native village of kivalina v. exxonmobil corp. 863 · standing; and (5) village and city did not...

863NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL CORP.Cite as 663 F.Supp.2d 863 (N.D.Cal. 2009)

barred by the statute of limitations. Thestatute of limitations issue has not beendeveloped by the parties, and the courtcannot determine from what is currentlybefore it whether plaintiffs’ claims wouldbe barred by the statute of limitations.Plaintiffs are given leave to amend, despitethe fact that they did not expressly re-quest such leave.

Conclusion

The AstraZeneca defendants’ motion todismiss 25 is granted. Plaintiffs’ claimsagainst them are dismissed without preju-dice. Plaintiffs are given leave to amendtheir complaint against the AstraZenecadefendants. Should plaintiffs choose tofile a second amended complaint, theyshall do so on or before November 5, 2009.

,

NATIVE VILLAGE OF KIVALINA,and City of Kivalina, Plaintiffs,

v.

EXXONMOBIL CORPORATION,et al., Defendants.

Case No. C 08–1138 SBA.

United States District Court,N.D. California,

Oakland Division.

Sept. 30, 2009.

Background: Eskimo village and citybrought action against oil, energy and utili-ty companies for federal common law nui-sance, based on emission of greenhousesgases that contributed to global warming,which caused erosion of Arctic sea ice.Defendants filed motions to dismiss forlack of subject matter jurisdiction.

Holdings: The District Court, SaundraBrown Armstrong, J., held that:

(1) issue whether emission of greenhousegases from defendants’ conduct con-tributed to global warming was notrelegated exclusively to Executive, forpurposes of determining whether issueraised nonjusticiable political question;

(2) claim presented lack of judicially dis-coverable and manageable standards;

(3) claim required court to make initial,important policy determinations;

(4) village and city lacked Article IIIstanding; and

(5) village and city did not have standingbased on special solitude afforded tosovereigns.

Motions to dismiss granted.

1. Federal Courts O5

Federal courts are courts of limitedjurisdiction; they possess only that powerauthorized by Constitution and statute,which is not to be expanded by judicialdecree.

2. Federal Courts O34

The court is presumed to lack jurisdic-tion unless the contrary appears affirma-tively from the record.

3. Federal Courts O30, 32, 34

When subject matter jurisdiction ischallenged, the plaintiff has the burden ofproving jurisdiction in order to survive amotion to dismiss: the plaintiff must showin his pleading, affirmatively and distinct-ly, the existence of whatever is essential tofederal jurisdiction, and, if he does not doso, the court, on having the defect called toits attention or on discovering the same,must dismiss the case, unless the defect becorrected by amendment. Fed.Rules Civ.Proc.Rule 12(b)(1), 28 U.S.C.A.

25. Docket No. 93.

864 663 FEDERAL SUPPLEMENT, 2d SERIES

4. Federal Courts O32, 33, 34A challenge to subject matter jurisdic-

tion can be ‘‘facial,’’ in which case the courtassumes the plaintiff’s factual allegationsto be true and draws all reasonable infer-ences in its favor, or it may be a ‘‘factual’’or ‘‘speaking’’ motion, where the movantmay submit materials outside the plead-ings to support its motion, in which case itthen becomes necessary for the party op-posing the motion to present affidavits orany other evidence necessary to satisfy itsburden of establishing that the court, infact, possesses subject matter jurisdiction.Fed.Rules Civ.Proc.Rule 12(b)(1), 28U.S.C.A.

See publication Words and Phras-es for other judicial constructionsand definitions.

5. Federal Civil Procedure O103.2Article III standing is threshold re-

quirement for federal court jurisdiction.U.S.C.A. Const. Art. 3, § 1 et seq.

6. Constitutional Law O2580The ‘‘political question’’ doctrine is a

species of the separation of powers doc-trine and provides that certain questionsare political as opposed to legal, and thus,must be resolved by the political branchesrather than by the judiciary.

See publication Words and Phras-es for other judicial constructionsand definitions.

7. Constitutional Law O2580The political question doctrine serves

to prevent the federal courts from intrud-ing unduly on certain policy choices andvalue judgments that are constitutionallycommitted to Congress or the executivebranch.

8. Constitutional Law O2580A nonjusticiable political question ex-

ists over which a court lacks jurisdictionwhen, to resolve a dispute, the court mustmake a policy judgment of a legislativenature, rather than resolving the disputethrough legal and factual analysis.

9. Constitutional Law O2580

Six independent factors demonstratethe presence of a non-justiciable politicalquestion, any one of which may be disposi-tive: [1] a textually demonstrable constitu-tional commitment of the issue to a coordi-nate political department; [2] a lack ofjudicially discoverable and manageablestandards for resolving it; [3] the impossi-bility of deciding without an initial policydetermination of a kind clearly for nonjudi-cial discretion; [4] the impossibility of acourt’s undertaking independent resolutionwithout expressing lack of the respect duecoordinate branches of government; [5] anunusual need for unquestioning adherenceto a political decision already made; or [6]the potentiality of embarrassment frommultifarious pronouncements by variousdepartments on one question.


Whether an issue is a non-justiciablepolitical question depends on whether: (1)the issue involves resolution of questionscommitted by the text of Constitution tocoordinate branch of Government; (2) theresolution of the question demands thatthe court move beyond areas of judicialexpertise; and (3) prudential consider-ations that counsel against judicial inter-vention.

11. Constitutional Law O2580, 2589

Issue whether emission of greenhousegases from conduct of oil, energy and utili-ty companies contributed to global warm-ing was not relegated exclusively to Exec-utive, for purposes of determining whethercommon law nuisance claim raised nonjus-ticiable political question, in action broughtby Eskimo village and city, absent anyexpress provision in Constitution or else-where indicating that power to make finaldetermination regarding air pollution orglobal warming had been vested in either


executive or legislative branch of govern-ment.

12. Constitutional Law O2470, 2540Under the separation of powers, cer-

tain decisions have been exclusively com-mitted to the legislative and executivebranches of the federal government, andare therefore not subject to judicial review.

13. Constitutional Law O2580A nonjusticiable political question

based on the existence of a textually de-monstrable constitutional commitment ofthe issue to a coordinate political depart-ment turns on an examination of the con-stitutional provisions governing the exer-cise of the power in question.

14. Constitutional Law O2580Courts may infer the presence of a

nonjusticiable political question from thetext and structure of the Constitution.

15. Constitutional Law O2580A mandate to regulate a certain area

is not the equivalent of delegating theexclusive power to resolve that issue toanother branch, for the purposes of thepolitical question doctrine; rather, the is-sue is whether the Constitution has givenone of the political branches final responsi-bility for interpreting the scope and natureof such a power.

16. Constitutional Law O2620As a general matter, foreign policy is

the province and responsibility of the Ex-ecutive.

17. Constitutional Law O2588The very nature of executive decisions

as to foreign policy is political, not judicial.

18. Constitutional Law O2450The mere fact that foreign affairs may

be affected by a judicial decision does notimplicate abstention from judicial review,and in fact, it is error to suppose thatevery case or controversy which touches

foreign relations lies beyond judicial cogni-zance. U.S.C.A. Const. Art. 3, § 1 et seq.

