kelsey cascadia rose juliana, et al

NOTICE OF FILING APPL. FOR EXT. OF TIME TO FILE PET. FOR A WRIT OF CERTIORARI 1

JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division

LISA LYNNE RUSSELL, Chief GUILLERMO A. MONTERO, Assistant Chief SEAN C. DUFFY (NY Bar No. 4103131) MARISSA PIROPATO (MA Bar No. 651630) CLARE BORONOW (admitted to MD bar) FRANK J. SINGER (CA Bar No. 227459) Trial Attorneys Natural Resources Section 601 D Street NW Washington, DC 20004 (202) 305-0445 [email protected]

Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA, et al., Plaintiffs,

v.

UNITED STATES OF AMERICA, et al., Defendants.

Case No. 6:15-CV-01517-TC NOTICE OF FILING APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI

NOTICE OF FILING APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI

Defendants, by and through undersigned counsel, hereby give notice of the filing in the

Supreme Court of the United States of an Application for an Extension of Time Within Which to

Case 6:15-cv-01517-TC Document 211 Filed 05/24/18 of 2

mailto:[email protected]

NOTICE OF FILING APPL. FOR EXT. OF TIME TO FILE PET. FOR A WRIT OF CERTIORARI 2

File a Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

(“Application”). A copy of the Application is filed herewith as an exhibit to this Notice.

Dated: May 24, 2018 Respectfully submitted,

JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division /s/ Sean C. Duffy LISA LYNNE RUSSELL GUILLERMO A. MONTERO SEAN C. DUFFY (NY Bar No. 4103131) MARISSA PIROPATO (MA Bar No. 651630) CLARE BORONOW (admitted to MD bar) FRANK J. SINGER (CA Bar No. 227459) U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section 601 D Street NW Washington, DC 20004 Telephone: (202) 305-0445 Facsimile: (202) 305-0506 [email protected] Attorneys for Defendants

Certificate of Service

I hereby certify that on May 24, 2018 I filed the foregoing with the Clerk of Court

via the CM/ECF system, which will provide service to all attorneys of record.

/s/ Sean C. Duffy Sean C. Duffy Attorney for Defendants

Case 6:15-cv-01517-TC Document 211 Filed 05/24/18 of 2

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17A-_____

UNITED STATES OF AMERICA, ET AL., APPLICANTS

v.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, EUGENE

_______________

APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

_____________

Pursuant to Rules 13 and 33.2 of the Rules of this Court, the

Solicitor General, on behalf of the United States, respectfully

requests a 30-day extension of time, to and including July 5, 2018,

within which to file a petition for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Ninth

Circuit in this case. The opinion of the court of appeals (App.,

infra, 1a-9a) is reported at 884 F.3d 830. The court of appeals

entered its judgment on March 7, 2018. Unless extended, the time

within which to file a petition for a writ of certiorari will

expire on June 5, 2018. The jurisdiction of this Court would be

invoked under 28 U.S.C. 1254(1).

Case 6:15-cv-01517-TC Document 211-1 Filed 05/24/18 Page 1 of 68

2

1. Twenty-one minor plaintiffs and an organization called

Earth Guardians filed this suit in 2015 against President Obama,

the Executive Office of the President, and numerous cabinet-level

Executive agencies, alleging that these Executive officials and

agencies contributed to climate change in violation of rights the

plaintiffs assert under the Fifth and Ninth Amendments to the

Constitution and an asserted federal public trust doctrine.

Plaintiffs allege that the defendants (now President Trump and

officials in his Administration) have, through action and

inaction, enabled the combustion of fossil fuels, which release

greenhouse gases into the atmosphere. They further allege that

defendants have known, at least since the 1960s, that greenhouse

gas emissions from fossil fuels destabilize the climate. And they

allege that the effects of that destabilization have injured them

and will continue to do so. See App., infra, 4a.

Plaintiffs ask the district court to declare that they have

rights under the Constitution to a particular climate system and

to enjoin the Executive Branch to “prepare a consumption-based

inventory of U.S. CO2 emissions” and “prepare and implement an

enforceable national remedial plan to phase out fossil fuel

emissions and draw down excess atmospheric CO2.” D. Ct. Doc. 7,

at 94 (Sept. 10, 2015). In addition, they ask the court to retain

jurisdiction for an indefinite period of time to monitor the

government’s compliance with this “national remedial plan.” Ibid.


3

2. The district court denied the government’s motion to

dismiss the plaintiffs’ claims for lack of jurisdiction and failure

to state a claim. App., infra, 10a-62a. The court found that the

plaintiffs had established Article III standing by adequately

alleging that they had been harmed by the effects of climate

change, through increased droughts, wildfires, and flooding; that

the defendants’ regulation of (and failure to further regulate)

the fossil fuel industry caused the plaintiffs’ injuries; and that

the court could redress those injuries by “order[ing] [d]efendants

to cease their permitting, authorizing, and subsidizing of fossil

fuels and, instead, move to swiftly phase out CO2 emissions, as

well as take such other action necessary to ensure that atmospheric

CO2 is no more concentrated than 350 ppm by 2100, including to

develop a national plan to restore Earth’s energy balance, and

implement that national plan so as to stabilize the climate

system.” Id. at 33a-34a (citation omitted); see id. at 28a-34a.

The district court further concluded that the plaintiffs had

stated a claim under the Fifth Amendment’s Due Process Clause and

a federal public trust doctrine. App., infra, 34a-47a.

Specifically, the court found under substantive due process a

previously unrecognized fundamental right to a “climate system

capable of sustaining human life,” and that the plaintiffs had

adequately alleged infringement of that fundamental right. Id.

at 36a. The court further determined that the plaintiffs also


4

adequately stated a claim under a federal public trust doctrine,

which it found imposes a judicially enforceable prohibition on the

federal government against “depriving a future legislature of the

natural resources necessary to provide for the well-being and

survival of its citizens.” Id. at 39a (citation omitted). The

plaintiffs’ claims under this doctrine, the court concluded, are

also “properly categorized as substantive due process claims.”

Id. at 47a.

3. The government petitioned the Ninth Circuit for a writ

of mandamus ordering dismissal, contending that the district

court’s order contravened fundamental limitations on judicial

review imposed by Article III of the Constitution and the

Administrative Procedure Act and clearly erred in recognizing a

sweeping new fundamental right to certain climate conditions under

the Due Process Clause. The court of appeals denied without

prejudice the government’s petition for a writ of mandamus. App.,

infra, 1a-9a.

The court recognized that “some of the plaintiffs’ claims as

currently pleaded are quite broad, and some of the remedies the

plaintiffs seek may not be available as redress.” App., infra,

8a; see id. at 7a (stating that it “well may be” that plaintiffs’

claims are “too broad to be legally sustainable”). The court

observed, however, that the district court had not yet entered any

adverse discovery orders or other rulings. Id. at 6a. The court


5

noted that the government could move to “dismiss the President as

a party,” seek “summary judgment on the claims,” and “seek mandamus

relief” of discovery orders or other adverse rulings. Id. at 6a-

9a. It therefore “decline[d] to exercise [its] discretion to grant

mandamus relief at [that] stage of the litigation.” Id. at 9a.

4. Following the court of appeals’ decision, the government

has filed several motions in the district court seeking to narrow

or resolve the case in ways contemplated by the court of appeals.

Specifically, the government has filed a motion for judgment on

the pleadings with respect to all of plaintiffs’ claims, including

their claims against the President; a motion for summary judgment;

and a protective order to bar all discovery. See D. Ct. Docs.

195, 196 (May 9, 2018), 207 (May 22, 2018). The district court

has not yet acted on any of those motions.

5. The Solicitor General has not yet determined whether to

file a petition for a writ of certiorari in this case. The

additional time sought in this application is needed to continue

consultation with the Departments of Agriculture, Commerce,

Defense, Energy, the Interior, State, and Transportation, and the

Environmental Protection Agency, as well as other Executive

agencies named as defendants in this suit and other components

within the Department of Justice, and to assess the appropriate

course for the government following the court of appeals’ ruling.


6

Additional time is also needed, if a petition is authorized, to

permit its preparation and printing.

Respectfully submitted.

NOEL J. FRANCISCO Solicitor General MAY 2018


830 884 FEDERAL REPORTER, 3d SERIES

by the post-appeal restitution proceed-ings.’’ Because we reverse the districtcourt’s restitution award to PSM, the dis-trict court’s rationale for denying Defen-dants’ motion to retax is undermined, atleast in part. Accordingly, we vacate thedistrict court’s denial and remand for fur-ther consideration in light of today’s opin-ion.

III.

For the reasons set forth above:

1. In No. 15-55026 & 15-55087, we re-verse the district court’s December 17,2014, order with respect to the order’saward of $1.1 million in restitution toPSM.9 We dismiss as moot PSM’s appealof the district court’s denial of prejudg-ment interest. We affirm the December 17order in all other respects, including as tothe issue of QSA rescission.

2. In No. 15-55941, we reverse the dis-trict court’s May 19, 2015, order awardingattorneys’ fees to Defendants. In No. 15-55943, Defendants’ appeal of the districtcourt’s reduction of the lodestar feeamount is dismissed as moot.

3. In No. 15-56184, because we reversePSM’s restitution award, we vacate thedistrict court’s July 14, 2015, order deny-ing Defendants’ motion to retax costs andremand for reconsideration in light of thechanged circumstances.

4. In each of these five appeals, eachparty shall bear its own costs on appeal.

AFFIRMED in part, REVERSED inpart, VACATED and REMANDED inpart, and DISMISSED in part.

,

IN RE UNITED STATES of America,

United States of America; Christy Gold-fuss, in her official capacity as Di-rector of the Council on Environmen-tal Quality; Mick Mulvaney, in hisofficial capacity as Director of theOffice of Management and Budget;John Holdren, Dr., in his official ca-pacity as Director of the Office ofScience and Technology Policy; RickPerry, in his official capacity as Sec-retary of Energy; U.S. Department ofthe Interior; Ryan Zinke, in his offi-cial capacity as Secretary of Interior;U.S. Department of Transportation;Elaine Chao, in her official capacityas Secretary of Transportation; U.S.Department of Agriculture; SonnyPerdue, in his official capacity as Sec-retary of Agriculture; U.S. Depart-ment of Commerce; Wilbur Ross, inhis official capacity as Secretary ofCommerce; U.S. Department of De-fense; Jim Mattis, in his official ca-pacity as Secretary of Defense; U.S.Department of State; Office of thePresident of the United States; U.S.Environmental Protection Agency;U.S. Department of Energy; Donald J.Trump, in his official capacity asPresident of the United States; TheNational Association of Manufactur-ers; American Fuel & PetrochemicalManufacturers; American PetroleumInstitute, Petitioners,

v.

United States District Court for theDistrict of Oregon, Eugene,

Respondent,

9. We recognize that, in awarding PSM a$700,000 offset, the district court also re-quired PSM to return the account receivableto BAIC. This $700,000 formed a part of the

award to PSM that we now reverse, and sowe also reverse that aspect of the districtcourt’s order that required PSM to return thereceivable to BAIC.

(1a)


831IN RE U.S.Cite as 884 F.3d 830 (9th Cir. 2018)

Kelsey Cascadia Rose Juliana; Xiuh-tezcatl Tonatiuh M., through hisGuardian Tamara Roske–Martinez;Alexander Loznak; Jacob Lebel; Zea-land B., through his Guardian Kim-berly Pash-Bell; Avery M., throughher Guardian Holly McRae; SaharaV., through her Guardian Toa Agui-lar; Kiran Isaac Oommen; Tia MarieHatton; Isaac V., through his Guard-ian Pamela Vergun; Miko V., throughher Guardian Pamela Vergun; HazelV., through her Guardian Margo VanUmmersen; Sophie K., through herGuardian Dr. James Hansen; JaimeB., through her Guardian JamescitaPeshlakai; Journey Z., through hisGuardian Erika Schneider; VictoriaB., through her Guardian Daisy Cal-deron; Nathaniel B., through hisGuardian Sharon Baring; Aji P.,through his Guardian Helaina Piper;Levi D., through his Guardian Leigh-Ann Draheim; Jayden F., through herGuardian Cherri Foytlin; Nicholas V.,through his Guardian Marie Venner;Earth Guardians, a nonprofit organi-zation; Future Generations, throughtheir Guardian Dr. James Hansen,Real Parties in Interest.

No. 17-71692

United States Court of Appeals,Ninth Circuit.

Argued and Submitted December 11,2017 San Francisco, California

Filed March 7, 2018

Background: Environmental activistswho were too young to vote, and purportedguardian for future generations, broughtaction for declaratory and injunctive reliefagainst United States, President, and vari-ous Executive Branch officials and agen-cies, alleging that greenhouse gas emis-sions from carbon dioxide, produced byburning fossil fuels, were destabilizing cli-

mate system, and asserting violations ofsubstantive due process and defendants’obligation to hold natural resources in pub-lic trust. Industry associations intervened.After the United States District Court forthe District of Oregon, No. 6:15-cv-01517-TC-AA, Ann L. Aiken, J., 217 F.Supp.3d1224, denied defendants’ and intervenors’motions to dismiss, government defendantsfiled petition for writ of mandamus requir-ing district court to dismiss case.

Holding: The Court of Appeals, Thomas,Chief Judge, held that mandamus reliefrequiring district court to dismiss actionwas not warranted.

Petition denied.

1. Mandamus O1, 26, 28Writ of mandamus is drastic and ex-

traordinary remedy reserved for really ex-traordinary causes, and only exceptionalcircumstances amounting to judicial usur-pation of power or clear abuse of discre-tion will justify invocation of this extraor-dinary remedy.

2. Mandamus O1In considering whether to grant writ

of mandamus requiring district court totake action, court should consider: (1)whether petitioner has no other means,such as direct appeal, to obtain desiredrelief; (2) whether petitioner will be dam-aged or prejudiced in any way not correct-able on appeal; (3) whether district court’sorder is clearly erroneous as matter oflaw; (4) whether district court’s order is oftrepeated error or manifests persistent dis-regard of federal rules; and (5) whetherdistrict court’s order raises new and im-portant problems or issues of first impres-sion.

3. Mandamus O3(11), 11, 32Federal agencies and officials were

not entitled to mandamus relief requiring

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district court to dismiss action allegingthat government policies enabling carbondioxide emissions from burning of fossilfuels contributed to climate change, in vio-lation of plaintiffs’ constitutional rights, de-spite government’s contention that manda-mus was only means of obtaining relieffrom potentially burdensome discoveryand of avoiding violation of separation ofpowers, where district court had not issuedany discovery orders, plaintiffs had notfiled any motions to compel discovery, anymerits errors were correctable through or-dinary course of litigation, there was nocontrolling authority on theories assertedby plaintiffs, and there was no oft-repeatederror in case.

4. Mandamus O4(1)Writ of mandamus may not be used as

substitute for appeal even though hardshipmay result from delay and perhaps unnec-essary trial.

5. Mandamus O3(11), 32Mandamus relief to avoid burdensome

or improper discovery is inappropriatewhere party has never sought relief beforedistrict court to resolve discovery dispute.

6. Mandamus O4(1)For mandamus petitioner to show that

it will be damaged or prejudiced in anyway not correctable on appeal, it mustdemonstrate some burden other than merecost and delay that are regrettable, yetnormal, features of legal system.

7. Mandamus O4(1)Prejudice serious enough to warrant

mandamus relief includes situations inwhich one’s claim will obviously be moot bytime appeal is possible, or in which one willnot have ability to appeal.

8. Mandamus O1Absence of controlling precedent

weighs strongly against finding of clearerror for mandamus purposes.

Appeal from the United States DistrictCourt for the District of Oregon, Ann L.Aiken, District Judge, Presiding, D.C. No.6:15-cv-01517-TC-AA

Eric Grant (argued), Deputy AssistantAttorney General; Andrew C. Mergen,David C. Shilton, and Robert J. Lundman,Appellate Section; Jeffrey H. Wood, ActingAssistant Attorney General; Environment& Natural Resources Division, UnitedStates Department of Justice, Washington,D.C.; for Petitioners.

Julia Ann Olson (argued), Wild EarthAdvocates, Eugene, Oregon; Philip L.Gregory, Cotchett Pitre & McCarthy LLP,Burlingame, California; for Real Parties inInterest.

William John Snape III and DavidHunter, American University, WashingtonCollege of Law, Washington, D.C., for Am-ici Curiae Center for International Envi-ronmental Law and Environmental LawAlliance Worldwide—US.

David Bookbinder, Niskanen Center,Washington, D.C., for Amicus Curiae Nis-kanen Center.

Courtney B. Johnson, Crag Law Center,Portland, Oregon, for Amici CuriaeLeague of Women Voters of the UnitedStates and League of Women Voters ofOregon.

Sarah H. Burt, Earthjustice, San Fran-cisco, California; Patti Goldman, Earthjus-tice, Seattle, Washington; for Amicus Curi-ae EarthRights International, Center forBiological Diversity, Defenders of Wildlife,and Union of Concerned Scientists.

James R. May and Erin Daly, DignityRights Project, Widener University, Dela-ware Law School, Wilmington, Delaware;Rachael Paschal Osborn, Vashon, Wash-ington; for Amici Curiae Law Professors.

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Joanne Spalding, Sierra Club, Oakland,California; Alejandra Nunez and AndresRestrepo, Sierra Club, Washington, D.C.;for Amicus Curiae Sierra Club.

Charles M. Tebbutt, Law Offices ofCharles M. Tebbutt P.C., Eugene, Oregon,for Amici Curiae Global Catholic ClimateMovement; Leadership Conference ofWomen Religious; Interfaith Power andLight; The Sisters of Mercy of the Amer-icas’ Institute Leadership Team; Sisters ofMercy Northeast Leadership Team; Inter-faith Moral Action on Climate; FranciscanAction Network; The National ReligiousCoalition for Creation Care and InterfaithOceans; The Faith Alliance for ClimateSolutions; Eco-Justice Ministries; SanFrancisco Zen Center; The Shalom Cen-ter; GreenFaith; The Office of ApostolicAction & Advocacy; Christian life Commu-nity-USA; and Quaker Earthcare Witness.

Zachary B. Corrigan, Food & WaterWatch Inc., Washington, D.C., for AmiciCuriae Food & Water Watch Inc., Friendsof the Earth—US, and Greenpeace Inc.

Before: Sidney R. Thomas, Chief Judge,and Marsha S. Berzon and Michelle T.Friedland, Circuit Judges.*

OPINION

THOMAS, Chief Judge:

In this petition for a writ of mandamus,the defendants ask us to direct the districtcourt to dismiss a case seeking variousenvironmental remedies. The defendantsargue that allowing the case to proceedwill result in burdensome discovery obli-gations on the federal government that willthreaten the separation of powers. Wehave jurisdiction over this petition pursu-ant to the All Writs Act, 28 U.S.C. § 1651.

Because the defendants have not met thehigh bar for mandamus relief, we deny thepetition.

I

Twenty-one young plaintiffs brought suitagainst the United States, the President,and various Executive Branch officials andagencies, alleging that the defendants havecontributed to climate change in violationof the plaintiffs’ constitutional rights. Theyallege that the defendants have known fordecades that carbon dioxide emissionsfrom the burning of fossil fuels destabilizethe climate. The plaintiffs aver that thedefendants have nevertheless enabled andcontinue to enable, through various gov-ernment policies, the burning of fossil fu-els, allowing atmospheric carbon dioxideconcentrations to reach historically unprec-edented levels. They allege that climatechange is injuring them and will continueto injure them. The plaintiffs claim that, inlight of these facts, the defendants haveviolated their constitutional rights.

The defendants moved to dismiss thesuit for lack of jurisdiction and for failureto state a claim. The district court deniedthe motion. The court held that the plain-tiffs plausibly alleged that they have Arti-cle III standing, did not raise non-justici-able political questions, and assertedplausible claims under the Due ProcessClause of the Fifth Amendment.

The defendants moved the district courtto stay the litigation and to certify itsorder for interlocutory appeal pursuant to28 U.S.C. § 1292(b). The district court de-nied the motions. Anticipating burdensomediscovery, the defendants petitioned thisCourt for a writ of mandamus and request-ed a stay of the litigation. In their petition,

* Following the retirement of Judge Kozinski,Judge Friedland was randomly drawn to re-place him on the panel. She has read the

briefs, reviewed the record, and watched avideo recording of the oral argument held onDecember 11, 2017.

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the defendants ask that we direct the dis-trict court to dismiss the case. We grantedthe request for a stay and now considerthe petition.

II

[1, 2] ‘‘The writ of mandamus is a dras-tic and extraordinary remedy reserved forreally extraordinary causes.’’ In re VanDusen, 654 F.3d 838, 840 (9th Cir. 2011)(quoting Ex parte Fahey, 332 U.S. 258,259–60, 67 S.Ct. 1558, 91 L.Ed. 2041(1947) ) (internal quotation marks omitted).‘‘[O]nly exceptional circumstances amount-ing to a judicial usurpation of power or aclear abuse of discretion will justify theinvocation of this extraordinary remedy.’’Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380,124 S.Ct. 2576, 159 L.Ed.2d 459 (2004)(internal quotation marks and citationsomitted). In considering whether to granta writ of mandamus, we are guided by thefive factors identified in Bauman v. U.S.Dist. Ct., 557 F.2d 650 (9th Cir. 1977):

(1) whether the petitioner has no othermeans, such as a direct appeal, toobtain the desired relief;

(2) whether the petitioner will be dam-aged or prejudiced in any way notcorrectable on appeal;

(3) whether the district court’s order isclearly erroneous as a matter of law;

(4) whether the district court’s order isan oft repeated error or manifests apersistent disregard of the federalrules; and

(5) whether the district court’s orderraises new and important problemsor issues of first impression.

Perry v. Schwarzenegger, 591 F.3d 1147,1156 (9th Cir. 2010) (citing Bauman, 557F.2d at 654–55). ‘‘All factors are not rele-vant in every case and the factors maypoint in different directions in any one

case.’’ Christensen v. U.S. Dist. Ct., 844F.2d 694, 697 (9th Cir. 1988).

III

[3] The defendants do not satisfy theBauman factors at this stage of the litiga-tion. The issues that the defendants raiseon mandamus are better addressedthrough the ordinary course of litigation.We therefore decline to exercise our dis-cretion to grant mandamus relief. See SanJose Mercury News, Inc. v. U.S. Dist. Ct.,187 F.3d 1096, 1099 (9th Cir. 1999) (‘‘Man-damus review is at bottom discretionary—even where [all] the Bauman factors aresatisfied, the court may deny the peti-tion.’’).

A

[4] The first Bauman factor is wheth-er the petitioner will ‘‘ha[ve] no othermeans TTT to obtain the desired relief.’’Perry, 591 F.3d at 1156. This factor en-sures that a writ of mandamus will not ‘‘beused as a substitute for appeal eventhough hardship may result from delayand perhaps unnecessary trial.’’ Schlagen-hauf v. Holder, 379 U.S. 104, 110, 85 S.Ct.234, 13 L.Ed.2d 152 (1964) (internal cita-tion omitted). Here, the defendants arguethat mandamus is their only means of ob-taining relief from potentially burdensomediscovery.

The defendants’ argument fails becausethe district court has not issued a singlediscovery order, nor have the plaintiffsfiled a single motion seeking to compeldiscovery. Rather, the parties have em-ployed the usual meet-and-confer processof resolving discovery disputes. See Fed.R. Civ. P. 37(a)(1). Indeed, both sides havesubmitted declarations attesting that theyhave thus far resolved a number of discov-ery disputes without either side asking thedistrict court for an order. Indeed, theplaintiffs have withdrawn a number of re-

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quests for production. The defendants relyon informal communications as to thescope of discovery—in particular, theplaintiffs’ litigation hold and demand let-ter—but the plaintiffs have clarified thatthese communications were not discoveryrequests.

If a specific discovery dispute arises, thedefendants can challenge that specific dis-covery request on the basis of privilege orrelevance. See McDaniel v. U.S. Dist. Ct.,127 F.3d 886, 888–89 (9th Cir. 1997) (percuriam) (holding that mandamus ‘‘is notthe State’s only adequate means of relief’’from burdensome discovery because, ‘‘asdiscovery proceeds, the State is not fore-closed from making routine challenges tospecific discovery requests on the basis ofprivilege or relevance’’). In addition, thedefendants can seek protective orders, asappropriate, under Federal Rule of CivilProcedure 26(c).

[5] Mandamus relief is inappropriatewhere the party has never sought reliefbefore the district court to resolve a dis-covery dispute. As we have noted, ‘‘courtsof appeals cannot afford to become in-volved with the daily details of discovery.’’In re Anonymous Online Speakers, 661F.3d 1168, 1173 (9th Cir. 2011) (quotingPerry, 591 F.3d at 1157). Rather, we haveonly granted mandamus relief to reviewdiscovery orders in exceptional circum-stances. Id. And neither we nor the Su-preme Court have ever done so before aparty has filed a motion for a protectiveorder in the district court or prior to theissuance of a discovery order by the dis-trict court. The defendants will have ampleremedies if they believe a specific discov-

ery request from the plaintiffs is too broador burdensome. Absent any discovery or-der from the district court, or even anyattempt to seek one, however, the defen-dants have not shown that they have noother means of obtaining relief from bur-densome or otherwise improper discovery.

The defendants rely on two cases inwhich a writ of mandamus issued becauseof alleged discovery burdens: Cheney, andCredit Suisse v. U.S. Dist. Ct., 130 F.3d1342 (9th Cir. 1997). In both cases, thedistrict courts had issued orders compel-ling document production. Cheney, 542U.S. at 376, 379, 124 S.Ct. 2576 (defendantmoved for a protective order, but districtcourt issued order allowing discovery toproceed); Credit Suisse, 130 F.3d at 1346(district court issued order compelling de-fendants to respond to discovery re-quests).1

Absent any district court order concern-ing discovery, mandamus relief is inappro-priate. If the defendants become aggrievedby a future discovery order, they can seekmandamus relief as to that order. Buttheir current request for mandamus reliefis entirely premature. The defendants havenot satisfied the first Bauman factor.

B

[6, 7] The second Bauman factor iswhether the petitioner ‘‘will be damaged orprejudiced in any way not correctable onappeal.’’ Perry, 591 F.3d at 1156. To satis-fy this factor, the defendants ‘‘must dem-onstrate some burden TTT other than themere cost and delay that are the regretta-

1. The defendants also raised, via a letter filedafter argument, the Supreme Court’s recentsummary disposition in an appeal challenginga discovery order. See In re United States, –––U.S. ––––, 138 S.Ct. 443, 199 L.Ed.2d 351(2017). When the government filed a petitionfor mandamus in that case, the district court

had compelled the government to completethe administrative record over the govern-ment’s opposition that the administrative rec-ord was already complete and had deferredruling on the defendants’ earlier motion todismiss. Neither circumstance exists here.

