXSHUYLVHLPSOHPHQWDWLRQRYHUPDQ\
years. Id. at 1171-73

Summarizing what the court did—and did not—


LGHQWLI\DVWKHOHJDOGHIHFWVLQSODLQWLIIV·FDVHWKHFRXUW
GLGQRWGHFLGHZKHWKHUSODLQWLIIV·UHTXHVWHGGHFODUDWRU\
UHOLHI IDLOHG RU VDWLVÀHG WKH UHGUHVVDELOLW\ UHTXLUHPHQW
for standing, and did not consider that issue under
Uzuegbunam or the Declaratory Judgment Act. Rather,
the court resolved that plaintiffs failed to demonstrate
UHGUHVVDELOLW\ RQ JURXQGV WKDW SODLQWLIIV· UHTXHVWHG
remedial and injunctive relief was beyond the power of
an Article III court to provide. The court was also silent
on whether dismissal was to be with or without leave to
amend.
93a

Appendix E

B. Plaintiffs’ Proposed Amendments

Plaintiffs assert that their proposed amendments


FXUH WKH GHIHFWV WKH 1LQWK &LUFXLW LGHQWLÀHG DQG WKDW
they should be given opportunity to amend. Plaintiffs
explain that the amended allegations demonstrate that
relief under the Declaratory Judgment Act alone would be
substantially likely to provide partial redress of asserted
and ongoing concrete injuries, and that partial redress is
VXIÀFLHQWHYHQLIIXUWKHUUHOLHILVODWHUIRXQGXQDYDLODEOH

Plaintiffs also amended their factual allegations


directly linking how a declaratory judgment alone will
UHGUHVVRISODLQWLIIV·LQGLYLGXDORQJRLQJLQMXULHV See doc.
514-2 ¶¶ 19-A, 22-A, 30-A, 34-A, 39-A, 43-A, 46-A, 49-A,
52-A, 56-A, 59-A, 62-A, 64-A, 67-A, 70-A, 72-A, 76-A, 80-
A, 85-A, 88-A, 90-A.). Plaintiffs assert that declaratory
UHOLHI LV ZLWKLQ D FRXUW·V $UWLFOH ,,, SRZHU WR SURYLGH
3ODLQWLIIV DOVR RPLWWHG WKH ´VSHFLÀF UHOLHI µ WKH 1LQWK
Circuit majority found to be outside Article III authority
to award. Among other deletions, plaintiffs eliminated
their requests for this Court to order federal defendants to
prepare and implement a remedial plan and prepare a list
of U.S. CO2 emissions. Plaintiffs also omitted their request
for this Court to monitor and enforce the remedial plan.

3ODLQWLIIV·6HFRQG$PHQGHG&RPSODLQWWKXVUHTXHVWV
WKLV&RXUWWR  GHFODUHWKDWWKH8QLWHG6WDWHV·QDWLRQDO
energy system violates and continues to violate the Fifth
$PHQGPHQW RI WKH 86 &RQVWLWXWLRQ DQG 3ODLQWLIIV·
constitutional rights to substantive due process and equal
protection of the law; (2) enter a judgment declaring the
94a

Appendix E

8QLWHG6WDWHV·QDWLRQDOHQHUJ\V\VWHPKDVYLRODWHGDQG
continues to violate the public trust doctrine; and (3) enter
a judgment declaring that § 201 of the Energy Policy Act
has violated and continues to violate the Fifth Amendment
RIWKH86&RQVWLWXWLRQDQGSODLQWLIIV·FRQVWLWXWLRQDOULJKWV
to substantive due process and equal protection of the law.

:KLOH GHFODUDWRU\ UHOLHI ZDV SDUW RI SODLQWLIIV·


prayer in the operative complaint, plaintiffs did not cite
Uzuegbunam³UHFHQW DXWKRULW\ DIÀUPLQJ WKDW SDUWLDO
GHFODUDWRU\UHOLHIVDWLVÀHVUHGUHVVDELOLW\IRUSXUSRVHVRI
Article III standing. Plaintiffs contend that they should
EHJUDQWHGOHDYHWRDPHQGEDVHGRQWKH6XSUHPH&RXUW·V
holding that a request for nominal damages alone (a form
RIGHFODUDWRU\UHOLHI VDWLVÀHVWKHUHGUHVVDELOLW\HOHPHQW
QHFHVVDU\IRU$UWLFOH,,,VWDQGLQJZKHUHWKHSODLQWLII ·V
claim is based on a completed violation of a legal right, and
WKHSODLQWLIIHVWDEOLVKHVWKHÀUVWWZRHOHPHQWVRIVWDQGLQJ
Uzuegbunam, 141 S. Ct. at 801-02.

C. Plaintiffs’ A mended Pleadings Satisf y


Redressability

This Court adamantly agrees with the Ninth Circuit


that its ability to provide redress is animated by two
LQTXLULHVRQHRIHIÀFDF\DQGRQHRISRZHUJuliana, 947
)GDW3ODLQWLIIV·SURSRVHGDPHQGPHQWVDOOHJHWKDW
a declaration under the Declaratory Judgment Act is
substantially likely to remediate their ongoing injuries,
DQGWKDWVXFKUHOLHILVZLWKLQWKLV&RXUW·VSRZHUWRDZDUG
95a

Appendix E

1. Declaratory Relief Alone is Substantially


Likely to Redress Injury

7KH FRXUW FDQ JUDQW GHFODUDWRU\ UHOLHI LQ WKH ÀUVW


instance and later consider further necessary or proper
relief, if warranted, under the Declaratory Judgment Act.
28 U.S.C. §§ 2201, et seq.´,QDFDVHRIDFWXDOFRQWURYHUV\
within its jurisdiction, [ ] any court of the United States,
XSRQWKHÀOLQJRIDQDSSURSULDWHSOHDGLQJPD\GHFODUH
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
IRUFHDQGHIIHFWRIDÀQDOMXGJPHQWRUGHFUHHDQGVKDOOEH
UHYLHZDEOHDVVXFKµ86&†´)XUWKHUQHFHVVDU\
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
EHHQGHWHUPLQHGE\VXFKMXGJPHQWµ86&†

The Supreme Court has long recognized that


declaratory judgment actions can provide redressability,
even where relief obtained is a declaratory judgment
alone. Well-known cases involve the census, Franklin
v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120
L.Ed.2d 636 (1992), and Utah v. Evans, 536 U.S. 452, 122
S.Ct. 2191, 153 L.Ed.2d 453 (2002).

In each of the census cases, a state objected to the way


the Census Bureau counted people and sued government
RIÀFLDOV ,Q Franklin v. Massachusetts, the Supreme
&RXUWVWDWHG´)RUSXUSRVHVRIHVWDEOLVKLQJVWDQGLQJµLW
did not need to decide whether injunctive relief against
96a

Appendix E

ZDV DSSURSULDWH ZKHUH ´WKH LQMXU\ DOOHJHG LV OLNHO\ WR


EHUHGUHVVHGE\GHFODUDWRU\UHOLHI µDQGWKHFRXUWFRXOG
´DVVXPHLWLVVXEVWDQWLDOO\OLNHO\WKDWWKH3UHVLGHQWDQG
RWKHUH[HFXWLYHDQGFRQJUHVVLRQDORIÀFLDOVZRXOGDELGHE\
an authoritative interpretation of the census statute and
FRQVWLWXWLRQDOSURYLVLRQE\WKH'LVWULFW&RXUWµ86
at 803, 112 S.Ct. 2767.

In Utah v. Evans, the Supreme Court referenced


Franklin H[SODLQLQJ WKDW LQ WHUPV RI LWV ´VWDQGLQJµ
precedent, declaratory relief affects a change in legal
status, and the practical consequence of that change would
´DPRXQW WR D VLJQLÀFDQW LQFUHDVH LQ WKH OLNHOLKRRG WKDW
the plaintiff would obtain relief that directly redresses
WKH LQMXU\ VXIIHUHGµ  86   6&W  
L.Ed.2d 453 (2002).

Similarly, the Supreme Court has determined that


a plaintiff had standing to sue the Nuclear Regulatory
Commission for a declaration that the Price-Anderson Act,
which limited the liability of nuclear power companies,
was unconstitutional. Duke Power Co. v. Carolina Envtl.
Study Grp., Inc., 438 U.S. 59, 81, 98 S.Ct. 2620, 57 L.Ed.2d
595 (1978).

Other cases recognized the role of declaratory relief


in resolving constitutional cases. See, e.g., Evers v. Dwyer,
358 U.S. 202, 202-04, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958)
(ongoing governmental enforcement of segregation laws
created actual controversy for declaratory judgment);
Powell v. McCormack, 395 U.S. 486, 499, 89 S.Ct. 1944,
/(GG   ´$FRXUWPD\JUDQWGHFODUDWRU\
97a

Appendix E

relief even though it chooses not to issue an injunction or


PDQGDPXVµ 

Finally, the Supreme Court held that, for the purpose


of Article III standing, nominal damages—a form of
declaratory relief—provide the necessary redress for
a completed violation of a legal right, even where the
underlying unlawful conduct had ceased. Uzuegbunam, —
U.S. —, 141 S. Ct. 792, 802, 209 L.Ed.2d 94. Uzuegbunam
illustrates that when a plaintiff shows a completed
violation of a legal right, as plaintiffs have shown here,
standing survives, even when relief is nominal or trivial.

Here, this Court notes that, in its determination


RI VWDQGLQJ WKH 1LQWK &LUFXLW ZDV ´VNHSWLFDOµ WKDW
GHFODUDWRU\ UHOLHI DORQH ZRXOG UHPHGLDWH SODLQWLIIV·
injuries, Juliana, 947 F.3d at 1171. The court noted that
HYHQ LI DOO SODLQWLIIV· UHTXHVWV IRU UHOLHI ZHUH JUDQWHG
against federal defendants, such would not solve the
problem of climate change entirely. But for redressability
under Article III standing, plaintiffs need not allege that
a declaration alone would solve their every ill. To plead
D MXVWLFLDEOH FDVH D FRXUW QHHG RQO\ HYDOXDWH ´ZKHWKHU
the facts alleged, under all the circumstances, show that
there is a substantial controversy, between parties having
DGYHUVHOHJDOLQWHUHVWVRIVXIÀFLHQWLPPHGLDF\DQGUHDOLW\
WR ZDUUDQW WKH LVVXDQFH RI D GHFODUDWRU\ MXGJPHQWµ
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127,
127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (quoting Md. Cas.
Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510,
85 L.Ed. 826 (1941)). There is nothing in § 2201 preventing
a court from granting declaratory relief even if it is the
only relief awarded.
98a

Appendix E

In light of that determination, by pleading a claim


under § 2201, plaintiffs establish that the text of the
statute itself resolves the uncertainty posed by the Ninth
Circuit, given that plaintiffs have established an active
case and controversy showing injury and causation.
Section 2201 also provides that declaratory relief may
EHJUDQWHG´ZKHWKHURUQRWIXUWKHUUHOLHILVRUFRXOGEH
VRXJKWµId. Under the statute, the relief plaintiffs seek
ÀWV OLNH D JORYH ZKHUH SODLQWLIIV UHTXHVW FRQVLGHUDWLRQ
of declaratory relief independently of other forms of
relief, such as an injunction. See Steffel v. Thompson,
415 U.S. 452, 475, 94 S.Ct. 1209, 39 L.Ed.2d 505, (1974)
VWDWLQJLQDGLIIHUHQWFRQWH[WWKDW´UHJDUGOHVVRIZKHWKHU
injunctive relief may be appropriate, federal declaratory
UHOLHILVQRWSUHFOXGHGµ 7KLV&RXUWÀQGVWKDWSODLQWLIIV·
proposed amendments are not futile: a declaration that
IHGHUDO GHIHQGDQWV· HQHUJ\ SROLFLHV YLRODWH SODLQWLIIV·
FRQVWLWXWLRQDOULJKWVZRXOGLWVHOIEHVLJQLÀFDQWUHOLHI

2. Redress is Within Power of Article III


Courts

It is a foundational doctrine that when government


conduct catastrophically harms American citizens, the
judiciary is constitutionally required to perform its
independent role and determine whether the challenged
conduct, not exclusively committed to any branch by the
Constitution, is unconstitutional. Marbury v. Madison, 5
U.S. (1 Cranch) 137, 176-78, 2 L.Ed. 60 (1803). The judicial
role in cases like this is to apply constitutional law, declare
ULJKWVDQGGHFODUHWKHJRYHUQPHQW·VUHVSRQVLELOLWLHV1R
other branch of government can perform this function
99a

Appendix E

EHFDXVHWKH´MXGLFLDO3RZHUµLVH[FOXVLYHO\LQWKHKDQGV
of Article III courts. U.S. Const. Art. III, § 1. The issue
before this Court now is not to determine what relief,
VSHFLÀFDOO\ LV LQ LWV SRZHU WR SURYLGH 7KLV &RXUW QHHG
RQO\GHFLGHZKHWKHUSODLQWLIIV·DPHQGPHQWV³DOOHJLQJWKDW
GHFODUDWRU\UHOLHILVZLWKLQDQ$UWLFOH,,,FRXUW·VSRZHU
WRDZDUG³´ZRXOGEHVXEMHFWWRGLVPLVVDOµCarrico, 656
F.3d 1002.

The Declaratory Judgment Act authorizes this


&RXUW·VGHWHUPLQDWLRQLQLWVHPEUDFHRIERWKFRQVWLWXWLRQDO
DQGSUXGHQWLDOFRQFHUQVZKHUHWKHWH[WLV´GHOLEHUDWHO\
cast in terms of permissive, rather than mandatory,
DXWKRULW\µPub. Serv. Comm’n of Utah v. Wycoff Co., 344
U.S. 237, 250, 73 S.Ct. 236, 97 L.Ed. 291 (1952) (J. Reed,
FRQFXUULQJ 7KH$FWJLYHV´IHGHUDOFRXUWVFRPSHWHQFHWR
PDNHDGHFODUDWLRQRIULJKWVµPub. Affairs Associates v.
Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 7 L.Ed.2d 604
 7KH6XSUHPH&RXUWKDVIRXQGLW´FRQVLVWHQWZLWK
the statute . . . to vest district courts with discretion in the
ÀUVWLQVWDQFHEHFDXVHIDFWVEHDULQJRQWKHXVHIXOQHVVRI
WKHGHFODUDWRU\MXGJPHQWUHPHG\DQGWKHÀWQHVVRIWKH
FDVH IRU UHVROXWLRQ DUH SHFXOLDUO\ ZLWKLQ WKHLU JUDVSµ
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136,
127 S.Ct. 764, 166 L.Ed.2d 604 (2007).

+HUHSODLQWLIIVVHHNGHFODUDWRU\UHOLHIWKDW´WKH8QLWHG
6WDWHV·QDWLRQDOHQHUJ\V\VWHPWKDWFUHDWHVWKHKDUPIXO
conditions described herein has violated and continues to
violate the Fifth Amendment of the U.S. Constitution and
3ODLQWLIIV·FRQVWLWXWLRQDOULJKWVWRVXEVWDQWLYHGXHSURFHVV
DQGHTXDOSURWHFWLRQRIWKHODZµ 'RFˆ 7KLVUHOLHI
100a

Appendix E

is squarely within the constitutional and statutory power


of Article III courts to grant. Such relief would at least
SDUWLDOO\DQGSHUKDSVZKROO\UHGUHVVSODLQWLIIV·RQJRLQJ
LQMXULHVFDXVHGE\IHGHUDOGHIHQGDQWV·RQJRLQJSROLFLHVDQG
practices. Last, but not least, the declaration that plaintiffs
seek would by itself guide the independent actions of the
other branches of our government and cures the standing
GHÀFLHQFLHV LGHQWLÀHG E\ WKH 1LQWK &LUFXLW 7KLV &RXUW
ÀQGVWKDWWKHFRPSODLQWFDQEHVDYHGE\DPHQGPHQWSee
Corinthian Colleges, 655 F.3d at 995.