19. Constitutional Law O2580, 2589

Claim brought by Eskimo village andcity for federal common law nuisanceagainst oil, energy, and utility companiesbased on emission of greenhouse gasesthat contributed to erosion of Arctic seaice due to global warming presented lackof judicially discoverable and manageablestandards that would guide court in ren-dering decision that was principled, ration-al, and based on reasoned distinctions, andthus, was subject to dismissal under politi-cal question doctrine; court would have toweigh energy-producing alternatives thatwere available in past, safety consider-ations, and impact of different alternativeson consumers and business at every level,then weigh benefits derived from thosechoices against risk that increasing green-house gasses would in turn increase risk offlooding along coast, and global warmingresulted from common pollutants from in-numerable sources, mixed together in at-mosphere, that could not be geographicallycircumscribed.


In determining, under the politicalquestion doctrine, whether an issue in-volves a lack of judicially discoverable andmanageable standards, instead of focusingon the logistical obstacles, the relevantinquiry is whether the judiciary is grantingrelief in a reasoned fashion versus allowingthe claims to proceed such that they mere-ly provide hope without a substantive legalbasis for a ruling.

21. Nuisance O1, 4

A nuisance claim is not focused entire-ly on the unreasonableness of the harm;rather, the factfinder must also balancethe utility and benefit of the alleged nui-sance against the harm caused.


22. Nuisance O59, 62In an action for public nuisance, the

unreasonableness of a given interferencerepresents a judgment reached by compar-ing the social utility of an activity againstthe gravity of the harm it inflicts, takinginto account a handful of relevant factors.Restatement (Second) of Torts §§ 826–831 .

23. Nuisance O1Resolution of a nuisance claim is not

based on whether the plaintiff finds theinvasion unreasonable, but rather, whetherreasonable persons generally, looking atthe whole situation impartially and objec-tively, would consider it unreasonable.Restatement (Second) of Torts §§ 826–831.

24. Constitutional Law O2580, 2589Eskimo village’s and city’s claim for

federal common law nuisance against oil,energy and utility companies based onemission of greenhouse gasses that con-tributed to erosion of Arctic sea ice due toglobal warming required court to makeinitial, important policy determinations,and thus, presented nonjusticiable politicalquestion over which district court lackedsubject matter jurisdiction; claim requiredbalancing of harm against utility or valueof defendants’ conduct, which, by necessi-ty, required consideration of acceptablelimits on greenhouse gas emissions andwho would bear costs of emissions.

25. Constitutional Law O2580A nonjusticiable political question ex-

ists when, to resolve a dispute, the courtmust make a policy judgment of a legisla-tive nature, rather than resolving the dis-pute through legal and factual analysis.

26. Constitutional Law O2580Dismissal of a claim under the politi-

cal question doctrine when the court isasked to make an initial policy determina-tion is aimed at preventing a court from

removing an important policy determina-tion from the Legislature.

27. Nuisance O76Eskimo village and city lacked Article

III standing to sue oil, energy and utilitycompanies for public nuisance based onemission of greenhouses gases that con-tributed to global warming, which causederosion of Arctic sea ice; there was nopresumption that defendants contributedto global warming, in view of lack of feder-al standards governing emission of green-house gases, plaintiffs acknowledged thatglobal warming phenomenon dated backcenturies and was result of emission ofgreenhouse gases by multitude of sourcesother than defendants, and city and villagewere located outside zone of discharge.U.S.C.A. Const. Art. 3, § 1 et seq.

28. Federal Civil Procedure O103.2,103.3

In order to have Article III standing,a plaintiff must adequately establish: (1) aninjury in fact, i.e., a concrete and particu-larized invasion of a legally protected in-terest; (2) causation, i.e., a fairly traceableconnection between the alleged injury infact and the alleged conduct of the defen-dant; and (3) redressability i.e., likelihoodand lack of speculation that the plaintiff’sinjury will be remedied by the relief plain-tiff seeks in bringing suit. U.S.C.A. Const.Art. 3, § 1 et seq.

29. Federal Civil Procedure O103.2The party invoking federal jurisdiction

bears the burden of establishing ArticleIII standing. U.S.C.A. Const. Art. 3, § 1et seq.

30. Federal Civil Procedure O103.3To show causation of an injury, as a

prerequisite to Article III standing, theplaintiff must demonstrate a causal con-nection between the injury and the con-duct complained of; the injury has to be


fairly traceable to the challenged action ofthe defendant, and not the result of theindependent action of some third party notbefore the court. U.S.C.A. Const. Art. 3,§ 1 et seq.

31. Federal Civil Procedure O103.3Although the traceability of a plain-

tiff’s harm to the defendant’s actions neednot rise to the level of proximate causation,Article III standing does require proof of asubstantial likelihood that the defendant’sconduct caused plaintiff’s injury in fact.U.S.C.A. Const. Art. 3, § 1 et seq.

32. Environmental Law O651In an environmental case, where the

plaintiff shows that a defendant’s dis-charge exceeds Congressionally-prescribedfederal limits, it is presumed for purposesof standing that there is a substantial like-lihood that defendant’s conduct causedplaintiffs’ harm, even if other parties havealso made similar discharges.

33. Environmental Law O651To satisfy the ‘‘fairly traceable’’ causa-

tion requirement for Article III standingin an environmental case, there must be adistinction between the plaintiffs who liewithin the discharge zone of a polluter andthose who are so far downstream thattheir injuries cannot fairly be traced tothat defendant. U.S.C.A. Const. Art. 3,§ 1 et seq.

34. Nuisance O76Eskimo village and city did not have

standing to sue oil, energy and utility com-panies for public nuisance due to emissionof greenhouses gases that contributed toglobal warming, which caused erosion ofArctic sea ice, based on special solitudeafforded to sovereigns; village and citywere not seeking to enforce proceduralrights concerning agency’s rulemaking au-thority, and they did not surrender theirsovereignty as price for acceding to Union.

Luke Cole, Brent Joseph Newell, SanFrancisco, CA, Barbara A. Mahoney, SteveW. Berman, Hagens Berman Sobol Shapi-ro LLP, Drew D. Hansen, Susman God-frey L.L.P., Seattle, WA, Benjamin Krass,Mark Richard Rielly, Matthew F. Pawa,Law Offices of Matthew F. Pawa, P.C.,Newton Centre, MA, Christopher A. Seeg-er, James A. O’Brien, Stephen A. Weiss,Seeger Weiss LLP, New York, NY, Den-nis J. Reich, Reich & Binstock, LLP, EricJ. Mayer, H. Lee Godfrey, Stephen D.Susman, Susman Godfrey L.L.P., Houston,TX, Gary E. Mason, Mason LLP, Wash-ington, DC, Heather Kendall Miller, Na-tive American Rights Fund, Anchorage,AK, Reed R. Kathrein, Hagens BermanSobol Shapiro LLP, Berkeley, CA, forPlaintiffs.