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ble, yet normal, features of our imperfectlegal system.’’ DeGeorge v. U.S. Dist. Ct.,219 F.3d 930, 935 (9th Cir. 2000) (altera-tion in original) (quoting Calderon v. U.S.Dist. Ct., 163 F.3d 530, 535 (9th Cir. 1998)(en banc) ). Prejudice serious enough towarrant mandamus relief ‘‘includes situa-tions in which one’s ‘claim will obviously bemoot by the time an appeal is possible,’ orin which one ‘will not have the ability toappeal.’ ’’ Id. (quoting Calderon, 163 F.3dat 535).

The defendants argue that holding atrial on the plaintiffs’ claims and allowingthe district court potentially to grant reliefwould threaten the separation of powers.We are not persuaded that simply allowingthe usual legal processes to go forward willhave that effect in a way not correctableon appellate review.

First, to the extent the defendants arguethat the President himself has been namedas a defendant unnecessarily and that de-fending this litigation would unreasonablyburden him, this argument is prematurebecause the defendants never moved in thedistrict court to dismiss the President as aparty. See United States v. U.S. Dist. Ct.,384 F.3d 1202, 1205 (9th Cir. 2004) (ex-plaining that there is no injustice fromdeclining to consider a new issue on man-damus review because a petitioner maystill be able to raise the issue below). Norhas any formal discovery been soughtagainst the President.

To the extent that the defendants arearguing that executive branch officials andagencies in general should not be bur-dened by this lawsuit, Congress has notexempted the government from the normalrules of appellate procedure, which antici-pate that sometimes defendants will incur

burdens of litigating cases that lack meritbut still must wait for the normal appealsprocess to contest rulings against them.The United States is a defendant in closeto one-fifth of the civil cases filed in feder-al court.2 The government cannot satisfythe burden requirement for mandamussimply because it, or its officials or agen-cies, is a defendant.

Distilled to its essence, the defendants’argument is that it is a burden to defendagainst the plaintiffs’ claims, which theycontend are too broad to be legally sus-tainable. That well may be. But, as noted,litigation burdens are part of our legalsystem, and the defendants still have theusual remedies before the district court fornonmeritorious litigation, for example,seeking summary judgment on the claims.And if relief is not forthcoming, any legalerror can be remedied on appeal. ‘‘Thefirst two criteria articulated in Baumanare designed to insure that mandamus,rather than some other form of relief, isthe appropriate remedy.’’ In re CementAntitrust Litig. (MDL No. 296), 688 F.2d1297, 1301 (9th Cir. 1982), aff’d sub nom.Arizona v. U.S. Dist. Ct., 459 U.S. 1191,103 S.Ct. 1173, 75 L.Ed.2d 425 (1983)(mem.). Because the merits errors nowasserted are correctable through the ordi-nary course of litigation, the defendantshave not satisfied the second Bauman fac-tor.

C

The third Bauman factor is whether thedistrict court’s order ‘‘is clearly erroneousas a matter of law.’’ Perry, 591 F.3d at1156. Our review of this factor ‘‘is signifi-cantly deferential and [this factor] is not

2. See U.S. Courts, Federal Judicial CaseloadStatistics 2017, http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2017 (last visited Feb. 14, 2018) (The

United States was a defendant in 56,987 ofthe 292,076 civil cases filed in federal court inthe 12-month period ending March 31,2017.).

7a



met unless the reviewing court is left witha definite and firm conviction that a mis-take has been committed.’’ In re Bundy,840 F.3d 1034, 1041 (9th Cir. 2016) (quot-ing In re United States, 791 F.3d 945, 955(9th Cir. 2015) ).

[8] ‘‘The absence of controlling prece-dent weighs strongly against a finding ofclear error [for mandamus purposes].’’ Inre Van Dusen, 654 F.3d 838, 845 (9th Cir.2011). Here, the defendants concede thatthere is no controlling Ninth Circuit au-thority on any of the theories asserted bythe plaintiffs. Indeed, the defendantsstrongly argue that the theories are un-precedented. Thus, the absence of control-ling precedent in this case weighs stronglyagainst a finding of clear error. Id.

We also underscore that this case is at avery early stage, and that the defendantshave ample opportunity to raise legal chal-lenges to decisions made by the districtcourt on a more fully developed record,including decisions as to whether to focusthe litigation on specific governmental de-cisions and orders. Once the litigation pro-ceeds, the defendants will have ample op-portunity to raise and litigate any legalobjections they have.

However, absent controlling precedent,we decline to exercise our discretion tointervene at this stage of the litigation toreview preliminary legal decisions made bythe district court or otherwise opine on themerits.

D

The fourth Bauman factor is whetherthe district court’s order is ‘‘an oft re-peated error or manifests a persistent dis-regard of the federal rules.’’ Perry, 591F.3d at 1156. Absent controlling authority,there is no ‘‘oft-repeated error’’ in thiscase, In re Swift Transp. Co., 830 F.3d at917, and the defendants do not contend

that the district court violated any federalrule. The defendants do not satisfy thefourth factor.

E

The final factor is whether the districtcourt’s order ‘‘raises new and importantproblems or issues of first impression.’’Perry, 591 F.3d at 1156. In general, wehave relied upon this factor when there isa ‘‘novel and important question’’ that‘‘may repeatedly evade review.’’ Id. at1159; see also In re Cement Antitrust Li-tig., 688 F.2d at 1304–05 (‘‘[A]n importantquestion of first impression will evade re-view unless it is considered under our su-pervisory mandamus authority. Moreover,that question may continue to evade re-view in other cases as well.’’).

There is little doubt that the legal theo-ries asserted in this case raise issues offirst impression. But the district court’sorder denying a motion to dismiss on thepleadings—which is all that has happenedthus far—does not present the possibilitythat those issues will evade appellate re-view. The defendants have not satisfied thefifth Bauman factor.

IV

There is enduring value in the orderlyadministration of litigation by the trialcourts, free of needless appellate interfer-ence. In turn, appellate review is aided bya developed record and full considerationof issues by the trial courts. If appellatereview could be invoked whenever a dis-trict court denied a motion to dismiss, wewould be quickly overwhelmed with suchrequests, and the resolution of cases wouldbe unnecessarily delayed.

We are mindful that some of the plain-tiffs’ claims as currently pleaded are quitebroad, and some of the remedies the plain-tiffs seek may not be available as redress.

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However, the district court needs to con-sider those issues further in the first in-stance. Claims and remedies often arevastly narrowed as litigation proceeds; wehave no reason to assume this case will beany different. Nor would the defendants beprecluded from reasserting a challenge tostanding, particularly as to redressability,once the record is more fully developed, orfrom seeking mandamus in the future, ifcircumstances justify it. And the defen-dants retain the option of asking the dis-trict court to certify orders for interlocu-tory appeal of later rulings, pursuant to 28U.S.C. § 1292(b).

Because petitioners have not satisfiedthe Bauman factors, we deny the petitionwithout prejudice. Absent any discoveryorder, the mandamus petition is prematureinsofar as it is premised on a fear ofburdensome discovery. The issues pertain-ing to the merits of this case can be re-solved by the district court, in a futureappeal, or, if extraordinary circumstanceslater present themselves, by mandamusrelief. For these reasons, we decline toexercise our discretion to grant mandamusrelief at this stage of the litigation.

PETITION DENIED WITHOUTPREJUDICE.

,

Lonnie Craig PATTERSON,Plaintiff–Appellant,

v.

CITY OF YUBA CITY, Defendant–Appellee.

No. 16-16001

United States Court of Appeals,Ninth Circuit.

Filed March 7, 2018Background: Arrestee brought actionagainst city asserting a § 1983 claim of

unlawful seizure under the Fourth Amend-ment, as well as state law claims of negli-gent infliction of emotional distress andfalse arrest/false imprisonment. The Unit-ed States District Court for the EasternDistrict of California, D.C. No. 2:12-cv-01350-MCE-CKD, Morrison C. England,Jr., J., 2016 WL 3126052, granted sum-mary judgment to city, and arrestee ap-pealed.

Holding: The Court of Appeals held thatit was appropriate to certify question toCalifornia Supreme Court as to whetherfinding of probable cause to arrest at pre-liminary hearing precluded false arrestclaim under California law.

Question certified.

1. False Imprisonment O13

Under California law, probable causeto arrest is an affirmative defense to aclaim of false arrest. U.S. Const. Amend.4.

2. Federal Courts O3107

It was appropriate for Court of Ap-peals to certify question to California Su-preme Court as to whether a finding ofprobable cause to arrest at a preliminaryhearing precluded a false arrest claim un-der California law; the answer of the ques-tion was dispositive of arrestee’s appeal ofdistrict court’s grant of summary judg-ment to city on arrestee’s claim of falsearrest and imprisonment, no controllingCalifornia precedent answered the ques-tion, California Courts of Appeal had spliton the issue, and resolving the questionwould likely require diligent and thought-ful parsing of California’s issue preclusionrequirements, a magistrate judge’s powersand obligations at a preliminary hearing,and a criminal defendant’s ability to ade-

9a


1224 217 FEDERAL SUPPLEMENT, 3d SERIES

(citing Int’l Ass’n of Machinists v. Street,367 U.S. 740, 761, 81 S.Ct. 1784, 6 L.Ed.2d1141 (1961) and Hughes Tool Co., 104N.L.R.B. 318, 324–25 (1953) (‘‘[A] unioncould not assess nonmembers for costsarising from contract negotiations for thelatter are the exclusive duty and preroga-tive of the certified representative whichthe nonmember minority is both entitled toand bound under.’’)). As the SweeneyCourt explained:

The powers of the bargaining represen-tative are ‘comparable to those pos-sessed by a legislative body both to cre-ate and restrict the rights of thosewhom it represents.’ The duty of fairrepresentation is therefore a ‘corre-sponding duty’ imposed in exchange forthe powers granted to the Union as anexclusive representative. It seems disin-genuous not to recognize that the Un-ion’s position as a sole representativecomes with a set of powers and benefitsas well as responsibilities and duties.

Id. (quoting Steele v. Louisville & N.R.Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed.173 (1944)).

Because Local 370 is ‘‘fully and ade-quately compensated by its rights as thesole and exclusive member at the negotiat-ing table,’’ Local 370 fails to state a FifthAmendment claim. Id.

ORDERNOW, THEREFORE, IT IS HEREBY

ORDERED:1. Defendant’s Motion to Dismiss FAC

(Dkt. 16) is GRANTED. This case isdismissed in its entirety, with preju-dice.

2. Defendant’s Motion to Dismiss Com-plaint (Dkt. 11) is MOOT and istherefore DENIED.

,

Kelsey Cascadia Rose JULIANA,et al., Plaintiffs,

v.

UNITED STATES of America,et al, Defendants.

Case No. 6:15–cv–01517–TC

United States District Court,D. Oregon,

Eugene Division.

Signed 11/10/2016

Background: Environmental activistswho were too young to vote, and purportedguardian for future generations, broughtaction for declaratory and injunctive reliefagainst United States, the President, andnumerous executive agencies, alleging thatgreenhouse gas emissions from carbon di-oxide, produced by burning fossil fuels,were destabilizing the climate system, andasserting violations of substantive due pro-cess and defendants’ obligation to hold nat-ural resources in public trust. The DistrictCourt, Coffin, United States MagistrateJudge, 2016 WL 183903, allowed industryassociations to intervene as defendants.Defendants and intervenors filed motionsto dismiss for lack of subject matter juris-diction and for failure to state a claim.

Holdings: The District Court, Aiken, J.,adopted the report and recommendation ofCoffin, United States Magistrate Judge,and held that:

(1) a nonjusticiable political question wasnot raised;

(2) activists alleged a concrete and partic-ularized injury, as required for ArticleIII standing;

(3) the alleged injury was imminent;

(4) the right to a climate system capableof sustaining human life is a fundamen-tal right protected by substantive dueprocess;

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1225JULIANA v. U.S.Cite as 217 F.Supp.3d 1224 (D.Or. 2016)

(5) activists stated a claim for a substan-tive due process violation based on adanger creation theory;

(6) activists adequately alleged harm topublic trust assets;

(7) the public trust doctrine can apply tothe federal government; and

(8) activists had a right of action to en-force the public trust doctrine.

Motions denied.

1. Federal Courts O2078, 2080A motion to dismiss for lack of subject

matter jurisdiction may attack either theallegations of the complaint or the exis-tence of subject matter in fact. Fed. R.Civ. P. 12(b)(1).

2. Federal Courts O2081The party seeking to invoke the dis-

trict court’s jurisdiction bears the burdenof establishing subject matter jurisdiction.

3. Constitutional Law O2580If a case presents a political question,

federal courts lack subject matter jurisdic-tion to decide that question.

4. Constitutional Law O2580The political question doctrine, as ba-

sis for abstention by federal courts, is pri-marily a function of the constitutional sep-aration of powers.

5. Constitutional Law O2580Six criteria, each of which could indi-

vidually signal the presence of a nonjustici-able political question, are: (1) a textuallydemonstrable constitutional commitment ofthe issue to a coordinate political depart-ment; (2) a lack of judicially discoverableand manageable standards for resolving it;(3) the impossibility of deciding without aninitial policy determination of a kind clear-ly for nonjudicial discretion; (4) the impos-sibility of a court’s undertaking indepen-dent resolution without expressing lack ofthe respect due coordinate branches ofgovernment; (5) an unusual need for un-

questioning adherence to a political deci-sion already made; or (6) the potentialityof embarrassment from multifarious pro-nouncements by various departments onone question.

6. Constitutional Law O2330Constitutional separation of powers is

fundamental to the system of government,known even before the birth of the countryto be a defense against tyranny.

7. Constitutional Law O2332Under separation of powers, it is a

basic principle of the constitutional schemethat one branch of the government maynot intrude upon the central prerogativesof another.

8. Constitutional Law O2580The decision to deny access to judicial

relief, based on the political question doc-trine, should never be made lightly, be-cause federal courts have the power, andordinarily the obligation, to decide casesand controversies properly presented tothem; accordingly, a court cannot simplyerr on the side of declining to exercisejurisdiction when it fears a political ques-tion may exist, and it must instead dili-gently map the precise limits of jurisdic-tion. U.S. Const. art. 3, § 2, cl. 1.

9. Constitutional Law O2580A case does not present a nonjusticia-

ble political question merely because itraises an issue of great importance to thepolitical branches; instead, dismissal on po-litical question grounds is appropriate onlyif one of the considerations for finding apolitical question is inextricable from thecase.

10. Declaratory Judgment O203There was no textually demonstrable

constitutional commitment, to a coordinatepolitical department, of issue of whethergreenhouse gas emissions from carbon di-

11a



oxide, produced by burning fossil fuels,were destabilizing the climate system, aswould provide basis for nonjusticiabilityunder political question doctrine, in envi-ronmental activists’ action for declaratoryand injunctive relief against President andexecutive branch agencies, asserting sub-stantive due process claim; Constitutiondid not mention environmental policy, at-mospheric emissions, or global warming,and climate change policy was not a funda-mental power on which any other powerallocated exclusively to other branches ofgovernment rested. U.S. Const. Amend.5.

11. Declaratory Judgment O203Environmental activists were not ask-

ing federal court to pinpoint the bestgreenhouse gas emissions level, and thus,action for declaratory and injunctive reliefagainst President and executive branchagencies, asserting substantive due pro-cess claim alleging that greenhouse gasemissions from carbon dioxide, producedby burning fossil fuels, were destabilizingthe climate system, did not suffer fromlack of judicially discoverable and manage-able standards or from impossibility ofmaking a decision without an initial policydetermination of a kind clearly for nonjudi-cial discretion, as would provide basis fornonjusticiability under political questiondoctrine; activists were seeking a determi-nation of what emissions level would besufficient to redress their injuries, whichquestion could be answered without anyconsideration of competing interests. U.S.Const. Amend. 5.

12. Declaratory Judgment O203Environmental activists were not ask-

ing the federal court to choose which agen-cies and sectors should reduce greenhousegas emissions, and by how much, and thus,action for declaratory and injunctive reliefagainst President and executive branchagencies, asserting substantive due pro-cess claim alleging that greenhouse gas

emissions from carbon dioxide, producedby burning fossil fuels, were destabilizingthe climate system, did not suffer fromlack of judicially discoverable and manage-able standards or from impossibility ofmaking a decision without an initial policydetermination of a kind clearly for nonjudi-cial discretion, as would provide basis fornonjusticiability under political questiondoctrine; activists were asking federalcourt to direct the agencies to conduct aconsumption-based inventory of carbon di-oxide emissions and use that inventory toprepare and implement an enforceable na-tional remedial plan. U.S. Const. Amend.5.

13. Declaratory Judgment O203Environmental activists’ action con-

cerning climate change, by asserting a con-stitutional claim against President and ex-ecutive branch agencies for violation ofsubstantive due process, rather than as-serting violations of precise statutes orregulations, did not present a claim forwhich judicially discoverable and managea-ble standards for resolution were lacking,as would provide basis for nonjusticiabilityunder political question doctrine, in actionfor declaratory and injunctive relief, alleg-ing that greenhouse gas emissions fromcarbon dioxide, produced by burning fossilfuels, were destabilizing the climate sys-tem; every day, federal courts applied le-gal standards governing due processclaims to new sets of facts. U.S. Const.Amend. 5.

14. Declaratory Judgment O319While environmental activists did not

cite particular statutory or regulatory pro-visions, the allegations in their complaintwere specific enough to put President andexecutive branch agencies on notice oftheir claims, as required under generalpleading standards, in action for declarato-ry and injunctive relief, alleging thatgreenhouse gas emissions from carbon di-

12a



oxide, produced by burning fossil fuels,were destabilizing the climate system; ac-tivists’ theory was that defendants’ aggre-gate actions violated their substantive dueprocess rights and government’s publictrust obligations. U.S. Const. Amend. 5;Fed. R. Civ. P. 8, 12.

15. Declaratory Judgment O203Even if executive and legislative

branches had taken numerous steps to ad-dress climate change, judicial resolution ofenvironmental activists’ action concerningclimate change, asserting a constitutionalclaim against President and executivebranch agencies for violation of substantivedue process, would not express a lack ofrespect for another branch of government,as would provide basis for nonjusticiabilityunder political question doctrine, in actionfor declaratory and injunctive relief, alleg-ing that greenhouse gas emissions fromcarbon dioxide, produced by burning fossilfuels, were destabilizing the climate sys-tem. U.S. Const. Amend. 5.

16. Federal Courts O2073Federal courts have an independent

obligation to assure themselves of the exis-tence of subject matter jurisdiction.

17. Declaratory Judgment O203A nonjusticiable political question was

not raised in action concerning climatechange, brought by environmental activistswho were too young to vote, alleging asubstantive due process violation and seek-ing declaratory and injunctive reliefagainst President and executive branchagencies, based on allegations that green-house gas emissions from carbon dioxide,produced by burning fossil fuels, were des-tabilizing the climate system. U.S. Const.Amend. 5.

18. Constitutional Law O2450Despite constitutional separation of

powers, federal courts retain broad author-ity to fashion practical remedies when con-

fronted with complex and intractable con-stitutional violations.

19. Declaratory Judgment O328

Speculation about the difficulty ofcrafting a remedy without violating consti-tutional separation of powers did not sup-port early-stage dismissal on a motion as-serting lack of subject matter jurisdiction,based on political question doctrine, in en-vironmental activists’ action concerning cli-mate change, alleging a substantive dueprocess violation and seeking declaratoryand injunctive relief against President andexecutive branch agencies, based on alle-gations that greenhouse gas emissionsfrom carbon dioxide, produced by burningfossil fuels, were destabilizing the climatesystem. U.S. Const. Amend. 5; Fed. R.Civ. P. 12(b)(1).

20. Federal Civil Procedure O103.2A threshold question in every federal

case is whether at least one plaintiff hasstanding.

21. Federal Civil Procedure O103.2Standing requires a plaintiff to allege

such a personal stake in the outcome ofthe controversy as to warrant the invoca-tion of federal-court jurisdiction and tojustify exercise of the court’s remedialpowers.

22. Federal Civil Procedure O103.2,103.3

To demonstrate Article III standing, aplaintiff must show: (1) she suffered aninjury in fact that is concrete, particular-ized, and actual or imminent; (2) the injuryis fairly traceable to the defendant’s chal-lenged conduct; and (3) the injury is likelyto be redressed by a favorable court deci-sion. U.S. Const. art. 3, § 2, cl. 1.

23. Federal Civil Procedure O103.2A plaintiff must support each element

of the test for Article III standing with the

13a



manner and degree of evidence required atthe successive stages of the litigation.U.S. Const. art. 3, § 2, cl. 1.

24. Federal Civil Procedure O103.5,1829

At the motion to dismiss stage, gener-al allegations suffice to establish ArticleIII standing, because those allegations arepresumed to embrace those specific factsthat are necessary to support the claim.U.S. Const. art. 3, § 2, cl. 1; Fed. R. Civ.P. 12(b)(1).

25. Environmental Law O651In an environmental case, a plaintiff

cannot demonstrate injury in fact, as ele-ment for Article III standing, merely byalleging injury to the environment; theremust be an allegation that the challengedconduct is harming or imminently willharm the plaintiff. U.S. Const. art. 3, § 2,cl. 1.

26. Environmental Law O656Environmental activists who were too

young to vote sufficiently alleged injury infact, as element for Article III standing, inaction alleging a substantive due processviolation and seeking declaratory and in-junctive relief against President and exec-utive branch agencies, based on allegationsthat greenhouse gas emissions from car-bon dioxide, produced by burning fossilfuels, were destabilizing the climate sys-tem; activists alleged harm to their person-al, economic, and aesthetic interests thatwere concrete and particularized, not ab-stract or indefinite, and that harms toyouths and future generations were great-er. U.S. Const. art. 3, § 2, cl. 1; U.S.Const. Amend. 5.


Federal courts lack jurisdiction tohear a case, because the injury in factelement for Article III standing is notsatisfied, where the harm at issue is notonly widely shared, but is also of an ab-

stract and indefinite nature, for example,harm to the common concern for obedienceto the law. U.S. Const. art. 3, § 2, cl. 1.

28. Federal Civil Procedure O103.4The fact that a harm is widely shared,

alone, does not necessarily render it ageneralized grievance that is insufficient tosatisfy the injury-in-fact element for Arti-cle III standing. U.S. Const. art. 3, § 2,cl. 1.

29. Federal Civil Procedure O103.2Even if the experience at the root of

the complaint is shared by virtually everyAmerican, the inquiry regarding the inju-ry-in-fact element for Article III standingremains whether that shared experiencecaused an injury that is concrete and par-ticular to the plaintiff. U.S. Const. art. 3,§ 2, cl. 1.

30. Federal Civil Procedure O103.2Plaintiffs must demonstrate Article

III standing for each claim they seek topress and for each form of relief sought.U.S. Const. art. 3, § 2, cl. 1.

31. Injunction O1044Plaintiffs seeking injunctive relief

must show their injuries are ongoing orlikely to recur.

32. Declaratory Judgment O300 Environmental Law O656

Environmental activists sufficiently al-leged the imminence of their injuries, forpurposes of injury-in-fact element for Arti-cle III standing, in action alleging a sub-stantive due process violation and seekingdeclaratory and injunctive relief againstPresident and executive branch agencies,based on allegations that greenhouse gasemissions from carbon dioxide, producedby burning fossil fuels, were destabilizingthe climate system; complaint alleged thatpresent level of carbon dioxide and itswarming, both realized and latent, were

14a



already in zone of danger, and that earlyconsequences of carbon overshoot were al-ready threatening and would, in the shortterm, rise to an unbearable level unlessimmediate action was taken by defendants.U.S. Const. art. 3, § 2, cl. 1; U.S. Const.Amend. 5.

33. Federal Civil Procedure O103.3Although a defendant’s action need

not be the sole source of injury, to supportthe causation element for Article IIIstanding, the line of causation between thedefendant’s action and the plaintiff’s harmmust be more than attenuated. U.S.Const. art. 3, § 2, cl. 1.

34. Federal Civil Procedure O103.3A causal chain does not fail, for pur-

poses of Article III standing, simply be-cause it has several links, provided thoselinks are not hypothetical or tenuous andremain plausible. U.S. Const. art. 3, § 2,cl. 1.

35. Environmental Law O656Environmental activists satisfied cau-

sation element for Article III standing, inaction alleging a substantive due processviolation and seeking declaratory and in-junctive relief against President and exec-utive branch agencies, based on allegationsthat greenhouse gas emissions from car-bon dioxide, produced by burning fossilfuels, were destabilizing the climate sys-tem; the emissions at issue, produced inthe United States, allegedly made up one-fourth of global emissions, and activists’theory of causation involved both defen-dants’ affirmative acts and their failure toact. U.S. Const. art. 3, § 2, cl. 1; U.S.Const. Amend. 5.

36. Federal Civil Procedure O103.3A plaintiff need not show a favorable

decision is certain to redress his injury, inorder to establish Article III standing, butmust show a substantial likelihood it willdo so. U.S. Const. art. 3, § 2, cl. 1.

37. Federal Civil Procedure O103.3It is sufficient, for the redressability

element for Article III standing, to showthat the requested remedy would slow orreduce the harm. U.S. Const. art. 3, § 2,cl. 1.

38. Environmental Law O656Environmental activists satisfied re-

dressability element for Article III stand-ing, in action alleging a substantive dueprocess violation and seeking declaratoryand injunctive relief against President andexecutive branch agencies, based on alle-gations that greenhouse gas emissionsfrom carbon dioxide, produced by burningfossil fuels, were destabilizing the climatesystem; activists alleged that defendantscontrolled over one-fourth of planet’sgreenhouse gas emissions, and they wereasking the court to order defendants toprepare and implement an enforceable na-tional remedial plan to phase out fossil fuelemissions and draw down excess atmo-spheric carbon dioxide. U.S. Const. art. 3,§ 2, cl. 1; U.S. Const. Amend. 5.

39. Federal Civil Procedure O103.3The possibility that some other indi-

vidual or entity might later cause the sameinjury does not defeat the redressabilityelement for Article III standing; the ques-tion is whether the injury caused by thedefendant can be redressed. U.S. Const.art. 3, § 2, cl. 1.

40. Federal Civil Procedure O103.2Once a federal court concludes one

plaintiff has Article III standing, it neednot determine whether the remainingplaintiffs have standing. U.S. Const. art.3, § 2, cl. 1.

41. Constitutional Law O3877, 3901When a plaintiff challenges affirma-

tive government action under the Due Pro-cess Clause, the threshold inquiry is theapplicable level of judicial scrutiny, and the

15a



default level of scrutiny is rational basis,which requires a reviewing court to upholdthe challenged governmental action so longas it implements a rational means ofachieving a legitimate governmental end.U.S. Const. Amend. 5.