CONCLUSION

)RUWKHUHDVRQVVWDWHGDERYHSODLQWLIIV·0RWLRQWR)LOH
a Second Amended Complaint, doc. 462, is GRANTED.
101a

Appendix FF
APPENDIX
947 F.3d 1159

UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT

-------------------

No. 18-36082

K ELSEY CASCADIA ROSE JULIANA; XIUHTEZCATL TONATIUH


M., through his Guardian Tamara Roske-Martinez;
A LEXANDER LOZNAK; JACOB LEBEL; ZEALAND B., through
his Guardian Kimberly Pash-Bell; AVERY M., through
her Guardian Holly McRae; SAHARA V., through her
Guardian Toa Aguilar; K IRAN ISAAC OOMMEN; TIA M ARIE
HATTON; ISAAC V., through his Guardian Pamela Vergun;
MIKO V., through her Guardian Pamel Vergun; HAZEL
V., through her Guardian Margo Van Ummerson; SOPHIE
K., through her Guardian Dr. James Hansen; JAIME B.,
through her Guardian Jamescita Peshlakai; JOURNEY
Z., through his Guardian Erika Schneider; VICTORIA B.,
through her Guardian Daisy Calderon; NATHANIEL B.,
through his Guardian Sharon Baring; A JI P., through
his Guardian Helaina Piper; LEVI D., through his
Guardian Leigh-Ann Draheim; JAYDEN F., through her
Guardian Cherri Foytlin; NICHOLAS V., through his
Guardian Marie Venner; EARTH GUARDIANSDQRQSURÀW
organization; FUTURE GENERATIONS, through their
Guardian Dr. James Hansen,

Plaintiffs-Appellees,

v.
102a

Appendix F

UNITED STATES OF A MERICA; M ARY B. NEUMAYR, in her


capacity as Chairman of Council on Environmental
Quality; MICK MULVANEYLQKLVRIÀFLDOFDSDFLW\DV
'LUHFWRURIWKH2IÀFHRI0DQDJHPHQWDQGWKH%XGJHW
K ELVIN K. DROEGEMEIRLQKLVRIÀFLDOFDSDFLW\DV
'LUHFWRURIWKH2IÀFHRI6FLHQFHDQG7HFKQRORJ\3ROLF\
DAN BROUILLETTELQKLVRIÀFLDOFDSDFLW\DV6HFUHWDU\
of Energy; U.S. DEPARTMENT OF THE INTERIOR; DAVID
L. BERNHARDTLQKLVRIÀFLDOFDSDFLW\DV6HFUHWDU\
of Interior; U.S. DEPARTMENT OF TRANSPORTATION;
ELAINE L. CHAOLQKHURIÀFLDOFDSDFLW\DV6HFUHWDU\
of Transportation; UNITED STATES DEPARTMENT OF
AGRICULTURE; SONNY PERDUELQKLVRIÀFLDOFDSDFLW\DV
Secretary of Agriculture; UNITED STATES DEPARTMENT
OF COMMERCE; WILBUR ROSSLQKLVRIÀFLDOFDSDFLW\DV
Secretary of Commerce; UNITED STATES DEPARTMENT
OF DEFENSE; M ARK T. ESPERLQKLVRIÀFLDOFDSDFLW\DV
Secretary of Defense; UNITED STATES DEPARTMENT OF
STATE; MICHAEL R. POMPEOLQKLVRIÀFLDOFDSDFLW\DV
Secretary of State; A NDREW WHEELERLQKLVRIÀFLDO
capacity as Administrator of the EPA; OFFICE OF THE
PRESIDENT OF THE UNITED STATES; U.S. ENVIRONMENTAL
PROTECTION AGENCY; U.S. DEPARTMENT OF ENERGY;
DONALD J. TRUMPLQKLVRIÀFLDOFDSDFLW\DV3UHVLGHQWRI
the United States,

Defendants-Appellants.

-------------------

Filed: January 17, 2020

-------------------
103a

Appendix F

OPINION

-------------------

Appeal from the United States District Court for the


District of Oregon, Ann L. Aiken, District Judge,
Presiding, D.C. No. 6:15-cv-01517-AA.

-------------------

Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit


Judges, and Josephine L. Staton,* District Judge.

Dissent by Judge Staton

HURWITZ, Circuit Judge:

In the mid-1960s, a popular song warned that we were


“on the eve of destruction.”1 The plaintiffs in this case
have presented compelling evidence that climate change
has brought that eve nearer. A substantial evidentiary
record documents that the federal government has long
promoted fossil fuel use despite knowing that it can cause
catastrophic climate change, and that failure to change
existing policy may hasten an environmental apocalypse.

The plaintiffs claim that the government has violated


their constitutional rights, including a claimed right under

* The Honorable Josephine L. Staton, United States District


Judge for the Central District of California, sitting by designation.

1. Barry McGuire, Eve of Destruction, on Eve of Destruction


(Dunhill Records, 1965).
104a

Appendix F

the Due Process Clause of the Fifth Amendment to a


“climate system capable of sustaining human life.” The
central issue before us is whether, even assuming such a
broad constitutional right exists, an Article III court can
provide the plaintiffs the redress they seek—an order
requiring the government to develop a plan to “phase out
fossil fuel emissions and draw down excess atmospheric
CO2.” Reluctantly, we conclude that such relief is beyond
our constitutional power. Rather, the plaintiffs’ impressive
case for redress must be presented to the political
branches of government.

I.

The plaintiffs are twenty-one young citizens, an


environmental organization, and a “representative of
future generations.” Their original complaint named as
defendants the President, the United States, and federal
agencies (collectively, “the government”). The operative
complaint accuses the government of continuing to
“permit, authorize, and subsidize” fossil fuel use despite
long being aware of its risks, thereby causing various
climate-change related injuries to the plaintiffs. Some
plaintiffs claim psychological harm, others impairment
to recreational interests, others exacerbated medical
conditions, and others damage to property. The complaint
asserts violations of: (1) the plaintiffs’ substantive rights
under the Due Process Clause of the Fifth Amendment;
(2) the plaintiffs’ rights under the Fifth Amendment to
equal protection of the law; (3) the plaintiffs’ rights under
the Ninth Amendment; and (4) the public trust doctrine.
The plaintiffs seek declaratory relief and an injunction
105a

Appendix F

ordering the government to implement a plan to “phase out


fossil fuel emissions and draw down excess atmospheric
[carbon dioxide].” 2

The district court denied the government’s motion


to dismiss, concluding that the plaintiffs had standing to
sue, raised justiciable questions, and stated a claim for
infringement of a Fifth Amendment due process right to
a “climate system capable of sustaining human life.” The
FRXUWGHÀQHGWKDWULJKWDVRQHWREHIUHHIURPFDWDVWURSKLF
climate change that “will cause human deaths, shorten
human lifespans, result in widespread damage to property,
threaten human food sources, and dramatically alter the
planet’s ecosystem.” The court also concluded that the
plaintiffs had stated a viable “danger-creation due process
claim” arising from the government’s failure to regulate
third-party emissions. Finally, the court held that the
plaintiffs had stated a public trust claim grounded in the
Fifth and the Ninth Amendments.

The government unsuccessfully sought a writ of


mandamus. In re United States, 884 F.3d 830, 837-38
(9th Cir. 2018). Shortly thereafter, the Supreme Court
denied the government’s motion for a stay of proceedings.

2. The plaintiffs also assert that section 201 of the Energy Policy
$FWRI3XE/1R†6WDW FRGLÀHG
at 15 U.S.C. § 717b(c)), which requires expedited authorization for
FHUWDLQ QDWXUDO JDV LPSRUWV DQG H[SRUWV ´ZLWKRXW PRGLÀFDWLRQ RU
delay,” is unconstitutional on its face and as applied. The plaintiffs
also challenge DOE/FE Order No. 3041, which authorizes exports
RIOLTXHÀHGQDWXUDOJDVIURPWKHSURSRVHG-RUGDQ&RYHWHUPLQDOLQ
Coos Bay, Oregon.
106a

Appendix F

United States v. U.S. Dist. Court for Dist. of Or., 139 S.


&W/(GG  $OWKRXJKÀQGLQJWKHVWD\
request “premature,” the Court noted that the “breadth of
respondents’ claims is striking . . . and the justiciability of
those claims presents substantial grounds for difference
of opinion.” Id.

The government then moved for summary judgment


and judgment on the pleadings. The district court granted
summary judgment on the Ninth Amendment claim,
dismissed the President as a defendant, and dismissed the
equal protection claim in part. 3 But the court otherwise
denied the government’s motions, again holding that
WKHSODLQWLIIVKDGVWDQGLQJWRVXHDQGÀQGLQJWKDWWKH\
KDG SUHVHQWHG VXIÀFLHQW HYLGHQFH WR VXUYLYH VXPPDU\
judgment. The court also rejected the government’s
argument that the plaintiffs’ exclusive remedy was under
the Administrative Procedure Act (“APA”), 5 U.S.C. § 702
et seq.

The district court initially declined the government’s


request to certify those orders for interlocutory appeal.
But, while considering a second mandamus petition from
the government, we invited the district court to revisit
FHUWLÀFDWLRQ QRWLQJ WKH 6XSUHPH &RXUW·V MXVWLFLDELOLW\
concerns. United States v. U.S. Dist. Court for the Dist. of
Or., No. 18-73014, Dkt. 3; see In re United States, 139 S. Ct.
452, 453, 202 L. Ed. 2d 344 (2018) (reiterating justiciability
concerns in denying a subsequent stay application from the

3. The court found that age is not a suspect class, but allowed
the equal protection claim to proceed on a fundamental rights theory.
107a

Appendix F

JRYHUQPHQW 7KHGLVWULFWFRXUWWKHQUHOXFWDQWO\FHUWLÀHG
the orders denying the motions for interlocutory appeal
under 28 U.S.C. § 1292(b) and stayed the proceedings,
while “stand[ing] by its prior rulings . . . as well as its
belief that this case would be better served by further
factual development at trial.” Juliana v. United States,
No. 6:15-cv-01517-AA, 2018 U.S. Dist. LEXIS 207366, 2018
WL 6303774, at *3 (D. Or. Nov. 21, 2018). We granted the
government’s petition for permission to appeal.

II.

The plaintiffs have compiled an extensive record,


which at this stage in the litigation we take in the light
most favorable to their claims. See Plumhoff v. Rickard,
572 U.S. 765, 768, 134 S. Ct. 2012, 188 L. Ed. 2d 1056
(2014). The record leaves little basis for denying that
climate change is occurring at an increasingly rapid pace.
It documents that since the dawn of the Industrial Age,
atmospheric carbon dioxide has skyrocketed to levels
not seen for almost three million years. For hundreds
of thousands of years, average carbon concentration
ÁXFWXDWHGEHWZHHQDQGSDUWVSHUPLOOLRQ7RGD\LW
is over 410 parts per million and climbing. Although carbon
levels rose gradually after the last Ice Age, the most
recent surge has occurred more than 100 times faster;
half of that increase has come in the last forty years.

Copious expert evidence establishes that this


unprecedented rise stems from fossil fuel combustion
and will wreak havoc on the Earth’s climate if unchecked.
Temperatures have already risen 0.9 degrees Celsius
108a

Appendix F

above pre-industrial levels and may rise more than 6


degrees Celsius by the end of the century. The hottest
years on record all fall within this decade, and each year
since 1997 has been hotter than the previous average.
This extreme heat is melting polar ice caps and may
cause sea levels to rise 15 to 30 feet by 2100. The problem
is approaching “the point of no return.” Absent some
action, the destabilizing climate will bury cities, spawn
life-threatening natural disasters, and jeopardize critical
food and water supplies.

The record also conclusively establishes that the


federal government has long understood the risks of
fossil fuel use and increasing carbon dioxide emissions.
As early as 1965, the Johnson Administration cautioned
WKDWIRVVLOIXHOHPLVVLRQVWKUHDWHQHGVLJQLÀFDQWFKDQJHV
to climate, global temperatures, sea levels, and other
stratospheric properties. In 1983, an Environmental
Protection Agency (“EPA”) report projected an increase
of 2 degrees Celsius by 2040, warning that a “wait and
see” carbon emissions policy was extremely risky. And,
in the 1990s, the EPA implored the government to act
before it was too late. Nonetheless, by 2014, U.S. fossil
fuel emissions had climbed to 5.4 billion metric tons, up
substantially from 1965. This growth shows no signs
of abating. From 2008 to 2017, domestic petroleum and
natural gas production increased by nearly 60%, and the
country is now expanding oil and gas extraction four times
faster than any other nation.

The record also establishes that the government’s


contribution to climate change is not simply a result
of inaction. The government affirmatively promotes
109a

Appendix F

IRVVLOIXHOXVHLQDKRVWRIZD\VLQFOXGLQJEHQHÀFLDOWD[
provisions, permits for imports and exports, subsidies
for domestic and overseas projects, and leases for fuel
extraction on federal land.4

A.

The government by and large has not disputed the


IDFWXDO SUHPLVHV RI WKH SODLQWLIIV· FODLPV %XW LW ÀUVW
argues that those claims must proceed, if at all, under
the APA. We reject that argument. The plaintiffs do not
claim that any individual agency action exceeds statutory
authorization or, taken alone, is arbitrary and capricious.
See 5 U.S.C. § 706(2)(A), (C). Rather, they contend that
the totality of various government actions contributes
to the deprivation of constitutionally protected rights.
Because the APA only allows challenges to discrete
agency decisions, see Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 890-91, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990),
the plaintiffs cannot effectively pursue their constitutional
claims—whatever their merits—under that statute.

4. 7KHSURJUDPVDQGSROLFLHVLGHQWLÀHGE\WKHSODLQWLIIVLQFOXGH
(1) the Bureau of Land Management’s authorization of leases for
107 coal tracts and 95,000 oil and gas wells; (2) the Export-Import
Bank’s provision of $14.8 billion for overseas petroleum projects;
(3) the Department of Energy’s approval of over 2 million barrels
of crude oil imports; (4) the Department of Agriculture’s approval
of timber cutting on federal land; (5) the undervaluing of royalty
rates for federal leasing; (6) tax subsidies for purchasing fuel-
LQHIÀFLHQWVSRUWXWLOLW\YHKLFOHV  WKH´LQWDQJLEOHGULOOLQJFRVWVµ
and “percentage depletion allowance” tax code provisions, 26 U.S.C.
§§ 263(c), 613; and (8) the government’s use of fossil fuels to power
its own buildings and vehicles.
110a

Appendix F

The defendants argue that the APA’s “comprehensive


remedial scheme” for challenging the constitutionality of
agency actions implicitly bars the plaintiffs’ freestanding
constitutional claims. But, even if some constitutional
challenges to agency action must proceed through
the APA, forcing all constitutional claims to follow its
strictures would bar plaintiffs from challenging violations
of constitutional rights in the absence of a discrete
agency action that caused the violation. See Sierra Club
v. Trump, 929 F.3d 670, 694, 696 (9th Cir. 2019) (stating
that plaintiffs could “bring their challenge through an
HTXLWDEOHDFWLRQWRHQMRLQXQFRQVWLWXWLRQDORIÀFLDOFRQGXFW
or under the judicial review provisions of the [APA]”);
Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1172
(9th Cir. 2017) (holding “that the second sentence of § 702
waives sovereign immunity broadly for all causes of action
WKDW PHHW LWV WHUPV ZKLOH †·V ¶ÀQDO DJHQF\ DFWLRQ·
limitation applies only to APA claims”). Because denying
“any judicial forum for a colorable constitutional claim”
presents a “serious constitutional question,” Congress’s
intent through a statute to do so must be clear. See Webster
v. Doe, 486 U.S. 592, 603, 108 S. Ct. 2047, 100 L. Ed. 2d
632 (1988) (quoting Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 681 n.12, 106 S. Ct. 2133, 90 L.
Ed. 2d 623 (1986)); see also Allen v. Milas, 896 F.3d 1094,
1108 (9th Cir. 2018) (“After Webster, we have assumed that
the courts will be open to review of constitutional claims,
even if they are closed to other claims.”). Nothing in the
APA evinces such an intent. 5 Whatever the merits of the

5. The government relies upon Armstrong v. Exceptional Child


Center, Inc., 575 U.S. 320, 328-29, 135 S. Ct. 1378, 191 L. Ed. 2d 471
(2015), and Seminole Tribe of Florida v. Florida, 517 U.S. 44, 74-
111a

Appendix F

plaintiffs’ claims, they may proceed independently of the


review procedures mandated by the APA. See Sierra
Club, 929 F.3d at 698-99 (“Any constitutional challenge
that Plaintiffs may advance under the APA would exist
regardless of whether they could also assert an APA claim
. . . . [C]laims challenging agency actions—particularly
constitutional claims—may exist wholly apart from the
APA.”); Navajo Nation, 876 F.3d at 1170 (explaining that
certain constitutional challenges to agency action are “not
grounded in the APA”).