John Frederic Daum, O’Melveny &Myers LLP, Matthew T. Heartney, Arnold& Porter, Daniel Paul Collins, Ronald L.Olson, Munger Tolles & Olson, RichardKevin Welsh, Akin Gump Strauss Hauer &Feld, LLP, Belynda B. Reck, Hunter &Williams LLP, Los Angeles, CA, HackerD. Jonathan, Jonathan D. Hacker, O’Mel-veny & Myers LLP, Kathleen Taylor Sooy,Scott L. Winkelman, Crowell & MoringLLP, Norm W. Fichthorn, F. WilliamBrownell, Allison D. Wood, Hunton &Williams, LLP, Jeffrey Alan Lamken,Baker Botts, LLP, Karl R. Moor, TheSouthern Company, Kevin Patrick Holew-inski, Jones Day, Washington, DC, MichaelB. Gerrard, Philip H. Curtis, Arnold &Porter, LLP, Shawn P. Regan, Hunton &Williams LLP, New York, NY, Lisa Kobi-alka, King & Spalding LLP, RedwoodCity, CA, Jonathan Lawrence Marsh, Rob-ert E. Meadows, Tracie J. Renfroe, King& Spalding LLP, Houston, TX, ElizabethL. Deeley, Casey M. Nokes, Kirkland &Ellis LLP, Jerome Cary Roth, MungerTolles & Olson LLP, Samuel Ray Miller,Sidley Austin LLP, Thomas Ailbe Rector,Jones Day, San Francisco, CA, Andrew


Brian Clubok, Jeffrey Bossert Clark,Stuart A.C. Drake, Susan E. Engel, Kirk-land & Ellis LLP, Tracy A. Roman, Cro-well & Moring, Paul E. Gutermann, AkinGump Strauss Hauer & Feld, LLP, DavidT. Buente, Jr., Peter D. Keisler, SidleyAustin LLP, Allison D. Wood, Hunton &Williams LLP, Washington, DC, StevenPaul Rice, Crowell & Moring LLP, Irvine,CA, Felix Lebron, Kamran Salour, Green-berg Traurig LLP, Santa Monica, CA, Mi-chael L. Rice, Thomas E. Fennell, JonesDay, Dallas, TX, for Defendants.

ORDER GRANTING DEFENDANTS’MOTIONS TO DISMISS FORLACK OF SUBJECT MATTER JU-RISDICTION

(Docket 171, 172, 175, 176, 177)

SAUNDRA BROWN ARMSTRONG,District Judge.

Plaintiff Native Village of Kivalina (theVillage) is the governing body of an Inupi-at Eskimo village of approximately 400people who reside in the City of Kivalina(Kivalina), which also is a plaintiff in thisaction. The Complaint alleges that as aresult of global warming, the Arctic sea icethat protects the Kivalina coast from win-ter storms has diminished, and that theresulting erosion and destruction will re-quire the relocation of Kivalina’s residents.As defendants, the Village and Kivalina(collectively, Plaintiffs) have named twen-ty-four oil, energy and utility companies 1

from whom they seek damages under afederal common law claim of nuisance,based on their alleged contribution to the

excessive emission of carbon dioxide andother greenhouse gases which they claimare causing global warming.

The parties are presently before theCourt on various Defendants’ motions todismiss for lack of subject matter jurisdic-tion, pursuant to Federal Rules of CivilProcedure 12(b)(1) and 12(b)(6). In theirRule 12(b)(1) motions, Defendants contendthat Plaintiffs’ claims are not justiciableunder the political question doctrine, andthat Plaintiffs otherwise lack standing un-der Article III of the United States Con-stitution. Having read and considered thepapers filed in connection with this matter,and being fully informed, the Court herebyGRANTS Defendants’ motions to dismissfor lack of jurisdiction. The Court, in itsdiscretion, finds this matter suitable forresolution without oral argument. SeeFed.R.Civ.P. 78(b).

I. BACKGROUND

A. OVERVIEW

The Village is a self-governing, federal-ly-recognized Tribe of Inupiat Eskimos es-tablished pursuant to the provisions of theIndian Reorganization Act of 1934, asamended in 1936. Compl. ¶ 12. Membersof the Village reside in Kivalina, which is aunified municipality incorporated underAlaska law in 1969 with a population ofapproximately 400 persons. Id. ¶ 1, 13, 15.Kivalina is located at the tip of a six-milelong barrier reef, approximately seventymiles north of the Arctic Circle, betweenthe Chukchi Sea and the Kivalina and

1. Defendants are: (1) ExxonMobil Corpora-tion; (2) BP P.L.C.; (3) BP America, Inc.; (4)BP Products North America, Inc.; (5) Chev-ron Corporation; (6) Chevron U.S.A., Inc.;(7) ConocoPhilips Company; (8) Royal DutchShell P.L.C.; (9) Shell Oil Company; (10)Peabody Energy Corporation; (11) The AESCorporation; (12) American Electric PowerCorporation; (13) American Electric Power

Services Corporation; (14) DTE Energy Com-pany; (15) Duke Energy Corporation; (16)Dynergy Holdings, Inc.; (17) Edison Interna-tional; (18) MidAmerican Energy HoldingsCompany; (19) Mirant Corporation; (20)NRG Energy; (21) Pinnacle West Capital Cor-poration; (22) Reliant Energy, Inc.; (23) TheSouthern Company; and (24) Xcel Energy,Inc.


Wulik Rivers on the Northwest coast ofAlaska. Id. ¶ 1.

The Kivalina coast is protected by Arcticsea ice that is present during the fall,winter and spring. Id. ¶¶ 4, 16. The seaice, which attaches to the Kivalina coast,acts as a barrier against the coastal stormsand waves that affect the coast of theChukchi Sea. Id. ¶ 16. As a result ofglobal warming, however, the sea ice nowattaches to the Kivalina coast later in theyear and breaks up earlier and is thinnerand less extensive than before, thus sub-jecting Kivalina to coastal storm wavesand surges. Id. The resulting erosion hasnow reached the point where Kivalina isbecoming uninhabitable. Id. ¶ 17. Plain-tiffs allege that as a result, the Village willhave to be relocated, at a cost estimated torange from $95 to $400 million. Id. ¶¶ 1,17.

B. GLOBAL WARMING

In recent years, much attention hasbeen focused on the issue of global warm-ing, which is not itself an event so much asit is a sequence of events. Generallyspeaking, global warming refers to thebuild-up of carbon dioxide and methane(commonly referred to as ‘‘greenhouse gas-es’’) in the atmosphere which, in turn,causes the temperature of the planet toincrease. Id. ¶ 123. Both carbon dioxideand methane are products of human activi-ty. Id. ¶¶ 124, 133. Plaintiffs attributethe build-up of atmospheric carbon dioxideand methane to increases in the combus-tion of fossil fuels as well as fuel harvest-ing activities, such as coal mining and oildrilling. Id. ¶¶ 124, 126, 167–69, 173, 180.

According to Plaintiffs, carbon dioxideand other greenhouse gas levels have beenincreasing steadily since the beginning ofthe industrial revolution in the 18th centu-ry, with more than a one-third increasehaving occurred since 1980. Id. ¶ 125.The emitted gases ‘‘rapidly mix in the

atmosphere and cause the increase in theatmospheric concentration of carbon diox-ide levels and other greenhouse gasesworldwide.’’ Id. ¶ 254. These gases re-main in the atmosphere for centuries and‘‘thus have a lasting effect on [the] cli-mate.’’ Id. ¶ 124. The carbon dioxidetraps heat emitted by the sun which, inturn, increases the climactic temperatureon Earth. Id. As the planet heats, theoceans become less efficient at removingcarbon dioxide from the atmosphere. Id.¶ 127. Likewise, the planet reflects lessenergy back into space which then causes‘‘white, snowy, or icy areas’’ to darken andabsorb more heat. Id. The increase in thesurface temperature causes seawater toexpand and sea levels to rise. Id. ¶ 130. Inaddition, sea levels are rising due to themelting of ice caps and glaciers resultingfrom increased temperatures. Id. ¶ 131.Plaintiffs allege that these events have, inturn, led to the loss of the Arctic sea icethat serves to protect Kivalina from winterstorms. Id. ¶ 4.