42. Constitutional Law O3901When the government infringes a fun-

damental right, a reviewing court appliesstrict scrutiny for a due process violation.U.S. Const. Amend. 5.

43. Constitutional Law O3901Substantive due process forbids the

government to infringe certain fundamen-tal liberty interests at all, no matter whatprocess is provided, unless the infringe-ment is narrowly tailored to serve a com-pelling state interest. U.S. Const. Amend.5.

44. Constitutional Law O3894Fundamental liberty rights, protected

by the substantive component of the DueProcess Clause, include both rights enu-merated elsewhere in the Constitution andrights and liberties which are either: (1)deeply rooted in the Nation’s history andtradition, or (2) fundamental to the schemeof ordered liberty. U.S. Const. Amend. 5.

45. Constitutional Law O3894Federal courts must exercise the ut-

most care whenever they are asked tobreak new ground in the field of substan-tive due process, lest the liberty protectedby the Due Process Clause be subtlytransformed into judicial policy prefer-ences. U.S. Const. Amend. 5.

46. Constitutional Law O3894The identification and protection of

fundamental rights protected by the sub-stantive component of the Due ProcessClause is an enduring part of the judicialduty to interpret the Constitution, whichhas not been reduced to any formula.U.S. Const. Amend. 5.

47. Constitutional Law O3894In determining whether a right is fun-

damental, for purposes of substantive dueprocess, courts must exercise reasonedjudgment, keeping in mind that historyand tradition guide and discipline this in-quiry but do not set its outer boundaries.U.S. Const. Amend. 5.

48. Constitutional Law O4320 Environmental Law O700

The right to a climate system capableof sustaining human life was fundamentalto a free and ordered society, and thus,strict scrutiny for a violation of substantivedue process was applicable, in environmen-tal activists’ action seeking declaratory andinjunctive relief against President and ex-ecutive branch agencies, based on allega-tions that greenhouse gas emissions fromcarbon dioxide, produced by burning fossilfuels, were destabilizing the climate sys-tem; a stable climate system was quiteliterally the foundation of society, withoutwhich there would be neither civilizationnor progress. U.S. Const. Amend. 5.

49. Constitutional Law O4048With limited exceptions, the Due Pro-

cess Clause does not impose on the gov-ernment an affirmative obligation to act,even when such aid may be necessary tosecure life, liberty, or property interests ofwhich the government itself may not de-prive the individual. U.S. Const. Amend.5.

50. Constitutional Law O4049, 4050There are two exceptions to the gen-

eral rule that the Due Process Clause doesnot impose on the government an affirma-tive obligation to act: (1) the special rela-tionship exception, and (2) the danger cre-ation exception. U.S. Const. Amend. 5.

51. Constitutional Law O4049The special relationship exception, to

the general rule that the Due Process

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Clause does not impose on the governmentan affirmative obligation to act, providesthat when the government takes an indi-vidual into custody against his or her will,it assumes some responsibility to ensurethat individual’s safety. U.S. Const.Amend. 5.

52. Constitutional Law O4050The danger creation exception, to the

general rule that the Due Process Clausedoes not impose on the government anaffirmative obligation to act, permits a sub-stantive due process claim when govern-ment conduct places a person in peril indeliberate indifference to their safety.U.S. Const. Amend. 5.

53. Constitutional Law O4050A plaintiff challenging government in-

action on a danger creation theory of aviolation of substantive due process mustshow the government actor created or ex-posed the plaintiff to a danger which he orshe would not have otherwise faced; thegovernment action must place the plaintiffin a worse position than that in which heor she would have been had the govern-ment not acted at all. U.S. Const. Amend.5.

54. Constitutional Law O4050When challenging government inac-

tion on a danger creation theory of a vio-lation of substantive due process, theplaintiff must show the government actorrecognized the unreasonable risks to theplaintiff and actually intended to exposethe plaintiff to such risks without regardto the consequences to the plaintiff; thegovernment actor must have acted withdeliberate indifference, which requires aculpable mental state more than grossnegligence. U.S. Const. Amend. 5.

55. Constitutional Law O4320 Environmental Law O700

Environmental activists stated a claimfor a substantive due process violationbased on a danger creation theory, in ac-

tion seeking declaratory and injunctive re-lief against President and executive branchagencies, based on allegations that green-house gas emissions from carbon dioxide,produced by burning fossil fuels, were des-tabilizing the climate system; activists al-leged that defendants knowingly, with fullappreciation of the consequences, caused,and continued to cause, dangerous inter-ference with the atmosphere and climatesystem by permitting, authorizing, andsubsidizing fossil fuel extraction, produc-tion, transportation, and utilization. U.S.Const. Amend. 5.

56. Public Lands O7In its broadest sense, the term ‘‘public

trust,’’ in context of public trust doctrine,refers to the fundamental understandingthat the federal government cannot legiti-mately abdicate its core sovereign powers.

See publication Words and Phrasesfor other judicial constructions anddefinitions.

57. Public Lands O7The public trust doctrine rests on the

fundamental principle that every succeed-ing legislature possesses the same jurisdic-tion and power with respect to the publicinterest as its predecessors.

58. Public Lands O7The public trust doctrine conceives of

certain powers and obligations, such as thepolice power, as inherent aspects of sover-eignty, and recognizes that permitting thegovernment to permanently give one ofthese powers to another entity diminishesthe power of future legislatures to promotethe general welfare.

59. Public Lands O7With respect to essential natural re-

sources, the sovereign’s public trust obli-gations prevent it from depriving a futurelegislature of the natural resources neces-sary to provide for the well-being and sur-vival of its citizens.

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60. Public Lands O7The public trust doctrine, with respect

to natural resources, operates according tobasic trust principles, which impose uponthe trustee a fiduciary duty to protect thetrust property against damage or destruc-tion, and the trustee owes this duty equal-ly to both current and future beneficiariesof the trust.

61. Public Lands O7The public trust doctrine is generally

thought to impose three types of restric-tions on governmental authority: (1) theproperty subject to the trust must not onlybe used for a public purpose, but it mustbe held available for use by the generalpublic; (2) the property may not be sold,even for a fair cash equivalent; and (3) theproperty must be maintained for particulartypes of uses.

62. Declaratory Judgment O203 Water Law O2651

Allegation of environmental activists,that the federal government was failing toprotect the territorial sea, involved a pub-lic trust asset, for purposes of stating aclaim for violation of public trust doctrine,in action seeking declaratory and injunc-tive relief against President and executivebranch agencies, based on allegations thatgreenhouse gas emissions from carbon di-oxide, produced by burning fossil fuels,were destabilizing the climate system. 43U.S.C.A. § 1312.

63. Water Law O2660The public trust doctrine applies to

lands beneath tidal waters.

64. Declaratory Judgment O203 Water Law O2651

Environmental activists, by alleginginjuries relating to effects of ocean acidifi-cation and rising ocean temperatures, ade-quately alleged harm to public trust assets,for purposes of stating a claim for violationof public trust doctrine, in action seekingdeclaratory and injunctive relief against

President and executive branch agencies,based on allegations that greenhouse gasemissions from carbon dioxide, producedby burning fossil fuels, were destabilizingthe climate system.

65. Public Lands O7

The public trust doctrine can apply tothe federal government.

66. Constitutional Law O4320

Environmental Law O700

Environmental activists’ right of ac-tion, to enforce the federal government’sobligations as trustee under the publictrust doctrine, arose from the Due ProcessClause’s substantive component, in actionseeking declaratory and injunctive reliefagainst President and executive branchagencies, based on allegations that green-house gas emissions from carbon dioxide,produced by burning fossil fuels, were des-tabilizing the climate system. U.S. Const.Amend. 5.


Even when a case falls within theconstitutional boundaries for Article IIIstanding, a plaintiff may still lack standingunder the prudential principles by whichthe judiciary seeks to avoid deciding ques-tions of broad social import where no indi-vidual rights would be vindicated, and tolimit access to the federal courts to thoselitigants best suited to assert a particularclaim. U.S. Const. art. 3, § 2, cl. 1.

68. Constitutional Law O3896

Substantive due process rights arelimited by careful respect for the teachingsof history and recognition of the basicvalues that underlie society, and therefore,only official conduct that shocks the con-science is cognizable as a due process vio-lation. U.S. Const. Amend. 5.

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Julia A. Olson, Wild Earth Advocates,Daniel M. Galpern, Law Offices of DanielM. Galpern, Eugene, OR, Philip L. Grego-ry, Cotchett, Pitre & McCarthy, LLP,Burlingame, CA, for Plaintiffs.

Sean C. Duffy, U.S. Department of Jus-tice, Washington, DC, for Defendants.

OPINION AND ORDER

Aiken, Judge:1

Plaintiffs in this civil rights action are agroup of young people between the agesof eight and nineteen (‘‘youth plaintiffs’’);Earth Guardians, an association of youngenvironmental activists; and Dr. JamesHansen, acting as guardian for futuregenerations.2 Plaintiffs filed this actionagainst defendants the United States,President Barack Obama, and numerousexecutive agencies. Plaintiffs allege defen-dants have known for more than fiftyyears that the carbon dioxide (‘‘CO2’’) pro-duced by burning fossil fuels was destabi-lizing the climate system in a way thatwould ‘‘significantly endanger plaintiffs,with the damage persisting for millenia.’’First. Am. Compl. ¶ 1. Despite that knowl-edge, plaintiffs assert defendants, ‘‘[b]ytheir exercise of sovereign authority overour country’s atmosphere and fossil fuelresources, TTT permitted, encouraged, andotherwise enabled continued exploitation,production, and combustion of fossil fuels,TTT deliberately allow[ing] atmosphericCO2 concentrations to escalate to levelsunprecedented in human history[.]’’ Id.¶ 5. Although many different entities con-

tribute to greenhouse gas emissions,plaintiffs aver defendants bear ‘‘a higherdegree of responsibility than any other in-dividual, entity, or country’’ for exposingplaintiffs to the dangers of climatechange. Id. ¶ 7. Plaintiffs argue defen-dants’ actions violate their substantive dueprocess rights to life, liberty, and proper-ty, and that defendants have violated theirobligation to hold certain natural re-sources in trust for the people and forfuture generations.

Plaintiffs assert there is a very shortwindow in which defendants could act tophase out fossil fuel exploitation and avertenvironmental catastrophe. They seek (1) adeclaration their constitutional and publictrust rights have been violated and (2) anorder enjoining defendants from violatingthose rights and directing defendants todevelop a plan to reduce CO2 emissions.

Defendants moved to dismiss this ac-tion for lack of subject matter jurisdictionand failure to state a claim. Doc. 27. In-tervenors the National Association ofManufacturers, the American Fuel & Pe-trochemical Manufacturers, and theAmerican Petroleum Institute moved todismiss on the same grounds. Doc. 19.After oral argument, Magistrate JudgeCoffin issued his Findings and Recom-mendation (‘‘F & R’’) and recommendeddenying the motions to dismiss. Doc. 68.Judge Coffin then referred the matter tome for review pursuant to 28 U.S.C.§ 636 and Federal Rule of Civil Proce-dure 72. Doc. 69. Defendants and interve-

1. Student externs worked on each stage of thepreparation of this opinion, from initial back-ground research to final copyedits. I would beremiss if I did not acknowledge the invaluablecontributions of Daniel Bodden (University ofKentucky), Elizabeth Jacklin (University ofOregon School of Law), Ann Richan Metier(Willamette University College of Law), JamesMullins (University of Washington School ofLaw), Jessy R. Nations (University of Wash-ington School of Law), Lydeah Negro (Lewis

& Clark Law School), and Eleanor J. Vincent(University of Oregon School of Law.)

2. Although plaintiffs in this lawsuit hale froma number of different states, venue is properin the District of Oregon. The majority ofyouth plaintiffs, including lead plaintiff KelseyJuliana, reside in the District of Oregon. FirstAm. Compl. ¶¶ 16, 23, 31, 35, 44, 47, 50, 53,57, 60. In addition, plaintiff Earth Guardianshas a chapter in Eugene, Oregon.

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nors filed objections (docs. 73 & 74), andon September 13, 2016, this Court heardoral argument.

For the reasons set forth below, I adoptJudge Coffin’s F & R as elaborated in thisopinion and deny the motions to dismiss.

BACKGROUNDThis is no ordinary lawsuit. Plaintiffs

challenge the policies, acts, and omissionsof the President of the United States, theCouncil on Environmental Quality, the Of-fice of Management and Budget, the Officeof Science and Technology Policy, the De-partment of Energy, the Department ofthe Interior, the Department of Transpor-tation (‘‘DOT’’), the Department of Agri-culture, the Department of Commerce, theDepartment of Defense, the Department ofState, and the Environmental ProtectionAgency (‘‘EPA’’). This lawsuit challengesdecisions defendants have made across avast set of topics—decisions like whetherand to what extent to regulate CO2 emis-sions from power plants and vehicles,whether to permit fossil fuel extractionand development to take place on federallands, how much to charge for use of thoselands, whether to give tax breaks to thefossil fuel industry, whether to subsidize ordirectly fund that industry, whether tofund the construction of fossil fuel infra-structure such as natural gas pipelines athome and abroad, whether to permit theexport and import of fossil fuels from andto the United States, and whether to au-

thorize new marine coal terminal projects.Plaintiffs assert defendants’ decisions onthese topics have substantially caused theplanet to warm and the oceans to rise.They draw a direct causal line betweendefendants’ policy choices and floods, foodshortages, destruction of property, speciesextinction, and a host of other harms.

This lawsuit is not about proving thatclimate change is happening or that humanactivity is driving it. For the purposes ofthis motion, those facts are undisputed.3

The questions before the Court are wheth-er defendants are responsible for some ofthe harm caused by climate change,whether plaintiffs may challenge defen-dants’ climate change policy in court, andwhether this Court can direct defendantsto change their policy without runningafoul of the separation of powers doctrine.

STANDARDS

The Magistrates Act authorizes a dis-trict court to ‘‘accept, reject or modify, inwhole or in part, the findings or recom-mendations made by the magistratejudge.’’ 28 U.S.C. § 636(b)(1). When a par-ty objects to any portion of the magis-trate’s findings and recommendation, thedistrict court must review de novo thatportion of the magistrate judge’s report.Fed. R. Civ. P. 72(b)(3); see also McDon-nell Douglas Corp. v. Commodore Bus.Machs., Inc., 656 F.2d 1309, 1313 (9th Cir.1981) (for dispositive motions, ‘‘the statute

3. For the purposes of this motion, I proceedon the understanding that climate change ex-ists, is caused by humans, and poses a seri-ous threat to our planet. Defendants opentheir Objections to Judge Coffin’s F & R bystating that ‘‘[c]limate change poses a monu-mental threat to Americans’ health and wel-fare by driving long-lasting changes in ourclimate, leading to an array of severe nega-tive effects, which will worsen over time,’’Fed. Defs.’ Obj. to F & R 1 (doc. 78). In the2015 State of the Union address, defendantPresident Barack Obama declared ‘‘[n]o chal-

lenge TTT poses a greater threat to futuregenerations than climate change,’’ PresidentBarack Obama, Remarks in State of the Un-ion Address (Jan. 20, 2015), available atwww.whitehouse.gov/the-press-office/2015/01/20/remarks-president-state-union-address-january-20–2015 (last visited Nov. 7, 2016).When asked at oral argument if they agreedthat human-caused climate change poses aserious threat, intervenors declined to take aclear position. All parties agree, however,that a dispute over the existence of climatechange is not at the heart of this case.

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grants the broadest possible discretion tothe reviewing district court’’).

[1, 2] Under Federal Rule of Civil Pro-cedure 12(b)(1), a district court must dis-miss an action if subject matter jurisdic-tion is lacking. A motion to dismiss underRule 12(b)(1) may attack either the allega-tions of the complaint or the ‘‘existence ofsubject matter in fact.’’ Thornhill Publ’gCo., Inc. v. Gen. Tel. & Elec. Corp., 594F.2d 730, 733 (9th Cir. 1979). The partyseeking to invoke the district court’s juris-diction bears the burden of establishingsubject matter jurisdiction. Kokkonen v.Guardian Life Ins. Co. of Am., 511 U.S.375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391(1994).

Under Federal Rule of Civil Procedure12(b)(6), a complaint is construed in favorof the plaintiff, and its factual allegationsare taken as true. Daniels–Hall v. Nat’IEduc. Ass’n, 629 F.3d 992, 998 (9th Cir.2010), However, the court need not acceptas true ‘‘conclusory’’ allegations or unrea-sonable inferences. Id. Thus, ‘‘for a com-plaint to survive a motion to dismiss, thenon-conclusory factual content, and rea-sonable inferences from that content, mustbe plausibly suggestive of a claim entitlingthe plaintiff to relief.’’ Moss v. U.S. SecretServ., 572 F.3d 962, 969 (9th Cir. 2009)(quotation marks omitted). ‘‘A claim hasfacial plausibility when the plaintiff pleadsfactual content that allows the court todraw the reasonable inference that thedefendant is liable for the misconduct al-leged.’’ Ashcroft v. Iqbal, 556 U.S. 662, 678,129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).‘‘[O]nce a claim has been stated adequate-ly, it may be supported by showing any setof facts consistent with the allegations inthe complaint.’’ Bell Atl. Corp. v. Twombly,550 U.S. 544, 563, 127 S.Ct. 1955, 167L.Ed.2d 929 (2007).

DISCUSSIONJudge Coffin recommended denying de-

fendants’ and intervenors’ motions to dis-miss and holding that plaintiffs’ publictrust and due process claims may proceed.Defendants and intervenors object to thoserecommendations on a number of grounds.They contend plaintiffs’ claims must bedismissed for lack of jurisdiction becausethe case presents non-justiciable politicalquestions, plaintiffs lack standing to sue,and federal public trust claims cannot beasserted against the federal government.They further argue plaintiffs have failed tostate a claim on which relief can be grant-ed. I first address the threshold challengesto jurisdiction, and then proceed to ad-dress the viability of plaintiffs’ due processand public trust claims.

I. Political Question

[3, 4] If a case presents a politicalquestion, federal courts lack subject mat-ter jurisdiction to decide that question.Corrie v. Caterpillar, Inc., 503 F.3d 974,982 (9th Cir. 2007). The political questiondoctrine is ‘‘primarily a function of theseparation of powers.’’ Baker v. Carr, 369U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663(1962). This limitation on the federal courtswas recognized in Marbury v. Madison, 5U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803),in which Chief Justice Marshall wrote,‘‘[q]uestions, in their nature political, orwhich are, by the constitution and laws,submitted to the executive, can never bemade in this court.’’ However, the scope ofthe political question doctrine should notbe overstated. As Alexis de Tocqueviileobserved, ‘‘[t]here is hardly any politicalquestion in the United States that sooneror later does not turn into a judicial ques-tion.’’ 1 Alexis de Tocqueviile, Democracyin America 440 (Liberty Fund 2012).

[5] In Baker, the Supreme Court iden-tified six criteria, each of which could indi-

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vidually signal the presence of a politicalquestion:

[ (1) A] textually demonstrable constitu-tional commitment of the issue to a coor-dinate political department; [ (2) ] a lackof judicially discoverable and managea-ble standards for resolving it; [ (3) ] theimpossibility of deciding without an ini-tial policy determination of a kind clear-ly for nonjudicial discretion; [ (4) ] theimpossibility of a court’s undertaking in-dependent resolution without expressinglack of the respect due coordinatebranches of government; [ (5) ] an un-usual need for unquestioning adherenceto a political decision already made; or[ (6) ] the potentiality of embarrassmentfrom multifarious pronouncements byvarious departments on one question.

Baker, 369 U.S. at 217, 82 S.Ct. 691. TheBaker tests ‘‘are probably listed in de-scending order of both importance andcertainty.’’ Vieth v. Jubelirer, 541 U.S. 267,278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004)(plurality op.). The factors overlap, withthe analyses ‘‘often collapsing into one an-other.’’ Alperin v. Vatican Bank, 410 F.3d532, 544 (9th Cir. 2005). The ‘‘commonunderlying inquiry’’ is whether ‘‘the ques-tion is one that can properly be decided bythe judiciary.’’ Id.

[6–8] Determining whether the politi-cal question doctrine requires abstentioncalls on a court to balance profoundly im-portant interests. On the one hand, theseparation of powers is fundamental to oursystem of government, known ‘‘[e]ven be-fore the birth of this country’’ to be ‘‘adefense against tyranny.’’ Loving v. Unit-ed States, 517 U.S. 748, 756, 116 S.Ct.1737, 135 L.Ed.2d 36 (1996). It is a ‘‘basicprinciple of our constitutional scheme thatone branch of the Government may notintrude upon the central prerogatives ofanother.’’ Id. at 757, 116 S.Ct. 1737. On theother hand, ‘‘[t]he decision to deny accessto judicial relief’’ should never be made

‘‘lightly,’’ because federal courts ‘‘have thepower, and ordinarily the obligation, todecide cases and controversies properlypresented to them.’’ Alperin, 410 F.3d at539 (quoting Liu v. Rep. of China, 892F.2d 1419, 1433 (9th Cir. 1989) and W.S.Kirkpatrick & Co. v. Envt’l TectonicsCorp., Int’l, 493 U.S. 400, 409, 110 S.Ct.701, 107 L.Ed.2d 816 (1990)). Accordingly,a court cannot simply err on the side ofdeclining to exercise jurisdiction when itfears a political question may exist; itmust instead diligently map the preciselimits of jurisdiction.

[9] Climate change, energy policy, andenvironmental regulation are certainly ‘‘po-litical’’ in the sense that they have ‘‘moti-vated partisan and sectional debate duringimportant portions of our history.’’ U.S.Dep’t of Commerce v. Montana, 503 U.S.442, 458, 112 S.Ct. 1415, 118 L.Ed.2d 87(1992). But a case does not present a politi-cal question merely because it ‘‘raises anissue of great importance to the politicalbranches.’’ Id. Instead, dismissal on politi-cal question grounds is appropriate only ifone of the Baker considerations is ‘‘inextri-cable’’ from the case. Baker, 369 U.S. at217, 82 S.Ct. 691. As a result, federalcourts regularly adjudicate claims thatarise in connection with politically chargedissues. See, e.g., Jewel v. Nat’l Sec. Agency,673 F.3d 902, 912 (9th Cir. 2011) (electron-ic surveillance); Chiles v. Thornburgh, 865F.2d 1197, 1216 (11th Cir. 1989) (detentionof undocumented immigrants); PlannedParenthood Fed’n of Am, Inc. v. Agencyfor Int’l Dev., 838 F.2d 649, 656 (2d Cir.1988) (international funding for birth con-trol and abortion). In each of the abovecases, the court engaged in ‘‘discriminatinginquiry into the precise facts’’ before con-cluding the controversy was justiciable.Baker, 369 U.S. at 217, 82 S.Ct. 691. Asimilar rigorous analysis is necessary here.

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A. First Baker Factor

The first Baker factor requires absten-tion ‘‘[w]hen a case would require a courtto decide an issue whose resolution is tex-tually committed to a coordinate politicaldepartment’’ because ‘‘the court lacks au-thority to resolve that issue.’’ Zivotofsky exrel Zivotofsky v. Clinton, 566 U.S. 189, 132S.Ct. 1421, 1431, 182 L.Ed.2d 423 (2012)(Sotomayor, J., concurring). Since Baker,the Supreme Court has found such ‘‘textu-al commitment’’ in very few cases. In Nix-on v. United States, 506 U.S. 224, 113 S.Ct.732, 122 L.Ed.2d 1 (1993), a former federaljudge sought to challenge the Senate’s pro-cesses for taking evidence during impeach-ment trials. Id. at 226, 113 S.Ct. 732. TheCourt found his claim nonjusticiable due tothe Constitution’s clear statement grantingthe Senate ‘‘the sole Power to try ail Im-peachments.’’ Id. at 229, 113 S.Ct. 732(quoting U.S. Const, art. I, § 3, cl. 6). TheCourt found the provision’s use of theword ‘‘sole’’ to be ‘‘of considerable signifi-cance.’’ Id. at 231, 113 S.Ct. 732. The Courtalso discussed the history of the clause atissue, noting that the ‘‘Framers laboredover the question of where the impeach-ment power should lie’’ and ‘‘at least twoconsidered’’—and rejected—placing thatpower within the federal judiciary. Id. at233, 113 S.Ct. 732.

In Davis v. Passman, 442 U.S. 228, 235n.11, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979),the Court characterized the Speech or De-bate Clause as the ‘‘paradigm example’’ ofa ‘‘textually demonstrable constitutionalcommitment.’’ That clause provides thatSenators and Representatives, ‘‘for anySpeech or Debate in either House, TTT

shall not be questioned in any other place.’’U.S. Const. Art. I, § 6, cl. 1. The Courtexplained that the clause plainly shieldsstatements of federal legislators made dur-ing speech or debate in committees or onthe House or Senate floor from any sort ofjudicial review, and thus speaks ‘‘directly

to TTT separation-of-powers concerns.’’Davis, 442 U.S. at 235 n.11, 99 S.Ct. 2264.

Most recently, in Zivotofsky ex rel. Zi-votofsky v. Kerry, the Court held that theConstitution gives the president the exclu-sive authority to recognize foreign nationsand governments. ––– U.S. ––––, 135 S.Ct.at 2086, 192 L.Ed.2d 83. The Court ac-knowledged that the Constitution does notuse the term ‘‘recognition.’’ Id. at 2084.Nonetheless, the Court determined thatthe Constitution granted the recognitionpower to the Executive Branch ‘‘[a]s amatter of constitutional structure.’’ Id. at2085. The Court concluded that the clausesgiving the president exclusive authority toreceive ambassadors and to negotiate trea-ties implicitly granted the recognition pow-er. Id. at 2086. That determination restedin part on the Court’s conclusion that rec-ognition was uniquely ‘‘a topic on whichthe Nation much speak with one voice.’’ Id.at 2086 (quotation marks and ellipsis omit-ted). If Congress had the power to declineto recognize a foreign state the Executivehad decided to recognize, the presidentwould be unable to assure that foreignstate that its ambassadors would be re-ceived, its officials would be immune fromsuit in federal court, and it would be per-mitted to initiate lawsuits in the UnitedStates to vindicate its rights. Id. In issuingits decision, the Court expressly declinedto hold that the Constitution gives thepresident the ‘‘unbounded power’’ to ‘‘con-duct diplomatic relations’’ and exercise‘‘the bulk of foreign-affairs powers.’’ Id. at2089.