B.

The government also argues that the plaintiffs lack


Article III standing to pursue their constitutional claims.
To have standing under Article III, a plaintiff must have
(1) a concrete and particularized injury that (2) is caused
by the challenged conduct and (3) is likely redressable by
a favorable judicial decision. See Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180-81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000); Jewel v.
NSA, 673 F.3d 902, 908 (9th Cir. 2011). A plaintiff need
only establish a genuine dispute as to these requirements
to survive summary judgment. See Cent. Delta Water
Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002).

76, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), both of which held that
statutory remedial schemes implicitly barred freestanding equitable
claims. Neither case, however, involved claims by the plaintiffs that
the federal government was violating their constitutional rights.
See Armstrong86DW FODLPLQJWKDWVWDWHRIÀFLDOVKDG
violated a federal statute); Seminole Tribe, 517 U.S. at 51-52 (same).
112a

Appendix F

1.

The district court correctly found the injur y


requirement met. At least some plaintiffs claim concrete
and particularized injuries. Jaime B., for example, claims
that she was forced to leave her home because of water
scarcity, separating her from relatives on the Navajo
Reservation. See Trump v. Hawaii, 138 S. Ct. 2392,
/(GG   ÀQGLQJVHSDUDWLRQIURP
relatives to be a concrete injury). Levi D. had to evacuate
his coastal home multiple times because of flooding.
See Maya v. Centex Corp., 658 F.3d 1060, 1070-71 (9th
&LU   ÀQGLQJ GLPLQXWLRQ LQ KRPH SURSHUW\ YDOXH
to be a concrete injury). These injuries are not simply
“‘conjectural’ or ‘hypothetical;’” at least some of the
plaintiffs have presented evidence that climate change
is affecting them now in concrete ways and will continue
to do so unless checked. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.
Ct. 1717, 109 L. Ed. 2d 135 (1990)); cf. Ctr. for Biological
Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 478, 385
86$SS'& '&&LU  ÀQGLQJQRVWDQGLQJ
EHFDXVH SODLQWLIIV FRXOG ´RQO\ DYHU WKDW DQ\ VLJQLÀFDQW
adverse effects of climate change ‘may’ occur at some
point in the future”).

The government argues that the plaintiffs’ alleged


injuries are not particularized because climate change
affects everyone. But, “it does not matter how many
persons have been injured” if the plaintiffs’ injuries are
“concrete and personal.” Massachusetts v. EPA, 549 U.S.
113a

Appendix F

497, 517, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007) (quoting
Lujan, 504 U.S. at 581 (Kennedy, J., concurring)); see
also Novak v. United States, 795 F.3d 1012, 1018 (9th Cir.
2015) (“[T]he fact that a harm is widely shared does not
necessarily render it a generalized grievance.”) (alteration
in original) (quoting Jewel, 673 F.3d at 909). And, the
Article III injury requirement is met if only one plaintiff
has suffered concrete harm. See Hawaii, 138 S. Ct. at 2416;
Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct.
1645, 1651, 198 L. Ed. 2d 64 (2017) (“At least one plaintiff
must have standing to seek each form of relief requested
in the complaint. . . . For all relief sought, there must be
a litigant with standing.”).

2.

The district court also correctly found the Article III


FDXVDWLRQUHTXLUHPHQWVDWLVÀHGIRUSXUSRVHVRIVXPPDU\
judgment. Causation can be established “even if there
are multiple links in the chain,” Mendia v. Garcia, 768
F.3d 1009, 1012 (9th Cir. 2014), as long as the chain is
not “hypothetical or tenuous,” Maya, 658 F.3d at 1070
(quoting Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d
835, 849 (9th Cir. 2002), amended on denial of reh’g,
312 F.3d 416 (9th Cir. 2002)). The causal chain here is
VXIÀFLHQWO\HVWDEOLVKHG7KHSODLQWLIIV·DOOHJHGLQMXULHVDUH
caused by carbon emissions from fossil fuel production,
H[WUDFWLRQ DQG WUDQVSRUWDWLRQ $ VLJQLÀFDQW SRUWLRQ RI
those emissions occur in this country; the United States
accounted for over 25% of worldwide emissions from
1850 to 2012, and currently accounts for about 15%. See
Massachusetts86DW ÀQGLQJWKDWHPLVVLRQV
114a

Appendix F

amounting to about 6% of the worldwide total showed


cause of alleged injury “by any standard”). And, the
plaintiffs’ evidence shows that federal subsidies and leases
have increased those emissions. About 25% of fossil fuels
extracted in the United States come from federal waters
and lands, an activity that requires authorization from the
federal government. See 30 U.S.C. §§ 181-196 (establishing
legal framework governing the disposition of fossil fuels
on federal land), § 201 (authorizing the Secretary of the
Interior to lease land for coal mining).

Relying on Washington Environmental Council


v. Bellon, 732 F.3d 1131, 1141-46 (9th Cir. 2013), the
government argues that the causal chain is too attenuated
because it depends in part on the independent actions of
third parties. Bellon held that the causal chain between
ORFDODJHQFLHV·IDLOXUHWRUHJXODWHÀYHRLOUHÀQHULHVDQG
the plaintiffs’ climate-change related injuries was “too
WHQXRXVWRVXSSRUWVWDQGLQJµEHFDXVHWKHUHÀQHULHVKDG
D´VFLHQWLÀFDOO\LQGLVFHUQLEOHµLPSDFWRQFOLPDWHFKDQJH
Id. at 1143-44. But the plaintiffs here do not contend
that their injuries were caused by a few isolated agency
decisions. Rather, they blame a host of federal policies,
from subsidies to drilling permits, spanning “over 50
years,” and direct actions by the government. There is at
least a genuine factual dispute as to whether those policies
were a “substantial factor” in causing the plaintiffs’
injuries. Mendia, 768 F.3d at 1013 (quoting Tozzi v. U.S.
Dep’t of Health & Human Servs., 271 F.3d 301, 308, 350
U.S. App. D.C. 40 (D.C. Cir. 2001)).
115a

Appendix F

3.

7KHPRUHGLIÀFXOWTXHVWLRQLVZKHWKHUWKHSODLQWLIIV·
claimed injuries are redressable by an Article III
court. In analyzing that question, we start by stressing
what the plaintiffs do and do not assert. They do not
claim that the government has violated a statute or a
regulation. They do not assert the denial of a procedural
right. Nor do they seek damages under the Federal
Tort Claims Act, 28 U.S.C. § 2671 et seq. Rather, their
sole claim is that the government has deprived them of
a substantive constitutional right to a “climate system
capable of sustaining human life,” and they seek remedial
declaratory and injunctive relief.

Reasonable jurists can disagree about whether the


asserted constitutional right exists. Compare Clean Air
Council v. United States, 362 F. Supp. 3d 237, 250-53 (E.D.
3D  ÀQGLQJQRFRQVWLWXWLRQDOULJKW with Juliana,
217 F. Supp. 3d at 1248-50; see also In re United States,
139 S. Ct. at 453 (reiterating “that the ‘striking’ breadth
of plaintiffs’ below claims ‘presents substantial grounds
for difference of opinion’”). In analyzing redressability,
however, we assume its existence. See M.S. v. Brown, 902
F.3d 1076, 1083 (9th Cir. 2018). But that merely begins
our analysis, because “not all meritorious legal claims
are redressable in federal court.” Id. To establish Article
III redressability, the plaintiffs must show that the relief
they seek is both (1) substantially likely to redress their
injuries; and (2) within the district court’s power to award.
Id. Redress need not be guaranteed, but it must be more
than “merely speculative.” Id. (quoting Lujan, 504 U.S.
at 561).
116a

Appendix F

The plaintiffs first seek a declaration that the


government is violating the Constitution. But that relief
alone is not substantially likely to mitigate the plaintiffs’
asserted concrete injuries. A declaration, although
XQGRXEWHGO\OLNHO\WREHQHÀWWKHSODLQWLIIVSV\FKRORJLFDOO\
is unlikely by itself to remediate their alleged injuries
absent further court action. See Clean Air Council, 362
F. Supp. 3d at 246, 249; Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 107, 118 S. Ct. 1003, 140 L. Ed. 2d 210
(1998) (“By the mere bringing of his suit, every plaintiff
demonstrates his belief that a favorable judgment will
make him happier. But although a suitor may derive great
comfort and joy from the fact that the United States
Treasury is not cheated, that a wrongdoer gets his just
deserts, or that the Nation’s laws are faithfully enforced,
that psychic satisfaction is not an acceptable Article III
remedy because it does not redress a cognizable Article
III injury.”); see also Friends of the Earth, 528 U.S. at
185 (“[A] plaintiff must demonstrate standing separately
for each form of relief sought.”).

The crux of the plaintiffs’ requested remedy is an


injunction requiring the government not only to cease
permitting, authorizing, and subsidizing fossil fuel use,
but also to prepare a plan subject to judicial approval
to draw down harmful emissions. The plaintiffs thus
seek not only to enjoin the Executive from exercising
discretionary authority expressly granted by Congress,
see, e.g., 30 U.S.C. § 201 (authorizing the Secretary of the
Interior to lease land for coal mining), but also to enjoin
Congress from exercising power expressly granted by
the Constitution over public lands, see U.S. Const. art. IV,
§ 3, cl. 2 (“The Congress shall have Power to dispose of
117a

Appendix F

and make all needful Rules and Regulations respecting


the Territory or other Property belonging to the United
States.”).

As an initial matter, we note that although the


plaintiffs contended at oral argument that they challenge
RQO\ DIÀUPDWLYH DFWLYLWLHV E\ WKH JRYHUQPHQW DQ RUGHU
simply enjoining those activities will not, according to their
RZQH[SHUWV·RSLQLRQVVXIÀFHWRVWRSFDWDVWURSKLFFOLPDWH
change or even ameliorate their injuries.6 The plaintiffs’
experts opine that the federal government’s leases and
subsidies have contributed to global carbon emissions.
But they do not show that even the total elimination of
the challenged programs would halt the growth of carbon
dioxide levels in the atmosphere, let alone decrease that
growth. Nor does any expert contend that elimination
of the challenged pro-carbon fuels programs would by
itself prevent further injury to the plaintiffs. Rather, the
record shows that many of the emissions causing climate
change happened decades ago or come from foreign and
non-governmental sources.

Indeed, the plaintiffs’ experts make plain that


reducing the global consequences of climate change
demands much more than cessation of the government’s
promotion of fossil fuels. Rather, these experts opine
that such a result calls for no less than a fundamental
transformation of this country’s energy system, if not
that of the industrialized world. One expert opines that
atmospheric carbon reductions must come “largely via

6. The operative complaint, however, also seems to challenge


the government’s inaction.
118a

Appendix F

reforestation,” and include rapid and immediate decreases


in emissions from many sources. “[L]eisurely reductions of
RQHRIWZRSHUFHQWSHU\HDUµKHH[SODLQV´ZLOOQRWVXIÀFHµ
Another expert has opined that although the required
emissions reductions are “technically feasible,” they
can be achieved only through a comprehensive plan for
“nearly complete decarbonization” that includes both an
“unprecedently rapid build out” of renewable energy and a
“sustained commitment to infrastructure transformation
over decades.” And, that commitment, another expert
HPSKDVL]HVPXVWLQFOXGHHYHU\WKLQJIURPHQHUJ\HIÀFLHQW
lighting to improved public transportation to hydrogen-
powered aircraft.

The plaintiffs concede that their requested relief will


not alone solve global climate change, but they assert that
their “injuries would be to some extent ameliorated.”
Relying on Massachusetts v. EPA, the district court
apparently found the redressability requirement
VDWLVÀHG EHFDXVH WKH UHTXHVWHG UHOLHI ZRXOG OLNHO\ VORZ
or reduce emissions. See 549 U.S. at 525-26. That case,
however, involved a procedural right that the State of
Massachusetts was allowed to assert “without meeting
all the normal standards for redressability;” in that
context, the Court found redressability because “there
[was] some possibility that the requested relief [would]
prompt the injury-causing party to reconsider the decision
that allegedly harmed the litigant.” Id. at 517-18, 525-26
(quoting Lujan, 504 U.S. at 572 n.7). The plaintiffs here
do not assert a procedural right, but rather a substantive
due process claim.7

7. The dissent reads Massachusetts to hold that “a perceptible


UHGXFWLRQLQWKHDGYDQFHRIFOLPDWHFKDQJHLVVXIÀFLHQWWRUHGUHVV
119a

Appendix F

:HDUHWKHUHIRUHVNHSWLFDOWKDWWKHÀUVWUHGUHVVDELOLW\
prong is satisfied. But even assuming that it is, the
plaintiffs do not surmount the remaining hurdle—
HVWDEOLVKLQJ WKDW WKH VSHFLÀF UHOLHI WKH\ VHHN LV ZLWKLQ
the power of an Article III court. There is much to
recommend the adoption of a comprehensive scheme
to decrease fossil fuel emissions and combat climate
change, both as a policy matter in general and a matter
of national survival in particular. But it is beyond the
power of an Article III court to order, design, supervise,
or implement the plaintiffs’ requested remedial plan. As
the opinions of their experts make plain, any effective
plan would necessarily require a host of complex policy
decisions entrusted, for better or worse, to the wisdom and
discretion of the executive and legislative branches. See
Brown)GDW ÀQGLQJWKHSODLQWLII·VUHTXHVWHG
declaration requiring the government to issue driver cards
“incompatible with democratic principles embedded in the
structure of the Constitution”). These decisions range, for

a plaintiff ’s climate change-induced harms.” Diss. at 47. But


Massachusetts “permitted a State to challenge EPA’s refusal to
regulate greenhouse gas emissions,” Am. Elec. Power Co., Inc. v.
Connecticut, 564 U.S. 410, 420, 131 S. Ct. 2527, 180 L. Ed. 2d 435
 ÀQGLQJWKDWDVDVRYHUHLJQLWZDV´HQWLWOHGWRVSHFLDOVROLFLWXGH
in [the] standing analysis,” Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2664 n.10, 192 L. Ed. 2d 704
(2015) (quoting Massachusetts, 549 U.S. at 520). Here, in contrast, the
plaintiffs are not sovereigns, and a substantive right, not a procedural
one, is at issue. See Massachusetts, 549 U.S. at 517-21, 525-26; see
also Lujan, 504 U.S. at 572 n.7 (“There is this much truth to the
assertion that ‘procedural rights’ are special: The person who has
been accorded a procedural right to protect his concrete interests
can assert that right without meeting all the normal standards for
redressability and immediacy.”).
120a

Appendix F

example, from determining how much to invest in public


transit to how quickly to transition to renewable energy,
and plainly require consideration of “competing social,
political, and economic forces,” which must be made by the
People’s “elected representatives, rather than by federal
judges interpreting the basic charter of Government for
the entire country.” Collins v. City of Harker Heights, 503
U.S. 115, 128-29, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992);
see Lujan, 504 U.S. at 559-60 (“[S]eparation of powers
depends largely upon common understanding of what
activities are appropriate to legislatures, to executives,
and to courts.”).