C. PROCEDURAL HISTORY

Plaintiffs filed their Complaint on Feb-ruary 26, 2008. The Complaint allegesfour claims for relief: (1) Federal CommonLaw: Public Nuisance; (2) State Law:Private and Public Nuisance; (3) CivilConspiracy; and (4) Concert of Action.Compl. ¶¶ 249–282. As Defendants, Plain-tiffs have named various oil companies,power companies and utility providers, allof whom are alleged to be jointly andseverally liable for causing damage toPlaintiffs. The Complaint does not seekinjunctive relief nor does it specify a par-ticular amount of monetary damages.However, Plaintiffs claim that the effectsof global warming mean that they willhave to relocate the inhabitants of Kivalinaat an estimated cost of $95 million to $400million. Id. ¶ 1.


Pursuant to the parties’ stipulatedscheduling order, Defendants filed variousmotions to dismiss pursuant to Rules12(b)(1) and 12(b)(6). These motions are:(a) Motion of Certain Oil Company Defen-dants to Dismiss Plaintiffs’ Complaint Pur-suant to Fed.R.Civ.P. 12(b)(1); (b) Motionto Dismiss of Defendant Peabody EnergyCorporation for lack of Subject MatterJurisdiction Pursuant to Fed.R.Civ.P.12(b)(1) and for Failure to State a ClaimUpon Which Relief May be Granted Pur-suant to Fed.R.Civ.P. 12(b)(6); (c) Motionof Certain Oil Company Defendants toDismiss Plaintiffs’ Complaint Pursuant toFed.R.Civ.P. 12(b)(1); (d) Motion of Cer-tain Utility Defendants to Dismiss Plain-tiffs’ Civil Conspiracy Claim; and (e) Utili-ty Defendants’ Motion to Dismiss.2

The threshold question presented byDefendants’ motions is whether the Courthas subject matter jurisdiction over Plain-tiffs’ federal claim for common law nui-sance. In particular, Defendants arguethat under the political question doctrine,the Court lacks jurisdiction to consider themerits of Plaintiffs’ nuisance claim becauseits resolution will require the Court tomake policy determinations relating to theuse of fossil fuels and other energy sourcesand consider their value in relation to theenvironmental, economic and social conse-quences of such use. Defendants arguethat such questions are inherently politicaland that there are no judicially managea-ble standards available to adjudicate theseissues. As a secondary basis for dismissal,Defendants argue that Plaintiffs lackstanding under Article III to pursue theirglobal warming claims under a nuisancetheory on the ground that their injury isnot ‘‘fairly traceable’’ to the conduct of

Defendants. The Court analyzes each ofthese contentions below.

II. LEGAL STANDARD

[1–3] ‘‘Federal courts are courts oflimited jurisdiction. They possess onlythat power authorized by Constitution andstatute, which is not to be expanded byjudicial decree.’’ Rasul v. Bush, 542 U.S.466, 489, 124 S.Ct. 2686, 159 L.Ed.2d 548(2004) (quoting Kokkonen v. GuardianLife Ins. Co. of Am., 511 U.S. 375, 377, 114S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Thecourt is presumed to lack jurisdiction un-less the contrary appears affirmativelyfrom the record. DaimlerChrysler Corp.v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct.1854, 164 L.Ed.2d 589 (2006). Consistentwith these basic jurisdictional precepts,the Ninth Circuit has articulated the stan-dard for surviving a motion to dismiss forlack of jurisdiction as follows: ‘‘When sub-ject matter jurisdiction is challenged underFederal Rule of Procedure 12(b)(1), theplaintiff has the burden of proving jurisdic-tion in order to survive the motion. Aplaintiff suing in a federal court must showin his pleading, affirmatively and distinct-ly, the existence of whatever is essential tofederal jurisdiction, and, if he does not doso, the court, on having the defect called toits attention or on discovering the same,must dismiss the case, unless the defect becorrected by amendment.’’ Tosco Corp. v.Communities for a Better Env’t, 236 F.3d495, 499 (9th Cir.2001) (citations and inter-nal quotations omitted).

[4] A Rule 12(b)(1) challenge to subjectmatter jurisdiction can be ‘‘facial,’’ inwhich case the Court assumes the plain-tiff’s factual allegations to be true anddraws all reasonable inferences in its fa-

2. Certain groups of Defendants also filed Rule12(b)(2) motions to dismiss for lack of person-al jurisdiction. Docket 138, 141. The partiesagreed that adjudication of such motions

would occur, if necessary, after the Courtresolves the motions under Rules 12(b)(1) and12(b)(6). See Docket 126 at 3.


vor. Doe v. See, 557 F.3d 1066, 1073 (9thCir.2009); Castaneda v. United States, 546F.3d 682, 684 n. 1 (9th Cir.2008). Or, themotion may be a ‘‘factual’’ or ‘‘speaking’’motion, where the movant may submit ma-terials outside the pleadings to support itsmotion. In that case, ‘‘ ‘[i]t then becomesnecessary for the party opposing the mo-tion to present affidavits or any other evi-dence necessary to satisfy its burden ofestablishing that the court, in fact, pos-sesses subject matter jurisdiction.’ ’’ Col-well v. Dep’t of Health and Human Servs.,558 F.3d 1112, 1121 (9th Cir.2009) (quotingSt. Clair v. City of Chico, 880 F.2d 199, 201(9th Cir.1989)). ‘‘If the court determinesat any time that it lacks subject-matterjurisdiction, the court must dismiss theaction.’’ Fed.R.Civ.P 12(h)(3). The in-stant motions present a facial challengeonly.

III. DISCUSSION

A. THE POLITICAL QUESTION DOCTRINE

[5] Federal courts are courts of limitedjurisdiction. The power to hear a particu-lar case is circumscribed by Article III ofthe Constitution, which extends federal ju-dicial power only to actual ‘‘Cases’’ and‘‘Controversies.’’ U.S. Const., art. III,§ 2, cl. 1. The Supreme Court ‘‘has recog-nized that the case-or-controversy limita-tion is crucial in maintaining the ‘tripartiteallocation of power’ set forth in the Consti-tution.’’ DaimlerChrysler Corp. v. Cuno,547 U.S. 332, 341, 126 S.Ct. 1854, 164L.Ed.2d 589 (2006) (internal quotationsomitted). Article III standing is thus athreshold requirement for federal court ju-risdiction. Lujan v. Defenders of Wildlife,504 U.S. 555, 559–60, 112 S.Ct. 2130, 119L.Ed.2d 351 (1992).

‘‘The Supreme Court has indicated thatdisputes involving political questions lieoutside of the Article III jurisdiction offederal courts.’’ Corrie v. Caterpillar,Inc., 503 F.3d 974, 980 (9th Cir.2007) (cit-

ing cases); Summers v. Earth IslandInst., ––– U.S. ––––, 129 S.Ct. 1142, 1148,173 L.Ed.2d 1 (2009) (‘‘courts have nocharter to review and revise legislative andexecutive action’’); Vieth v. Jubelirer, 541U.S. 267, 277, 124 S.Ct. 1769, 158 L.Ed.2d546 (2004) (‘‘the judicial department has nobusiness entertaining the claim TTT be-cause the question is entrusted to one ofthe political branches or involves no judi-cially enforceable rights.’’); see also Unit-ed States v. Mandel, 914 F.2d 1215, 1222(9th Cir.1990) (‘‘certain political questionsare by their nature committed to the politi-cal branches to the exclusion of the judicia-ry.’’).