[10] Unlike in the constitutional provi-sions at issue Nixon and Passman, theconstitutional provisions cited here containnothing approaching a clear reference tothe subject matter of this case. The Con-stitution does not mention environmentalpolicy, atmospheric emissions, or globalwarming. And unlike in Zivotofksy, climate

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change policy is not a fundamental poweron which any other power allocated exclu-sively to other branches of governmentrests. Intervenors correctly point out thatthe Constitution gives the political branch-es authority over commerce, foreign rela-tions, national defense, and federal lands—all areas affected by climate change policy.See U.S. Const, art. I, § 8 cl. 3 (Congresshas authority to ‘‘regulate commerce withforeign nations, and among the severalstates’’); Zivotofsky, 135 S.Ct. at 2084–86(discussing various constitutional provi-sions granting the Executive Branch for-eign relations authority); U.S. Const. art.I, § 8 cl. 11–16 (detailing Congress’s pow-ers relating to war and the military); U.S.Const, art. II, § 2, cl. 1 (President is com-mander in chief of armed forces); U.S.Const. art. IV, § 3, cl. 2 (Congress haspower to ‘‘dispose of and make all needfulrules and regulations’’ regarding federalland). But holding the first Baker factorapplies in any case relating to these topicareas would permit the exception to swal-low the rule. The question is not whether acase implicates issues that appear in theportions of the Constitution allocating pow-er to the Legislative and ExecutiveBranches—such a test would, by definition,shield nearly all legislative and executiveaction from legal challenge, Rather, thequestion is whether adjudicating a claimwould require the Judicial Branch to sec-ond-guess decisions committed exclusivelyto another branch of government.

In the lower courts, the first Baker fac-tor has found its broadest application inforeign policy cases. See, e.g., Corrie, 503F.3d at 983 (‘‘Whether to grant military orother aid to a foreign nation is a politicaldecision inherently entangled with the con-duct of foreign relations.’’); Gonzalez–Verav. Kissinger, 449 F.3d 1260, 1263 (D.C.Cir. 2006) (decision to take ‘‘drastic meas-ures’’ to keep Chilean dictator AugustoPinochet in power was a foreign policydecision textually committed to the Execu-

tive Branch); Sadowski v. Bush, 293F.Supp.2d 15, 21 (D.C. Cir. 2003) (decisionto go to war in Afghanistan was not justici-able, ‘‘primarily because war powers havebeen explicitly committed to the politicalbranches’’), As a result, I give special con-sideration to the argument that grantingplaintiffs’ requested relief would usurp theExecutive Branch’s foreign relations au-thority. Climate change policy has globalimplications and so is sometimes the sub-ject of international agreements. But un-like the decisions to go to war, take actionto keep a particular foreign leader in pow-er, or give aid to another country, climatechange policy is not inherently, or evenprimarily, a foreign policy decision. More-over, in the foreign policy context, Bakerexpressly warned against framing the‘‘textually committed’’ inquiry too broadly.See Baker, 369 U.S. at 211, 82 S.Ct. 691(‘‘[I]t is error to suppose that every case orcontroversy which touches foreign rela-tions lies beyond judicial cognizance.’’) Thefirst Baker factor does not apply.

B. Second and Third Baker Factors

‘‘The second and third Baker factorsreflect circumstances in which a disputecalls for decisionmaking beyond courts’competence.’’ Zivotofsky, 132 S.Ct. at 1432(Sotomayor, J., concurring). ‘‘When a courtis given no standard by which to adjudi-cate a dispute, or cannot resolve a disputein the absence of a yet-unmade policy de-termination charged to a political branch,resolution of the suit is beyond the judicialrole envisioned by Article III.’’ Id.

[11] Defendants’ and intervenors’ ar-guments on the second and third Bakerfactors can be divided into two mainpoints. First, intervenors contend theCourt cannot set a permissible emissionslevel without making ad hoc policy deter-minations about how to weigh competingeconomic and environmental concerns. But

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plaintiffs do not ask this Court to pinpointthe ‘‘best’’ emissions level; they ask thisCourt to determine what emissions levelwould be sufficient to redress their inju-ries. That question can be answered with-out any consideration of competing inter-ests. Cf. Coleman v. Schwarzenegger, 2010WL 99000, *1 (E.D. Cal. & N.D. Cal. Jan.12, 2010) (requiring state to reduce thepopulation of adult prisons to 137.5% oftheir total design capacity, a target which‘‘extend[ed] no further than necessary tocorrect the violation of California inmates’federal constitutional rights’’). The sciencemay well be complex, but logistical difficul-ties are immaterial to the political questionanalysis. See Alperin, 410 F.3d at 552, 555(‘‘[T]he crux of th[e political question] in-quiry is TTT not whether the case is un-manageable in the sense of being large,complicated, or otherwise difficult to tacklefrom a logistical standpoint,’’ but ratherwhether ‘‘a legal framework exists bywhich courts can evaluate TTT claims in areasoned manner.’’).

[12] Second, intervenors aver theCourt would have to choose which agenciesand sectors should reduce emissions, andby how much. At oral argument, interve-nors contended this would require reviewof every environmental rule and regulationin the last one hundred years. These argu-ments mischaracterize the relief plaintiffsseek. Plaintiffs do not seek to have thisCourt direct any individual agency to issueor enforce any particular regulation. Rath-er, they ask the Court to declare the Unit-ed States’ current environmental policy in-fringes their fundamental rights, direct theagencies to conduct a consumption-basedinventory of United States CO2 emissions,and use that inventory to ‘‘prepare andimplement an enforceable national remedi-al plan to phase out fossil fuel emissionsand draw down excess atmospheric CO2 soas to stabilize the climate system and pro-tect the vital resources on which Plaintiffsnow and in the future will depend.’’ First

Am. Compl. at 94. This Court could issuethe requested declaration without directingany individual agency to take any particu-lar action.

[13] Finally, defendants and interve-nors contend that plaintiffs’ failure to iden-tify violations of precise statutory or regu-latory provisions leaves this court withoutany legal standard by which to judge plain-tiffs’ claims, Plaintiffs could have broughta lawsuit predicated on technical regulato-ry violations, but they chose a differentpath. As masters of their complaint, theyhave elected to assert constitutional ratherthan statutory claims. Every day, federalcourts apply the legal standards governingdue process claims to new sets of facts.The facts in this case, though novel, areamenable to those well-established stan-dards. Neither the second nor the thirdBaker factor divests this Court of jurisdic-tion.

[14] In the political question section oftheir objections to Judge Coffin’s F & R,defendants assert the allegations in thecomplaint are not specific enough to putthem on notice of plaintiffs’ claims. Thisargument relates to the second and thirdBaker factors and the competence of thisCourt to adjudicate those claims, consider-ations which are addressed above. The ar-gument also touches on concerns aboutcausation and redressability, which are dis-cussed in Section II of this opinion. How-ever, the argument is also phrased interms common to cases governing generalpleading standards. See Twombly, 550 U.S.at 555, 127 S.Ct. 1955 (complaint in federalcourt must contain enough information to‘‘give the defendant fair notice’’ of both theclaim and the ‘‘grounds upon which itrests’’ (quoting Conley v. Gibson, 355 U.S.41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Tothe extent defendants challenge the FirstAmended Complaint as inadequatelypleaded, that challenge fails. This is not a

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typical environmental case, Plaintiffs arenot arguing defendants issued any particu-lar permit in violation of a statutory provi-sion in the Clean Air Act or the CleanWater Act. They are not arguing any spe-cific tax break, royalty rate, or contractruns afoul of an agency’s governing regula-tions. Rather, the theory of plaintiffs’ caseis much broader: it is that defendants’aggregate actions violate their substantivedue process rights and the government’spublic trust obligations. That theory, whichrequires no citation to particular statutoryor regulatory provisions, is clear from theface of the First Amended Complaint.

C. Fourth through Sixth Baker Factors

The fourth through sixth Baker factors‘‘address circumstances in which prudencemay counsel against a court’s resolution ofan issue presented.’’ Zivotofsky, 132 S.Ct.at 1432 (Sotomayor, J., concurring). Onlyin ‘‘rare’’ cases will Baker’s ‘‘final factorsalone render a case nonjusticiable.’’ Id. at1434.

[15] Intervenors contend the fourthBaker factor, which concerns a court ex-pressing lack of respect to another branchof government, applies in this case. Theyargue that because the Executive and Leg-islative branches have taken numeroussteps to address climate change, a rulingin plaintiffs’ favor would be disrespectfulto those efforts. Intervenors would havethis Court hold the political question doc-trine prevents a court from determiningwhether the federal government has violat-ed a plaintiff’s constitutional rights so longas the government has taken some steps tomitigate the damage. However, interve-nors cite no cases—and this Court isaware of none—to support such a broadapplication of the fourth Baker factor.Rather, courts have found the fourth fac-tor applies in cases asking a court to‘‘question the good faith with which anoth-er branch attests to the authenticity of its

internal acts.’’ Id. at 1433. The fourth fac-tor has also been held relevant when ‘‘judi-cial resolution of a question would contra-dict prior decisions taken by a politicalbranch in those limited contexts wheresuch contradiction would seriously inter-fere with important governmental inter-ests.’’ Kadic v. Karadzic, 70 F.3d 232, 249(2d Cir. 1995).

Consistent with those formulations, fed-eral appellate courts have found the fourthBaker factor present when judicial adjudi-cation of a claim would be wholly incompa-tible with foreign-relations decisions madeby one of the political branches. See, e.g.,Whiteman v. Dorotheum GmbH & Co. KG,431 F.3d 57, 59 (2d Cir. 2005) (politicalquestion doctrine prevented court from ad-judicating claims against Austrian govern-ment for seizure of property from Jewishfamilies during World War II because twopresidential administrations had ‘‘commit-ted the United States to a policy of resolv-ing Holocaust-era restitution claimsthrough international agreements ratherthan litigation.’’); Schneider v. Kissinger,412 F.3d 190, 198 (D.C. Cir. 2005) (politicalquestion doctrine barred review of Execu-tive Branch decision to participate in co-vert operations in Chile, a decision thathad already been the subject of congres-sional inquiry).

Although the United States has madeinternational commitments regarding cli-mate change, granting the relief requestedhere would be fully consistent with thosecommitments. There is no contradictionbetween promising other nations the Unit-ed States will reduce CO2 emissions and ajudicial order directing the United Statesto go beyond its international commit-ments to more aggressively reduce CO2

emissions. Because this Court could grantplaintiffs’ requested relief without express-ing disrespect for the Executive Branch’s

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international climate change agreements,the fourth Baker factor does not apply.

[16] Neither intervenors nor defen-dants suggest the fifth or sixth Baker fac-tors apply here. Nonetheless, I addressthose factors because federal courts havean ‘‘independent obligation to assure[them]selves of’’ the existence of subjectmatter jurisdiction. Rosson v. Fitzgerald(In re Rosson), 545 F.3d 764, 769 n.5 (9thCir. 2008). On the face of the complaint, Isee no evidence of an ‘‘unusual need forunquestioning adherence to a political deci-sion already made’’ or any ‘‘potentiality ofembarrassment from multifarious pro-nouncements by various departments onone question.’’ Baker, 369 U.S. at 217, 82S.Ct. 691. I conclude neither of the twofinal Baker factors deprives this Court ofsubject matter jurisdiction.

D. Summary: This Case Does NotRaise a Nonjusticiable PoliticalQuestion

[17] There is no need to step outsidethe core role of the judiciary to decide thiscase. At its heart, this lawsuit asks thisCourt to determine whether defendantshave violated plaintiffs’ constitutionalrights. That question is squarely within thepurview of the judiciary. See INS v. Cha-dha, 462 U.S. 919, 941, 103 S.Ct. 2764, 77L.Ed.2d 317 (1983) (judiciary is bound todetermine whether the political brancheshave ‘‘chosen a constitutionally permissiblemeans of implementing [their] power’’);Jewel, 673 F.3d at 912 (although lawsuitchallenging federal agencies’ surveillancepractices ‘‘strikes at the heart of a majorpublic policy controversy,’’ claims werejusticiable because they were ‘‘straightfor-ward claims of statutory and constitutionalrights, not political questions’’).

This case shares some key features withBaker itself, In Baker, a group of voterschallenged a statute governing the appor-tionment of state legislative districts. 369U.S. at 188–95, 82 S.Ct. 691. Sixty years ofpopulation growth without legislative reap-portionment had led to some votes carry-ing much more weight than others. Id. at192–93, 82 S.Ct. 691. Here, the majority ofyouth plaintiffs are minors who cannotvote and must depend on others to protecttheir political interests. Thus, as amicusthe League of Women Voters persuasivelyargues, the youth plaintiffs’ claims are sim-ilar to the Baker claims because they are‘‘rooted in a ‘debasement of their votes’and an accompanying diminishment oftheir voice in representational govern-ment.’’ Br. for the League of Women Vot-ers in the United States et al. as AmiciCuriae at 19–20 (doc. 79–1).4 In Baker, theCourt acknowledged that the plaintiffs’claims had political dimensions and ramifi-cations—but nonetheless concluded noneof the Baker factors was inextricable fromthe case. 369 U.S. at 209, 82 S.Ct. 691.Similarly, as discussed in detail above, thiscase raises political issues yet is not barredby the political question doctrine.

[18, 19] Should plaintiffs prevail on themerits, this Court would no doubt be com-pelled to exercise great care to avoid sepa-ration-of-powers problems in crafting aremedy. The separation of powers might,for example, permit the Court to directdefendants to ameliorate plaintiffs’ injuriesbut limit its ability to specify precisely howto do so. Cf. S. Burlington Cnty.N.A.A.C.P. v. Mt. Laurel Twp., 67 N.J.151, 336 A.2d 713, 734 (1975) (leaving tomunicipality ‘‘in the first instance at least’’the determination of how to remedy theconstitutional problems with a local zoningordinance). That said, federal courts retain

4. The motion of the League of Women Votersof the United States and the League of Wom-

en Voters of Oregon to appear as amici curiae(doc. 79) is granted.

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broad authority ‘‘to fashion practical reme-dies when confronted with complex andintractable constitutional violations.’’Brown v. Plata, 563 U.S. 493, 526, 131S.Ct. 1910, 179 L.Ed.2d 969 (2011). In anyevent, speculation about the difficulty ofcrafting a remedy could not support dis-missal at this early stage. See Baker, 369U.S. at 198, 82 S.Ct. 691 (‘‘Beyond notingthat we have no cause at this stage todoubt the District Court will be able tofashion relief if violations of constitutionalrights are found, it is improper now toconsider what remedy would be most ap-propriate if appellants prevail at trial.’’)Because no Baker factor is inextricablefrom the merits of this case, the politicalquestion doctrine is not a barrier to plain-tiffs’ claims.

II. Standing to Sue

[20–24] ‘‘A threshold question in everyfederal case is TTT whether at least oneplaintiff has standing.’’ Thomas v. Mun-dell, 572 F.3d 756, 760 (9th Cir. 2009)(citation and quotation marks omitted).Standing requires a plaintiff to allege‘‘such a personal stake in the outcome ofthe controversy as to warrant [the] invoca-tion of federal-court jurisdiction and tojustify exercise of the court’s remedialpowers[.]’’ Warth v. Seldin, 422 U.S. 490,498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).To demonstrate standing, a plaintiff mustshow (1) she suffered an injury in fact thatis concrete, particularized, and actual orimminent; (2) the injury is fairly traceableto the defendant’s challenged conduct; and(3) the injury is likely to be redressed by afavorable court decision, Lujan v. Defend-ers of Wildlife, 504 U.S. 555, 560, 112 S.Ct.2130, 119 L.Ed.2d 351 (1992). A plaintiffmust support each element of the standingtest ‘‘with the manner and degree of evi-dence required at the successive stages ofthe litigation.’’ Id. at 561, 112 S.Ct. 2130.Accordingly, at the motion to dismiss stage‘‘general allegations’’ suffice to establish

standing because those allegations are pre-sumed to ‘‘embrace those specific factsthat are necessary to support the claim.’’Id. (citation and quotation marks omitted).

A. Injury in Fact

[25] In an environmental case, a plain-tiff cannot demonstrate injury in factmerely by alleging injury to the environ-ment; there must be an allegation that thechallenged conduct is harming (or immi-nently will harm) the plaintiff. Friends ofthe Earth, Inc. v. Laidlaw Envt’l Servs.(TOC), Inc., 528 U.S. 167, 181, 120 S.Ct.693, 145 L.Ed.2d 610 (2000). For example,a plaintiff may meet the injury in factrequirement by alleging the challenged ac-tivity ‘‘impairs his or her economic inter-ests or aesthetic and environmental well-being.’’ Wash. Envt’l Council v. Bellon,732 F.3d 1131, 1140 (9th Cir. 2013) (quota-tion marks omitted and alterations normal-ized).

[26] Plaintiffs adequately allege injuryin fact. Lead plaintiff Kelsey Juliana alleg-es algae blooms harm the water shedrinks, and low water levels caused bydrought kill the wild salmon she eats. FirstAm. Compl. ¶¶ 17–18. Plaintiff XiuhtezcatlRoske–Martinez alleges increased wildfiresand extreme flooding jeopardize his per-sonal safety. Id. ¶ 21. Plaintiff AlexanderLoznak alleges record-setting tempera-tures harm the health of the hazelnut or-chard on his family farm, an importantsource of both revenue and food for himand his family. Id. ¶ 26. Plaintiff JacobLebel alleges drought conditions requiredhis family to install an irrigation system attheir farm. Id. ¶ 32. Plaintiff Zealand B.alleges he has been unable to ski duringthe winter as a result of decreased snow-pack. Id. ¶ 38. Plaintiff Sahara V. allegeshot, dry conditions caused by forest firesaggravate her asthma. Id. ¶ 46.

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The most recent allegations of injuryappear in the supplemental declaration ofplaintiff Jayden F., a thirteen-year-old res-ident of Rayne, Louisiana. Jayden allegesthat at five o’clock the morning of August13, 2016, her siblings woke her up. Decl.Jayden F. ¶ 5 Sept. 7, 2016 (doc. 78). Shestepped out of bed into ankle-deep water.By the end of the day,

Flood waters were pouring into ourhome through every possible opening.We tried to stop it with towels, blankets,and boards. The water was flowing downthe hallway, into my Mom’s room andmy sisters’ room. The water drenchedmy living room and began to cover ourkitchen floor. Our toilets, sinks, andbathtubs began to overflow with awfulsmelling sewage because our town’s sew-er system also flooded. Soon the sewagewas everywhere. We had a stream ofsewage and water running through ourhouse.

Id. ¶ 8. With no shelters available andnowhere else to go, the family remained inthe flooded house for weeks. Id. ¶ 10. Thefloodwaters eventually receded, but thedamage remains: the carpets are soakedwith sewage water. Id. ¶ 12. The water-logged walls must be torn down to preventthe growth of black mold. Id. The entirefamily sleeps together in the living roombecause the bedrooms are uninhabitable.Id. ¶ 15. Jayden alleges the storm thatdestroyed her home ‘‘ordinarily would hap-pen once every 1,000 years, but is happen-ing now as a result of climate change.’’ Id.¶ 2.

The government contends these injuriesare not particular to plaintiffs becausethey are caused by climate change, whichbroadly affects the entire planet (and allpeople on it) in some way. According to thegovernment, this renders plaintiffs’ inju-ries nonjusticiable generalized grievances.See Lexmark Int’l, Inc. v. Static ControlComponents, Inc., ––– U.S. ––––, 134 S.Ct.1377, 1387 n.3, 188 L.Ed.2d 392 (2014)

(explaining that generalized grievances donot meet Article III’s case or controversyrequirement).

[27–29] The government misunder-stands the generalized grievance rule. Asthe Ninth Circuit recently explained, fed-eral courts lack jurisdiction to hear a casewhen the harm at issue is ‘‘not only widelyshared, but is also of an abstract andindefinite nature—for example, harm tothe common concern for obedience to thelaw.’’ Novak v. United States, 795 F.3d1012, 1018 (9th Cir. 2015) (quoting Fed.Elec. Comm’n v. Akins, 524 U.S. 11, 23,118 S.Ct. 1777, 141 L.Ed.2d 10 (1998)).Standing alone, ‘‘the fact that a harm iswidely shared does not necessarily renderit a generalized grievance.’’ Jewel, 673F.3d at 909; see also Massachusetts v.EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167L.Ed.2d 248 (2007) (‘‘[I]t does not matterhow many persons have been injured bythe challenged action’’ so long as ‘‘the par-ty bringing suit shows that the action in-jures him in a concrete and personal way.’’(quotation marks omitted and alterationsnormalized)); Akins, 524 U.S. at 24, 118S.Ct. 1777 (‘‘[A]n injury TTTT widelyshared TTT does not, by itself, automatical-ly disqualify an interest for Article IIIpurposes. Such an interest, where suffi-ciently concrete, may count as an ‘injury infact.’ ’’); Covington v. Jefferson Cnty., 358F.3d 626, 651 (9th Cir. 2004) (Gould, J.,concurring) (‘‘[T]he most recent SupremeCourt precedent appears to have rejectedthe notion that injury to all is injury tonone for standing purposes.’’); Pye v.United States, 269 F.3d 459, 469 (4th Cir.2001) (‘‘So long as the plaintiff TTT has aconcrete and particularized injury, it doesnot matter that legions of other personshave the same injury.’’). Indeed, even if‘‘the experience at the root of [the] com-plaint was shared by virtually every Amer-ican,’’ the inquiry remains whether that

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shared experience caused an injury that isconcrete and particular to the plaintiff.Jewel, 673 F.3d at 910. Applying the cor-rect formulation of the generalized griev-ance rule, plaintiffs’ alleged injuries—harmto their personal, economic and aestheticinterests—are concrete and particularized,not abstract or indefinite.

[30–32] That leaves imminence. Plain-tiffs must demonstrate standing for eachclaim they seek to press and for each formof relief sought. DaimlerChrysler Corp. v.Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854,164 L.Ed.2d 589 (2006). Because plaintiffsseek injunctive relief, they must show theirinjuries are ‘‘ongoing or likely to recur.’’Consumer Fin. Prot. Bureau v. Gordon,819 F.3d 1179, 1197 (9th Cir. 2016) (quot-ing FTC v. Evans Prods. Co., 775 F.2d1084, 1087 (9th Cir. 1985)). They have metthis requirement. The complaint allegesthat ‘‘[t]he present level of CO2 and itswarming, both realized and latent, are al-ready in the zone of danger.’’ First Am,Compl, ¶ 8. It also alleges that ‘‘our coun-try is now in a period of carbon overshoot,with early consequences that are alreadythreatening and that will, in the shortterm, rise to unbearable unless Defendantstake immediate action[.]’’ Id. ¶ 10 (quota-tion marks omitted). Youth plaintiffs eachallege harm that is ongoing and likely tocontinue in the future. See, e.g., id. ¶ 17(alleging current harm and harm ‘‘[i]n thecoming decades’’ from ocean acidificationand rising sea levels); id. ¶ 45 (allegingdamage to freshwater resources now andin the future ‘‘if immediate action is nottaken’’ to reduce CO2 emissions). This issufficient to satisfy the imminence require-ment.

By alleging injuries that are concrete,particularized, and actual or imminent,plaintiffs have satisfied the first prong ofthe standing test.

B. Causation

[33, 34] The second requirement ofstanding is causation. A plaintiff mustshow the injury alleged is ‘‘fairly tracea-ble’’ to the challenged action of the defen-dant and not the result of ‘‘the indepen-dent action of some third party not beforethe court.’’ Lujan, 504 U.S. at 560, 112S.Ct. 2130 (citation and quotation marksomitted). Although a defendant’s actionneed not be the sole source of injury tosupport standing, Barnum Timber Co. v.EPA, 633 F.3d 894, 901 (9th Cir. 2011),‘‘[t]he line of causation between the defen-dant’s action and the plaintiff’s harm mustbe more than attenuated,’’ Native Vill. ofKivalina v. ExxonMobil Corp., 696 F.3d849, 867 (9th Cir. 2012) (citations and quo-tation marks omitted). However, a ‘‘causalchain does not fail simply because it hasseveral links, provided those links are nothypothetical or tenuous and remain plausi-ble.’’ Id. (citations, quotation marks, andbracket omitted).

The government contends plaintiffs havenot adequately alleged causation, relyingon the Ninth Circuit’s decision in Bellon.In that case, environmental advocacygroups sought to compel the WashingtonState Department of Ecology and otherregional agencies ‘‘to regulate greenhousegas emissions’’ (‘‘GHGs’’) from five oil re-fineries. Bellon, 732 F.3d at 1135. Thecourt held plaintiffs lacked standing to suebecause the causal link between the agen-cies’ regulatory decisions and the plaintiffs’injuries was ‘‘too attenuated.’’ Id. at 1141.The court explained the special challengeof showing causation with respect to theproduction of greenhouse gases:

Greenhouse gases, once emitted from aspecific source, quickly mix and dispersein the global atmosphere and have along atmospheric lifetime. Current re-search on how greenhouse gases influ-ence global climate change has focused

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on the cumulative environmental effectsfrom aggregate regional or globalsources. But there is limited scientificcapability in assessing, detecting, ormeasuring the relationship between acertain GHG emission source and local-ized climate impacts in a given region.

Id. at 1143. The court noted that the fiveoil refineries at issue were responsible forjust under six percent of total greenhousegas emissions produced in the state ofWashington, and quoted the state’s ex-pert’s declaration that the effect of thoseemissions on global climate change was‘‘scientifically indiscernible, given the emis-sion levels, the dispersal of GHGs world-wide, and the absence of any meaningfulnexus between Washington refinery emis-sions and global GHG concentrations nowor as projected in the future.’’ Id. at 1144(quotation marks omitted). The court con-cluded the ‘‘causal chain [wa]s too tenuousto support standing.’’ Id.

This case is distinguishable from Bellonin two important respects. First, the pro-cedural posture is different. In Bellon, theappeal was taken from a grant of summaryjudgment. Id. at 1138. That proceduralposture is underscored by the court’s reli-ance on expert declarations in renderingits decision. Plaintiffs have alleged a causalrelationship between their injuries and de-fendants’ conduct. At this stage, I ambound to accept those allegations as true.This rule appropriately acknowledges thelimits of the judiciary’s expertise: at themotion to dismiss stage, a federal court isin no position to say it is impossible tointroduce evidence to support a well-plead-ed causal connection. See Connecticut v.Am. Elec. Power Co., Inc., 582 F.3d 309,347 (2d Cir. 2009) (holding that causationin climate change cases is ‘‘best left to therigors of evidentiary proof at a futurestage of the proceedings, rather than dis-pensed with as a threshold question ofconstitutional standing’’), rev’d on othergrounds, Am. Elec. Power Co., Inc. v. Con-

necticut, 564 U.S. 410, 429, 131 S.Ct. 2527,180 L.Ed.2d 435 (2011). 1 note, too, thatclimate science is constantly evolving. SeeKirsten Engel & Jonathan Overpeck, Ad-aptation and the Courtroom: Judging Cli-mate Science, 3 Mich. J. Envt’l & Admin.L. 1, 25 (2013) (although ‘‘climate impactsat the regional and local levels are subject,among other things, to the uncertainties ofdownscaling techniques[,] TTT our knowl-edge of the climate is developing at abreakneck pace.’’) As a result, 1 cannotinterpret Bellon—which relied on a sum-mary judgment record developed morethan five years ago—to forever close thecourthouse doors to climate change claims.