The plaintiffs argue that the district court need not


itself make policy decisions, because if their general
request for a remedial plan is granted, the political
branches can decide what policies will best “phase out
fossil fuel emissions and draw down excess atmospheric
CO2.” To be sure, in some circumstances, courts may
order broad injunctive relief while leaving the “details of
implementation” to the government’s discretion. Brown v.
Plata, 563 U.S. 493, 537-38, 131 S. Ct. 1910, 179 L. Ed. 2d
969 (2011). But, even under such a scenario, the plaintiffs’
request for a remedial plan would subsequently require
WKHMXGLFLDU\WRSDVVMXGJPHQWRQWKHVXIÀFLHQF\RIWKH
government’s response to the order, which necessarily
would entail a broad range of policymaking. And
inevitably, this kind of plan will demand action not only
by the Executive, but also by Congress. Absent court
intervention, the political branches might conclude—
however inappropriately in the plaintiffs’ view—that
economic or defense considerations called for continuation
of the very programs challenged in this suit, or a less
121a

Appendix F

robust approach to addressing climate change than the


plaintiffs believe is necessary. “But we cannot substitute
our own assessment for the Executive’s [or Legislature’s]
predictive judgments on such matters, all of which ‘are
delicate, complex, and involve large elements of prophecy.’”
Hawaii, 138 S. Ct. at 2421 (quoting Chi. & S. Air Lines,
Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.
Ct. 431, 92 L. Ed. 568 (1948)). And, given the complexity
and long-lasting nature of global climate change, the
court would be required to supervise the government’s
compliance with any suggested plan for many decades.
See Nat. Res. Def. Council, Inc. v. EPA, 966 F.2d 1292,
1300 (9th Cir. 1992) (“Injunctive relief could involve
extraordinary supervision by this court. . . . [and] may be
inappropriate where it requires constant supervision.”). 8

8. However belatedly, the political branches are currently


debating such action. Many resolutions and plans have been
introduced in Congress, ranging from discrete measures to
encourage clean energy innovation to the “Green New Deal” and
comprehensive proposals for taxing carbon and transitioning all
sectors of the economy away from fossil fuels. See, e.g., H.R. Res.
109, 116th Cong. (2019); S.J. Res. 8, 116th Cong. (2019); Enhancing
Fossil Fuel Energy Carbon Technology Act, S. 1201, 116th Cong.
(2019); Climate Action Now Act, H.R. 9, 116th Cong. (2019); Methane
Waste Prevention Act, H.R. 2711, 116th Cong. (2019); Clean Energy
Standard Act, S. 1359, 116th Cong. (2019); National Climate Bank
Act, S. 2057, 116th Cong. (2019); Carbon Pollution Transparency Act,
S. 1745, 116th Cong. (2019); Leading Infrastructure for Tomorrow’s
America Act, H.R. 2741, 116th Cong. (2019); Buy Clean Transparency
Act, S. 1864, 116th Cong. (2019); Carbon Capture Modernization
Act, H.R. 1796, 116th Cong. (2019); Challenges & Prizes for Climate
Act, H.R. 3100, 116th Cong. (2019); Energy Innovation and Carbon
Dividend Act, H.R. 763, 116th Cong. (2019); Climate Risk Disclosure
Act, S. 2075, 116th Cong. (2019); Clean Energy for America Act,
S. 1288, 116th Cong. (2019). The proposed legislation, consistent
122a

Appendix F

As the Supreme Court recently explained, “a


constitutional directive or legal standards” must guide
the courts’ exercise of equitable power. Rucho v. Common
Cause, 139 S. Ct. 2484, 2508, 204 L. Ed. 2d 931 (2019).
Rucho found partisan gerrymandering claims presented
political questions beyond the reach of Article III courts.
Id. at 2506-07. The Court did not deny extreme partisan
gerrymandering can violate the Constitution. See id.
at 2506; id. at 2514-15 (Kagan, J., dissenting). But, it
concluded that there was no “limited and precise” standard
discernible in the Constitution for redressing the asserted
violation. Id. at 2500. The Court rejected the plaintiffs’
proposed standard because unlike the one-person, one-
vote rule in vote dilution cases, it was not “relatively easy
to administer as a matter of math.” Id. at 2501.

Rucho reaffirmed that redressability questions


implicate the separation of powers, noting that federal
courts “have no commission to allocate political power
DQGLQÁXHQFHµZLWKRXWVWDQGDUGVWRJXLGHLQWKHH[HUFLVH
of such authority. See id. at 2506-07, 2508. Absent those
standards, federal judicial power could be “unlimited
in scope and duration,” and would inject “the unelected
and politically unaccountable branch of the Federal
Government [into] assuming such an extraordinary and
unprecedented role.” Id. at 2507; see also Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118,
125, 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014) (noting the

with the opinions of the plaintiffs’ experts, envisions that tackling


this global problem involves the exercise of discretion, trade-offs,
international cooperation, private-sector partnerships, and other
value judgments ill-suited for an Article III court.
123a

Appendix F

“separation-of-powers principles underlying” standing


doctrine); Brown, 902 F.3d at 1087 (stating that “in the
context of Article III standing, . . . federal courts must
respect their ‘proper—and properly limited—role . . .
in a democratic society’” (quoting Gill v. Whitford, 138
S. Ct. 1916, 1929, 201 L. Ed. 2d 313 (2018)). Because “it
is axiomatic that ‘the Constitution contemplates that
democracy is the appropriate process for change,’” Brown,
902 F.3d at 1087 (quoting Obergefell v. Hodges, 135 S. Ct.
2584, 2605, 192 L. Ed. 2d 609 (2015)), some questions—
even those existential in nature—are the province of
the political branches. The Court found in Rucho that a
proposed standard involving a mathematical comparison
WRDEDVHOLQHHOHFWLRQPDSLVWRRGLIÀFXOWIRUWKHMXGLFLDU\
to manage. See 139 S. Ct. at 2500-02. It is impossible to
reach a different conclusion here.

The plaintiffs’ experts opine that atmospheric carbon


levels of 350 parts per million are necessary to stabilize
the global climate. But, even accepting those opinions as
valid, they do not suggest how an order from this Court can
achieve that level, other than by ordering the government
to develop a plan. Although the plaintiffs’ invitation to get
the ball rolling by simply ordering the promulgation of a
plan is beguiling, it ignores that an Article III court will
thereafter be required to determine whether the plan is
VXIÀFLHQWWRUHPHGLDWHWKHFODLPHGFRQVWLWXWLRQDOYLRODWLRQ
of the plaintiffs’ right to a “climate system capable of
sustaining human life.” We doubt that any such plan can
be supervised or enforced by an Article III court. And,
in the end, any plan is only as good as the court’s power
to enforce it.
124a

Appendix F

C.

Our dissenting colleague quite correctly notes the


gravity of the plaintiffs’ evidence; we differ only as to
whether an Article III court can provide their requested
redress. In suggesting that we can, the dissent reframes
the plaintiffs’ claimed constitutional right variously as an
entitlement to “the country’s perpetuity,” Diss. at 35-37,
39, or as one to freedom from “the amount of fossil-fuel
emissions that will irreparably devastate our Nation,”
id. at 57. But if such broad constitutional rights exist, we
doubt that the plaintiffs would have Article III standing
to enforce them. Their alleged individual injuries do not
ÁRZIURPDYLRODWLRQRIWKHVHFODLPHGULJKWV,QGHHGDQ\
injury from the dissolution of the Republic would be felt
by all citizens equally, and thus would not constitute the
kind of discrete and particularized injury necessary for
Article III standing. See Friends of the Earth, 528 U.S.
at 180-81. A suit for a violation of these reframed rights,
like one for a violation of the Guarantee Clause, would also
plainly be nonjusticiable. See, e.g., Rucho, 139 S. Ct. at
2506 (“This Court has several times concluded, however,
that the Guarantee Clause does not provide the basis for
a justiciable claim.”) (citing Pac. States Tel. & Tel. Co. v.
Oregon, 223 U.S. 118, 149, 32 S. Ct. 224, 56 L. Ed. 377
(1912)); Luther v. Borden, 48 U.S. 1, 36-37, 39, 12 L. Ed.
581 (1849).

More importantly, the dissent offers no metrics for


judicial determination of the level of climate change that
would cause “the willful dissolution of the Republic,” Diss.
at 40, nor for measuring a constitutionally acceptable
125a

Appendix F

“perceptible reduction in the advance of climate change,”


id.DW&RQWUDU\WRWKHGLVVHQWZHFDQQRWÀQG$UWLFOH
,,,UHGUHVVDELOLW\UHTXLUHPHQWVVDWLVÀHGVLPSO\EHFDXVH
a court order might “postpone[] the day when remedial
PHDVXUHVEHFRPHLQVXIÀFLHQWO\HIIHFWLYHµId. at 46; see
Brown, 902 F.3d at 1083 (“If, however, a favorable judicial
decision would not require the defendant to redress the
plaintiff’s claimed injury, the plaintiff cannot demonstrate
redressability[.]”). Indeed, as the dissent recognizes, a
guarantee against government conduct that might threaten
the Union—whether from political gerrymandering,
nuclear proliferation, Executive misconduct, or climate
change—has traditionally been viewed by Article III
courts as “not separately enforceable.” Id. at 39. Nor has
the Supreme Court recognized “the perpetuity principle”
as a basis for interjecting the judicial branch into the
policy-making purview of the political branches. See id.
at 42.

Contrary to the dissent, we do not “throw up [our]


hands” by concluding that the plaintiffs’ claims are
nonjusticiable. Id. at 33. Rather, we recognize that
“Article III protects liberty not only through its role
in implementing the separation of powers, but also by
specifying the defining characteristics of Article III
judges.” Stern v. Marshall, 564 U.S. 462, 483, 131 S.
Ct. 2594, 180 L. Ed. 2d 475 (2011). 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;”
126a

Appendix F

rather, we are bound “to exercise a discretion informed by


tradition, methodized by analogy, disciplined by system.’”
Benjamin N. Cardozo, The Nature of the Judicial Process
141 (1921).9

The dissent correctly notes that the political branches


of government have to date been largely deaf to the pleas
of the plaintiffs and other similarly situated individuals.
But, although inaction by the Executive and Congress
may affect the form of judicial relief ordered when
there is Article III standing, it cannot bring otherwise
nonjusticiable claims within the province of federal courts.
See Rucho, 139 S. Ct. at 2507-08; Gill, 138 S. Ct. at 1929
(“‘Failure of political will does not justify unconstitutional
remedies.’ . . . Our power as judges . . . rests not on the
GHIDXOWRISROLWLFDOO\DFFRXQWDEOHRIÀFHUVEXWLVLQVWHDG
grounded in and limited by the necessity of resolving,
according to legal principles, a plaintiff’s particular claim
of legal right.” (quoting Clinton v. City of New York, 524
U.S. 417, 449, 118 S. Ct. 2091, 141 L. Ed. 2d 393 (1998)
(Kennedy, J., concurring))); Brown, 902 F.3d at 1087 (“The
absence of a law, however, has never been held to constitute
a ‘substantive result’ subject to judicial review[.]”).

9. &RQWUDU\WRWKHGLVVHQWZHGRQRWÀQGWKLVWREHDSROLWLFDO
question, although that doctrine’s factors often overlap with
redressability concerns. Diss. at 51-61; Republic of Marshall Islands
v. United States, 865 F.3d 1187, 1192 (9th Cir. 2017) (“Whether
examined under the . . . the redressability prong of standing, or
the political question doctrine, the analysis stems from the same
separation-of-powers principle—enforcement of this treaty provision
is not committed to the judicial branch. Although these are distinct
GRFWULQHVWKHUHLVVLJQLÀFDQWRYHUODSµ 
127a

Appendix F

The plaintiffs have made a compelling case that action


LVQHHGHGLWZLOOEHLQFUHDVLQJO\GLIÀFXOWLQOLJKWRIWKDW
record for the political branches to deny that climate
change is occurring, that the government has had a role
LQFDXVLQJLWDQGWKDWRXUHOHFWHGRIÀFLDOVKDYHDPRUDO
responsibility to seek solutions. We do not dispute that the
broad judicial relief the plaintiffs seek could well goad the
political branches into action. Diss. at 45-46, 49-50, 57-61.
We reluctantly conclude, however, that the plaintiffs’ case
must be made to the political branches or to the electorate
at large, the latter of which can change the composition
of the political branches through the ballot box. That the
other branches may have abdicated their responsibility
to remediate the problem does not confer on Article III
courts, no matter how well-intentioned, the ability to step
into their shoes.

III.

)RUWKHUHDVRQVDERYHZHUHYHUVHWKHFHUWLÀHGRUGHUV
of the district court and remand this case to the district
court with instructions to dismiss for lack of Article III
standing.10

REVERSED.

10. The plaintiffs’ motion for an injunction pending appeal,


Dkt. 21, is DENIED. Their motions for judicial notice, Dkts. 134,
149, are GRANTED.
128a

Appendix F

STATON, District Judge, dissenting:

In these proceedings, the government accepts as fact


that the United States has reached a tipping point crying
out for a concerted response—yet presses ahead toward
calamity. It is as if an asteroid were barreling toward
Earth and the government decided to shut down our only
defenses. Seeking to quash this suit, the government
bluntly insists that it has the absolute and unreviewable
power to destroy the Nation.

My colleagues throw up their hands, concluding that


WKLV FDVH SUHVHQWV QRWKLQJ ÀW IRU WKH -XGLFLDU\ 2Q D
fundamental point, we agree: No case can singlehandedly
prevent the catastrophic effects of climate change
predicted by the government and scientists. But a federal
court need not manage all of the delicate foreign relations
and regulatory minutiae implicated by climate change to
offer real relief, and the mere fact that this suit cannot
alone halt climate change does not mean that it presents
no claim suitable for judicial resolution.

Plaintiffs bring suit to enforce the most basic


structural principle embedded in our system of ordered
liberty: that the Constitution does not condone the Nation’s
willful destruction. So viewed, plaintiffs’ claims adhere
to a judicially administrable standard. And considering
129a

Appendix F

plaintiffs seek no less than to forestall the Nation’s


demise, even a partial and temporary reprieve would
constitute meaningful redress. Such relief, much like the
desegregation orders and statewide prison injunctions the
Supreme Court has sanctioned, would vindicate plaintiffs’
constitutional rights without exceeding the Judiciary’s
province. For these reasons, I respectfully dissent.1

I.

As the majority recognizes, and the government


does not contest, carbon dioxide (“CO 2 ”) and other
greenhouse gas (“GHG”) emissions created by burning
fossil fuels are devastating the planet. Maj. Op. at 14-15.
According to one of plaintiffs’ experts, the inevitable
result, absent immediate action, is “an inhospitable future
. . . marked by rising seas, coastal city functionality
loss, mass migrations, resource wars, food shortages,
heat waves, mega-storms, soil depletion and desiccation,
freshwater shortage, public health system collapse,
and the extinction of increasing numbers of species.”