[6–8] The political question doctrine isa species of the separation of powers doc-trine and provides that certain questionsare political as opposed to legal, and thus,must be resolved by the political branchesrather than by the judiciary. Corrie, 503F.3d at 980. ‘‘The political question doc-trine serves to prevent the federal courtsfrom intruding unduly on certain policychoices and value judgments that are con-stitutionally committed to Congress or theexecutive branch.’’ Koohi v. UnitedStates, 976 F.2d 1328, 1331 (9th Cir.1992).‘‘A nonjusticiable political question existswhen, to resolve a dispute, the court mustmake a policy judgment of a legislativenature, rather than resolving the disputethrough legal and factual analysis.’’E.E.O.C. v. Peabody Western Coal Co., 400F.3d 774, 785 (9th Cir.2005).

[9] In Baker v. Carr, 369 U.S. 186, 210,82 S.Ct. 691, 7 L.Ed.2d 663 (1962), theSupreme Court set forth six independentfactors, any one of which demonstrates thepresence of a non-justiciable political ques-tion:

[1] a textually demonstrable constitu-tional commitment of the issue to a coor-dinate political department; or [2] a lackof judicially discoverable and managea-


ble standards for resolving it; or [3] theimpossibility of deciding without an ini-tial policy determination of a kind clear-ly for nonjudicial discretion; or [4] theimpossibility of a court’s undertaking in-dependent resolution without expressinglack of the respect due coordinatebranches of government; or [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.

‘‘ ‘[T]he first three Baker factors focus onthe constitutional limitations of a court’sjurisdiction, while the final three are ‘pru-dential considerations [that] counselagainst judicial intervention.’ ’’ Corrie, 503F.3d at 981 (quoting Wang v. Masaitis,416 F.3d 992, 996 (9th Cir.2005)).

[10] The six Baker factors have beengrouped into three general inquiries: ‘‘(i)Does the issue involve resolution of ques-tions committed by the text of the Consti-tution to a coordinate branch of Govern-ment? (ii) Would resolution of the questiondemand that a court move beyond areas ofjudicial expertise? (iii) Do prudential con-siderations counsel against judicial inter-vention?’’ Wang, 416 F.3d at 995 (citingGoldwater v. Carter, 444 U.S. 996, 997, 100S.Ct. 533, 62 L.Ed.2d 428 (1979) (Powell,J., concurring)). Under this distilled ap-proach, the first inquiry covers Baker fac-tor one; the second inquiry covers Bakerfactors two and three; and the third cov-ers Baker factor four through six. Id. at995–996, 100 S.Ct. 533. Any one of theBaker factors may be dispositive. Alperinv. Vatican Bank, 410 F.3d 532, 547 (9thCir.2005); United States v. Mandel, 914F.2d 1215, 1222 (9th Cir.1990).

1. Textual Commitment

[11–15] The first Baker factor exam-ines whether there is ‘‘a textually demon-strable constitutional commitment of the

issue to a coordinate political department.’’Baker, 369 U.S. at 217, 82 S.Ct. 691.‘‘This factor recognizes that, under theseparation of powers, certain decisionshave been exclusively committed to thelegislative and executive branches of thefederal government, and are therefore notsubject to judicial review.’’ McMahon v.Presidential Airways, Inc., 502 F.3d 1331,1358–59 (11th Cir.2007). The existence of‘‘a textually demonstrable constitutionalcommitment of the issue to a coordinatepolitical department’’ turns on an examina-tion of the constitutional provisions gov-erning the exercise of the power in ques-tion. See Powell v. McCormack, 395 U.S.486, 519–520, 89 S.Ct. 1944, 23 L.Ed.2d 491(1969); Consejo de Desarrollo Economicode Mexicali, A.C. v. United States, 482F.3d 1157, 1172 (9th Cir.2007) (‘‘the courtsmust, in the first instance, interpret thetext in question and determine whetherand to what extent the issue is textuallycommitted.’’). Though there are few in-stances of ‘‘this sort of textual commit-ment,’’ courts may ‘‘infer the presence of apolitical question from the text and struc-ture of the Constitution.’’ Nixon v. Unit-ed States, 506 U.S. 224, 240, 113 S.Ct. 732,122 L.Ed.2d 1 (1993). That being said, amandate to regulate a certain area is notthe equivalent of delegating the exclusivepower to resolve that issue to anotherbranch. Id. Rather, the issue is whetherthe Constitution has given one of the polit-ical branches final responsibility for inter-preting the scope and nature of such apower. Id.

Defendants argue that allowing Plain-tiffs to proceed with their global warmingclaim would run afoul of the first Bakerfactor ‘‘because it would intrude upon thepolitical branches’ constitutionally commit-ted authority over foreign policy.’’ OilDefs.’ Mot. at 22. In particular, Defen-dants maintain that Congress and thePresident have declined to adopt emission


caps absent an agreement from developingnations. Id. They further claim that therationale for the United States’ position istwo-fold: (1) that a successful approach toglobal warming requires a ‘‘global’’ ap-proach that includes cooperation from bothindustrialized and developing nations; and(2) this country could ‘‘find itself in aninferior bargaining position’’ with respectto future diplomatic attempts to addressthis issue. Id. at 22–23. In view of theseconsiderations, Defendants contend thatthe Court’s retroactive establishment ofgreenhouse gas emission caps would ‘‘over-ride the considered foreign policy judg-ment of the political branchesTTTT’’ Id. at23; see also Utilities Defs.’ Mot. at 8;Peabody Mot. at 11–12.

[16–18] It is true, as a general matter,that ‘‘ ‘foreign policy [is] the province andresponsibility of the Executive.’ ’’ Dep’t ofNavy v. Egan, 484 U.S. 518, 529, 108 S.Ct.818, 98 L.Ed.2d 918 (1988). ‘‘[T]he verynature of executive decisions as to foreignpolicy is political, not judicial.’’ Chicago &S. Air Lines, Inc. v. Waterman S.S. Corp.,333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed.568 (1948). ‘‘But the mere fact that for-eign affairs may be affected by a judicialdecision does not implicate abstention.’’Khouzam v. Attorney Gen. of UnitedStates, 549 F.3d 235, 250 (3rd Cir.2008).In fact, ‘‘it is error to suppose that everycase or controversy which touches foreignrelations lies beyond judicial cognizance[.]’’Baker, 369 U.S. at 211, 82 S.Ct. 691.‘‘This over-inclusive approach threatens tosweep all cases touching foreign relationsbeyond the purview of the courts-a prac-tice warned against in Baker.’’ See Alper-in, 410 F.3d at 547. In fact, ‘‘Baker cau-tioned against ‘sweeping statements’ thatimply all questions involving foreign rela-tions are political ones.’’ Id. at 544–45.

The indisputably international dimen-sion of this particular environmentalproblem does not render the instant con-

troversy a non-justiciable one. While De-fendants have shown that global warmingissues may implicate foreign policy andrelated economic issues, the fact that thiscase ‘‘touches foreign relations’’ does notipso facto place it beyond the reach of thejudiciary. See Corrie, 503 F.3d at 982.Tellingly, none of the Defendants cite toany express provision of the Constitutionor provision from which it can be inferredthat the power to make the final determi-nation regarding air pollution or globalwarming has been vested in either theexecutive or legislative branch of the gov-ernment. Given their failure to do so,the Court must presume that no suchlimitation exists. See Davis v. Passman,442 U.S. 228, 242, 99 S.Ct. 2264, 60L.Ed.2d 846 (1979) (‘‘At least in the ab-sence of ‘a textually demonstrable consti-tutional commitment of [an] issue to acoordinate political department,’ TTT wepresume that justiciable constitutionalrights are to be enforced through thecourts.’’). Accordingly, the first Bakerfactor is not implicated.