[35] Second, the emissions at issue inthis case, unlike the emissions at issue inBellon, make up a significant share ofglobal emissions, In Bellon, as noted, thefive oil refineries were responsible for justunder six percent of the greenhouse gasemissions generated in the state of Wash-ington. The Ninth Circuit recently ex-plained that in Bellon, ‘‘causation was lack-ing because the defendant oil refinerieswere such minor contributors to green-house gas emissions, and the independentthird-party causes of climate change wereso numerous, that the contribution of thedefendant oil refineries was ‘scientificallyundiscernable.’ ’’ WildEarth Guardians v.U.S. Dep’t of Agric., 795 F.3d 1148, 1158(9th Cir. 2015) (quoting Bellon, 732 F.3d at1144). Here, by contrast, plaintiffs’ chain ofcausation rests on the core allegation thatdefendants are responsible for a substan-tial share of worldwide greenhouse gasemissions. Plaintiffs allege that over the263 years between 1751 and 2014, theUnited States produced more than twenty-five percent of global CO2 emissions. FirstAm. Compl. ¶ 151. Greenhouse gas emis-sions produced in the United States con-tinue to increase. Id. ¶ 152. In 2012, theUnited States was the second largest pro-

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ducer and consumer of energy in theworld. Id. ¶ 160. Bellon’s reasoning, whichrested on a determination the oil refinerieswere ‘‘minor contributors’’ to climatechange, does not apply. WildEarth Guard-ians, 795 F.3d at 1158.

The government broadly asserts thatBellon rejected ‘‘the argument that allega-tions that a source ‘contributed’ to climatechange are sufficient to satisfy Article Ill’scausation requirement[.]’’ Fed. Defs.’Mem. of Points & Auth. in Supp. of Mot.Dismiss at 12 (doc. 27–1). Not so. Bellonrejected—at the summary judgmentstage—‘‘vague, conclusory’’ statementspurporting to establish a causal relation-ship between the emissions of five refiner-ies and the plaintiffs’ injuries. 732 F.3d at1142. Although the Constitution did notrequire the Bellon plaintiffs to ‘‘connecteach molecule to their injuries,’’ it demand-ed more than ‘‘simply saying that theAgencies have failed to curb emission ofgreenhouse gases, which contribute (insome undefined way and to some unde-fined degree) to their injuries[.]’’ Id. at1142–43.

The causal chain alleged by plaintiffshere is conclusory, but that is because theyhave not yet had the opportunity to pres-ent evidence. And unlike in Bellon, plain-tiffs’ causation allegations are not vague.At oral argument, plaintiffs explained thattheir theory of causation has two compo-nents. The first relates to defendants’ af-firmative acts. Specifically, plaintiffs allegethat fossil fuel combustion accounts forapproximately ninety-four percent of Unit-ed States CO2 emissions. First Am. Compl.¶ 158. Defendants lease public lands for oil,gas, and coal production; underchargeroyalties in connection with those leases;provide tax breaks to companies to encour-age fossil fuel development; permit theimport and export of fossil fuels; and in-centivize the purchase of sport utility vehi-cles. Id. ¶¶ 164, 166, 171, 173, 181, 190.

Here, the chain of causation is: fossil fuelcombustion accounts for the lion’s share ofgreenhouse gas emissions produced in theUnited States; defendants have the powerto increase or decrease those emissions;and defendants use that power to engagein a variety of activities that actively causeand promote higher levels of fossil fuelcombustion.

The second component of plaintiffs’ cau-sation theory involves defendants’ failureto act in areas where they have authorityto do so. Plaintiffs allege that together,power plants and transportation producenearly two-thirds of CO2 emissions in theUnited States. Id. ¶ 115 (transportationproduces approximately twenty-seven per-cent of annual emissions); id. ¶ 125 (powerplants produce roughly thirty-seven per-cent of annual emissions). Plaintiffs alsoallege DOT and EPA have broad power toset emissions standards in these sectors.So the chain of causation is: DOT andEPA have jurisdiction over sectors produc-ing sixty-four percent of United Statesemissions, which in turn constitute roughlyfourteen percent of emissions worldwide;they allow high emissions levels by failingto set demanding standards; high emis-sions levels cause climate change; and cli-mate change causes plaintiffs’ injuries.

Each link in these causal chains may bedifficult to prove, but the ‘‘spectre of diffi-culty down the road does not inform [the]justiciability determination at this earlystage of the proceedings.’’ Alperin, 410F.3d at 539. At the pleading stage, plain-tiffs have adequately alleged a causal linkbetween defendants’ conduct and the as-serted injuries.

C. Redressability

[36, 37] The final prong of the standinginquiry is redressability. The causation andredressability prongs of the standing in-quiry ‘‘overlap and are two facets of a

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single causation requirement.’’ Bellon, 732F.3d at 1146 (citation and quotation marksomitted). They are distinct in that causa-tion ‘‘examines the connection between thealleged misconduct and injury, whereas re-dressability analyzes the connection be-tween the alleged injury and requestedjudicial relief.’’ Id. A plaintiff need notshow a favorable decision is certain toredress his injury, but must show a sub-stantial likelihood it will do so. Id. It issufficient for the redressability inquiry toshow that the requested remedy would‘‘slow or reduce’’ the harm, Massachusetts,549 U.S. at 525, 127 S.Ct. 1438 (citingLarson v. Valente, 456 U.S. 228, 243 n.15,102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)).

[38] The declaratory and injunctive re-lief plaintiffs request meets this standard.Most notably, plaintiffs ask this Court to‘‘[o]rder Defendants to prepare and imple-ment an enforceable national remedial planto phase out fossil fuel emissions and drawdown excess atmospheric CO2[.]’’ FirstAm. Compl. ¶ 94. If plaintiffs can show, asthey have alleged, that defendants havecontrol over a quarter of the planet’sgreenhouse gas emissions, and that a re-duction in those emissions would reduceatmospheric CO2 and slow climate change,then plaintiffs’ requested relief would re-dress their injuries.

Bellon is not to the contrary. In Bellon,the court concluded the plaintiff’s injurieswould continue unabated even if the fiveoil refineries shut down, repeating its con-clusion that the effect of the emissionsproduced by those refineries on globalemissions levels was ‘‘scientifically indis-cernable.’’ 732 F.3d at 1147 (quotationmarks omitted), Thus, Bellon’s redressabil-ity holding, like its causation holding, rest-ed on a factor not present here: that thedefendants were minor contributors toglobal climate change. Accordingly, Bel-lon’s reasoning does not apply.

[39] Defendants and intervenors es-sentially argue that because many entitiescontribute to global warming, an injunctionoperating on one entity—even a majorplayer—would offer no guarantee of anoverall reduction in greenhouse gas emis-sions. But whether the Court could guar-antee an overall reduction in greenhousegas emissions is the wrong inquiry for atleast two reasons. First, redressabilitydoes not require certainty, it requires onlya substantial likelihood that the Courtcould provide meaningful relief. Second,the possibility that some other individualor entity might later cause the same injurydoes not defeat standing—the question iswhether the injury caused by the defen-dant can be redressed.

Redressability in this case is scientifical-ly complex, particularly in light of thespecter of ‘‘irreversible climate change,’’wherein greenhouse gas emissions above acertain level push the planet past ‘‘pointsof no return, beyond which irreversibleconsequences become inevitable, out of hu-manity’s control.’’ Hansen Decl. ¶ 13 & Ex.2 at 13 Sept. 10, 2015 (docs. 7–1 & 7–3)(quotation marks omitted). This raises ahost of questions, among them: What partof plaintiffs’ injuries are attributable tocauses beyond this Court’s control? Evenif emissions increase elsewhere, will themagnitude of plaintiffs’ injuries be less ifthey obtain the relief they seek in thislawsuit? When would we reach this pointof no return, and do defendants have itwithin their power to avert reaching iteven without cooperation from third par-ties? All of these questions are inextricablybound up in the causation inquiry, andnone of them can be answered at the mo-tion to dismiss stage.

[40] Plaintiffs ask this Court to ‘‘orderDefendants to cease their permitting, au-thorizing, and subsidizing of fossil fuelsand, instead, move to swiftly phase out

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CO2 emissions, as well as take such otheraction necessary to ensure that atmospher-ic CO2 is no more concentrated than 350ppm by 2100, including to develop a na-tional plan to restore Earth’s energy bal-ance, and implement that national plan soas to stabilize the climate system.’’ FirstAm. Compl. ¶ 12 (emphasis omitted). Con-struing the complaint in plaintiffs’ favor,they allege that this relief would at leastpartially redress their asserted injuries.Youth plaintiffs have adequately allegedthey have standing to sue.5

III. Due Process Claims 6

The Due Process Clause of the FifthAmendment to the United States Constitu-tion bars the federal government from de-priving a person of ‘‘life, liberty, or proper-ty’’ without ‘‘due process of law.’’ U.S.Const. amend. V. Plaintiffs allege defen-dants have violated their due processrights by ‘‘directly caus[ing] atmosphericCO2 to rise to levels that dangerously in-terfere with a stable climate system re-quired alike by our nation and Plaintiffs[,]’’First Am. Compl. ¶ 279; ‘‘knowingly en-danger[ing] Plaintiffs’ health and welfareby approving and promoting fossil fuel de-velopment, including exploration, extrac-tion, production, transportation, importa-tion, exportation, and combustion,’’ id.¶ 280; and, ‘‘[a]fter knowingly creating thisdangerous situation for Plaintiffs, TTT con-tinu[ing] to knowingly enhance that dangerby allowing fossil fuel production, con-sumption, and combustion at dangerouslevels,’’ id. ¶ 284.

Defendants and intervenors challengeplaintiffs’ due process claims on twogrounds. First, they assert any challengeto defendants’ affirmative actions (i.e. leas-ing land, issuing permits) cannot proceedbecause plaintiffs have failed to identifyinfringement of a fundamental right ordiscrimination against a suspect class ofpersons. Second, they argue plaintiffs can-not challenge defendants’ inaction (i.e.,failure to prevent third parties from emit-ting CO2 at dangerous levels) because de-fendants have no affirmative duty to pro-tect plaintiffs from climate change.

A. Infringement of a FundamentalRight

[41–43] When a plaintiff challenges af-firmative government action under the dueprocess clause, the threshold inquiry is theapplicable level of judicial scrutiny. Witt v.Dep’t of the Air Force, 527 F.3d 806, 813(9th Cir. 2008). The default level of scruti-ny is rational basis, which requires a re-viewing court to uphold the challengedgovernmental action so long as it ‘‘imple-ments a rational means of achieving a le-gitimate governmental end[.]’’ Kim v.United States, 121 F.3d 1269, 1273 (9thCir. 1997) (quotation marks omitted).When the government infringes a ‘‘funda-mental right,’’ however, a reviewing courtapplies strict scrutiny. Witt, 527 F.3d at817. Substantive due process ‘‘forbids thegovernment to infringe certain ‘fundamen-tal’ liberty interests at all, no matter whatprocess is provided, unless the infringe-ment is narrowly tailored to serve a com-

5. Defendants and intervenors also challengethe standing of future generations plaintiffson a number of grounds. It is not necessary toaddress these arguments because once a fed-eral court concludes one plaintiff has stand-ing, it need not determine whether the re-maining plaintiffs have standing, Nat’l Ass’nof Optometrists & Opticians LensCrafters, Inc.v. Brown, 567 F.3d 521, 523 (9th Cir. 2009).

6. Plaintiffs’ due process claims encompass as-serted equal protection violations and viola-tions of unenumerated rights secured by theNinth Amendment. For simplicity’s sake, thisopinion refers to these claims collectively as‘‘due process claims.’’

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pelling state interest.’’ Reno v. Flores, 507U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d1 (1993) (emphasis in original). It appearsundisputed by plaintiffs, and in any eventis clear to this Court, that defendants’affirmative actions would survive rationalbasis review. Resolution of this part of themotions to dismiss therefore hinges onwhether plaintiffs have alleged infringe-ment of a fundamental right.7

[44, 45] Fundamental liberty rights in-clude both rights enumerated elsewhere inthe Constitution and rights and libertieswhich are either (1) ‘‘deeply rooted in thisNation’s history and tradition’’ or (2) ‘‘fun-damental to our scheme of ordered liber-ty[.]’’ McDonald v. City of Chicago, Ill.,561 U.S. 742, 767, 130 S.Ct. 3020, 177L.Ed.2d 894 (2010) (internal citations, quo-tations, and emphasis omitted). The Su-preme Court has cautioned that federalcourts must ‘‘exercise the utmost carewhenever we are asked to break newground in this field, lest the liberty pro-tected by the Due Process Clause be sub-tly transformed into’’ judicial policy prefer-ences. Washington v. Glucksberg, 521 U.S.702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772(1997) (citation and quotation marks omit-ted).

[46, 47] This does not mean that ‘‘new’’fundamental rights are out of bounds,though. When the Supreme Court brokenew legal ground by recognizing a consti-tutional right to same-sex marriage, Jus-tice Kennedy wrote that

The nature of injustice is that we maynot always see it in our own times. Thegenerations that wrote and ratified theBill of Rights TTT did not presume toknow the extent of freedom in all its

dimensions, and so they entrusted tofuture generations a charter protectingthe right of all persons to enjoy libertyas we learn its meaning. When new in-sight reveals discord between the Con-stitution’s central protections and a re-ceived legal stricture, a claim to libertymust be addressed.

Obergefell v. Hodges, ––– U.S. ––––, 135S.Ct. 2584, 2598, 192 L.Ed.2d 609 (2015).Thus, ‘‘[t]he identification and protection offundamental rights is an enduring part ofthe judicial duty to interpret the Constitu-tion TTT [that] has not been reduced to anyformula.’’ Id. (citation and quotation marksomitted). In determining whether a right isfundamental, courts must exercise ‘‘rea-soned judgment,’’ keeping in mind that‘‘[h]istory and tradition guide and disci-pline this inquiry but do not set its outerboundaries.’’ Id. The genius of the Consti-tution is that its text allows ‘‘future gener-ations [to] protect TTT the right of allpersons to enjoy liberty as we learn itsmeaning,’’ Id.

Often, an unenumerated fundamentalright draws on more than one Constitu-tional source, The idea is that certainrights may be necessary to enable theexercise of other rights, whether enumer-ated or unenumerated. In Roe v. Wade,410 U.S. 113, 152–53, 93 S.Ct. 705, 35L.Ed.2d 147 (1973), the Court exhaustivelychronicled the jurisprudential history ofthe fundamental right to privacy—anotherright not mentioned in the text of theConstitution. Roe’s central holding rests onthe Due Process Clause of the FourteenthAmendment. Id. at 153, 93 S.Ct. 705. Butthe Court also found ‘‘roots’’ of the right toprivacy in the First Amendment, the

7. Strict scrutiny also is triggered by an allega-tion that the government discriminated on thebasis of a suspect classification, regardless ofwhether the government action infringed afundamental right. Green v. City of Tucson,340 F.3d 891, 896 (9th Cir. 2003). Because I

conclude that plaintiffs have alleged a viola-tion of their fundamental rights, I need notaddress whether youth or future generationsare suspect classifications for equal protectionpurposes.

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Fourth Amendment, the Fifth Amend-ment, the penumbras of the Bill of Rights,and the Ninth Amendment. Id. at 152, 93S.Ct. 705. Similarly, in Obergefell, theCourt’s recognition of a fundamental rightto many was grounded in an understand-ing of marriage as a right underlying andsupporting other vital liberties. See 135S.Ct. at 2599 (‘‘[I]t would be contradictoryto recognize a right to privacy with respectto other matters of family life and not withrespect to the decision to enter the rela-tionship that is at the foundation of thefamily in our society.’’ (citation and quota-tion marks omitted)); id. at 2601 (‘‘[M]ar-riage is a keystone of our social order.’’).

[48] Exercising my ‘‘reasoned judg-ment,’’ id. at 2598, I have no doubt thatthe right to a climate system capable ofsustaining human life is fundamental to afree and ordered society. Just as marriageis the ‘‘foundation of the family,’’ a stableclimate system is quite literally the foun-dation ‘‘of society, without which therewould be neither civilization nor progress.’’Id. (quoting Maynard v. Hill, 125 U.S.190, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888));cf. Minors Oposa v. Sec’y of the Dep’t ofEnvt’l & Natural Res., G.R. No. 101083, 33I.L.M. 173, 187–88 (S.C., Jul. 30, 1993)(Phil.) (without ‘‘a balanced and healthfulecology,’’ future generations ‘‘stand to in-herit nothing but parched earth incapableof sustaining life.’’).

Defendants and intervenors contendplaintiffs are asserting a right to be freefrom pollution or climate change, and thatcourts have consistently rejected attemptsto define such rights as fundamental, De-fendants and intervenors mischaracterizethe right plaintiffs assert. Plaintiffs do notobject to the government’s role in produc-ing any pollution or in causing any climatechange; rather, they assert the govern-ment has caused pollution and climatechange on a catastrophic level, and that ifthe government’s actions continue un-

checked, they will permanently and irrev-ersibly damage plaintiffs’ property, theireconomic livelihood, their recreational op-portunities, their health, and ultimatelytheir (and their children’s) ability to livelong, healthy lives. Echoing Obergefell’sreasoning, plaintiffs allege a stable climatesystem is a necessary condition to exercis-ing other rights to life, liberty, and proper-ty.

In framing the fundamental right at is-sue as the right to a climate system capa-ble of sustaining human life, I intend tostrike a balance and to provide some pro-tection against the constitutionalization ofall environmental claims. On the one hand,the phrase ‘‘capable of sustaining humanlife’’ should not be read to require a plain-tiff to allege that governmental action willresult in the extinction of humans as aspecies. On the other hand, acknowledg-ment of this fundamental right does nottransform any minor or even moderate actthat contributes to the warming of theplanet into a constitutional violation. Inthis opinion, this Court simply holds thatwhere a complaint alleges governmentalaction is affirmatively and substantiallydamaging the climate system in a way thatwill cause human deaths, shorten humanlifespans, result in widespread damage toproperty, threaten human food sources,and dramatically alter the planet’s ecosys-tem, it states a claim for a due processviolation, To hold otherwise would be tosay that the Constitution affords no pro-tection against a government’s knowingdecision to poison the air its citizensbreathe or the water its citizens drink.Plaintiffs have adequately alleged infringe-ment of a fundamental right.

B. ‘‘Danger Creation’’ Challenge to Inac-tion

[49–52] With limited exceptions, theDue Process Clause does not impose onthe government an affirmative obligationto act, even when ‘‘such aid may be neces-

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sary to secure life, liberty, or propertyinterests of which the government itselfmay not deprive the individual.’’ DeShaneyv. Winnebago Cnty. Dep’t of Soc. Servs.,489 U.S. 189, 196, 109 S.Ct. 998, 103L.Ed.2d 249 (1989). This rule is subject totwo exceptions: ‘‘(1) the ‘special relation-ship’ exception; and (2) the ‘danger cre-ation’ exception,’’ L.W. v. Grubbs, 974 F.2d119, 121 (9th Cir. 1992). The ‘‘special rela-tionship’’ exception provides that when thegovernment takes an individual into custo-dy against his or her will, it assumes someresponsibility to ensure that individual’ssafety. Id. The ‘‘danger creation’’ exceptionpermits a substantive due process claimwhen government conduct ‘‘places a personin peril in deliberate indifference to theirsafety[.]’’ Penilla v. City of HuntingtonPark, 115 F.3d 707, 709 (9th Cir. 1997).Plaintiffs purport to challenge the govern-ment’s failure to limit third-party CO2

emissions pursuant to the danger creationDeShaney exception.

[53, 54] In the Ninth Circuit, a plaintiffchallenging government inaction on a dan-ger creation theory must first show the‘‘state actor create[d] or expose[d] an indi-vidual to a danger which he or she wouldnot have otherwise faced.’’ Kennedy v.City of Ridgefield, 439 F.3d 1055, 1061 (9thCir. 2006), The state action must place theplaintiff ‘‘in a worse position than that inwhich he would have been had the statenot acted at all.’’ Pauluk v. Savage, 836F.3d 1117, 1125 (9th Cir. 2016) (quotationmarks omitted and alterations normalized).Second, the plaintiff must show the ‘‘stateactor TTT recognize[d]’’ the unreasonablerisks to the plaintiff and ‘‘actually in-tend[ed] to expose the plaintiff to such

risks without regard to the consequencesto the plaintiff.’’ Campbell v. Wash. Dep’tof Soc. & Health Servs., 671 F.3d 837, 846(9th Cir. 2011) (brackets and quotationmarks omitted). The defendant must haveacted with ‘‘[d]eliberate indifference,’’which ‘‘requires a culpable mental statemore than gross negligence.’’ Pauluk, 836F.3d at 1125 (quotation marks omitted).

[55] Plaintiffs allege that ‘‘[a]cting withfull appreciation of the consequences oftheir acts, Defendants knowingly caused,and continue to cause, dangerous interfer-ence with our atmosphere and climate sys-tem.’’ First Am. Compl. ¶ 85. They allegethis danger stems, ‘‘in substantial part,[from] Defendants’ historic and continuingpermitting, authorizing, and subsidizing offossil fuel extraction, production, transpor-tation, and utilization.’’ Id. ¶ 279. Plaintiffsallege defendants acted ‘‘with full apprecia-tion’’ of the consequences of their acts, id.¶¶ 278–79, specifically ‘‘[harm to] Plaintiffs’dignity, including their capacity to providefor their basic human needs, safely raisefamilies, practice their religious and spiri-tual beliefs, maintain their bodily integrity,and lead lives with access to clean air,water, shelter, and food.’’ Id. ¶ 283. In theface of these risks, plaintiffs allege defen-dants ‘‘have had longstanding, actualknowledge of the serious risks of harm andhave failed to take necessary steps to ad-dress and ameliorate the known, seriousrisk to which they have exposed Plaintiffs.’’Id. ¶ 285. In sum: plaintiffs allege defen-dants played a unique and central role inthe creation of our current climate crisis;that they contributed to the crisis with fullknowledge of the significant and unreason-able risks posed by climate change;8 and

8. At oral argument, plaintiffs supplied theCourt with a timeline documenting purportedevidence of defendants’ knowledge of climatechange. The timeline, which dates back to1955, includes the 1988 testimony of Dr.James Hansen before the Senate Committee

on Energy and Natural Resources. Dr. Han-sen, who appears in this lawsuit as a guardianfor his granddaughter and for future genera-tions, testified about rising global tempera-tures and their relationship to human activity.First Session on the Greenhouse Effect and

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that the Due Process Clause therefore im-poses a special duty on defendants to usetheir statutory and regulatory authority toreduce greenhouse gas emissions. Accept-ing the allegations of the complaint astrue, plaintiffs have adequately alleged adanger creation claim.

Defendants argue the DeShaney excep-tions are inapplicable when the actor is thefederal government rather than a stategovernment. It is true that DeShaney wasa section 1983 case and that the NinthCircuit cases interpreting the DeShaneyexceptions are also section 1983 cases. Butin DeShaney, the Supreme Court wasmapping the contours of the Due ProcessClause, not section 1983. Defendants havecited no case or legal principle to justifylimiting DeShaney to the section 1983 con-text.

Next, defendants contend application ofthe DeShaney danger creation exception inthis context would permit plaintiffs to‘‘raise a substantive due process claim tochallenge virtually any government pro-gram’’—for example, to challenge foreignpolicy decisions that heighten or exacer-bate international tensions, or to healthand safety regulations the plaintiff deemsinsufficiently stringent. Fed. Defs.’ Obj. 18.Defendants fail to recognize that DeSha-ney imposes rigorous proof requirements.A plaintiff asserting a danger-creation dueprocess claim must show (1) the govern-ment’s acts created the danger to theplaintiff; (2) the government knew its actscaused that danger; and (3) the govern-ment with deliberate indifference failed to

act to prevent the alleged harm. Thesestringent standards are sufficient safe-guards against the flood of litigation con-cerns raised by defendants—indeed, theypose a significant challenge for plaintiffs inthis very lawsuit.9

Questions about difficulty of proof, how-ever, must be left for another day. At themotion to dismiss stage, I am bound toaccept the factual allegations in the com-plaint as true. Plaintiffs have alleged thatdefendants played a significant role in cre-ating the current climate crisis, that defen-dants acted with full knowledge of theconsequences of their actions, and thatdefendants have failed to correct or miti-gate the harms they helped create in delib-erate indifference to the injuries caused byclimate change. They may therefore pro-ceed with their substantive due processchallenge to defendants’ failure to ade-quately regulate CO2 emissions.

IV. Public Trust Claims

[56–58] In its broadest sense, the term‘‘public trust’’ refers to the fundamentalunderstanding that no government can le-gitimately abdicate its core sovereign pow-ers. See Stone v. Mississippi, 101 U.S. 814,820, 25 L.Ed. 1079 (1879) (‘‘[T]he power ofgoverning is a trust committed by thepeople to the government, no part of whichcan be granted away.’’) The public trustdoctrine rests on the fundamental principlethat ‘‘[e]very succeeding legislature pos-sesses the same jurisdiction and powerwith respect to [the public interest] as its

Global Climate Change Before the Comm. onEnergy & Natural Res., 100th Cong. 39(1988). He urged legislators to take action tolimit greenhouse gas emissions. Id. at 158. Dr.Hansen’s testimony was preceded by a state-ment from Senator Dale Bumpers of Arkan-sas, who bemoaned, ‘‘We’re not going to havea lot of political support for this. Nobodywants to take on the automobile industry.Nobody wants to take on any of the industries

that produce the things we throw up into theatmosphere.’’ Id. at 38.

9. There are other barriers to asserting defen-dants’ hypothetical danger-creation claims.For example, as discussed in Part I of thisopinion, the political question doctrine sharp-ly limits judicial review of decisions inherent-ly entangled with the conduct of foreign rela-tions.

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predecessors.’’ Newton v. Mahoning Cnty.Comm’rs, 100 U.S. 548, 559, 25 L.Ed. 710(1879). The doctrine conceives of certainpowers and obligations—for example, thepolice power—as inherent aspects of sov-ereignty. Id. at 554. Permitting the gov-ernment to permanently give one of thesepowers to another entity runs afoul of thepublic trust doctrine because it diminishesthe power of future legislatures to promotethe general welfare.