1. I agree with the majority that plaintiffs need not bring their
claims under the APA. See Franklin v. Massachusetts, 505 U.S. 788,
801, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992); Webster v. Doe, 486
U.S. 592, 603-04, 108 S. Ct. 2047, 100 L. Ed. 2d 632 (1988).
130a

Appendix F

Even government scientists2 project that, given current


warming trends, sea levels will rise two feet by 2050,
nearly four feet by 2070, over eight feet by 2100, 18 feet by
2150, and over 31 feet by 2200. To put that in perspective,
a three-foot sea level rise will make two million American
homes uninhabitable; a rise of approximately 20 feet will
result in the total loss of Miami, New Orleans, and other
coastal cities. So, as described by plaintiffs’ experts, the
LQMXULHVH[SHULHQFHGE\SODLQWLIIVDUHWKHÀUVWVPDOOZDYH
in an oncoming tsunami—now visible on the horizon of
the not-so-distant future—that will destroy the United
States as we currently know it.

What sets this harm apart from all others is not just its
magnitude, but its irreversibility. The devastation might
look and feel somewhat different if future generations
could simply pick up the pieces and restore the Nation.
But plaintiffs’ experts speak of a certain level of global
warming as “locking in” this catastrophic damage. Put
more starkly by plaintiffs’ expert, Dr. Harold R. Wanless,
“[a]tmospheric warming will continue for some 30 years
after we stop putting more greenhouse gasses into the
atmosphere. But that warmed atmosphere will continue
warming the ocean for centuries, and the accumulating
heat in the oceans will persist for millennia” (emphasis
added). Indeed, another of plaintiffs’ experts echoes, “[t]he
fact that GHGs dissipate very slowly from the atmosphere
. . . and that the costs of taking CO2 out of the atmosphere
through non-biological carbon capture and storage are

2. NOA A, Technical Rep. NOS CO-OPS 083, Global and


Regional Sea Level Rise Scenarios for the United States 23 (Jan.
2017).
131a

Appendix F

very high means that the consequences of GHG emissions


should be viewed as effectively irreversible” (emphasis
added). In other words, “[g]iven the self-reinforcing
nature of climate change,” the tipping point may well have
arrived, and we may be rapidly approaching the point of
no return.

Despite countless studies over the last half century


warning of the catastrophic consequences of anthropogenic
greenhouse gas emissions, many of which the government
conducted, the government not only failed to act but also
´DIÀUPDWLYHO\SURPRWH>G@IRVVLOIXHOXVHLQDKRVWRIZD\Vµ
Maj. Op. at 15. According to plaintiffs’ evidence, our
nation is crumbling—at our government’s own hand—
into a wasteland. In short, the government has directly
facilitated an existential crisis to the country’s perpetuity.3

II.

In tossing this suit for want of standing, the majority


concedes that the children and young adults who brought
VXLWKDYHSUHVHQWHGHQRXJKWRSURFHHGWRWULDORQWKHÀUVW
two aspects of the inquiry (injury in fact and traceability).
But the majority provides two-and-a-half reasons for
concluding that plaintiffs’ injuries are not redressable.
After detailing its “skeptic[ism]” that the relief sought
FRXOG´VXIÀFHWRVWRSFDWDVWURSKLFFOLPDWHFKDQJHRUHYHQ
ameliorate [plaintiffs’] injuries[,]” Maj. Op. at 23-25, the
majority concludes that, at any rate, a court would lack any
3. My asteroid analogy would therefore be more accurate if I
posited a scenario in which the government itself accelerated the
asteroid towards the earth before shutting down our defenses.
132a

Appendix F

power to award it. In the majority’s view, the relief sought


is too great and unsusceptible to a judicially administrable
standard.

7RH[SODLQZK\,GLVDJUHH,ÀUVWVWHSEDFNWRGHÀQHWKH
interest at issue. While standing operates as a threshold
issue distinct from the merits of the claim, “it often turns
on the nature and source of the claim asserted.” Warth v.
Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 45 L. Ed. 2d 343
(1975). And, unlike the majority, I believe the government
has more than just a nebulous “moral responsibility” to
preserve the Nation. Maj. Op. at 31-32.

A.

The Constitution protects the right to “life, liberty,


and property, to free speech, a free press, [and] freedom of
worship and assembly.” W. Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 87 L. Ed. 1628
(1943). Through “reasoned judgment,” the Supreme Court
has recognized that the Due Process Clause, enshrined in
the Fifth and Fourteenth Amendments, also safeguards
certain “interests of the person so fundamental that the
[government] must accord them its respect.” Obergefell v.
Hodges, 135 S. Ct. 2584, 2598, 192 L. Ed. 2d 609 (2015).
These include the right to marry, Loving v. Virginia,
388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), to
maintain a family and rear children, M.L.B. v. S.L.J., 519
U.S. 102, 116, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996), and
to pursue an occupation of one’s choosing, Schware v. Bd.
of Bar Exam., 353 U.S. 232, 238-39, 77 S. Ct. 752, 1 L.
Ed. 2d 796 (1957). As fundamental rights, these “may not
be submitted to vote; they depend on the outcome of no
133a

Appendix F

elections.” Lucas v. Forty-Fourth Gen. Assembly, 377 U.S.


713, 736, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964) (quoting
Barnette, 319 U.S. at 638).

Some rights serve as the necessary predicate for


others; their fundamentality therefore derives, at least in
part, from the necessity to preserve other fundamental
constitutional protections. Cf., e.g., Timbs v. Indiana, 139
S. Ct. 682, 689, 203 L. Ed. 2d 11 (2019) (deeming a right
fundamental because its deprivation would “undermine
other constitutional liberties”). For example, the right
to vote “is of the essence of a democratic society, and
any restrictions on that right strike at the heart of
representative government.” Reynolds v. Sims, 377 U.S.
533, 555, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Because it
is “preservative of all rights,” the Supreme Court has long
regarded suffrage “as a fundamental political right.” Yick
Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 30 L. Ed.
220 (1886). This holds true even though the right to vote
receives imperfect express protection in the Constitution
itself: While several amendments proscribe the denial or
abridgement of suffrage based on certain characteristics,
the Constitution does not guarantee the right to vote ab
initio. See U.S. Const. amends. XV, XIX, XXIV, XXVI;
cf. U.S. Const. art. I, § 4, cl. 1.

Much like the right to vote, the perpetuity of the


Republic occupies a central role in our constitutional
structure as a “guardian of all other rights,” Plyler v. Doe,
457 U.S. 202, 217 n.15, 102 S. Ct. 2382, 72 L. Ed. 2d 786
(1982). “Civil liberties, as guaranteed by the Constitution,
imply the existence of an organized society . . . .” Cox v.
New Hampshire, 312 U.S. 569, 574, 61 S. Ct. 762, 85 L.
134a

Appendix F

Ed. 1049 (1941); see also Ex parte Yarbrough (The Ku


Klux Cases), 110 U.S. 651, 657-58, 4 S. Ct. 152, 28 L. Ed.
274 (1884). And, of course, in our system, that organized
society consists of the Union. Without it, all the liberties
protected by the Constitution to live the good life are
meaningless.

This observation is hardly novel. After securing


independence, George Washington recognized that
“the destiny of unborn millions” rested on the fate of
the new Nation, cautioning that “whatever measures
have a tendency to dissolve the Union, or contribute to
violate or lessen the Sovereign Authority, ought to be
considered as hostile to the Liberty and Independency
of America[.]” President George Washington, Circular
Letter of Farewell to the Army (June 8, 1783). Without
the Republic’s preservation, Washington warned, “there
is a natural and necessary progression, from the extreme
of anarchy to the extreme of Tyranny; and that arbitrary
power is most easily established on the ruins of Liberty
abused to licentiousness.” Id.

When the Articles of the Confederation proved ill-


ÀWWLQJWRWKHWDVNRIVDIHJXDUGLQJWKH8QLRQWKHIUDPHUV
formed the Constitutional Convention with “the great
object” of “preserv[ing] and perpetuat[ing]” the Union, for
they believed that “the prosperity of America depended
on its Union.” The Federalist No. 2, at 19 (John Jay) (E. H.
Scott ed., 1898); see also Letter from James Madison to
Thomas Jefferson (Oct. 24, 1787)4 (“It appeared to be the

4. Available at https://founders.archives.gov/documents/
Jefferson/01-12-02-0274.
135a

Appendix F

sincere and unanimous wish of the Convention to cherish


and preserve the Union of the States.”). In pressing New
York to ratify the Constitution, Alexander Hamilton spoke
of the gravity of the occasion: “The subject speaks its own
importance; comprehending in its consequences nothing
less than the existence of the Union, the safety and welfare
of the parts of which it is composed—the fate of an empire,
in many respects the most interesting in the world.”
The Federalist No. 1, at 11 (Alexander Hamilton) (E. H.
Scott ed., 1898). In light of this animating principle, it is
ÀWWLQJWKDWWKH3UHDPEOHGHFODUHVWKDWWKH&RQVWLWXWLRQ
is intended to secure “the Blessings of Liberty” not just
for one generation, but for all future generations—our
“Posterity.”

7KH&RQVWLWXWLRQ·VVWUXFWXUHUHÁHFWVWKLVSHUSHWXLW\
principle. See Alden v. Maine, 527 U.S. 706, 713, 119 S. Ct.
2240, 144 L. Ed. 2d 636 (1999) (examining how “[v]arious
textual provisions of the Constitution assume” a structural
principle). In taking the Presidential Oath, the Executive
must vow to “preserve, protect and defend the Constitution
of the United States,” U.S. Const. art. II, § 1, cl. 8, and the
Take Care Clause obliges the President to “take Care that
the Laws be faithfully executed,” U.S. Const. art. II, § 3.
Likewise, though generally not separately enforceable,
Article IV, Section 4 provides that the “United States shall
guarantee to every State in this Union a Republican Form
of Government, and shall protect each of them against
Invasion; and . . . against domestic Violence.” U.S. Const.
art. IV, § 4; see also New York v. United States, 505 U.S.
144, 184-85, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992).
136a

Appendix F

Less than a century after the country’s founding, the


perpetuity principle undergirding the Constitution met
its greatest challenge. Faced with the South’s secession,
3UHVLGHQW/LQFROQUHDIÀUPHGWKDWWKH&RQVWLWXWLRQGLGQRW
countenance its own destruction. “[T]he Union of these
States is perpetual[,]” he reasoned in his First Inaugural
Address, because “[p]erpetuity is implied, if not expressed,
in the fundamental law of all national governments. It
is safe to assert that no government proper ever had
a provision in its organic law for its own termination.”
President Abraham Lincoln, First Inaugural Address
(Mar. 4, 1861). In justifying this constitutional principle,
Lincoln drew from history, observing that “[t]he Union is
much older than the Constitution.” Id. He reminded his
fellow citizens, “one of the declared objects for ordaining
and establishing the Constitution was ‘to form a more
perfect Union.’” Id. (emphasis added) (quoting U.S. Const.
pmbl.). While secession manifested the existential threat
most apparently contemplated by the Founders—political
dissolution of the Union—the underlying principle applies
equally to its physical destruction.

This perpetuity principle does not amount to “a right to


live in a contaminant-free, healthy environment.” Guertin
v. Michigan, 912 F.3d 907, 922 (6th Cir. 2019). To be sure,
the stakes can be quite high in environmental disputes,
as pollution causes tens of thousands of premature deaths
each year, not to mention disability and diminished quality
of life. 5 Many abhor living in a polluted environment, and

5. See, e.g., Andrew L. Goodkind et al., Fine-Scale Damage


Estimates of Particulate Matter Air Pollution Reveal Opportunities
IRU/RFDWLRQ6SHFLÀF0LWLJDWLRQRI(PLVVLRQVLQ 116 Proceedings of
137a

Appendix F

some pay with their lives. But mine-run environmental


concerns “involve a host of policy choices that must be
made by . . . elected representatives, rather than by federal
judges interpreting the basic charter of government[.]”
Collins v. City of Harker Heights, 503 U.S. 115, 129, 112
S. Ct. 1061, 117 L. Ed. 2d 261 (1992). The perpetuity
principle is not an environmental right at all, and it does
not task the courts with determining the optimal level
of environmental regulation; rather, it prohibits only the
willful dissolution of the Republic.6

That the principle is structural and implicit in


our constitutional system does not render it any less
enforceable. To the contrary, our Supreme Court has
recognized that “[t]here are many [] constitutional
doctrines that are not spelled out in the Constitution”
but are nonetheless enforceable as “historically rooted
principle[s] embedded in the text and structure of the
Constitution.” Franchise Tax Bd. of California v. Hyatt,

the National Academy of Sciences 8775, 8779 (2019) (estimating that


ÀQHSDUWLFXODWHPDWWHUFDXVHGSUHPDWXUHGHDWKVLQ 

6. Unwilling to acknowledge that the very nature of the climate


crisis places this case in a category of one, the government argues
that “the Constitution does not provide judicial remedies for every
social and economic ill.” For support, the government cites Lindsey
v. Normet, 405 U.S. 56, 74, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972), which
held Oregon’s wrongful detainer statute governing landlord/tenant
disputes constitutional. The perpetuity principle, however, cabins
the right and avoids any slippery slope. While the principle’s goal is
to preserve the most fundamental individual rights to life, liberty,
and property, it is not triggered absent an existential threat to the
country arising from a “point of no return” that is, at least in part,
of the government’s own making.
138a

Appendix F

139 S. Ct. 1485, 1498-99, 203 L. Ed. 2d 768 (2019). For


instance, the Constitution does not in express terms
provide for judicial review, Marbury v. Madison, 5 U.S.
137, 176-77, 2 L. Ed. 60 (1803); sovereign immunity (outside
of the Eleventh Amendment’s explicit restriction), Alden,
527 U.S. at 735-36; the anticommandeering doctrine,
Murphy v. NCAA, 138 S. Ct. 1461, 1477, 200 L. Ed. 2d 854
(2018); or the regimented tiers of scrutiny applicable to
many constitutional rights, see, e.g., Turner Broad. Sys.,
Inc. v. FCC, 512 U.S. 622, 641-42, 114 S. Ct. 2445, 129 L.
Ed. 2d 497 (1994). Yet these doctrines, as well as many
RWKHULPSOLFLWSULQFLSOHVKDYHEHFRPHÀUPO\HQWUHQFKHG
in our constitutional landscape. And, in an otherwise
justiciable case, a private litigant may seek to vindicate
such structural principles, for they “protect the individual
as well” as the Nation. See Bond v. United States, 564 U.S.
211, 222, 225-26, 131 S. Ct. 2355, 180 L. Ed. 2d 269 (2011);
INS. v. Chadha, 462 U.S. 919, 935-36, 103 S. Ct. 2764, 77
L. Ed. 2d 317 (1983).