2. Scope of Judicial Expertise

‘‘The second Goldwater factor lumps to-gether the second and third Baker inqui-ries—whether there is ‘a lack of judiciallydiscoverable and manageable standards’and whether a decision is impossible ‘with-out an initial policy determination of a kindclearly for nonjudicial discretion.’ ’’ Wang,416 F.3d at 996. As noted, the commoninquiry presented by these two factors iswhether ‘‘resolution of the question de-mand[s] that a court move beyond areas ofjudicial expertise[.]’’ Id. at 995.

a) Judicially Discoverable andManageable Standards

[19, 20] In Alperin, the Ninth Circuitexplained that focus of the second Bakerfactor is ‘‘not whether the case is unman-ageable in the sense of being large, compli-cated, or otherwise difficult to tackle from


a logistical standpoint. Rather, courtsmust ask whether they have the legal toolsto reach a ruling that is ‘principled, ration-al, and based upon reasoned distinctions.’ ’’410 F.3d at 552. Thus, ‘‘[i]nstead of focus-ing on the logistical obstacles,’’ the rele-vant inquiry is whether the judiciary isgranting relief in a reasoned fashion ver-sus allowing the claims to proceed suchthat they ‘‘merely provide ‘hope’ without asubstantive legal basis for a ruling.’’ Id.(emphasis added).

[21] Plaintiffs contend that ‘‘[t]he judi-cially discoverable and manageable stan-dards here are the same as they are in allnuisance cases.’’ Pls.’ Opp’n at 63. Theyassert that the salient inquiry underlyingtheir federal nuisance claim is whetherDefendants contributed to ‘‘an unreason-able interference with public rights[.]’’ Id.Resolution of what is ‘‘reasonable,’’ Plain-tiffs assert, is to be determined by examin-ing whether the conduct involves a ‘‘signifi-cant interference with the public health,the public safety, the public peace, thepublic comfort or the public convenience’’and whether the conduct is ‘‘of a continu-ing nature’’ or has produced a ‘‘permanentor long lasting effect[.]’’ Id. However, theflaw in Plaintiffs’ argument is that it over-looks that the evaluation of a nuisanceclaim is not focused entirely on the unrea-sonableness of the harm. Rather, the fact-finder must also balance the utility andbenefit of the alleged nuisance against theharm caused.

[22, 23] A public nuisance is defined asan ‘‘unreasonable interference with a rightcommon to the general public.’’ Restate-ment (Second) of Torts § 821(b)(1) (1979).Whether the interference is unreasonableturns on weighing ‘‘the gravity of the harmagainst the utility of the conduct.’’ Id.§ 821 cmt. e. ‘‘The unreasonableness of agiven interference represents a judgmentreached by comparing the social utility ofan activity against the gravity of the harm

it inflicts, taking into account a handful ofrelevant factors.’’ People ex rel. Gallo v.Acuna, 14 Cal.4th 1090, 1105, 60 Cal.Rptr.2d 277, 929 P.2d 596 (1997) (citingRestatement (Second) of Torts, §§ 826–831). Stated another way, resolution of anuisance claim is not based on whether theplaintiff finds the invasion unreasonable,but rather, ‘‘whether reasonable personsgenerally, looking at the whole situationimpartially and objectively, would considerit unreasonable.’’ Id. (quotations and cita-tion omitted and emphasis added); seealso Florida East Coast Props., Inc. v.Metropolitan Dade County, 572 F.2d 1108,1112 (5th Cir.1978) (‘‘In every case, thecourt must make a comparative evaluationof the conflicting interests according toobjective legal standards, and the gravityof harm to the plaintiff must be weighedagainst the utility of the defendant’s con-duct.’’).

Applying the above-discussed principleshere, the factfinder will have to weigh,inter alia, the energy-producing alterna-tives that were available in the past andconsider their respective impact on farranging issues such as their reliability asan energy source, safety considerationsand the impact of the different alterna-tives on consumers and business at everylevel. See People of the State of Calif. v.Gen. Motors Corp., 2007 WL 2726871 at*8 (N.D.Cal., Sept. 17, 2007) (‘‘Plaintiff’sclaim would require the Court to balancethe competing interests of reducing globalwarming emissions and the interests ofadvancing and preserving economic andindustrial development’’); see also Cook v.Rockwell Int’l. Corp., 580 F.Supp.2d 1071,1166 (D.Colo.2006) (‘‘To assess the utilityof Defendants’ conduct, the jury must con-sider several factors, including the pri-mary purpose of Defendants’ conduct andthe social value of that purpose’’) (citingRestatement (Second) of Torts § 828 &cmt. e). The factfinder would then have


to weigh the benefits derived from thosechoices against the risk that increasinggreenhouse gases would in turn increasethe risk of causing flooding along thecoast of a remote Alaskan locale. Plain-tiffs ignore this aspect of their claim andotherwise fail to articulate any particularjudicially discoverable and manageablestandards that would guide a factfinder inrendering a decision that is principled, ra-tional, and based upon reasoned distinc-tions. See Alperin, 410 F.3d at 552.

Plaintiffs next argue that the existenceof judicially discoverable or manageablestandards is exemplified by the long, priorhistory of air and water pollution cases.Pls.’ Opp’n at 61–63. The Second Circuitin Connecticut v. Am. Elec. Power Co.Inc., 582 F.3d 309 (2d Cir.2009) (AEP )agreed with this reasoning in holding thatthe political question doctrine did not bar anuisance lawsuit brought by eight states, acity and three land trusts against six elec-tric power corporations ‘‘to cap and thenreduce their carbon monoxide emissions.’’Id. at 314. With regard to the secondBaker factor, the AEP court rejected thedefendants’ reliance on ‘‘uncertainties’’ re-garding the precise effect of greenhousegas emissions and noted that ‘‘federalcourts have successfully adjudicated com-plex common law nuisance cases for over acentury.’’ Id. at 326. Based on the judi-ciary’s history of addressing ‘‘new andcomplex problems,’’ including those con-cerning environmental pollution, the courtconcluded that ‘‘[w]ell-settled principles oftort and public nuisance law provide ap-propriate guidance to the district court inassessing Plaintiffs’ claims and federalcourts are competent to deal with these

issues’’ such that their global warming con-cerns can ‘‘be addressed through princi-pled adjudication.’’ Id. at 329. This Courtis not so sanguine. While such principlesmay provide sufficient guidance in somenovel cases, this is not one of them.

The cases cited by Plaintiffs as well asthe AEP court involved nuisance claimsfounded on environmental injuries far dif-ferent than those alleged in the instantcase.3 The common thread runningthrough each of those cases is that theyinvolved a discrete number of ‘‘polluters’’that were identified as causing a specificinjury to a specific area. Yet, Plaintiffsthemselves concede that considerations in-volved in the emission of greenhouse gasesand the resulting effects of global warmingare ‘‘entirely different’’ than those ger-mane to water or air pollution cases. Pls.’Opp’n at 105. While a water pollutionclaim typically involves a discrete, geo-graphically definable waterway, Plaintiffs’global warming claim is based on the emis-sion of greenhouse gases from innumera-ble sources located throughout the worldand affecting the entire planet and itsatmosphere. Pls.’ Opp’n at 105. Notably,Plaintiffs acknowledge that the globalwarming process involves ‘‘common pollu-tants that are mixed together in the atmo-sphere [that] cannot be similarly geo-graphically circumscribed.’’ Id.