[59] Plaintiffs’ public trust claimsarise from the particular application ofthe public trust doctrine to essential natu-ral resources. With respect to these coreresources, the sovereign’s public trust ob-ligations prevent it from ‘‘depriving a fu-ture legislature of the natural resourcesnecessary to provide for the well-beingand survival of its citizens.’’ Br. of AmiciCuriae Global Catholic Climate Movementand Leadership Council of Women Reli-gious at 3 (footnote omitted) (doc. 51–1).Application of the public trust doctrine tonatural resources predates the UnitedStates of America. Its roots are in theInstitutes of Justinian, part of the CorpusJuris Civilis, the body of Roman law thatis the ‘‘foundation for modern civil lawsystems.’’ Timothy G. Kearley, JusticeFred Blume and the Translation of Justi-nian’s Code, 99 Law Libr. J. 525, ¶ 1(2007). The Institutes of Justinian de-clared ‘‘the following things are by naturallaw common to all—the air, running wa-ter, the sea, and consequently the sea-shore.’’ J. Inst. 2.1.1 (J.B. Moyle trans.).The doctrine made its way to the UnitedStates through the English common law.See Idaho v. Coeur d’Alene Tribe of Ida-ho, 521 U.S. 261, 284, 117 S.Ct. 2028, 138L.Ed.2d 438 (1997) (‘‘American lawadopted as its own much of the Englishlaw respecting navigable waters, includingthe principle that submerged lands areheld for a public purpose.’’); Phillips Pe-troleum Co. v. Mississippi, 484 U.S. 469,473, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988)

(‘‘At common law, the title and dominionin lands flowed by the tide water were inthe King for the benefit of the nation TTT

Upon the American Revolution, theserights, charged with a like trust, werevested in the original States within theirrespective borders[.]’’ (quoting Shively v.Bowlby, 152 U.S. 1, 57, 14 S.Ct. 548, 38L.Ed. 331 (1894)); Joseph L. Sax, ThePublic Trust Doctrine in Natural Re-source Law: Effective Judicial Interven-tion, 68 Mich. L. Rev. 471, 475–76 (1970)(discussing the history of the public trustdoctrine in the United States).

The first court in this country to addressthe applicability of the public trust doc-trine to natural resources was the NewJersey Supreme Court, in 1821. The courtexplained that public trust assets werepart of a taxonomy of property:

Every thing susceptible of property isconsidered as belonging to the nationthat possesses the country, as formingthe entire mass of its wealth. But thenation does not possess all those thingsin the same manner. By very far thegreater part of them are divided amongthe individuals of the nation, and becomeprivate property. Those things not divid-ed among the individuals still belong tothe nation, and are called public proper-ty. Of these, again, some are reservedfor the necessities of the state, and areused for the public benefit, and thoseare called ‘‘the domain of the crown orof the republic,’’ others remain commonto all the citizens, who take of them anduse them, each according to his necessi-ties, and according to the laws whichregulate their use, and are called com-mon property. Of this latter kind, ac-cording to the writers upon the law ofnature and of nations, and upon the civillaw, are the air, the running water, thesea, the fish, and the wild beasts.

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Arnold v. Mundy, 6 N.J.L. 1, 71 (N.J.1821) (emphasis in original).

The seminal United States SupremeCourt case on the public trust is IllinoisCentral Railroad Company v. Illinois, 146U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018(1892). The Illinois legislature had con-veyed to the Illinois Central RailroadCompany title to part of the submergedlands beneath the harbor of Chicago, withthe intent to give the company control overthe waters above the submerged lands‘‘against any future exercise of power overthem by the state.’’ Id. at 452, 13 S.Ct. 110,The Supreme Court held the legislature’sattempt to give up its title to lands sub-merged beneath navigable waters was ei-ther void on its face or always subject torevocation. Id. at 453, 13 S.Ct. 110. ‘‘Thestate can no more abdicate its trust overproperty in which the whole people areinterested, like navigable waters and soilsunder them TTT than it can abdicate itspolice powers in the administration of gov-ernment and the preservation of thepeace.’’ Id. In light of the ‘‘immense value’’the harbor of Chicago carried for the peo-ple of Illinois, the ‘‘idea that its legislaturecan deprive the state of control over itsbed and waters, and place the same in thehands of a private corporation’’ could not‘‘be defended.’’ Id. at 454, 13 S.Ct. 110.

[60, 61] The natural resources trustoperates according to basic trust princi-ples, which impose upon the trustee a fidu-ciary duty to ‘‘protect the trust propertyagainst damage or destruction.’’ George G.Bogert et al., Bogert’s Trusts and Trus-tees, § 582 (2016). The trustee owes thisduty equally to both current and futurebeneficiaries of the trust. Restatement(Second) of Trusts § 183 (1959). In naturalresources cases, the trust property con-sists of a set of resources importantenough to the people to warrant publictrust protection. See Mary C. Wood, ANature’s Trust; Environmental Law for a

New Ecological Age 167–75 (2014). Thegovernment, as trustee, has a fiduciaryduty to protect the trust assets from dam-age so that current and future trust bene-ficiaries will be able to enjoy the benefitsof the trust. Id. The public trust doctrine isgenerally thought to impose three types ofrestrictions on governmental authority:

[F]irst, the property subject to the trustmust not only be used for a public pur-pose, but it must be held available foruse by the general public; second, theproperty may not be sold, even for a faircash equivalent; and third, the propertymust be maintained for particular typesof uses.

Joseph L. Sax, The Public Trust Doctrinein Natural Resource Law: Effective Judi-cial Intervention, 68 Mich. L. Rev. 471,477 (1970).

This lawsuit is part of a wave of recentenvironmental cases asserting state andnational governments have abdicated theirresponsibilities under the public trust doc-trine. See, e.g., Alec L. v. Jackson, 863F.Supp.2d 11 (D.D.C. 2012); Sanders–Reed ex rel. Sanders–Reed v. Martinez,350 P.3d 1221 (N.M. Ct. App. 2015); Ka-nuk ex rel. Kanuk v. State, Dep’t of Natu-ral Res., 335 P.3d 1088 (Alaska 2014);Chernaik v. Kitzhaber, 263 Or.App. 463,328 P.3d 799 (2014). These lawsuits departfrom the ‘‘traditional’’ public trust litiga-tion model, which generally centers on thesecond restriction, the prohibition againstalienation of a public trust asset. Instead,plaintiffs assert defendants have violatedtheir duties as trustees by nominally re-taining control over trust assets while ac-tually allowing their depletion and destruc-tion, effectively violating the first and thirdrestrictions by excluding the public fromuse and enjoyment of public resources.

Defendants and intervenors argue thepublic trust doctrine has no application inthis case. They advance four arguments:

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(1) the atmosphere, the central naturalresource at issue in this lawsuit, is not apublic trust asset; (2) the federal govern-ment, unlike the states, has no public trustobligations; (3) any common-law publictrust claims have been displaced by federalstatutes; and (4) even if there is a federalpublic trust, plaintiffs lack a right of actionto enforce it. I address each contention inturn.

A. Scope of Public Trust Assets

[62] The complaint alleges defendantsviolated their duties as trustees by failingto protect the atmosphere, water, seas,seashores, and wildlife. First Am. Compl.¶ 309. Defendants and intervenors argue

plaintiffs’ public trust claims fail becausethe complaint focuses on harm to the at-mosphere, which is not a public trust asset.I conclude that it is not necessary at thisstage to determine whether the atmo-sphere is a public trust asset becauseplaintiffs have alleged violations of thepublic trust doctrine in connection with theterritorial sea.10

[63, 64] The federal government holdstitle to the submerged lands between threeand twelve miles from the coastlines of theUnited States. See Restatement (Third) ofThe Foreign Relations Law of the UnitedStates § 511(a) (1987) (international lawpermits a nation to claim as its territorialsea an area up to twelve miles from its

10. To be clear, today’s opinion should not betaken to suggest that the atmosphere is not apublic trust asset. The Institutes of Justinianincluded the air in the list of assets ‘‘by natu-ral law common to all.’’ J. Inst. 2.1.1 (J.B.Moyle trans.). The New Jersey Supreme Courtin Arnold similarly included air in its list of‘‘common property.’’ 6 N.J.L. at 71. EvenSupreme Court case law suggests the atmo-sphere may properly be deemed part of thepublic trust res. See United States v. Causby,328 U.S. 256, 261, 66 S.Ct. 1062, 90 L.Ed.1206 (1946) (holding that private rights toairspace have ‘‘no place in the modernworld’’ because recognition of such claimswould ‘‘transfer into private ownership that towhich only the public has a just claim.’’) Thedearth of litigation focusing on atmospheremay reflect the limited state of scientificknowledge rather than signal a determinationthat the air is outside the scope of the publictrust. See Mary C. Wood, Atmospheric TrustLitigation Across the World, in Fiduciary Dutyand the Atmospheric Trust 113 (Ken Coghillet al. Eds. 2012) (hypothesizing that the atmo-sphere does not appear in early public trustcase law because air was long thought to beindestructible and incapable of privatization).

Even if the atmosphere was not always con-sidered a public trust asset, some courts haveconcluded the doctrine should ‘‘be moldedand extended to meet changing conditionsand needs of the public it was created tobenefit.’’ Matthews v. Bay Head ImprovementAss’n, 95 N.J. 306, 471 A.2d 355, 365 (1984)(citation and quotation marks omitted). Just

last year, Judge Hollis Hill reasoned that it‘‘misses the point’’ to mechanically rely onwhat has been identified as a public trustasset in the past because ‘‘[t]he navigablewaters and the atmosphere are intertwinedand to argue a separation of the two, or toargue that [greenhouse gas] emissions do notaffect navigable waters is nonsensical.’’ Fosterv. Wash. Dep’t of Ecology, No. 14–2–25295–1,slip op. at 8, 2015 WL 7721362 (Wash. KingCnty. Super. Ct. Nov. 19, 2015). At least onestate court has held in recent years that ‘‘theconcept of public natural resources includesnot only state-owned lands, waterways, andmineral reserves, but also resources that im-plicate the public interest, such as ambientair, surface and ground water, wild flora, andfauna (including fish) that are outside thescope of purely private property.’’ RobinsonTwp., Wash. Cnty., Pa. v. Pennsylvania, 623Pa. 564, 83 A.3d 901, 955 (Pa. Sup. Ct. 2013).

The Supreme Court arguably endorsed thispragmatic approach to the identification oftrust assets in Illinois Central, where it held,contrary to English common law, that lakesand rivers unaffected by the ebb and flow ofthe tide could be navigable waters within themeaning of the public trust doctrine. 146 U.S.at 436, 13 S.Ct. 110 (English rule for deter-mining navigability would not work in theUnited States, which contains ‘‘rivers [that]are navigable for great distances above theflow of the tide—indeed, for hundreds ofmiles’’).

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coast); Presidential Proclamation of Dec.27, 1988, No. 5928, 3 C.F.R. § 547 (1989)(President Reagan expanding UnitedStates’ claim from three-mile territorialsea to twelve-mile territorial sea); 43U.S.C. § 1312 (seaward boundary of acoastal state is ‘‘a line three geographicalmiles distant from its coast line’’). Timeand again, the Supreme Court has heldthat the public trust doctrine applies to‘‘lands beneath tidal waters.’’ See PhillipsPetroleum Co., 484 U.S. at 474, 108 S.Ct.791 (discussing Shively, 152 U.S. at 57, 14S.Ct. 548 and Knight v. U.S. Land Ass’n,142 U.S. 161, 183, 12 S.Ct. 258, 35 L.Ed.974 (1891)); Alabama v. Texas, 347 U.S.272, 278, 74 S.Ct. 481, 98 L.Ed. 689 (1954)(Black, J., dissenting) (‘‘In ocean watersbordering our country, if nowhere else,day-to-day national power—complete, un-divided, flexible, and immediately avail-able—is an essential attribute of federalsovereignty.’’); id. at 282, 74 S.Ct. 481(Douglas, J., dissenting) (‘‘Thus we aredealing here with incidents of national sov-ereignty TTTT The authority over [the sea]can no more be abdicated than any of theother great powers of the Federal Govern-ment. It is to be exercised for the benefitof the whole.’’); see also Joseph L. Sax,The Public Trust Doctrine in Natural Re-source Law; Effective Judicial Interven-tion, 68 Mich. L. Rev. 471, 556 (1970)(public trust law covers ‘‘that aspect of thepublic domain below the low-water markon the margin of the sea and the greatlakes, the waters over those lands, and thewaters within rivers and streams of anyconsequence’’). Because a number of plain-

tiffs’ injuries relate to the effects of oceanacidification and rising ocean tempera-tures,11 they have adequately alleged harmto public trust assets.

B. Applicability of Public Trust to theFederal Government

[65] Defendants and intervenors con-tend that in the United States, the publictrust doctrine applies only to the statesand not to the federal government. Thisargument rests primarily on a passingstatement in PPL Montana, LLC v. Mon-tana, 565 U.S. 576, 132 S.Ct. 1215, 182L.Ed.2d 77 (2012). A close examination ofthat case reveals that it cannot fairly beread to foreclose application of the publictrust doctrine to assets owned by the fed-eral government.

PPL Montana was not a public trustcase. Its central concern was the equalfooting doctrine. PPL Montana, LLC usedthree rivers flowing through the state ofMontana for hydroelectric projects. Id. at580, 132 S.Ct. 1215. Montana sought rentfor the use of the riverbeds, arguing it hadgained title to the rivers pursuant to theequal footing doctrine when it became astate in 1889. Id. The Montana SupremeCourt granted summary judgment on titleto Montana, On writ of certiorari to theUnited States Supreme Court, reviewhinged on whether the rivers in questionwere ‘‘navigable’’ in 1889, because the ‘‘ti-tle consequences of the equal-footing doc-trine’’ are that ‘‘[u]pon statehood, the Stategains title within its borders to the beds of

11. See, e.g., First Am. Compl. ¶ 16 (‘‘An im-portant part of Kelsey’s diet includes foodthat comes from the marine waters and fresh-water rivers, including salmon, cod, tuna,clams, mussels, and crab.’’); id. ¶ 27 (‘‘Otherfood sources for Alex, including crab andseafood, are negatively impacted by oceanacidification, warming, and sea level risecaused by Defendants.’’); id. ¶ 33 (‘‘Oceanacidification caused by Defendants has al-

ready begun to adversely impact shellfishalong the coast, and is predicted to take itstoll on crab, mussels, and all shelled sea-food.’’); id. ¶ 45 (‘‘On the Oregon coast, Saha-ra enjoys climbing rocks and sand dunes,swimming, and tidepooling to see marine life.Sahara’s enjoyment of these activities is beingincreasingly harmed in the future by sea levelrise, greater erosion, enhanced ocean acidifi-cation, and increased water temperatures.’’).

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waters then navigable (or tidally influ-enced TTT)[.]’’ Id. at 589–90, 132 S.Ct. 1215.The Court reversed and remanded, hold-ing that the Montana courts had appliedthe wrong methodology for determiningnavigability.

In addition to its main argument thatthe rivers were navigable, Montana arguedthat denying it title to the riverbeds indispute would ‘‘undermine the public trustdoctrine.’’ Id. at 601, 132 S.Ct. 1215. TheSupreme Court rejected this argument inshort order:

Unlike the equal-footing doctrine, TTT

which is the constitutional foundation forthe navigability rule of riverbed title, thepublic trust doctrine remains a matter ofstate law, subject as well to the federalpower to regulate vessels and navigationunder the Commerce Clause and admi-ralty power. While equal-footing caseshave noted that the State takes title tothe navigable waters and their beds intrust for the public, the contours of thatpublic trust do not depend upon theConstitution. Under accepted principlesof federalism, the States retain residualpower to determine the scope of thepublic trust over waters within theirborders, while federal law determinesriverbed title under the equal-footingdoctrine.

Id. at 603, 132 S.Ct. 1215 (citations omit-ted).

Defendants and intervenors take thephrase ‘‘the public trust doctrine remains amatter of state law,’’ and interpret it inisolation to foreclose all federal publictrust claims. That is not a plausible inter-pretation of PPL Montana. The Court wassimply stating that federal law, not statelaw, determined whether Montana has titleto the riverbeds, and that if Montana hadtitle, state law would define the scope ofMontana’s public trust obligations. PPLMontana said nothing at all about the

viability of federal public trust claims withrespect to federally-owned trust assets.

In a string citation, PPL Montana citedCoeur d’Alene, 521 U.S. at 285, 117 S.Ct.2028, and Appleby v. City of New York,271 U.S. 364, 395, 46 S.Ct. 569, 70 L.Ed.992 (1926), for the proposition that IllinoisCentral ‘‘was necessarily a statement ofIllinois law.’’ 132 S.Ct. at 1235. That state-ment is not surprising given the nature ofthe public trust doctrine. Public trust obli-gations are inherent aspects of sovereign-ty; it follows that any case applying thepublic trust doctrine to a particular state isnecessarily a statement of that state’s lawrather than a statement of the law ofanother sovereign. In Coeur d’Alene, theSupreme Court explained that even thoughIllinois Central interpreted Illinois law, itscentral tenets could be applied broadly (forexample, to Idaho) because it ‘‘invoked theprinciple in American law recognizing theweighty public interests in submergedlands.’’ 521 U.S. at 285, 117 S.Ct. 2028. TheCourt then detailed how the Americanpublic trust doctrine, which has divergedfrom the English public trust doctrine inimportant ways, has developed as ‘‘a natu-ral outgrowth of the perceived public char-acter of submerged lands, a perceptionwhich underlies and informs the principlethat these lands are tied in a unique wayto sovereignty.’’ Id. at 286, 117 S.Ct. 2028.There is no reason why the central tenetsof Illinois Central should apply to anotherstate, but not to the federal government.

Defendants and intervenors also contendrecognizing a federal public trust claim iscontrary to United States v. 32.42 Acres ofLand, More or Less, Located in San DiegoCounty, California, 683 F.3d 1030, 1038(9th Cir. 2012), which repeated PPL Mon-tana’s statement that ‘‘the public trustdoctrine remains a matter of state law’’ inconcluding that the federal government’seminent domain powers trumped any

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state-law public trust concerns. That casedid not foreclose a federal public trustclaim, however, because the Ninth Circuitexpressly declined to address the viabilityof the federal public trust the district courtimposed on the federal government after itruled the land could be taken pursuant toeminent domain. Id. at 1033 & 1039 n. 2.

In 2012, the federal district court for theDistrict of Columbia held the public trustdoctrine does not apply to the federal gov-ernment. Alec L. was substantially similarto the instant action: five youth plaintiffsand two environmental advocacy organiza-tions sued a variety of heads of federalagencies, alleging the defendants had‘‘wasted and failed to preserve and protectthe atmosphere Public Trust asset.’’ 863F.Supp.2d at 12. The court dismissed thesuit with prejudice, holding the plaintiffs’federal public trust claims were foreclosedby PPL Montana’s statement that ‘‘thepublic trust doctrine remains a matter ofstate law.’’ Id. at 15 (quoting PPL Mon-tana, 565 U.S. at 603, 132 S.Ct. 1215). Thecourt also relied on the D.C. Circuit’s ob-servation that ‘‘ ‘[i]n this country the publictrust doctrine has developed almost exclu-sively as a matter of state law.’ ’’ Id. (quot-ing District of Columbia v. Air Florida,Inc., 750 F.2d 1077, 1082 (D.C. Cir. 1984)).In an unpublished memorandum decision,the D.C. Circuit affirmed, holding that‘‘[t]he Supreme Court in PPL MontanaTTT directly and categorically rejected anyfederal constitutional foundation for thatdoctrine, without qualification or reserva-tion.’’ Alec L. ex rel. Loorz v. McCarthy,561 Fed.Appx. 7, 8 (D.C. Cir. 2014).

I am not persuaded by the reasoning ofthe Alec L. courts. As explained above, aclose reading of PPL Montana revealsthat it says nothing about the viability offederal public trust claims. And in AirFlorida, the D.C. Circuit emphasized that‘‘we imply no opinion regarding either theapplicability of the public trust doctrine to

the federal government or the appropriate-ness of using the doctrine to afford trus-tees a means for recovering from tortfea-sors the cost of restoring public waters totheir pre-injury condition.’’ 750 F.2d at1084.

Two federal courts—the district courtsfor the Northern District of California andthe District of Massachusetts—have con-cluded the public trust doctrine applies tothe federal government. The decisions,from the 1980s, concerned the federal gov-ernment’s acquisition of various state-owned public trust assets—for example,submerged land beneath navigable riversor tidelands—through the power of emi-nent domain. The courts held that thefederal government has no public trustobligations under state law, but does takethe land subject to a federal public trust.As one court explained, ‘‘[t]he trust is ofsuch a nature that it can be held only bythe sovereign, and can only be destroyedby the destruction of the sovereign.’’ Unit-ed States v. 1.58 Acres of Land Situated inthe City of Boston, Suffolk Cnty., Mass.,523 F.Supp. 120, 124 (D. Mass. 1981).Through eminent domain, the federal gov-ernment ‘‘may take property TTT in ‘fullfee simple’ insofar as no other principalmay hold a greater right to such land, Itmust be recognized, however, that the fed-eral government is as restricted as theCommonwealth in its ability to abdicate toprivate individuals’’ its title to the land. Id.at 124–25. In other words, ‘‘[b]y condemna-tion, the United States simply acquires theland subject to the public trust as thoughno party had held an interest in the landbefore.’’ City of Alameda v. Todd Ship-yards Corp., 635 F.Supp. 1447, 1450 (N.D.Cal. 1986). 32.42 Acres of Land is whollyconsistent with these opinions; in thatcase, the Ninth Circuit held that when thefederal government condemns state land,it takes title free and clear of any statepublic trust obligations—and that to hold

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otherwise would violate the SupremacyClause by subjugating the federal eminentdomain power to state public trust law, 683F.3d at 1038. As noted, however, the courtsaid nothing about the lower court’s deter-mination that the condemned tidelands hadbeen taken subject to a federal publictrust. 32.42 Acres of Land, 683 F.3d at1033 & 1039 n.2.

I am persuaded that the City of Alame-da and 1.58 Acres of Land courts werecorrect. Their decisions rested on the his-tory of the public trust doctrine and thepublic trust’s unique relationship to sover-eignty. I can think of no reason why thepublic trust doctrine, which came to thiscountry through the Roman and Englishroots of our civil law system, would applyto the states but not to the federal govern-ment.

Defendants’ final argument is that rec-ognition of a federal public trust doctrinecannot be reconciled With Kleppe v. NewMexico, 426 U.S. 529, 539, 96 S.Ct. 2285,49 L.Ed.2d 34 (1976), in which the Su-preme Court stated that ‘‘[t]he power overpublic land’’ entrusted to Congress by theProperty Clause of the United States Con-stitution is ‘‘without limitations.’’ Again,defendants take the Supreme Court’sstatement out of context. In Kleppe, NewMexico challenged the federal govern-ment’s authority to regulate and protectwild horses and burros, arguing that theConstitution granted Congress only thepower to ‘‘dispose of and make incidentalrules regarding the use of federal proper-ty’’ and ‘‘the power to protect’’ the federalproperty itself, i.e., the land but not ani-mals living on it. 426 U.S. at 536, 96 S.Ct.2285. The Supreme Court rejected NewMexico’s attempt to limit Congress’s powerto regulate wildlife living on federal lands.It is in that context that the Court statedthe ‘‘power over public land’’ was ‘‘withoutlimitations.’’ Id. at 539, 96 S.Ct. 2285. In-

deed, in the very same sentence the Su-preme Court acknowledged that ‘‘thefurthest reaches of the power granted bythe Property Clause have not yet beendefinitively resolved[.]’’ Id. The SupremeCourt in Kleppe simply did not have beforeit the question whether the Constitutiongrants the federal government unlimitedauthority to do whatever it wants with anyparcel of federal land, regardless of wheth-er its actions violate individual constitu-tional rights or run afoul of public trustobligations.

The federal government, like the states,holds public assets—at a minimum, theterritorial seas—in trust for the people.Plaintiffs’ federal public trust claims arecognizable in federal court.

C. Displacement of Public Trust Claims

Defendants and intervenors next arguethat any common-law public trust claimshave been displaced by a variety of acts ofCongress, including the Clean Air Act andthe Clean Water Act. For this proposition,they rely on American Electric PowerCompany, Inc. v. Connecticut, 564 U.S.410, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011)(‘‘AEP’’). In AEP, the plaintiffs sued fivepower companies, alleging the companies’CO2 emissions were a public nuisance un-der federal common law. Id. at 415, 131S.Ct. 2527. The Supreme Court held thenuisance claim could not proceed because‘‘the Clean Air Act and the EPA actions itauthorizes displace any federal commonlaw right to seek abatement of carbon-dioxide emissions from fossil-fuel firedpower plants.’’ Id. at 424, 131 S.Ct. 2527.

Defendants and intervenors contendthat AEP controls the displacement analy-sis. The district court in Alec L. agreedwith them.12 The court relied heavily onAEP’s statement that the Clean Air Actdisplaces ‘‘ ‘any federal common lawright’ ’’ to challenge CO2 emissions, and

12. The D.C. Circuit did not address the displacement question on appeal.

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also discussed at length the AEP court’sconcerns that authorizing a judicial ordersetting CO2 emissions limits would requirefederal judges to make decisions involvingcompeting policy interests—decisions an‘‘expert agency ‘is surely better equippedto [make] than individual district judgesissuing ad hoc, case-by-case injunctions.’ ’’Alec L., 863 F.Supp.2d at 16 (quotingAEP, 564 U.S. at 424, 428, 131 S.Ct. 2527).

I am not persuaded by the Alec L.court’s reasoning regarding displacement.In AEP, the Court did not have publictrust claims before it and so it had nocause to consider the differences betweenpublic trust claims and other types ofclaims. Public trust claims are unique be-cause they concern inherent attributes ofsovereignty. The public trust imposes onthe government an obligation to protectthe res of the trust. A defining feature ofthat obligation is that it cannot be legislat-ed away, Because of the nature of publictrust claims, a displacement analysis sim-ply does not apply.

The interplay between Congress’s deci-sion to grant regulatory authority to vari-ous federal agencies and the authority ofthe courts to adjudicate public trust claimsraises weightier concerns. Those concernsgo to whether this case presents a nonjus-ticiable political question, and have beenaddressed in Section I of this opinion.

D. Enforceability of Public Trust Obli-gations in Federal Court

As a final challenge to plaintiffs’ publictrust claims, defendants contend that evenif the public trust doctrine applies to thefederal government, plaintiffs lack a causeof action to enforce the public trust obli-gations. Relatedly, defendants argue thatcreation of a right of action to permitplaintiffs to assert their claims in federalcourt would be an exercise in federal com-mon law-making subject to the same statu-tory displacement arguments outlinedabove.

In order to evaluate the merits of thesearguments, I must first locate the sourceof plaintiffs’ public trust claims. I concludeplaintiffs’ public trust rights both predatedthe Constitution and are secured by it. SeeGerald Tones & Nathan Bellinger, ThePublic Trust: The Law’s DNA, 4 WakeForest J. L. & Pol’y 281, 288–94 (2014).