In Hyatt, for instance, the Supreme Court held that a


state could not be sued in another state’s courts without its
consent. Although nothing in the text of the Constitution
expressly forbids such suits, the Court concluded that they
contravened “the ‘implicit ordering of relationships within
the federal system necessary to make the Constitution a
workable governing charter and to give each provision
within that document the full effect intended by the
Framers.’” Hyatt, 139 S. Ct. at 1492 (quoting Nevada v.
Hall, 440 U.S. 410, 433, 99 S. Ct. 1182, 59 L. Ed. 2d 416
(1979) (Rehnquist, J., dissenting)). So too here.
139a

Appendix F

Nor can the perpetuity principle be rejected simply


because the Court has not yet had occasion to enforce it
as a limitation on government conduct. Only over time, as
the Nation confronts new challenges, are constitutional
principles tested. For instance, courts did not recognize
the anticommandeering doctrine until the 1970s because
“[f]ederal commandeering of state governments [was] such
a novel phenomenon.” Printz v. United States, 521 U.S.
898, 925, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997). And the
Court did not recognize that cell-site data fell within the
Fourth Amendment until 2018. In so holding, the Court
rejected “a ‘mechanical interpretation’ of the Fourth
Amendment” because “technology has enhanced the
Government’s capacity to encroach upon areas normally
guarded from inquisitive eyes[.]” Carpenter v. United
States, 138 S. Ct. 2206, 2214, 201 L. Ed. 2d 507 (2018).
Thus, it should come as no surprise that the Constitution’s
commitment to perpetuity only now faces judicial scrutiny,
for never before has the United States confronted an
existential threat that has not only gone unremedied but
is actively backed by the government.

The mere fact that we have alternative means to


enforce a principle, such as voting, does not diminish
its constitutional stature. Americans can vindicate
federalism, separation of powers, equal protection, and
voting rights through the ballot box as well, but that
does not mean these constitutional guarantees are
not independently enforceable. By its very nature, the
Constitution “withdraw[s] certain subjects from the
vicissitudes of political controversy, to place them beyond
WKHUHDFKRIPDMRULWLHVDQGRIÀFLDOVDQGWRHVWDEOLVKWKHP
140a

Appendix F

as legal principles to be applied by the courts.” Barnette,


319 U.S. at 638. When fundamental rights are at stake,
individuals “need not await legislative action.” Obergefell,
135 S. Ct. at 2605.

Indeed, in this sui generis circumstance, waiting is not


an option. Those alive today are at perhaps the singular
SRLQWLQKLVWRU\ZKHUHVRFLHW\  LVVFLHQWLÀFDOO\DZDUHRI
the impending climate crisis, and (2) can avoid the point
of no return. And while democracy affords citizens the
right “to debate so they can learn and decide and then,
through the political process, act in concert to try to shape
the course of their own times[,]” id. (quoting Schuette v.
&RDOLWLRQWR'HIHQG$IÀUPDWLYH$FWLRQ, 572 U.S. 291, 312,
134 S. Ct. 1623, 188 L. Ed. 2d 613 (2014)), that process
cannot override the laws of nature. Or, more colloquially,
we can’t shut the stable door after the horse has bolted.

$VWKHODVWÀIW\\HDUVKDYHPDGHFOHDUWHOOLQJSODLQWLIIV
that they must vindicate their right to a habitable United
States through the political branches will rightfully be
perceived as telling them they have no recourse. The
political branches must often realize constitutional
principles, but in a justiciable case or controversy, courts
serve as the ultimate backstop. To this issue, I turn next.

B.

Of course, “it is not the role of courts, but that of the


political branches, to shape the institutions of government
in such fashion as to comply with the laws and the
Constitution.” Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct.
2174, 135 L. Ed. 2d 606 (1996). So federal courts are not
141a

Appendix F

free to address every grievance. “Whether a party has a


VXIÀFLHQWVWDNHLQDQRWKHUZLVHMXVWLFLDEOHFRQWURYHUV\WR
obtain judicial resolution of that controversy is what has
traditionally been referred to as the question of standing
to sue.” Sierra Club v. Morton, 405 U.S. 727, 731-32,
92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Standing is “a
doctrine rooted in the traditional understanding of a case
or controversy,” developed to “ensure that federal courts
do not exceed their authority as it has been traditionally
understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547,
194 L. Ed. 2d 635 (2016).

$ FDVH LV ÀW IRU MXGLFLDO GHWHUPLQDWLRQ RQO\ LI WKH


plaintiff has: “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial
decision.” Id. (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351
(1992); then citing Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), 528 U.S. 167, 180-81, 120 S. Ct. 693,
 / (G G    $V WR WKH ÀUVW WZR HOHPHQWV
my colleagues and I agree: Plaintiffs present adequate
evidence at this pre-trial stage to show particularized,
concrete injuries to legally-protected interests, and they
present further evidence to raise genuine disputes as to
whether those injuries—at least in substantial part—are
fairly traceable to the government’s conduct at issue. See
0DM2SDW%HFDXVH,ÀQGWKDWSODLQWLIIVKDYHDOVR
established the third prong for standing, redressability, I
FRQFOXGHWKDWSODLQWLIIV·OHJDOVWDNHLQWKLVDFWLRQVXIÀFHV
to invoke the adjudicative powers of the federal bench.
142a

Appendix F

1.

“Redressability” concerns whether a federal court


is capable of vindicating a plaintiff’s legal rights. I agree
with the majority that our ability to provide redress is
DQLPDWHG E\ WZR LQTXLULHV RQH RI HIÀFDF\ DQG RQH RI
power. Maj. Op. at 21 (citing M.S. v. Brown, 902 F.3d 1076,
1083 (9th Cir. 2018)). First, as a causal matter, is a court
order likely to actually remediate the plaintiffs’ injury?
If so, does the judiciary have the constitutional authority
to levy such an order? Id.

Addressing the first question, my colleagues are


skeptical that curtailing the government’s facilitation of
fossil-fuel extraction and combustion will ameliorate the
plaintiffs’ harms. See Maj. Op. at 22-25. I am not, as the
nature of the injury at stake informs the effectiveness of
the remedy. See Warth, 422 U.S. at 500.

As described above, the right at issue is not to be


entirely free from any climate change. Rather, plaintiffs
have a constitutional right to be free from irreversible
and catastrophic climate change. Plaintiffs have begun
to feel certain concrete manifestations of this violation,
ripening their case for litigation, but such prefatory
harms are just the first barbs of an ongoing injury
ÁRZLQJ IURP DQ ongoing violation of plaintiffs’ rights.
The bulk of the injury is yet to come. Therefore, practical
redressability is not measured by our ability to stop
climate change in its tracks and immediately undo the
injuries that plaintiffs suffer today—an admittedly tall
order; it is instead measured by our ability to curb by
some meaningful degree what the record shows to be
143a

Appendix F

an otherwise inevitable march to the point of no return.


Hence, the injury at issue is not climate change writ
large; it is climate change beyond the threshold point of
QRUHWXUQ$VZHDSSURDFKWKDWWKUHVKROGWKHVLJQLÀFDQFH
RIHYHU\HPLVVLRQVUHGXFWLRQLVPDJQLÀHG

The majority portrays any relief we can offer as


just a drop in the bucket. See Maj. Op. at 22-25. In a
previous generation, perhaps that characterization would
carry the day and we would hold ourselves impotent to
address plaintiffs’ injuries. But we are perilously close
WRDQRYHUÁRZLQJEXFNHW7KHVHÀQDOGURSVPDWWHUA lot.
Properly framed, a court order—even one that merely
postpones the day when remedial measures become
LQVXIÀFLHQWO\HIIHFWLYH³ZRXOGOLNHO\KDYHDUHDOLPSDFW
on preventing the impending cataclysm. Accordingly, I
conclude that the court could do something to help the
plaintiffs before us.

And “something” is all that standing requires. In


Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct. 1438, 167
L. Ed. 2d 248 (2007), the Supreme Court explicitly held
that a non-negligible reduction in emissions—there, by
UHJXODWLQJYHKLFOHVHPLVVLRQV³VDWLVÀHGWKHUHGUHVVDELOLW\
requirement of Article III standing:

While it may be true that regulating motor-


vehicle emissions will not by itself reverse global
warming, it by no means follows that we lack
jurisdiction to decide whether EPA has a duty
to take steps to slow or reduce it. Because of
the enormity of the potential consequences
associated with manmade climate change, the
144a

Appendix F

fact that the effectiveness of a remedy might be


delayed during the (relatively short) time it takes
IRUDQHZPRWRUYHKLFOHÁHHWWRUHSODFHDQROGHU
one is essentially irrelevant. Nor is it dispositive
that developing countries such as China and
India are poised to increase greenhouse gas
emissions substantially over the next century: A
reduction in domestic emissions would slow the
pace of global emissions increases, no matter
what happens elsewhere.

....

. . . The risk of catastrophic harm, though


remote, is nevertheless real.

Id. at 525-26 (internal citation omitted).

In other words, under Article III, a perceptible


UHGXFWLRQLQWKHDGYDQFHRIFOLPDWHFKDQJHLVVXIÀFLHQW
to redress a plaintiff’s climate change-induced harms.
Full stop. The majority dismisses this precedent because
Massachusetts v. EPA involved a procedural harm,
whereas plaintiffs here assert a purely substantive right.
Maj. Op. at 24. But this difference in posture does not
affect the outcome.

While the redressability requirement is relaxed in


the procedural context, that does not mean (1) we must
engage in a similarly relaxed analysis whenever we
invoke Massachusetts v. EPA or (2) we cannot rely on
Massachusetts v. EPA’s substantive examination of the
145a

Appendix F

relationship between government action and the course of


climate change. Accordingly, here, we do not consider the
likelihood that plaintiffs will prevail in any newly-awarded
agency procedure, nor whether granting access to that
procedure will redress plaintiffs’ injury. Cf. Massachusetts
v. EPA, 549 U.S. at 517-18; Lujan, 504 U.S. at 572 n.7.
Rather, we assume plaintiffs will prevail—removing the
procedural link from the causal chain—and we resume
our traditional analysis to determine whether the
desired outcome would in fact redress plaintiffs’ harms.7
In Massachusetts v. EPA, the remaining substantive inquiry
was whether reducing emissions from fossil-fuel combustion
would likely ameliorate climate change-induced injuries
despite the global nature of climate change (regardless
of whether renewed procedures were themselves likely
to mandate such lessening). The Supreme Court
XQDPELJXRXVO\DQVZHUHGWKDWTXHVWLRQLQWKHDIÀUPDWLYH
That holding squarely applies to the instant facts, 8

7. The presence of a procedural right is more critical when


GHWHUPLQLQJ ZKHWKHU WKH ÀUVW DQG VHFRQG HOHPHQWV RI VWDQGLQJ
DUHSUHVHQW7KLVLVHVSHFLDOO\WUXHZKHUH&RQJUHVVKDV´GHÀQH>G@
injuries and articulate[d] chains of causation that will give rise to
a case or controversy where none existed before” by conferring
procedural rights that give certain persons a “stake” in an injury
that is otherwise not their own. Spokeo, 136 S. Ct. at 1549 (quoting
Lujan, 504 U.S. at 580 (Kennedy, J., concurring)). But who seeks to
vindicate an injury is irrelevant to the question of whether a court
has the tools to relieve that injury.

8. Indeed, the majority has already acknowledged as much in


ÀQGLQJSODLQWLIIV·LQMXULHVWUDFHDEOHWRWKHJRYHUQPHQW·VPLVFRQGXFW
because the traceability and redressability inquiries are largely
coextensive. See Maj. Op. at 19-21; see also Wash. Envtl. Council
v. Bellon, 732 F.3d 1131, 1146 (2013) (“The Supreme Court has
146a

Appendix F

rendering the absence of a procedural right here


irrelevant. 9

FODULÀHGWKDWWKH¶IDLUO\WUDFHDEOH·DQG¶UHGUHVVDELOLW\·FRPSRQHQWV
for standing overlap and are ‘two facets of a single causation
requirement.’ The two are distinct insofar as causality examines
the connection between the alleged misconduct and injury, whereas
redressability analyzes the connection between the alleged injury
and requested judicial relief.”) (internal citation omitted). Here,
where the requested relief is simply to stop the ongoing misconduct,
the inquiries are nearly identical. Cf. Allen v. Wright, 468 U.S. 737,
753 n.19, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984) (“[I]t is important
to keep the inquiries separate” where “the relief requested goes well
beyond the violation of law alleged.”), abrogated on other grounds by
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014); see also infra Part II.B.3.

9. Nor am I persuaded that Massachusetts v. EPA is


distinguishable because of the relaxed standing requirements
and “special solicitude” in cases brought by a state against the
United States. Massachusetts v. EPA, 549 U.S. at 517-20. When
Massachusetts v. EPA was decided, more than a decade ago, there
was uncertainty and skepticism as to whether an individual could
VWDWH D VXIÀFLHQWO\ GHÀQLWH FOLPDWH FKDQJHLQGXFHG KDUP EDVHG
on gradually warming air temperatures and rising seas. But the
Supreme Court sidestepped such questions of the concreteness
RI WKH SODLQWLIIV· LQMXULHV E\ ÀQGLQJ WKDW ´>0DVVDFKXVHWWV·V@ VWDNH
LQWKHRXWFRPHRIWKLVFDVHLVVXIÀFLHQWO\FRQFUHWHWRZDUUDQWWKH
exercise of federal judicial power.” Id. at 519. Here and now, the
plaintiffs submit XQGLVSXWHGVFLHQWLÀFHYLGHQFH that their distinct
and discrete injuries are caused by climate change brought about
by emissions from fossil-fuel combustion. They need not rely on the
“special solicitude,” id. at 520, of a state to be heard. Regardless, any
distinction would go to the concreteness or particularity of plaintiffs’
injuries and not to the issue of redressability.
147a

Appendix F

2.

The majority laments that it cannot step into the


shoes of the political branches, see Maj. Op. at 32, but
appears ready to yield even if those branches walk the
Nation over a cliff. This deference-to-a-fault promotes
separation of powers to the detriment of our countervailing
constitutional mandate to intervene where the political
branches run afoul of our foundational principles. Our
tripartite system of government is often and aptly
described as one of “checks and balances.” The doctrine
of standing preserves balance among the branches by
keeping separate questions of general governance and
WKRVH RI VSHFLÀF OHJDO HQWLWOHPHQW %XW WKH GRFWULQH RI
judicial review compels federal courts to fashion and
effectuate relief to right legal wrongs, even when—as
frequently happens—it requires that we instruct the
other branches as to the constitutional limitations on their
power. Indeed, sometimes “the [judicial and governance]
roles briefly and partially coincide when a court, in
granting relief against actual harm that has been suffered,
. . . orders the alteration of an institutional organization
or procedure that causes the harm.” Lewis, 518 U.S. at
350; cf. Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 474,
102 S. Ct. 752, 70 L. Ed. 2d 700 (1982) (“Proper regard
for the complex nature of our constitutional structure
requires neither that the Judicial Branch shrink from a
confrontation with the other two coequal branches of the
Federal Government, nor that it hospitably accept for
adjudication claims of constitutional violation by other
branches of government where the claimant has not
148a

Appendix F

suffered cognizable injury.”). In my view, this Court must


confront and reconcile this tension before deciding that
thorny questions of standing preclude review in this case.
And faithful application of our history and precedents
reveals that a failure to do so leads to the wrong result.

Taking the long (but essential) way around, I begin


ÀUVWE\DFNQRZOHGJLQJH[SOLFLWO\ZKDWWKHPDMRULW\GRHV
not mention: our history plainly establishes an ambient
presumption of judicial review to which separation-
of-powers concerns provide a rebuttal under limited
circumstances. Few would contest that “[i]t is emphatically
the province and duty of the judicial department” to
curb acts of the political branches that contravene those
fundamental tenets of American life so dear as to be
constitutionalized and thus removed from political whims.
See Marbury, 5 U.S. at 177-78. This presumptive authority
entails commensurate power to grant appropriate redress,
as recognized in Marbury, “which effectively place[s]
upon those who would deny the existence of an effective
legal remedy the burden of showing why their case was
special.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1874, 198 L.
Ed. 2d 290 (2017) (Breyer, J., dissenting). That is, “there
must be something ‘peculiar’ (i.e., special) about a case
that warrants ‘excluding the injured party from legal
redress and placing it within that class of cases which come
under the description of damnum absque injuria—a loss
without an injury.’” Id. (cleaned up) (quoting Marbury, 5
U.S. at 163-64). In sum, although it is the plaintiffs’ burden
to establish injury in fact, causation, and redressability,
it is the government’s burden to establish why this
otherwise-justiciable controversy implicates grander
separation-of-powers concerns not already captured by
149a

Appendix F

those requirements. We do not otherwise abdicate our


duty to enforce constitutional rights.