The sequence of events leading to theclaimed injury also is distinguishable. Ina water pollution case, the discharge inexcess of the amount permitted is pre-sumed harmful. See Tex. Indep. Produc-ers and Royalty Owners Ass’n v. E.P.A.,410 F.3d 964, 974 (5th Cir.2005) (Texas

3. For example, AEP cites two companioncases, Missouri v. Illinois, 180 U.S. 208, 21S.Ct. 331, 45 L.Ed. 497 (1901) and Missouri v.Illinois, 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed.572 (1906), both of which involved suits bythe State of Missouri and against the State ofIllinois based on the latter’s discharge of sew-

age into a channel that emptied into the Mis-sissippi River. See AEP, 582 F.3d at 325–27.The next set of cases discussed by the AEPcourt involved claims brought against copperproducers whose noxious emissions were de-stroying forests, orchards and crops in Geor-gia. Id. at 327.


Indep. Producers ). In contrast, the harmfrom global warming involves a series ofevents disconnected from the discharge it-self. In a global warming scenario, emit-ted greenhouse gases combine with othergases in the atmosphere which in turnresults in the planet retaining heat, whichin turn causes the ice caps to melt and theoceans to rise, which in turn causes theArctic sea ice to melt, which in turn alleg-edly renders Kivalina vulnerable to erosionand deterioration resulting from winterstorms. See Compl. ¶¶ 1, 4, 123–127, 254;Pls.’ Opp’n at 105.

Despite the admitted and significant dis-tinctions between a nuisance claim basedon water or air pollution and one, such asthe present, based on global warming, nei-ther Plaintiffs nor AEP offers any guid-ance as to precisely what judicially discov-erable and manageable standards are to beemployed in resolving the claims at issue.Although federal courts undoubtedly arewell suited to resolve new and complexissues and cases, the Court is not persuad-ed that this is such a case. Plaintiffs’global warming nuisance claim seeks toimpose liability and damages on a scaleunlike any prior environmental pollutioncase cited by Plaintiffs. Those cases donot provide guidance that would enable theCourt to reach a resolution of this case inany ‘‘reasoned’’ manner. See Alperin, 410F.3d at 552. Consequently, the Court con-cludes that application of the second Bakerfactor precludes judicial consideration ofPlaintiff’s federal nuisance claim.

b) Initial Policy Determination

[24–26] Equally problematic for Plain-tiffs is the third Baker factor, which re-quires the Court to determine whether itwould be impossible for the judiciary todecide the case ‘‘without an initial policydetermination of a kind clearly for nonjudi-cial discretion.’’ Baker, 369 U.S. at 217, 82S.Ct. 691. A political question under thisfactor ‘‘exists when, to resolve a dispute,

the court must make a policy judgment ofa legislative nature, rather than resolvingthe dispute through legal and factual anal-ysis.’’ EEOC v. Peabody W. Coal Co., 400F.3d 774, 784 (9th Cir.2005). This factor isaimed at preventing a court from ‘‘remov-ing an important policy determinationfrom the Legislature.’’ In re Methyl Ter-tiary Butyl Ether (MTBE) Prods. Liab.Litig., 438 F.Supp.2d 291, 297 (S.D.N.Y.2006).

Plaintiffs emphasize that because theyare not seeking injunctive relief, there isno need for the Court to delve into thetask of retroactively determining whatemission limits should have been imposed.Pls.’ Opp’n at 64–69. This argument restson the same faulty logic discussed above;to wit, that Plaintiffs’ nuisance claim canbe resolved solely by examining the rea-sonableness of the harm, while avoidingany consideration of the conduct causingthe nuisance. As noted, Plaintiffs’ federalnuisance claim inherently requires thefactfinder to consider both the harm expe-rienced by Plaintiff as well as the utility orvalue of Defendants’ actions. The factthat plaintiff is seeking damages as op-posed to injunctive relief does not counsela different result. Regardless of the reliefsought, the resolution of Plaintiffs’ nui-sance claim requires balancing the socialutility of Defendants’ conduct with theharm it inflicts. That process, by defini-tion, entails a determination of what wouldhave been an acceptable limit on the levelof greenhouse gases emitted by Defen-dants. See GM, 2007 WL 2726871 at *8(‘‘regardless of the relief sought, the Courtis left to make an initial decision as to whatis unreasonable in the context of carbondioxide emissions.’’)

Plaintiffs also fail to confront the factthat resolution of their nuisance claim re-quires the judiciary to make a policy deci-sion about who should bear the cost of


global warming. Though alleging that De-fendants are responsible for a ‘‘substantialportion’’ of greenhouse gas emissions,Compl. ¶ 3, Plaintiffs also acknowledgethat virtually everyone on Earth is respon-sible on some level for contributing to suchemissions.4 Yet, by pressing this lawsuit,Plaintiffs are in effect asking this Court tomake a political judgment that the twodozen Defendants named in this actionshould be the only ones to bear the cost ofcontributing to global warming. Plaintiffsrespond that Defendants should be theones held responsible for damaging Kivali-na allegedly because ‘‘they are responsiblefor more of the problem than anyone elsein the nationTTTT’’ Pls.’ Opp’n at 68. Buteven if that were true, Plaintiffs ignorethat the allocation of fault—and cost—ofglobal warming is a matter appropriatelyleft for determination by the executive orlegislative branch in the first instance.The Court thus concludes that the thirdBaker factor also militates in favor of dis-missal.5

B. ARTICLE III STANDING

[27–29] Article III standing is athreshold requirement for federal court ju-risdiction. Lujan v. Defenders of Wildlife,504 U.S. 555, 559–60, 112 S.Ct. 2130, 119L.Ed.2d 351 (1992). Under Article III ofthe Constitution, federal judicial power ex-tends only to ‘‘Cases’’ and ‘‘Controversies.’’U.S. Const., art. III, § 2, cl. 1. ‘‘[I]n orderto have Article III standing, a plaintiffmust adequately establish: (1) an injury

in fact (i.e., a concrete and particularizedinvasion of a legally protected interest);(2) causation (i.e., a fairly traceable con-nection between the alleged injury in factand the alleged conduct of the defendant);and (3) redressability (i.e., it is likely andnot merely speculative that the plaintiff’sinjury will be remedied by the relief plain-tiff seeks in bringing suit).’’ SprintCommc’n Co., L.P. v. APCC Servs., Inc.,––– U.S. ––––, 128 S.Ct. 2531, 2535, 171L.Ed.2d 424 (2008) (citing Lujan, 504 U.S.at 560–561, 112 S.Ct. 2130) (internal quota-tions and alterations omitted); Stormans,Inc. v. Selecky, 571 F.3d 960, 970 (9thCir.2009). The party invoking federal ju-risdiction bears the burden of establishingthese elements which are the ‘‘irreducibleconstitutional minimum’’ requirements ofstanding. Lujan, 504 U.S. at 560–61, 112S.Ct. 2130.