The public trust doctrine defines inher-ent aspects of sovereignty. The Social Con-tract theory, which heavily influencedThomas Jefferson and other Founding Fa-thers, provides that people possess certaininalienable lights and that governmentswere established by consent of the gov-erned for the purpose of securing thoserights.13 Accordingly, the Declaration of

13. The Founding Fathers were also influ-enced by intergenerational considerations.They believed the inalienable rights to life,liberty, and property were rooted in a philoso-phy of intergenerational equity. Thomas Jef-ferson, for example, thought that each genera-tion had the obligation to pass the naturalestate undiminished to future generations. SeeBr. of Amicus Curiae John Davidson at 21–25(doc. 60). In a 1789 letter to James Madison,Jefferson wrote that ‘‘no man can, by naturalright, oblige lands he occupied TTT to thepayments of debts contracted by him. For ifhe could, he might, during his own life, eat upthe usufruct of the lands for several genera-tions to come, and then the lands would be-long to the dead, and not to than the living,

which would be the reverse of our principle.What is true of every member of the societyindividually is true of them all collectively,since the rights of the whole can be no morethan the sum of the rights of the individuals.’’Letter from Thomas Jefferson to James Madi-son, Sept. 6, 1789, in The Founders’ Constitu-tion (Philip B. Kurland & Ralph Lerner, eds.)(1986), available at press-pubs.uchica-go.edu/founders/documents/vlch2s23.html(last visited Nov. 7, 2016). Although I find itunnecessary today to address the standing offuture generations or the merits of plaintiffs’argument that youth and posterity are suspectclassifications, I am mindful of the intergen-

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Independence and the Constitution did notcreate the rights to life, liberty, or thepursuit of happiness—the documents are,instead, vehicles for protecting and pro-moting those already-existing rights. Cf.Robinson Twp., 83 A.3d at 948 (pluralityopinion) (rights expressed in the publictrust provision of Pennsylvania Constitu-tion are ‘‘preserved rather than created’’by that document); Minors Oposa, 33I.L.M. at 187 (the right of future genera-tions to a ‘‘balanced and healthful ecology’’is so basic that it ‘‘need not even be writ-ten in the Constitution for [it is] assumedto exist from the inception of humankind’’).Governments, in turn, possess certain pow-ers that permit them to safeguard therights of the people; these powers areinherent in the authority to govern andcannot be sold or bargained away. Oneexample is the police power. Stone, 101U.S. at 817. Another is the status as trus-tee pursuant to the public trust doctrine.Illinois Central, 146 U.S. at 459–60, 13S.Ct. 110.

[66] Although the public trust predatesthe Constitution, plaintiffs’ right of actionto enforce the government’s obligations astrustee arises from the Constitution. Iagree with Judge Coffin that plaintiffs’public trust claims are properly catego-rized as substantive due process claims. Asexplained, the Due Process Clause’s sub-stantive component safeguards fundamen-tal rights that are ‘‘implicit in the conceptof ordered liberty’’ or ‘‘deeply rooted inthis Nation’s history and tradition,’’ Mc-Donald, 561 U.S. at 761, 767, 130 S.Ct.3020 (internal citations, quotations, andemphasis omitted). Plaintiffs’ public trustrights, related as they are to inherent as-pects of sovereignty and the consent of thegoverned from which the United States’authority derives, satisfy both tests. Be-cause the public trust is not enumerated inthe Constitution, substantive due process

protection also derives from the NinthAmendment. See U.S. Const. amend. IX(‘‘The enumeration in the Constitution, ofcertain rights, shall not be construed todeny or disparage others retained by thepeople.’’); Raich v. Gonzales, 500 F.3d 850,861–66 (9th Cir. 2007) (considering wheth-er the right to use medical marijuana wasa fundamental right safeguarded by theNinth Amendment and the Fifth Amend-ment’s substantive due process clause).But it is the Fifth Amendment that pro-vides the right of action.

Plaintiffs’ claims rest ‘‘directly on theDue Process Clause of the Fifth Amend-ment.’’ Davis, 442 U.S. at 243, 99 S.Ct.2264 (1979); see also Carlson v. Green, 446U.S. 14, 18, 100 S.Ct. 1468, 64 L.Ed.2d 15(1980) (‘‘[T]he victims of a constitutionalviolation by a federal agent have a right torecover damages against the official in fed-eral court despite the absence of any stat-ute conferring such a right.’’) They may,therefore, be asserted in federal court.

CONCLUSION

Throughout their objections, defendantsand intervenors attempt to subject a law-suit alleging constitutional injuries to caselaw governing statutory and common-lawenvironmental claims. They are correctthat plaintiffs likely could not obtain therelief they seek through citizen suitsbrought under the Clean Air Act, theClean Water Act, or other environmentallaws. But that argument misses the point.This action is of a different order than thetypical environmental case. It alleges thatdefendants’ actions and inactions—wheth-er or not they violate any specific statutoryduty—have so profoundly damaged ourhome planet that they threaten plaintiffs’fundamental constitutional rights to lifeand liberty.

erational dimensions of the public trust doctrine in issuing this opinion.

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A deep resistance to change runsthrough defendants’ and intervenors’ argu-ments for dismissal: they contend a deci-sion recognizing plaintiffs’ standing to sue,deeming the controversy justiciable, andrecognizing a federal public trust and afundamental right to climate system capa-ble of sustaining human life would be un-precedented, as though that alone requiresits dismissal. This lawsuit may be ground-breaking, but that fact does not alter thelegal standards governing the motions todismiss. Indeed, the seriousness of plain-tiffs’ allegations underscores how vitallyimportant it is for this Court to applythose standards carefully and correctly.

Federal courts too often have been cau-tious and overly deferential in the arena ofenvironmental law, and the world has suf-fered for it. As Judge Goodwin recentlywrote,

The current state of affairs TTT re-veals a wholesale failure of the legalsystem to protect humanity from thecollapse of finite natural resources bythe uncontrolled pursuit of short-termprofitsTTTT [T]he modern judiciary hasenfeebled itself to the point that lawenforcement can rarely be accomplishedby taking environmental predators tocourtTTTT

The third branch can, and should, takeanother long and careful look at thebarriers to litigation created by moderndoctrines of subject-matter jurisdictionand deference to the legislative and ad-ministrative branches of government.

Alfred T. Goodwin, A Wake–Up Call forJudges, 2015 Wis. L. Rev. 785, 785–86, 788(2015).

Judge Goodwin is no stranger to highlypoliticized legal disputes. Nearly fifty

years ago, he authored the landmark opin-ion that secured Oregon’s ocean beachesfor public use. Private landowners wantedto construct fences and otherwise keepprivate the beaches in front of their prop-erties; they brought suit to challenge anOregon state law requiring public access toall dry sand beaches. State ex rel. Thorn-ton v. Hay, 254 Or. 584, 462 P.2d 671, 672–73 (1969). Writing for five of the six mem-bers of the Oregon Supreme Court, then-Justice Goodwin rooted his determinationthe beaches were public property in a con-cept from English common law:

Because so much of our law is theproduct of legislation, we sometimes losesight of the importance of custom as asource of law in our society. It seemsparticularly appropriate in the case atbar to look to an ancient and acceptedcustom in this state as the source of arule of law. The rule in this case, basedupon custom, is salutary in confirming apublic right, and at the same time ittakes from no man anything which hehas a legitimate reason to regard asexclusively his.14

Id. at 678.

In an argument with strong echoes indefendants’ and intervenors’ objectionshere, the plaintiff private property ownercontended it was ‘‘constitutionally imper-missible TTT to dredge up an inapplicable,ancient English doctrine that has been uni-versally rejected in modern America.’’ Ka-thryn A. Straten, Oregon’s Beaches: ABirthright Preserved 65 (Or. State Parks& Recreation 1977). The Oregon SupremeCourt was not persuaded by this call tojudicial conservatism. Because of the appli-cation of an ancient doctrine, Oregon’s

14. The sixth justice concurred in the judg-ment. He found the English rule of customuseful by analogy, but would have held thebeaches were public property pursuant to thepublic trust doctrine. Hay, 462 P.2d at 679

(Denecke, J., concurring) (‘‘These rights of thepublic in tidelands and in the beds of naviga-ble streams have been called ‘jus publicum’and we have consistently and recently reaf-firmed their existence.’’).

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beaches remain open to the public now andforever.

‘‘A strong and independent judiciary isthe cornerstone of our liberties.’’ Thesewords, spoken by Oregon Senator Mark O.Hatfield, are etched into the walls of thePortland United States courthouse for theDistrict of Oregon. The words appear onthe first floor, a daily reminder that it is‘‘emphatically the province and duty of thejudicial department to say what the lawis.’’ Marbury, 5 U.S. at 177. Even when acase implicates hotly contested political is-sues, the judiciary must not shrink fromits role as a coequal branch of government.

I ADOPT Judge Coffin’s Findings &Recommendation (doc. 68), as elaboratedin this opinion, Defendants’ Motion to Dis-miss (doc. 27) and Intervenors’ Motion toDismiss (doc. 19) are DENIED.

IT IS SO ORDERED.ORDER and FINDINGS &

RECOMMENDATION

Coffin, Magistrate Judge:

The motions before the court are direct-ed against a relatively unprecedented law-suit that, in essence, seeks relief fromgovernment action and inaction that alleg-edly results in carbon pollution of the at-mosphere, climate destabilization, andocean acidification. The government ac-tion and inaction allegedly threatens cata-strophic consequences which have alreadybegan and will progressively worsen in thenear future.

Plaintiffs include a group of youngerindividuals (aged 8–19) who assert con-crete harm from excessive carbon emis-sions. Also among the plaintiffs are asso-ciations of activists who assert they arebeneficiaries of a federal public trust whichis being harmed by allegedly substantialimpairment and alienation of public trustresources through ongoing actions to allowfossil fuel exploitation. Finally, plaintiff

Dr. James Hansen participates as a guard-ian for plaintiff ‘‘future generations.’’

Plaintiffs are suing the United Statesand various government officials and agen-cies because, they assert, the governmenthas known for decades that carbon dioxide(CO2) pollution has been causing cata-strophic climate change and has failed totake necessary action to curtail fossil fuelemissions. Moreover, plaintiffs allege thatthe government and its agencies have tak-en action or failed to take action that hasresulted in increased carbon pollutionthrough fossil fuel extraction, production,consumption, transportation, and exporta-tion. Plaintiffs assert that a reduction ofglobal CO2 concentrations to less than 350parts per million is possible, but actionmust be taken immediately to prevent fur-ther ocean acidification and ocean warm-ing. Plaintiffs allege the current actionsand omissions of defendants make it ex-tremely difficult for plaintiffs to protecttheir vital natural systems and a livableworld. Consequently, plaintiffs seek im-mediate action to restore energy balanceand implementation of a plan to put thenation on a trajectory (that if adhered toby other major emitters) will reduce atmo-spheric CO2 concentrations to no morethan 350 parts per million by 2100.

Plaintiffs assert the actions and omis-sions of defendants that increased CO2

emissions ‘‘shock the conscience,’’ and areinfringing the plaintiffs’ right to life andliberty in violation of their substantive dueprocess rights. Plaintiffs also allege de-fendants have violated plaintiffs’ equal pro-tection rights embedded in the FifthAmendment by denying them protectionsafforded to previous generations and byfavoring short term economic interests ofcertain citizens. Plaintiffs further allegedefendants’ acts and omissions violate theimplicit right, via the Ninth Amendment,to a stable climate and an ocean and atmo-

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sphere free from dangerous levels of CO2.Finally, plaintiffs allege defendants haveviolated a public trust doctrine, secured bythe Ninth Amendment, by denying futuregenerations essential natural resources.

Through this action, plaintiffs ask thecourt to:

1. Declare that Defendants have vio-lated and are violating Plaintiffs’ funda-mental constitutional rights to life, lib-erty, and property by substantiallycausing or contributing to a dangerousconcentration of CO2 in the atmosphere,and that, in so doing, Defendants dan-gerously interfere with a stable climatesystem required by our nation andPlaintiffs alike;2. Enjoin Defendants from further vio-lations of the Constitution underlyingeach claim for relief;3. Declare the Energy Policy Act, Sec-tion 201, to be unconstitutional on itsface;4. Declare DOE/FE Order No. 3041,granting long-term multi-contract au-thorization to Jordan Cove Energy forLNG exports from its Coos Bay termi-nal, to be unconstitutional as applied andset it aside;5. Declare Defendants’ public trust vio-lations and enjoin Defendants from vio-lating the public trust doctrine underly-ing each claim for relief;6. Order Defendants to prepare a con-sumption-based inventory of U.S. CO2

emissions;7. Order Defendants to prepare andimplement an enforceable national reme-dial plan to phase out fossil fuel emis-sions and draw down excess atmosphericCO2 so as to stabilize the climate systemand protect the vital resources on whichPlaintiffs now and in the future will de-pend TTT

First Amended Complaint (# 7) at 94.Plaintiffs also seek to have this court re-tain jurisdiction over this action to monitorand enforce defendants’ compliance with anational remedial plan and associated or-ders requiring the above.

In essence, plaintiffs assert a novel theo-ry somewhere between a civil rights actionand NEPA/Clean Air Act/Clean Water Actsuit to force the government to take actionto reduce harmful pollution. Although,plaintiffs, for the most part, do not chal-lenge a specific agency action and urge thecourt to order government-wide action forthe benefit of the earth and mankind, theyalso seek ‘‘other relief as the Court deemsjust and proper.’’ Id.

The court has previously granted theNational Association of Manufacturers(NAM), American Fuel & PetrochemicalManufacturers (AFPM), and American Pe-troleum Institute (API) motion to inter-vene in this action. These organizationsrepresent various entities in the coal, oil,and gas industry, including businesses thatextract, refine, and use such energysources. The intervenors move to dismissthe amended complaint. The governmentsimilarly moves to dismiss all claims.1

Movants assert plaintiffs lack standingto bring this suit, raise non-justiciable po-litical questions, and they fail to state aconstitutional claim. In addition, the mov-ants assert the public trust doctrine doesnot provide a cognizable federal cause ofaction.

A. Standing

Plaintiffs must demonstrate standing foreach claim they seek to press and for eachform of relief sought. DaimlerChryslerCorp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct.1854, 164 L.Ed.2d 589 (2006). At the

1. The government also moves to strike vari-ous exhibits to declarations and declarationssubmitted by plaintiffs in opposition to the

motion to dismiss. This recommendation ismade without resort to these materials. Ac-cordingly, the motion to strike is denied.

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pleading stage, general factual allegationsof injury resulting from the defendant’sconduct may suffice. Lujan v. Defendersof Wildlife, 504 U.S. 555, 561, 112 S.Ct.2130, 119 L.Ed.2d 351 (1992). For ArticleIII standing, plaintiffs must satisfy three‘‘irreducible constitutional minimum’’ re-quirements: (1) they suffered an injury infact that is concrete, particularized, andactual or imminent; (2) the injury is fairlytraceable to the challenged conduct; and(3) the injury is likely to be redressed by afavorable court decision. Id. at 560–61,112 S.Ct. 2130.

1. Concrete, Particularized, ImminentInjury

Plaintiffs allege that climate change en-dangers humanity and nature and is aconsequence of human caused or influ-enced green house gases, primarily CO2,derived from the combustion of fossil fuels.First Amended Complaint (FAC)(# 7) at¶ 202. Plaintiffs allege because CO2 per-sists in the atmosphere, future emissionswill lead to severe impacts on children andfuture generations and the current level ofCO2 has already taken our country into the‘‘danger zone.’’ Id. At 206–07. Plaintiffsaver emissions must be rapidly and sys-tematically reduced in order to avoidcrossing the tipping points that set in mo-tion disastrous, irrevocable impacts to hu-man civilization and nature. Id. At 208.According to plaintiffs it will be nearly

impossible for them to adapt to all of thecurrent climate change impacts in thequick time-frame in which they will occurand that, therefore, ‘‘the survival and well-being of plaintiffs is significantly threat-ened by climate destabilization.’’ Id. at¶ 208, ¶ 211. Plaintiffs further allege thatclimate change is ‘‘already damaging hu-man and natural systems, causing loss oflife and pressing species to extinction.’’Id. at ¶ 213. Plaintiffs allege specifics re-garding global changes that also lead tolocal harm such as: disintegration of boththe West and East Antarctic ice sheetswith concomitant sea level rise damagingcoastal regions; changing rainfall and at-mospheric conditions affecting water andheat distribution causing severe stormsurges, floods, hurricanes, droughts, insectinfestation, reduced crop yields, increasedinvasive vegetation, and fires; ocean acidi-fication damaging sea life; increase in al-lergies, asthma, cancer, and other diseases;and harm to national security causing des-tabilization in various regions of the world.Id. at ¶¶ 213–241.

However, plaintiffs also assert injuriesthat are personal in nature such as: jeop-ardy to family farms resulting from theplanned Jordan Cove gas line,2 increasedtemperatures, and wildfires (FAC at¶¶ 31–34, 23–30); lost recreational oppor-tunities (e.g., FAC at ¶¶ 28–29, 31–34);and harm to family dwellings from super-storms (e.g., FAC at ¶ 71–72),3 etc. See,

2. Following oral argument on the motions,the Federal Energy Regulatory Commissiondenied applications to locate the Jordan CoveEnergy Project in Coos Bay, Oregon and itsassociated pipeline. The decision, balancingthe need of the project against adverse im-pacts on landowners and the environmentappears to be primarily based on a lack ofcurrent market need from natural gas cus-tomers in Asia. The applicants, Veresen Inc.and the Williams Partners, are free to reapplyin the future and the Commission will recon-sider the planned pipeline if they can demon-strate a market need for liquified natural gas.

In addition, the applicants plan to file a re-quest to rehear the decision. For purposes ofthe motion to dismiss, the court takes as truethe allegations of an imminent threat from theproposed project.

3. Plaintiff Victoria B’s allegations(in additionto other plaintiffs) raise another issue notaddressed in the motions to dismiss regardingthis court’s jurisdiction to address harms aris-ing outside of the district from action andinaction by various government agencies thatoften also arise outside of the District of Ore-gon. See, e.g., FAC at ¶ 72–73 (damage to

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Memorandum of Plaintiffs in Opposition toFederal Defendants’ Motion to Dismiss(# 41) at pp. 29–33. While the personalharms are a consequence of the allegedbroader harms, noted above, that does notdiscount the concrete harms already suf-fered by individual plaintiffs or likely to besuffered by these plaintiffs in particular inthe future. See Federal Election Com’n v.Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141L.Ed.2d 10 (1998):

Often the fact that an interest is ab-stract and the fact that it is widelyshared go hand in hand. But their asso-ciation is not invariable, and where aharm is concrete, though widely shared,the Court has found ‘‘injury in fact.’’See Public Citizen [v. U.S. Dept. of Jus-tice], 491 U.S. [at 440,] 449–50, 109 S.Ct.at [2558,] 2564–2565[, 105 L.Ed.2d 377(1989) ] (‘‘The fact that other citizens orgroups of citizens might make the samecomplaint after unsuccessfully demand-ing disclosure TTT does not lessen [their]asserted injury’’). Thus the fact that apolitical forum may be more readilyavailable where an injury is widelyshared (while counseling against, say,interpreting a statute as conferringstanding) does not, by itself, automati-cally disqualify an interest for ArticleIII purposes. Such an interest, wheresufficiently concrete, may count as an‘‘injury in fact.’’ This conclusion seemsparticularly obvious where (to use ahypothetical example) large numbers ofindividuals suffer the same common-lawinjury (say, a widespread mass tort), orwhere large numbers of voters sufferinterference with voting rights conferredby law. C.f. Lujan, supra, at 572, 112S.Ct. at 2142–2143: Shaw v. Hunt, 517U.S. 899, 905, 116 S.Ct. 1894, 1900–1901,135 L.Ed.2d 207 (1996).

The court must accept the allegations astrue and those allegations plausibly allegeharm, though widespread, that is concrete.

[67] Of course, federal courts are notforums in which to air generalized griev-ances about the conduct of government.See Flast v. Cohen, 392 U.S. 83, 106, 88S.Ct. 1942, 20 L.Ed.2d 947 (1968). Theconstitutional limits on standing eliminateclaims in which a plaintiff has failed tomake out a case or controversy betweenhimself and the defendant. In order tosatisfy Art. III, a plaintiff must show thathe personally has suffered some actual orthreatened injury as a result of the puta-tively illegal conduct of the defendant.Duke Power Co. v. Carolina Environmen-tal Study Group, Inc., 438 U.S. 59, 72, 98S.Ct. 2620, 57 L.Ed.2d 595 (1978).

Even when a case falls within theseconstitutional boundaries, a plaintiff maystill lack standing under the prudentialprinciples by which the judiciary seeksto avoid deciding questions of broad so-cial import where no individual rightswould be vindicated and to limit accessto the federal courts to those litigantsbest suited to assert a particular claim.For example, a litigant normally mustassert an injury that is peculiar to him-self or to a distinct group of which he isa part, rather than one ‘‘shared in sub-stantially equal measure by all or a largeclass of citizens.’’ Warth v. Seldin, 422U.S. at 499, 95 S.Ct. at 2205. He alsomust assert his own legal interests rath-er than those of third parties, [footnoteomitted] Ibid. Accord, Arlington Heightsv. Metropolitan Housing Dev. Corp., su-pra, 429 U.S. at 263, 97 S.Ct. at 561.

home and school in New York as a result ofsuperstorm Sandy). While such allegationshighlight the unwieldy nature of the case, theallegations establish that CO2 emissions cross

geographic boundaries and cause harm with-in the district and outside the district frommany of the same sources regulated by thedefendants.

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Gladstone Realtors v. Village of Bellwood,441 U.S. 91, 99–100, 99 S.Ct. 1601, 60L.Ed.2d 66 (1979).

Given the allegations of direct or threat-ened direct harm, albeit shared by most ofthe population or future population, thecourt should be loath to decline standing topersons suffering an alleged concrete inju-ry of a constitutional magnitude. See U.S.v. Students Challenging Regulatory Agen-cy Procedures, 412 U.S. 669, 687, 93 S.Ct.2405, 37 L.Ed.2d 254 (1973):

standing is not to be denied simply be-cause many people suffer the same inju-ry. Indeed some of the cases on whichwe relied in Sierra Club demonstratedthe patent fact that persons across theNation could be adversely affected bymajor governmental actions. See, e.g.,Environmental Defense Fund v. Hardin,138 U.S.App.D.C. 391, 428 F.2d 1093,1097 [ (D.C. Cir. 1970) ] (interests ofconsumers affected by decision of Secre-tary of Agriculture refusing to suspendregistration of certain pesticides contain-ing DDT); Reade v. Ewing, 205 F.2d630, 631–632 [ (2d Cir. 1953) ] (interestsof consumers of oleomargarine in fairlabeling of product regulated by FederalSecurity Administration). To denystanding to persons who are in fact in-jured simply because many others arealso injured, would mean that the mostinjurious and widespread Governmentactions could be questioned by nobody.We cannot accept that conclusion.

While the FAC identifies numerous cli-matic, meteorologic, and political harmsthat the Earth and its inhabitants willsuffer as a result of the government’s ac-tion and failure to act with respect to CO2

emissions, the plaintiffs differentiate theimpacts by alleging greater harm to youthand future generations.4 At this stage of

the proceedings, the allegations, whichmust be taken as true, establish action/in-action that injures plaintiffs in a concreteand personal way.

The debate about climate change and itsimpact has been before various politicalbodies for some time now. Plaintiffs givethis debate justiciability by assertingharms that befall or will befall them per-sonally and to a greater extent than oldersegments of society. It may be that even-tually the alleged harms, assuming the cor-rectness of plaintiffs’ analysis of the im-pacts of global climate change, will befallall of us. But the intractability of thedebates before Congress and state legisla-tures and the alleged valuing of short termeconomic interest despite the cost to hu-man life, necessitates a need for the courtsto evaluate the constitutional parametersof the action or inaction taken by thegovernment. This is especially true whensuch harms have an alleged disparate im-pact on a discrete class of society.

To reiterate, at this stage of the pro-ceedings the court must accept the allega-tions of concrete particularized harm orimminent threat of such harm as true.The question then becomes whether thealleged harm is traceable to defendants’conduct and whether the court can redresssuch harm.

2. Causation

As noted above, there must be a causalconnection between the injury and the con-duct of which plaintiffs complained. Inother words, the injury has to be fairlytraceable to the challenged action of thedefendant, and not the result of the inde-pendent action of some third party notbefore the court. Simon v. Eastern Ky.Welfare Rights Organization, 426 U.S. 26,

4. The plaintiffs essentially allege that the de-fendants have ‘‘discounted’’ emissions so as topass on more severe impacts to younger and

future generations to allow the present (andolder) generations to reap the economic bene-fits of higher carbon emissions.

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41–42, 96 S.Ct. 1917, 48 L.Ed.2d 450(1976).

At the pleading stage, general factualallegations of injury resulting from thedefendants’ conduct may suffice becausethe court must presume that general alle-gations embrace those specific facts thatare necessary to support the claim. Lu-jan v. Defenders of Wildlife, 504 U.S. 555,561, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992). The government asserts that theassociation between the complained ofconduct (such as subsidizing the fossil fuelindustry, favorable revenue code provi-sions, allowing transport of fossil fuels,and authorizing fossil fuel combustion inthe energy/refinery/transportation/manu-facturing sectors) and the associatedgreenhouse gas emissions that ultimatelycause the harm is tenuous and filled withcountless intervening actions by unidenti-fied third parties. However, as alleged,without the complained of conduct, thethird parties would not be able to engageas extensively in the activities that alleg-edly cause climate change and the result-ing harm.

To survive a motion to dismiss for lackof constitutional standing, plaintiffs mustestablish a line of causation between de-fendants’ action and their alleged harmthat is more than attenuated. Allen v.Wright, 468 U.S. 737, 757, 104 S.Ct. 3315,82 L.Ed.2d 556 (1984). A causal chaindoes not fail simply because it has severallinks, provided those links are not hypo-thetical or tenuous and remain plausible.Nat’l Audubon Soc., Inc. v. Davis, 307 F.3d835, 849 (9th Cir.2002). In cases where achain of causation involves numerous thirdparties whose independent decisions collec-

tively have a significant effect on plaintiffs’injuries, the causal chain may be too weakto support standing at the pleading stage.See Allen, 468 U.S. at 759, 104 S.Ct. 3315.