Without explicitly laying this groundwork, the majority


nonetheless suggests that this case is “special”—and
beyond our redress—because plaintiffs’ requested relief
requires (1) the messy business of evaluating competing
policy considerations to steer the government away from
fossil fuels and (2) the intimidating task of supervising
implementation over many years, if not decades. See Maj.
Op. at 25-27. I admit these are daunting tasks, but we are
constitutionally empowered to undertake them. There is
no justiciability exception for cases of great complexity
and magnitude.

3.

I readily concede that courts must on occasion refrain


from answering those questions that are truly reserved
for the political branches, even where core constitutional
precepts are implicated. This deference is known as
the “political question doctrine,” and its applicability is
governed by a well-worn multifactor test that counsels
judicial deference where there is:

[1] a textually demonstrable constitutional


commitment of the issue to a coordinate political
department; or [2] a lack of judicially discoverable
and manageable standards for resolving it; or
[3] the impossibility of deciding without an
initial policy determination of a kind clearly for
nonjudicial discretion; or [4] the impossibility of
a court’s undertaking independent resolution
150a

Appendix F

without expressing lack of the respect due


coordinate branches of government; or [5] an
unusual need for unquestioning adherence
to a political decision already made; or [6]
the potentiality of embarrassment from
multifarious pronouncements by various
departments on one question.

Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed.


2d 663 (1962); see also Zivotofsky ex rel. Zivotofsky v.
Clinton, 566 U.S. 189, 195-201, 132 S. Ct. 1421, 182 L. Ed.
2d 423 (2012) (discussing and applying Baker factors);
Vieth v. Jubelirer, 541 U.S. 267, 277-90, 124 S. Ct. 1769,
158 L. Ed. 2d 546 (2004) (same); Nixon v. United States,
506 U.S. 224, 228-38, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993)
(same); Chadha, 462 U.S. at 940-43 (same).10 In some
VHQVHWKHVHIDFWRUVDUHIURQWORDGHGLQVLJQLÀFDQFH´:H
KDYHFKDUDFWHUL]HGWKHÀUVWWKUHHIDFWRUVDV¶FRQVWLWXWLRQDO
limitations of a court’s jurisdiction’ and the other three
factors as ‘prudential considerations.’” Republic of
Marshall Islands v. United States, 865 F.3d 1187, 1200 (9th

10. The political question doctrine was first conceived in


Marbury. See Marbury, 5 U.S. at 165-66 (“By the constitution of
the United States, the President is invested with certain important
political powers, in the exercise of which he is to use his own
discretion, and is accountable only to his country in his political
character, and to his own conscience.”). The modern incarnation of
the doctrine has existed relatively unaltered since its exposition in
Baker in 1962. Although the majority disclaims the applicability of
the political question doctrine, see Maj. Op. at 31, n.9, the opinion’s
references to the lack of discernable standards and its reliance on
Rucho v. Common Cause, 139 S. Ct. 2484, 204 L. Ed. 2d 931 (2019),
DVDEDVLVIRUÀQGLQJWKLVFDVHQRQMXVWLFLDEOHEOXUDQ\PHDQLQJIXO
distinction between the doctrines of standing and political question.
151a

Appendix F

Cir. 2017) (quoting Corrie v. Caterpillar, Inc., 503 F.3d


974, 981 (9th Cir. 2007)).11 Moreover, “we have recognized
WKDWWKHÀUVWWZRDUHOLNHO\WKHPRVWLPSRUWDQWµMarshall
Islands, 865 F.3d at 1200 (citing Alperin v. Vatican
Bank, 410 F.3d 532, 545 (9th Cir. 2005)). Yet, we have
DOVRUHFRJQL]HGWKDWWKHLQTXLU\LVKLJKO\FDVHVSHFLÀF
the factors “often collaps[e] into one another[,]” and any
RQHIDFWRURIVXIÀFLHQWZHLJKWLVHQRXJKWRUHQGHUDFDVH
XQÀWIRUMXGLFLDOGHWHUPLQDWLRQSee Marshall Islands, 865
)GDW ÀUVWDOWHUDWLRQLQRULJLQDO  TXRWLQJAlperin,
)GDW 5HJDUGOHVVRIDQ\LQWUDIDFWRUÁH[LELOLW\
DQGÁRZKRZHYHUWKHUHLVDFOHDUPDQGDWHWRDSSO\WKH
political question doctrine both shrewdly and sparingly.

Unless one of these formulations is inextricable


from the case at bar, there should be no
dismissal for non-justiciability on the ground
of a political question’s presence. The doctrine
of which we treat is one of ‘political questions,’
not one of ‘political cases.’ The courts cannot
UHMHFWDV¶QRODZVXLW·DERQDÀGHFRQWURYHUV\DV
to whether some action denominated ‘political’
exceeds constitutional authority.

11. The si x Baker factors have been characterized as


´UHÁHFW>LQJ@WKUHHGLVWLQFWMXVWLÀFDWLRQVIRUZLWKKROGLQJMXGJPHQW
on the merits of a dispute.” Zivotofsky v. Clinton, 566 U.S. at 203
6RWRPD\RU-FRQFXUULQJ 8QGHUWKHÀUVWBaker factor, “abstention
is warranted because the court lacks authority to resolve” “issue[s]
whose resolution is textually committed to a coordinate political
department[.]” Id. Under the second and third factors, abstention
is warranted in “circumstances in which a dispute calls for
decisionmaking beyond courts’ competence[.]” Id. 8QGHU WKH ÀQDO
three factors, abstention is warranted where “prudence . . . counsel[s]
against a court’s resolution of an issue presented.” Id. at 204.
152a

Appendix F

Baker, 369 U.S. at 217; see also Corrie, 503 F.3d at 982
´:H ZLOO QRW ÀQG D SROLWLFDO TXHVWLRQ ¶PHUHO\ EHFDXVH
>D@ GHFLVLRQ PD\ KDYH VLJQLÀFDQW SROLWLFDO RYHUWRQHV·µ 
(quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478
U.S. 221, 230, 106 S. Ct. 2860, 92 L. Ed. 2d 166 (1986)).
Rather, when detecting the presence of a “political
question,” courts must make a “discriminating inquiry
into the precise facts and posture of the particular case”
and refrain from “resolution by any semantic cataloguing.”
Baker, 369 U.S. at 217.

Here, confronted by difficult questions on the


constitutionality of policyWKHPDMRULW\FUHDWHVDPLQHÀHOG
of politics en route to concluding that we cannot adjudicate
this suit. And the majority’s map for navigating that
PLQHÀHOG LV Rucho v. Common Cause, 139 S. Ct. 2484,
204 L. Ed. 2d 931 (2019), an inapposite case about
gerrymandering. My colleagues conclude that climate
change is too political for the judiciary to touch by likening
it to the process of political representatives drawing
political maps to elect other political representatives. I
vehemently disagree.

The government does not address on appeal the


GLVWULFWMXGJH·VUHDVRQLQJWKDWWKHÀUVWWKLUGIRXUWKÀIWK
and sixth Baker factors do not apply here. Neither does
the majority rely on any of these factors in its analysis. In
UHOHYDQWSDUW,ÀQGWKHRSLQLRQEHORZERWKWKRURXJKDQG
well-reasoned, and I adopt its conclusions. I note, however,
WKDWWKHDEVHQFHRIWKHÀUVWBaker factor—whether the
Constitution textually delegates the relevant subject
matter to another branch—is especially conspicuous. As
153a

Appendix F

the district judge described, courts invoke this factor only


where the Constitution makes an unambiguous commitment
of responsibility to one branch of government. Very few
cases turn on this factor, and almost all that do pertain to
two areas of constitutional authority: foreign policy and
legislative proceedings. See, e.g., Marshall Islands, 865
F.3d at 1200-01 (treaty enforcement); Corrie, 503 F.3d at
983 (military aid); Nixon, 506 U.S. at 234 (impeachment
proceedings); see also Davis v. Passman, 442 U.S. 228,
235 n.11, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979) (“[J]udicial
review of cong ressional employ ment decisions is
constitutionally limited only by the reach of the Speech
or Debate Clause[,] . . . [which is] a paradigm example of
a textually demonstrable constitutional commitment of
[an] issue to a coordinate political department.”) (internal
quotation marks omitted); Zivotofsky ex rel. Zivotofsky v.
Kerry, 576 U.S. 1, 135 S. Ct. 2076, 2086, 192 L. Ed. 2d 83
(2015) (“The text and structure of the Constitution grant
the President the power to recognize foreign nations and
governments.”).

Since this matter has been under submission, the


Supreme Court cordoned off an additional area from
judicial review based in part on a textual commitment to
another branch: partisan gerrymandering. See Rucho,
139 S. Ct. at 2494-96. 12 Obviously, the Constitution

12. RuchoGRHVQRWWXUQH[FOXVLYHO\RQWKHÀUVWBaker factor


and acknowledges that there are some areas of districting that courts
may police, notwithstanding the Elections Clause’s “assign[ment]
to state legislatures the power to prescribe the ‘Times, Places and
Manner of holding Elections’ for Members of Congress, while giving
Congress the power to ‘make or alter’ any such regulations.” Rucho,
154a

Appendix F

does not explicitly address climate change. But neither


does climate change implicitly fall within a recognized
political-question area. As the district judge described,
the questions of energy policy at stake here may have
rippling effects on foreign policy considerations, but that
is not enough to wholly exempt the subject matter from
our review. See Juliana v. United States, 217 F. Supp.
3d 1224, 1238 (D. Or. 2016) (“[U]nlike the decisions to
go to war, take action to keep a particular foreign leader
in power, or give aid to another country, climate change
policy is not inherently, or even primarily, a foreign policy
decision.”); see also Baker, 369 U.S. at 211 (“[I]t is error
to suppose that every case or controversy which touches
foreign relations lies beyond judicial cognizance.”).

Without endorsement from the constitutional text,


the majority’s theory is grounded exclusively in the
second Baker factor: a (supposed) lack of clear judicial
standards for shaping relief. Relying heavily on Rucho,
the majority contends that we cannot formulate standards
 WRGHWHUPLQHZKDWUHOLHI´LVVXIÀFLHQWWRUHPHGLDWHWKH
claimed constitutional violation” or (2) to “supervise[] or
enforce[]” such relief. Maj. Op. at 29.

7KHÀUVWSRLQWLVDUHGKHUULQJ3ODLQWLIIVVXEPLWDPSOH
evidence that there is a discernable “tipping point” at
which the government’s conduct turns from facilitating
mere pollution to inducing an unstoppable cataclysm
in violation of plaintiffs’ rights. Indeed, the majority
139 S. Ct. at 2495. Instead, Rucho holds that a combination of the
text (as illuminated by historical practice) and absence of clear
judicial standards precludes judicial review of excessively partisan
gerrymanders. See infra Part II.B.4.
155a

Appendix F

itself cites plaintiffs’ evidence that “atmospheric carbon


levels of 350 parts per million are necessary to stabilize
the climate.” Id. at 24. This clear line stands in stark
contrast to Rucho, which held that—even assuming an
excessively partisan gerrymander was unconstitutional—
no standards exist by which to determine when a rights
violation has even occurred. There, “[t]he central problem
[wa]s not determining whether a jurisdiction has engaged
in partisan gerrymandering. It [wa]s determining when
political gerrymandering has gone too far.” Rucho, 139 S.
Ct. at 2497 (internal quotation marks omitted); see also id.
at 2498 (“[T]he question is one of degree: How to provide
a standard for deciding how much partisan dominance
is too much.”) (internal quotation marks omitted); id. at
2499 (“If federal courts are to . . . adjudicat[e] partisan
gerrymandering claims, they must be armed with a
standard that can reliably differentiate unconstitutional
from constitutional political gerrymandering.”) (internal
quotation marks and citation omitted).

Here, the right at issue is fundamentally one of a


discernable standard: the amount of fossil-fuel emissions
that will irreparably devastate our Nation. That amount
FDQEHHVWDEOLVKHGE\VFLHQWLÀFHYLGHQFHOLNHWKDWSURIIHUHG
by the plaintiffs. Moreover, we need not definitively
determine that standard today. Rather, we need conclude
RQO\WKDWSODLQWLIIVKDYHVXEPLWWHGVXIÀFLHQWHYLGHQFHWR
create a genuine dispute as to whether such an amount
FDQSRVVLEO\EHGHWHUPLQHGDVDPDWWHURIVFLHQWLÀFIDFW
Plaintiffs easily clear this bar. Of course, plaintiffs will
have to carry their burden of proof to establish this fact
in order to prevail at trial, but that issue is not before us.
We must not get ahead of ourselves.
156a

Appendix F

The procedural posture of this case also informs the


question of oversight and enforcement. It appears the
majority’s real concerns lie not in the judiciary’s ability
to draw a line between lawful and unlawful conduct, but
in our ability to equitably walk the government back
from that line without wholly subverting the authority
of our coequal branches. My colleagues take great issue
with plaintiffs’ request for a “plan” to reduce fossil-fuel
emissions. I am not so concerned. At this stage, we need
not promise plaintiffs the moon (or, more apropos, the
earth in a habitable state). For purposes of standing, we
need hold only that the trial court could fashion some sort
of meaningful relief should plaintiffs prevail on the merits.13

Nor would any such remedial “plan” necessarily


require the courts to muck around in policymaking to an
impermissible degree; the scope and number of policies a
court would have to reform to provide relief is irrelevant
to the second Baker factor, which asks only if there are
judicially discernable standards to guide that reformation.
Indeed, our history is no stranger to widespread,
programmatic changes in government functions ushered
in by the judiciary’s commitment to requiring adherence
to the Constitution. Upholding the Constitution’s
prohibition on cruel and unusual punishment, for example,

13. It is possible, of course, that the district court ultimately


concludes that it is unable to provide meaningful redress based on
the facts proved at trial, but trial has not yet occurred. Our present
occasion is to decide only whether plaintiffs have raised a genuine
dispute as to the judiciary’s ability to provide meaningful redress
under any subset of the facts at issue today. See Maj. Op. at 18 (citing
Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th
Cir. 2002)).
157a

Appendix F

the Court ordered the overhaul of prisons in the Nation’s


most populous state. See Brown v. Plata, 563 U.S. 493,
511, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011) (“Courts
may not allow constitutional violations to continue simply
because a remedy would involve intrusion into the realm
RI SULVRQ DGPLQLVWUDWLRQµ  $QG LQ LWV ÀQHVW KRXU WKH
Court mandated the racial integration of every public
school—state and federal—in the Nation, vindicating
the Constitution’s guarantee of equal protection under
the law.14 See Brown v. Bd. of Educ. (Brown I), 347
U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954); Bolling v.
Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954).
In the school desegregation cases, the Supreme Court
was explicitly unconcerned with the fact that crafting
relief would require individualized review of thousands
of state and local policies that facilitated segregation.
Rather, a unanimous Court held that the judiciary could
work to dissemble segregation over time while remaining
cognizant of the many public interests at stake:

To effectuate [the plaintiffs’] interest[s] may


call for elimination of a variety of obstacles
in making the transition to school systems

14. In contrast, we are haunted by the days we declined to


curtail the government’s approval of invidious discrimination in
public life, see Plessy v. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138,
41 L. Ed. 256 (1896) (Harlan, J., dissenting) (“[T]he judgment
this day rendered will, in time, prove to be quite as pernicious as
the decision made by this tribunal in the Dred Scott Case.”), and
neglected to free thousands of innocents prejudicially interned by
their own government without cause, see Trump v. Hawaii, 138 S.
Ct. 2392, 2423, 201 L. Ed. 2d 775 (2018) (“Korematsu was gravely
wrong the day it was decided[.]”).
158a

Appendix F

operated in accordance with the constitutional


principles set forth in [Brown I]. Courts of
equity may properly take into account the public
interest in the elimination of such obstacles in a
systematic and effective manner. But it should
go without saying that the vitality of these
constitutional principles cannot be allowed to
yield simply because of disagreement with
them.