But here, there is an alleged strong linkbetween all the supposedly independentand numerous third party decisions giventhe government’s regulation of CO2 emis-sions. See, e.g., 42 U.S.C. § 7409 (provid-ing the EPA the authority to regulatenational ambient air quality standards forthe attainment and maintenance of thepublic health); Massachusetts v. EPA, 549U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248(2007) (EPA has power to regulate green-house gas emissions). If the allegations inthe complaint are to be believed, the fail-ure to regulate the emissions has resultedin a danger of constitutional proportions tothe public health. Presumably, sweepingregulations by this agency (the EPA) alonecould result in curtailing of major CO2

producing activities by not just the defen-dant agencies, but by the purported inde-pendent third parties as well.5 At thispleading stage, the court need not sort outthe necessity or propriety of all the variousagencies and individuals to participate asdefendants, at least with respect to issuesof standing. For now, it is sufficient thatEPA’s action/inaction with respect to theregulation of greenhouse gases allegedlyresults in the numerous instances of emis-sions that purportedly cause or will causethe plaintiffs harm. Assuming lack ofEPA or other government action to reduceemissions, the analysis turns to redressa-bility.

5. The court is aware that there are adminis-trative procedures to petition EPA to makerules and that a denial of that decision isreviewable by the courts. The plaintiffs haveapparently not sought such rulemaking tolimit CO2 emissions, but the court does havejurisdiction to address alleged constitutional

violations by government agencies and to pro-vide equitable relief. C.f. Reeves Brothers,Inc. v. EPA, 956 F.Supp. 665 (W.D.Va.1995)(CERCLA general prohibition against federalcourt jurisdiction over challenges to remedialactions did not bar constitutional challengesto actions of EPA).

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3. Redressability of the Injury

At this stage of the proceedings, thecourt’s job is not to determine whetherincreased greenhouse gases have impactedthe climate and will have dire conse-quences for future generations. The issueis whether the court can fashion a remedyto address that alleged harm should plain-tiffs prove it. Redressability does not re-quire certainty, but it does require a sub-stantial likelihood that the injury will beredressed by a favorable judicial decision.Wolfson v. Brammer, 616 F.3d 1045, 1056(9th Cir.2010).

Assuming plaintiffs are correct that theUnited States is responsible for about 25%of the global CO2 emissions, the court can-not say, without the record being devel-oped, that it is speculation to posit that acourt order to undertake regulation ofgreenhouse gas emissions to protect thepublic health will not effectively redressthe alleged resulting harm. The impact isan issue for the experts to present to thecourt after the case moves beyond thepleading stage. And although this courthas no authority outside of its jurisdiction,it is worth noting that a Dutch court, onJune 24, 2015, did order a reduction ofgreenhouse gas emissions nationwide by atleast 25% by 2020. See Urgenda Founda-tion v. The State of The Netherlands, TheHague District Court, Chamber for Com-mercial Affairs, Case No. C/09/456689/HAZA 13–1396 (June 24, 2015) (http://deeplink.rechtspraak.n1/uitspraak?id=ECLI:NL:RBDHA:2015:7196) (rejectingarguments that a reduction of Nether-lands’ emissions would be ineffectual inlight of other nations’ practices, observingthat ‘‘The state should not hide behind theargument that the solution to the globalclimate problem does not depend solely onDutch efforts. Any reduction of emissionscontributes to the prevention of dangerous

climate change and as a developed countrythe Netherlands should take the lead inthis.’’). Thus, regulation by this country,in combination with regulation already be-ing undertaken by other countries, mayvery well have sufficient impact to redressthe alleged harms. The effect may or maynot be scientifically indiscernible, but thatis an issue better resolved at summaryjudgment or trial rather than on a motionto dismiss. See Washington Environmen-tal Council v. Bellon, 732 F.3d 1131, 1142–43 (9th Cir.2013) (deciding at the summaryjudgment stage that numerous greenhousegas sources inside and outside the U.S.contribute to the effect and that the nexusbetween the state’s refinery emissions andlocalized impacts was too scientifically un-certain). Plaintiffs allege that expert evi-dence will show that the effect resultingfrom a court order for the government totake action to deter fossil fuel productionand regulate emissions will have a discer-nible impact on the alleged constitutionalharms likely to befall plaintiffs if the courtdoes nothing.

At this stage, the court will not dismissthe premise that an order to regulate, perEPA’s statutory authority to regulate CO2,will result in that impact. The allegationsestablish that, for instance, the EPA’s fail-ure to regulate impacts the younger popu-lation within this district and it may verywell be that an order to act to protect thepublic health as directed will address thatharm.6 Given the complexities of the alle-gations and the need for expert opinion toestablish the harm associated with govern-ment action and the extent to which acourt order can limit that harm, the issuemay be better addressed at the summaryjudgment stage.

In sum, for the above reasons, the courtshould decline to dismiss the case for alack of standing.

6. Plaintiffs allege that ‘events, omissions, andharms giving rise to the claims herein arise in

substantial part in this judicial district.‘ (FACat ¶ 15)

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B. Political Question

Closely related to the standing issue, isthe issue of non-justiciable political ques-tions. As plaintiffs note, ‘‘Standing is justthe obverse of political question. If a liti-gant claims that an individual right hasbeen invaded, the lawsuit by definitiondoes not involve a political question.’’Plaintiffs’ Memorandum in Opposition toIntervenors’ Motion to Dismiss (# 56) at p.16, n. 12 (citing Howard Fink & MarkTushnet, Federal Jurisdiction: Policy andPractice 231 (2d ed.1987).

It is apparent that several formulationswhich vary slightly according to the set-tings in which the questions arise maydescribe a political question, althougheach has one or more elements whichidentify it as essentially a function ofthe separation of powers. Prominenton the surface of any case held to in-volve a political question is found a tex-tually demonstrable constitutional com-mitment of the issue to a coordinatepolitical department; or a lack of judi-cially discoverable and manageablestandards for resolving it; or the impos-sibility of deciding without an initial pol-icy determination of a kind clearly fornonjudicial discretion; or the impossibil-ity of a court’s undertaking independentresolution without expressing lack ofthe respect due coordinate branches ofgovernment; or an unusual need for un-questioning adherence to a political de-cision already made; or the potentialityof embarrassment from multifariouspronouncements by various depart-ments on one question.

Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct.691, 7 L.Ed.2d 663 (1962).

While on the surface this case appearsto implicate authority of the Congress,

courts can order agencies delegated thatauthority (via Congress) to craft regula-tions, to engage in such process. Somedefendant agencies have undertaken regu-lation of greenhouse gases allegedly exer-cising their discretion to prioritize relative-ly cheap energy over deleterious impactsto the environment. While courts cannotintervene to assert ‘‘better’’ policy, see,e.g., Massachusetts v. E.P.A., 549 U.S. at533, 127 S.Ct. 1438 (once EPA has re-sponded to a petition for rulemaking, itsreasons for action or inaction must con-form to the authorizing statute), they canaddress constitutional violations by gov-ernment agencies and provide equitablerelief. C.f. Reeves Brothers, Inc. v. EPA,956 F.Supp. 665 (W.D.Va. 1995) (CERC-LA general prohibition against federalcourt jurisdiction over challenges to reme-dial actions did not bar constitutional chal-lenges to actions of EPA). The complaintdoes raise issues of whether governmentaction/inaction violates the Constitutionand these are issues committed to thecourts rather than either of the politicalbranches.

As implied above, the amended com-plaint’s broad request for relief does impli-cate some unmanageable issues, but thatdoes not bar the case completely. As alsonoted, at a minimum, the EPA is chargedwith regulating greenhouse gas emissionsto protect the public health. While theefficacy of any proposed regulations is per-haps beyond the expertise of the court, itcan evaluate the competing experts on ei-ther side of the issues and direct the EPAto take a hard look at the best availablescientific evidence. The court need notdictate any regulations, only direct theEPA to adopt standards that prevent thealleged constitutional harm to the youthand future generation plaintiffs, shouldplaintiffs prevail in demonstrating such ispossible.7 Again, it is too early in the

7. Although not the route plaintiffs have expressly chosen in the prayer for remedies,

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proceedings to determine whether the is-sue can be resolved without expressinglack of respect due to the executive branchin conducting its rule-making authoritydelegated it by Congress. The motion todismiss, on this basis, should be denied atthis time.

Turning to the next issue, plaintiffs’standing and the lack of political questionsrequire a valid constitutional claim.

C. Valid Constitutional Claim

Defendants argue that there is no con-stitutional right to be free from CO2 emis-sions, that the complaint fails to allege aclassification appropriate for an equal pro-tection claim, that the Ninth Amendmentdoes not provide any substantive rights,and that the plaintiffs have failed to allegean otherwise complete lack of any rationalbasis for the purported aggregate ac-tion/inaction taken by defendants. Howev-er, at this stage of the proceedings, defen-dants take an overly simplistic approach inconstruing the constitutional claims raisedby plaintiffs. The complaint does not as-sert a right to be free from CO2 emis-sions.8 Plaintiffs assert that the defen-dants’ action/inaction with respect to theirobligations regarding regulating environ-mental pollutants has violated their sub-stantive due process rights and has doneso in favor of older generations.

The Fifth Amendment provides in partthat ‘‘no person shall TTT be deprived oflife, liberty, or property, without due pro-cess of law.’’ U.S. Const. amend. V.

[68] Courts must employ caution andrestraint when employing substantive dueprocess protections to government action.See Moore v. City of East Cleveland, Ohio,431 U.S. 494, 502, 97 S.Ct. 1932, 52L.Ed.2d 531 (1977). However, courts mustnot abandon substantive due processrights either. Id. Accordingly, substantivedue process rights are limited by carefulrespect for the teachings of history andrecognition of the basic values that under-lie our society. Id. at 503, 97 S.Ct. 1932.Therefore, only official conduct that‘‘shocks the conscience’’ is cognizable as adue process violation. Porter v. Osborn,546 F.3d 1131, 1137 (9th Cir.2008).

Generally, the Due Process Clause limitsthe government’s power to act, but doesnot guarantee certain minimal levels ofsafety and security. DeShaney v. Winne-bago County Dept. of Social Services, 489U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d249 (1989). The language of the Due Pro-cess Clause does not impose an affirmativeobligation on the government to ensurethat those interests do not come to harmthrough other means. Id. However, thereis an exception where government actioncreates the danger. See L.W. v. Grubbs,974 F.2d 119, 121–22 (9th Cir.1992). Insuch cases, deliberate indifference maysuffice to establish a due process violation.See L.W. v. Grubbs, 92 F.3d 894, 896 (9thCir.1996). Deliberate indifference re-quires creation of a dangerous situationwith actual knowledge or willful ignoranceof impending harm. Id. at 900. Plaintiffs

they have asked for ‘‘other relief [deemed]just and proper’’ and, the court can compelEPA to perform nondiscretionary acts orduties. 42 U.S.C. § 7604(a)(2); see, e.g., Sier-ra Club v. Thomas, 828 F.2d 783, 787–92(D.C.Cir.1987). The court’s authority in thisregard demonstrates that simply ordering anagency to take action delegated it by Congressin order to avoid constitutional harms doesimplicate justiciability and negates a finding

that the issue is committed solely to anotherbranch of government.

8. Plaintiffs do, however, assert that futuregenerations are a suspect class. The courtshould decline to create a new separate sus-pect class based on posterity. Nonetheless,the complaint does allege discriminationagainst a class of younger individuals withrespect to a fundamental right protected bysubstantive due process.

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allege that the defendants’ action in thiscase has created a life-threatening situa-tion and that defendants have willfully ig-nored long-standing and overwhelming sci-entific evidence of that impending harm tothe young and future generations.

The government argues that the com-plaint fails to allege a clear and presentdanger of imminent harm, an overt gov-ernment act that proximately causes thedangerous situation, deliberate indiffer-ence on the part of the government toplaintiffs’ safety, or subsequent physicalharm or loss of life. For purposes of amotion to dismiss, plaintiffs need onlyplead government action, or failure to actwhere it has a duty to do so, which createsa threat of imminent harm, and the gov-ernment’s deliberate indifference to thatthreat of harm.

In this case, the government has alleg-edly taken action through subsidies, regu-lations, etc. that creates massive CO2

emissions, and has failed to limit suchemissions despite a duty to do so. Plain-tiffs further allege they are prevented anymeans of escape from the resulting climatethat threatens their property, health, andeven existence. As noted above, the EPAhas a duty to regulate CO2 emissions forthe benefit of the public health and plain-tiffs allege a deliberate indifference to thepurported catastrophic risk to their healthand well-being. Whether such action, orinaction in the face of a duty to act, shocksthe conscience cannot be determined on amotion to dismiss, which is focused solelyon the plaintiffs’ complaint and is bereft ofany evidentiary record.9 Accordingly, thecourt should decline to dismiss the com-plaint for failure to allege a substantivedue process claim.

D. Public Trust Doctrine

Similarly, the court should decline todismiss any notions in the amended com-plaint that the Due Process Clause alsoprovides a substantive right under thepublic trust doctrine. As noted above, theDue Process Clause specially protectsthose fundamental rights and libertieswhich are, objectively, ‘‘deeply rooted inthis Nation’s history and tradition,’’ Moore,431 U.S. at 503, 97 S.Ct. 1932; Snyder v.Massachusetts, 291 U.S. 97, 105, 54 S.Ct.330, 78 L.Ed. 674 (1934) (‘‘so rooted in thetraditions and conscience of our people asto be ranked as fundamental’’), and ‘‘im-plicit in the concept of ordered liberty,’’such that ‘‘neither liberty nor justice wouldexist if they were sacrificed,’’ Palko v. Con-necticut, 302 U.S. 319, 325, 326, 58 S.Ct.149, 82 L.Ed. 288 (1937).

Defendants argue that the SupremeCourt and the Ninth Circuit have alreadyforeclosed on the possibility of an indepen-dent cause of action under the doctrineagainst the federal government by a pri-vate individual. See PPL Montana, LLCv. Montana, 565 U.S. 576, 132 S.Ct. 1215,1235, 182 L.Ed.2d 77 (2012) (the publictrust doctrine remains a matter of statelaw); U.S. v. 32.42 Acres of Land. More orLess. Located in San Diego County, Cal.,683 F.3d 1030, 1038 (9th Cir.2012) (Whilethe equal-footing doctrine is grounded inthe Constitution, ‘‘the public trust doctrineremains a matter of state law’’).

However, the cases cited by defendantsare distinguishable. In PPL Montana.LLC, the Supreme Court essentially heldthat the State of Montana did not hold titleto riverbeds under segments of river thatwere non-navigable at the time of state-hood. Under the equal footing doctrine,

9. For example, discovery may produce evi-dence regarding when defendants and inter-venors were aware of the harmful effects ofCO2 emissions and whether the public was

purposely misled about those effects, whichevidence would be relevant to the ‘‘shocks theconscience’’ standard.

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which is embedded in the Constitution, aState takes title to all riverbeds of naviga-ble rivers upon statehood. In response tothe State of Montana’s argument that ‘‘de-nying the State title to the riverbeds herein dispute will undermine the public trustdoctrine,’’ the Court observed:

While equal-footing cases have notedthat the State takes title to the naviga-ble waters and their beds in trust for thepublic, see Shively, 152 U.S. at 49, 15–17, 24, 46, 14 S.Ct. 548, the contours ofthat public trust do not depend upon theConstitution. Under accepted principlesof federalism, the States retain residualpower to determine the scope of thepublic trust over waters within theirborders, while federal law determinesriverbed title under the equal-footingdoctrine.

PPL Montana, LLC, 132 S.Ct. at 1235.

In other words, Montana’s argument es-sentially was an attempt to conflate theequal footing doctrine with the public trustdoctrine resulting in the State having titleto even non-navigable riverbeds pursuantto the latter doctrine. The Court merelyrejected this contention as ‘‘apples andoranges,’’ pointing out that the equal foot-ing doctrine requires that a State take titleto riverbeds of navigable rivers uponstatehood, and that thereafter state lawdetermines the scope of the public trustover such waters. The question whetherthe United States has public trust obli-gations for waters over which it alone hassovereignty (e.g., the territorial seas of itscoastline) was simply not presented to ordecided by the Court in PPL Montana,LLC.

The seminal case for the public trustdoctrine is Illinois Cent. R. Co. v. State ofIllinois, 146 U.S. 387, 13 S.Ct. 110, 36L.Ed. 1018 (1892) which likewise implicat-ed an equal footing question and in whichthe Court noted:

That the state holds the title to thelands under the navigable waters ofLake Michigan, within its limits, in thesame manner that the state holds title tosoils under tide water, by the commonlaw, we have already shown; and thattitle necessarily carries with it controlover the waters above them, wheneverthe lands are subjected to use. But it isa title different in character from thatwhich the state holds in lands intendedfor sale. It is different from the titlewhich the United States hold in the pub-lic lands which are open to pre-emptionand sale. It is a title held in trust forthe people of the state, that they mayenjoy the navigation of the waters, carryon commerce over them, and have liber-ty of fishing therein, freed from theobstruction or interference of privateparties.

Id. at 452, 13 S.Ct. 110.

Once the State obtains sovereignty overnavigable riverbeds, the United States hasceded all its title and thus the public trustdoctrine governing the State’s dispositionof such lands ‘‘remains a matter of statelaw.’’ PPL Montana, LLC, 132 S.Ct. at1235.

Likewise, in U.S. v. 32.42 Acres of Land,More or Less, Located in San Diego Coun-ty, Cal., the Ninth Circuit dealt with a casewherein the federal government exercisedits powers of eminent domain to acquireSan Diego Port District tidelands (for useby the United States Navy) which hadbeen transferred to the State of Californiaunder the equal footing doctrine in 1850when California was admitted to the Un-ion. In response to the California LandsCommission argument that the public trustdoctrine restricted the ability of both fed-eral and State governments to alienatepublic trust lands free of the public trust,the Ninth Circuit held:

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While the equal-footing doctrine isgrounded in the Constitution, ‘‘the publictrust doctrine remains a matter of statelaw,’’ the contours of which are deter-mined by the states, not by the UnitedStates Constitution. PPL Montana, 565U.S. 576, 132 S.Ct. 1215 at 1235, 182L.Ed.2d 77. Holding that California’spublic trust interest in the Property sur-vives the federal government’s attemptto condemn it would subjugate the fed-eral government’s eminent domain pow-er to California’s state law public trustdoctrine. See [U.S. v. ]Carmack, 329U.S. at[230, ]240–42, 67 S.Ct. 252[, 91L.Ed. 209 (1946) ]; United States v.11.037 Acres of Land, 685 F.Supp. 214,217 (N.D.Cal.1988) (holding that Califor-nia’s public trust is extinguished byUnited States’ declaration of taking be-cause state law public trust is trumpedby federal power). The SupremacyClause prevents this outcome. U.S.Const., art. VI, cl. 2.

U.S. v. 32.42 Acres of Land, More or Less,Located in San Diego County, Cal., 683F.3d at 1038.

I also note that in the 32.42 Acres casethe district court had specifically found,over the government’s objection, that aportion of the land acquired by the UnitedStates within the tidelands (4.88 acres) wasacquired subject to its own federal trust.See Order dated April 28, 2006(# 24) at p.11 in United States v. 32.42 Acres of Land,Case No. 05–cv–1137–DMS, (S.D.Cal. April28, 2006) (emphases added). The govern-ment did not cross-appeal this part of thedistrict court’s order and it was not dis-turbed or addressed by the Ninth Circuit.

This case is different in that it does notat all implicate the equal footing doctrineor public trust obligations of the State ofOregon. The public trust doctrine invokedinstead is directed against the UnitedStates and its unique sovereign interests

over the territorial ocean waters and atmo-sphere of the nation.

The doctrine is deeply rooted in ournation’s history and indeed predates it.See, e.g., Shively v. Bowlby, 152 U.S. 1, 14S.Ct. 548, 38 L.Ed. 331 (1894) (recountingthe American history of the doctrine). Asobserved in Shively :

At common law, the title and the do-minion in lands flowed by the tide werein the king for the benefit of the nation.Upon the settlement of the colonies, likerights passed to the grantees in theroyal charters, in trust for the communi-ties to be established. Upon the Ameri-can Revolution, these rights, chargedwith a like trust, were vested in theoriginal states within their respectiveborders, subject to the rights surren-dered by the constitution to the UnitedStates.

Upon the acquisition of a territory bythe United States, whether by cessionfrom one of the states, or by treaty witha foreign country, or by discovery andsettlement, the same title and dominionpassed to the United States, for thebenefit of the whole people, and in trustfor the several states to be ultimatelycreated out of the territory.

The new states admitted into the Un-ion since the adoption of the constitutionhave the same rights as the originalstates in the tide waters, and in thelands under them, within their respec-tive jurisdictions. The title and rightsof riparian or littoral proprietors in thesoil below high-water mark, therefore,are governed by the laws of the severalstates, subject to the rights granted tothe United States by the Constitution.

Id. at 57–58, 14 S.Ct. 548.While the scope of the public trust doc-

trine may only reach the low water markon the regions of the sea and great lakes,the water over those lands, and the waters

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and streams of any consequence, see, e.g.,The Public Trust Doctrine in Natural Re-source Law: Effective Judicial Interven-tion, 68 Mich. L.Rev. 471, 556 (1970), thecomplaint touches upon protected areas(territorial ocean waters at a minimum)impacted by the government’s alleged con-duct and harm to many plaintiffs given thealleged sea level rise, ocean acidification,and atmosphere change.

What emerges from an analysis of thepublic trust doctrine is that it is rare tofind instances where the United Statesretains vestiges of trust obligations onceterritories become states and title vests inthe newly formed state pursuant to theequal footing doctrine of the Constitution.Some guidance is found, however, in thosecases wherein the United States has re-acquired tidelands through eminent do-main from the State. One such case isUnited States v. 32.42 Acres of Land, su-pra. Another is City of Alameda v. ToddShipyards Corp., 635 F.Supp. 1447(N.D.Cal.1986), wherein the court squarelyheld that ‘‘The United States may not ab-dicate the role of trustee for the publicwhen it acquires land by condemnation.’’Id. at 1450. See also United States v. 1.58Acres of Land Situated in City of Boston,Suffolk County, Com. of Mass., 523F.Supp. 120, 124–25 (D.Mass.1981):

we hold that the federal governmentmay take property below the low watermark in ‘‘full fee simple’’ insofar as noother principal may hold a greater rightto such land. It must be recognized,however, that the federal government isas restricted as the Commonwealth inits ability to abdicate to private individu-als its sovereign jus publicum in theland. So restricted, neither the Com-monwealth’s nor the federal govern-ment’s trust responsibilities are de-stroyed by virtue of this taking, sinceneither government has the power todestroy the trust or to destroy the othersovereign.

The court’s intervention in this area mayseemingly touch upon powers committedto Congress under Article IV, § 3, C1. 2(Congress shall have the power to disposeand make all needful rules and regulationsrespecting the territory and other proper-ty of the United States). In addition, it isnot for the courts to say how the trust inresources and the territory shall be admin-istered, that is for Congress to determine.State of Alabama v. State of Texas, 347U.S. 272, 273, 74 S.Ct. 481, 98 L.Ed. 689(1954) (citing United States v. California,332 U.S. 19, 27, 67 S.Ct. 1658, 91 L.Ed.1889 (1947) (‘‘the constitutional power ofCongress under Article IV, § 3, C1. 2 iswithout limitation.’’). However, even de-fendant Department of the Interior hasrecognized limits on government controlover the territorial sea. See United StatesDepartment of Justice, Office of LegalCounsel, Memorandum Opinion for the So-licitor Department of the Interior, Admin-istration of Coral Reef Resources in theNorthwest Hawaiian Islands, 2000 WL34475732 at *7 (September 15, 2000) (thepublic trust doctrine, which the Court didnot address in Alabama, might limit insome ways the extent of the Government’scontrol over the territorial sea). The De-partment further noted that doctrine doesgrant the government power to exercisedominion over that area to protect it andits resources for public enjoyment and not-ed the government’s role as public trustee.Id. And, as noted above, courts have notedand restricted the federal government’sactions with respect to tidelands based onthe federal public trust. United States v.32.42 Acres of Land, Case No. 05–cv–1137–DMS, supra ; City of Alameda v.Todd Shipyards Corp., 635 F.Supp. 1447,supra.

At the hearing on defendants and inter-venors’ motions to dismiss, the court theirqueried counsel whether, hypothetically,Congress could alienate the territorial wa-

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ters of the United States off the WestCoast to a private corporation, or whetherthat would implicate a public trust issueunder the Constitution. Both parties sug-gested Congress could cede the territorialwaters to a private corporation, and thatPPL Montana, LLC, forecloses any argu-ment that the public trust doctrine appliesto the federal government.

As explained above, I cannot read PPLMontana, LLC, given the context of theargument being addressed by the Courtsto have such a sweeping and profoundeffect.10 Nor can I imagine that our coast-al sea waters could possibly be privatizedwithout implicating principles that reflectcore values of our Constitution and thevery essence of the purpose of our nation’sgovernment.

When combined with the EPA’s duty toprotect the public health from airbornepollutants and the government’s publictrust duties deeply ingrained in this coun-try’s history, the allegations in the com-plaint state, for purposes of a motion todismiss, a substantive due process claim.At this stage of the proceedings, the courtcannot say that the public trust doctrinedoes not provide at least some substantivedue process protections for some plaintiffswithin the navigable water areas of Ore-gon. Accordingly, the court should notdismiss any claims under the public trustdoctrine to that extent.

The nascent nature of these proceedingsdictate further development of the recordbefore the court can adjudicate whetherany claims or parties should not survivefor trial. Accordingly, the court shoulddeny the motions to dismiss.

CONCLUSION

For the reasons stated above, the inter-venors’ motion to dismiss (# 19) and thegovernment’s motion to dismiss (# 27)should be denied. The government’s mo-tion to strike (# 58) is denied.

This recommendation is not an orderthat is immediately appealable to theNinth Circuit Court of appeals. Any no-tice of appeal pursuant to Rule 4(a)(1),Federal Rules of Appellate Procedure,should not be filed until entry of the dis-trict court’s judgment or appealable order.The parties shall have fourteen (14) daysfrom the date of service of a copy of thisrecommendation within which to file spe-cific written objections with the court.Thereafter, the parties shall have fourteen(14) days within which to file a response tothe objections. Failure to timely file ob-jections to any factual determination of theMagistrate Judge will be considered as awaiver of a party’s right to de novo consid-eration of the factual issues and will consti-tute a waiver of a party’s right to appellatereview of the findings of fact in an order orjudgment entered pursuant to this recom-mendation.

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10. In Shively, which the Court cited in itsPPL Montana, LLC decision, expressly heldthat ‘‘[u]pon the acquisition of a territory bythe United States, whether by cession fromone of the states, or by treaty with a foreigncountry, or by discovery and settlement, thesame title and dominion passed to the United

States, for the benefit of the whole people,and in trust for the several states to be ulti-mately created out of the territory. Shively,152 U.S. at 57, 14 S.Ct. 548. Thus, a federalpublic trust doctrine was recognized in Shive-ly, and PPL Montana. LLC did not overrulethis precedent.

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