>7@KHFRXUWVPD\ÀQGWKDWDGGLWLRQDOWLPHLV
necessary to carry out the ruling in an effective
manner. The burden rests upon the defendants
to establish that such time is necessary in the
public interest and is consistent with good
faith compliance at the earliest practicable
date. To that end, the courts may consider
problems related to administration, arising
from the physical condition of the school plant,
the school transportation system, personnel,
revision of school districts and attendance
areas into compact units to achieve a system of
determining admission to the public schools on
a nonracial basis, and revision of local laws and
regulations which may be necessary in solving
the foregoing problems.

Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 300-01,


75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955).

As we are all too aware, it took decades to even


partially realize Brown’s promise, but the slow churn of
159a

Appendix F

constitutional vindication did not dissuade the Brown Court,


and it should not dissuade us here. Plaintiffs’ request for a
“plan” is neither novel nor judicially incognizable. Rather,
consistent with our historical practices, their request is a
recognition that remedying decades of institutionalized
violations may take some time. Here, too, decelerating
from our path toward cataclysm will undoubtedly require
“elimination of a variety of obstacles.” Those obstacles
may be great in number, novelty, and magnitude, but
there is no indication that they are devoid of discernable
standards. Busing mandates, facilities allocation, and
district-drawing were all “complex policy decisions”
faced by post-Brown trial courts, see Maj. Op. at 25, and
I have no doubt that disentangling the government from
promotion of fossil fuels will take an equally deft judicial
hand. Mere complexity, however, does not put the issue
out of the courts’ reach. Neither the government nor the
majority has articulated why the courts could not weigh
VFLHQWLÀF DQG SUXGHQWLDO FRQVLGHUDWLRQV³DV ZH RIWHQ
do—to put the government on a path to constitutional
compliance.

The majority also expresses concern that any remedial


plan would require us to compel “the adoption of a
comprehensive scheme to decrease fossil fuel emissions and
combat climate change[.]” Id. at 25. Even if the operative
FRPSODLQW LV IDLUO\ UHDG DV UHTXHVWLQJ DQ DIÀUPDWLYH
scheme to address all drivers of climate change, however
caused, see id. at 23 n.6., such an overbroad request does
not doom our ability to redress those drivers implicated
by the conduct at issue here. Courts routinely grant
plaintiffs less than the full gamut of requested relief,
160a

Appendix F

and our inability to compel legislation that addresses


emissions beyond the scope of this case—such as those
purely in the private sphere or within the control of foreign
governments—speaks nothing to our ability to enjoin the
government from exercising its discretion in violation of
plaintiffs’ constitutional rights.

4.

In sum, resolution of this action requires answers only


WR VFLHQWLÀF TXHVWLRQV QRW SROLWLFDO RQHV $QG SODLQWLIIV
KDYH SXW IRUWK VXIÀFLHQW HYLGHQFH GHPRQVWUDWLQJ WKHLU
entitlement to have those questions addressed at trial in
a court of law.

As discussed above, the majority reaches the opposite


conclusion not by marching purposefully through the Baker
factors, which carve out a narrow set of nonjusticiable
political cases, but instead by broadly invoking Rucho
in a manner that would cull from our dockets any case
WKDWSUHVHQWVDGPLQLVWUDWLYHLVVXHV´WRRGLIÀFXOWIRUWKH
judiciary to manage.” Maj. Op. at 28. That simply is not
WKHWHVW'LIÀFXOWTXHVWLRQVDUHQRWQHFHVVDULO\SROLWLFDO
questions and, beyond reaching the wrong conclusion in
this case, the majority’s application of Rucho threatens
to eviscerate judicial review in a swath of complicated but
plainly apolitical contexts.

Rucho’s limitations should be apparent on the face


of that opinion. Rucho addresses the political process
itself, namely whether the metastasis of partisan politics
161a

Appendix F

has unconstitutionally invaded the drawing of political


districts within states. Indeed, the Rucho opinion
characterizes the issue before it as a request for the Court
to reallocate political power between the major parties.
Rucho, 139 S. Ct. at 2502, 2507, 2508. Baker factors
aside, Rucho surely confronts fundamentally “political”
questions in the common sense of the term. Nothing
about climate change, however, is inherently political. The
majority is correct that redressing climate change will
UHTXLUHFRQVLGHUDWLRQRIVFLHQWLÀFHFRQRPLFHQHUJ\DQG
other policy factors. But that endeavor does not implicate
the way we elect representatives, assign governmental
powers, or otherwise structure our polity.

Regardless, we do not limit our jurisdiction based


on common parlance. Instead, legal and constitutional
principles define the ambit of our authority. In the
present case, the Baker factors provide the relevant
guide and further distinguish Rucho. As noted above,
Rucho’s holding that policing partisan gerrymandering
LVEH\RQGWKHFRXUWV·FRPSHWHQFHUHVWVKHDYLO\RQWKHÀUVW
Baker factor, i.e., the textual and historical delegation of
electoral-district drawing to state legislatures. The Rucho
Court decided it could not discern mathematical standards
to navigate a way out of that particular political thicket.
,WGLGQRWKRZHYHUKROGWKDWPDWKHPDWLFDO RUVFLHQWLÀF 
difficulties in creating appropriate standards divest
jurisdiction in any context. Such an expansive reading
of Rucho would permit the “political question” exception
to swallow the rule.
162a

Appendix F

Global warming is certainly an imposing conundrum,


but so are diversity in higher education, the intersection
between prenatal life and maternal health, the role of
religion in civic society, and many other social concerns.
Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 360,
98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978) (“[T]he line between
honest and thoughtful appraisal of the effects of past
discrimination and paternalistic stereotyping is not so
clear[.]”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 871, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (stating
that Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d
  LQYROYHGWKH´GLIÀFXOWTXHVWLRQµRIGHWHUPLQLQJ
the “weight to be given [the] state interest” in light of
the “strength of the woman’s [privacy] interest”); Am.
Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094, 204
L. Ed. 2d 452 (2019) (Kavanaugh, J., concurring) (noting
that determining the constitutionality of a large cross’s
SUHVHQFHRQSXEOLFODQGZDV´GLIÀFXOWEHFDXVHLWUHSUHVHQWV
a clash of genuine and important interests”). These issues
may not have been considered within the purview of the
judicial branch had the Court imported wholesale Rucho’s
“manageable standards” analysis even in the absence of
Rucho’s inherently political underpinnings. Beyond the
outcome of the instant case, I fear that the majority’s
holding strikes a powerful blow to our ability to hear
important cases of widespread concern.

III.

To be sure, unless there is a constitutional violation,


courts should allow the democratic and political processes
163a

Appendix F

to perform their functions. And while all would now


readily agree that the 91 years between the Emancipation
Proclamation and the decision in Brown v. Board was too
long, determining when a court must step in to protect
fundamental rights is not an exact science. In this case,
my colleagues say that time is “never”; I say it is now.

Were we addressing a matter of social injustice, one


might sincerely lament any delay, but take solace that “the
arc of the moral universe is long, but it bends towards
justice.”15 The denial of an individual, constitutional
right—though grievous and harmful—can be corrected
in the future, even if it takes 91 years. And that possibility
provides hope for future generations.

Where is the hope in today’s decision? Plaintiffs’


FODLPV DUH EDVHG RQ VFLHQFH VSHFLÀFDOO\ DQ LPSHQGLQJ
point of no return. If plaintiffs’ fears, backed by the
government’s own studies, prove true, history will not
judge us kindly. When the seas envelop our coastal cities,
ÀUHVDQGGURXJKWVKDXQWRXULQWHULRUVDQGVWRUPVUDYDJH
everything between, those remaining will ask: Why did
so many do so little?

I would hold that plaintiffs have standing to challenge


the government’s conduct, have articulated claims under

15. Dr. Martin Luther King, Jr., Remaining Awake Through a


Great Revolution, Address at the National Cathedral, Washington,
D.C. (Mar. 31, 1968). In coining this language, Dr. King was inspired
by an 1853 sermon by abolitionist Theodore Parker. See Theodore
Parker, Of Justice and the Conscience, in Ten Sermons of Religion
84-85 (Boston, Crosby, Nichols & Co. 1853).
164a

Appendix F

WKH&RQVWLWXWLRQDQGKDYHSUHVHQWHGVXIÀFLHQWHYLGHQFH
WR SUHVV WKRVH FODLPV DW WULDO , ZRXOG WKHUHIRUH DIÀUP
the district court.

With respect, I dissent.


165a

Appendix GG
APPENDIX
139 S. Ct. 452

SUPREME COURT OF THE UNITED STATES

-------------------

No. 18A410

IN RE UNITED STATES, et al.,

Applicants.

-------------------

Filed: November 2, 2018

-------------------

OPINION

-------------------

The Government seeks a stay of proceedings in the


District Court pending disposition of a petition for a writ
of mandamus, No. 18–505, ordering dismissal of the suit.
In such circumstances, a stay is warranted if there is (1)
“a fair prospect that a majority of the Court will vote to
grant mandamus,” and (2) “a likelihood that irreparable
harm will result from the denial of a stay.” Hollingsworth
v. Perry, 558 U.S. 183, 190, 130 S.Ct. 705, 175 L.Ed.2d
657 (2010) (per curiam). Mandamus may issue when “(1)
‘no other adequate means [exist] to attain the relief [the
party] desires,’ (2) the party’s ‘right to issuance of the writ
is clear and indisputable,’ and (3) ‘the writ is appropriate
under the circumstances.’” Ibid. (quoting Cheney v. United
166a

Appendix G

States Dist. Court for D.C., 542 U.S. 367, 380–381, 124
S.Ct. 2576, 159 L.Ed.2d 459 (2004)). “The traditional use
of the writ in aid of appellate jurisdiction . . . has been to
FRQÀQH>WKHFRXUWDJDLQVWZKLFKPDQGDPXVLVVRXJKW@WR
a lawful exercise of its prescribed jurisdiction.” Id. at 380,
124 S.Ct. 2576 (quoting Roche v. Evaporated Milk Assn.,
319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943)).

The Government contends that these standards are


VDWLVÀHGKHUHEHFDXVHWKHOLWLJDWLRQLVEH\RQGWKHOLPLWV
of Article III. The Government notes that the suit is
based on an assortment of unprecedented legal theories,
such as a substantive due process right to certain climate
conditions, and an equal protection right to live in the same
climate as enjoyed by prior generations. The Government
further points out that plaintiffs ask the District Court to
create a “national remedial plan” to stabilize the climate
and “restore the Earth’s energy balance.”

The Distr ict Cour t denied the Government’s


dispositive motions, stating that “[t]his action is of a
different order than the typical environmental case. It
alleges that defendants’ actions and inactions-whether
RU QRW WKH\ YLRODWH DQ\ VSHFLÀF VWDWXWRU\ GXW\KDYH VR
profoundly damaged our home planet that they threaten
plaintiffs’ fundamental constitutional rights to life and
liberty.” Juliana v. United States, 217 F.Supp.3d 1224,
1261 (D.Ore.2016). The District Court declined to certify
its orders for interlocutory review under 28 U.S.C.
§ 1292(b) (permitting such review when the district court
FHUWLÀHVWKDWLWVRUGHU´LQYROYHVDFRQWUROOLQJTXHVWLRQRI
law as to which there is substantial ground for difference
of opinion and that an immediate appeal . . . may materially
167a

Appendix G

advance the ultimate termination of the litigation”). See


this Court’s order of July 30, 2018, No. 18A65 (noting that
the “striking” breadth of plaintiffs’ below claims “presents
substantial grounds for difference of opinion”).

At this time, however, the Government’s petition for a


writ of mandamus does not have a “fair prospect” of success
in this Court because adequate relief may be available in
the United States Court of Appeals for the Ninth Circuit.
When mandamus relief is available in the court of appeals,
pursuit of that option is ordinarily required. See S.Ct. Rule
20.1 (petitioners seeking extraordinary writ must show
“that adequate relief cannot be obtained in any other form
or from any other court” (emphasis added)); S.Ct. Rule
20.3 (mandamus petition must “set out with particularity
why the relief sought is not available in any other court”);
see also Ex parte Peru, 318 U.S. 578, 585, 63 S.Ct. 793, 87
L.Ed. 1014 (1943) (mandamus petition “ordinarily must be
made to the intermediate appellate court”).

Although the Ninth Circuit has twice denied the


Government’s request for mandamus relief, it did so
without prejudice. And the court’s basis for denying relief
rested, in large part, on the early stage of the litigation,
the likelihood that plaintiffs’ claims would narrow as the
case progressed, and the possibility of attaining relief
through ordinary dispositive motions. Those reasons
are, to a large extent, no longer pertinent. The 50–day
trial was scheduled to begin on October 29, 2018, and
is being held in abeyance only because of the current
administrative stay.
168a

Appendix G

In light of the foregoing, the application for stay,


presented to THE CHIEF JUSTICE and by him referred
to the Court, is denied without prejudice. The order
heretofore entered by THE CHIEF JUSTICE is vacated.

Justice THOMAS and Justice GORSUCH would grant


the application.
169a

Appendix HH
APPENDIX
139 S. Ct. 1
SUPREME COURT OF THE UNITED STATES
-------------------
No. 18A65
UNITED STATES, et al.,
Applicants
v.
U.S. DISTRICT COURT FOR
DISTRICT OF OREGON
-------------------
Filed: July 30, 2018
-------------------
OPINION
-------------------
The application for stay presented to Justice Kennedy
and by him referred to the Court is denied.

The Government’s request for relief is premature and


is denied without prejudice. The breadth of respondents’
claims is striking, however, and the justiciability of those
claims presents substantial grounds for difference of
opinion. The District Court should take these concerns
into account in assessing the burdens of discovery and
trial, as well as the desirability of a prompt ruling on the
Government’s pending dispositive motions.
170a

Appendix I I
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
-------------------
No. 24-684
D.C. No. 6:15-cv-1517, Portland
IN RE: UNITED STATES OF AMERICA
UNITED STATES OF AMERICA, et al.;
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON, EUGENE,
Respondent,
STATE OF ALABAMA,
Defendant,
XIUHTEZCATL TONATIUH M., through his
Guardian Tamara Roske-Martinez, et al.;
Real Parties in Interest,
THE NATIONAL ASSOCIATION
OF MANUFACTURERS, et al.;
Intervenors,
-------------------
171a

Appendix I

ENVIRONMENTAL JUSTICE CLINIC –


UNIVERSITY OF MIAMI SCHOOL OF LAW, et al.;
Amici Curiae.
-------------------
Filed: July 12, 2024
-------------------
Before: BENNETT, R. NELSON, and MILLER, Circuit
Judges.

Judge Bennett, Judge R. Nelson, and Judge Miller all


voted to deny the motion for rehearing or reconsideration
en banc. Dkt. No. 27.1. The motion was distributed to the
full court on June 20, 2024, and no judge requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.

The motion for rehearing or reconsideration en banc


is DENIED. The motion to vacate the May 1, 2024 order
and recall the mandate, Dkt. No. 26.1, is also DENIED.

You might also like