[30, 31] The standing dispute in thiscase centers on what the Supreme Courthas defined as ‘‘the causation requirement’’of standing, i.e., fair traceability. Bennettv. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154,137 L.Ed.2d 281 (1997). ‘‘To show causa-tion, the plaintiff must demonstrate a caus-al connection between the injury and theconduct complained of—the injury has tobe fairly traceable to the challenged actionof the defendant, and not the result of theindependent action of some third party notbefore the court.’’ Salmon Spawning &Recovery Alliance v. Gutierrez, 545 F.3d1220, 1227 (9th Cir.2008); Ecological

4. To the extent that the combustion of fossilfuels is causing global warming, it is evidentthat any person, entity or industry which usesor consumes such fuels bears at least someresponsibility for Plaintiffs’ harm. Plaintiffsreadily acknowledge that the ‘‘transportationsector’’ is responsible for an ‘‘enormous quan-tity’’ of greenhouse gas emissions. Pls.’Opp’n at 98. Nonetheless, Plaintiffs havechosen not to include any members of thetransportation sector in this lawsuit. Theseemingly arbitrary selection of Defendants,

coupled with the gravity and extent of theharm alleged in this case, underscores theconclusion that the allocation of responsibilityfor global warming is best left to the executiveor legislative branch.

5. Given the Court’s conclusions regarding thesecond and third Baker factors, the Courtdoes not reach the parties arguments regard-ing the remaining Baker factors which, in anyevent, largely mirror the argument analyzedabove.


Rights Found. v. Pacific Lumber Co., 230F.3d 1141, 1152 (9th Cir.2000). ‘‘Althoughthe ‘‘traceability’’ of a plaintiff’s harm tothe defendant’s actions need not rise to thelevel of proximate causation, Article IIIdoes require proof of a substantial likeli-hood that the defendant’s conduct causedplaintiff’s injury in fact.’’ Habecker v.Town of Estes Park, Colo., 518 F.3d 1217,1225 (10th Cir.2008) (citations and internalquotations omitted and emphasis added).

1. Contribution to the Injury

Plaintiffs concede they are unable totrace their alleged injuries to any particu-lar Defendant but instead claim that theyneed not do so. According to Plaintiffs,for purposes of establishing standing, theyneed only allege that Defendants ‘‘contrib-uted’’ to their injuries. Pls.’ Opp’n at 97–98. Their ‘‘contribution’’ approach to Arti-cle III causation derives from cases involv-ing claims brought under the Clean WaterAct, such as P.I.R.G. v. Powell DuffrynTerminals, Inc., 913 F.2d 64, 72 (3d Cir.1990) (Powell Duffryn ). In that case, apublic interest group and others brought acitizen suit under the Clean Water Actaccusing the defendant of violating its dis-charge permit by discharging industrialwaste into a local waterway. In its motionfor summary judgment, Defendant arguedthat plaintiff could not establish to ‘‘a rea-sonable scientific certainty’’ that defen-dant’s operations harmed the waterway.Id. at 71–72. The district court deniedsummary judgment on the ground thatdefendant’s violation of the discharge per-mits, standing alone, was sufficient to dem-onstrate that plaintiff’s injury was fairlytraceable to defendant’s conduct. Id.6

On appeal, the Fourth Circuit agreedwith defendant that ‘‘a permit exceedancealone’’ is insufficient to meet the causationprong of the test for standing, but conclud-ed that there nonetheless were sufficientfacts to establish causation. Id. at 72.The court explained: ‘‘The requirementthat plaintiffs’ injuries be ‘fairly traceable’to the defendant’s conduct does not meanthat plaintiffs must show to a scientificcertainty that defendant’s effluent, and de-fendant’s effluent alone, caused the preciseharm suffered by the plaintiffs.’’ Id. Ac-cording to the court, the ‘‘fairly traceable’’requirement ‘‘is not equivalent to a re-quirement of tort causation,’’ and as such,the plaintiffs ‘‘need only show that there isa ‘substantial likelihood ’ that defendant’sconduct caused plaintiffs’ harm.’’ Id. (em-phasis added). ‘‘In a Clean Water Actcase, this likelihood may be established byshowing that a defendant has 1) dis-charged some pollutant in concentrationsgreater than allowed by its permit 2) into awaterway in which the plaintiffs have aninterest that is or may be adversely affect-ed by the pollutant and that 3) this pollu-tant causes or contributes to the kinds ofinjuries alleged by the plaintiffs.’’ Id. (em-phasis added). With regard to the lastelement, the court noted that water pollu-tion cases often involve ‘‘several partiesdischarging into the affected waterway,’’and as such, ‘‘[i]n order to obtain standing,plaintiffs need not sue every discharger inone action, since the pollution of any onemay be shown to cause some part of theinjury suffered.’’ Id. n. 8.

Subsequently, in Friends of the Earth,Inc. v. Gaston Copper Recycling Corp., 204

6. The purpose of the Federal Water PollutionControl Act (referred to as the Clean WaterAct) is to restore and maintain the nation’swaters and to eliminate the discharge of pol-lutants into waterways. See 33 U.S.C.§ 1251(a). Under the Act, corporations maynot discharge pollutants into navigable water-

ways, unless they obtain a National PollutionDischarge Elimination System permit, whichlimits the amount of effluent (pollution) thatmay be discharged. See 33 U.S.C.§§ 1311(a), 1342. Compliance with the termsand conditions of the permit constitutes com-pliance with the Act. Id. § 1342(k).


F.3d 149 (4th Cir.2000) (Gaston Copper ),the court adopted similar reasoning inholding that various environmental organi-zations had standing to bring a citizenssuit under the Clean Water Act against asmelting operator accused of illegally dis-charging a variety of pollutants into aSouth Carolina waterway. The districtcourt had dismissed the case on theground that plaintiffs failed to present evi-dence showing that the chemical content ofthe waterways were affected by the defen-dant’s facility or that plaintiffs were nega-tively affected by the defendants’ conduct.Id. at 159. In reversing the district court,the court of appeal rejected the suggestionthat it must be shown to a ‘‘scientific cer-tainty’’ that defendant’s act of dischargingeffluent beyond the scope of its permitcaused the precise harm suffered by theplaintiffs. Id. at 161. ‘‘Rather than pin-pointing the origins of particular mole-cules, a plaintiff must merely show that adefendant discharges a pollutant thatcauses or contributes to the kinds of inju-ries alleged.’’ Id. ‘‘Where a plaintiff haspointed to a polluting source as the seed ofhis injury, and the owner of the pollutingsource has supplied no alternative culprit,the ‘fairly traceable’ requirement can besaid to be fairly met.’’ Id. at 162 (empha-sis added). However, the court also cau-tioned that to be ‘‘fairly traceable,’’ theplaintiff must lie in the ‘‘discharge zone ofa polluter’’ and not ‘‘so far downstreamthat their injuries cannot be fairly tracedto that defendant.’’ Id.

In contrast to Powell Duffryn and Ga-ston Copper, the Fifth Circuit in Tex. In-dep. Producers rejected, in part, an actionbrought by the Natural Resources DefenseCouncil (NRDC) seeking to challenge pro-posed regulations promulgated by theEPA as violative of the Clean Water Act.Citing Gaston Copper, the court noted thenow well-established principle that theplaintiff need not establish a nexus be-tween the defendants’ discharge of pollu-

tants and plaintiffs’ injury with ‘‘scientificcertainty.’’ Tex. Indep. Producers, 410F.3d at 973. At the same time, the courtrecognized that the ‘‘contribution’’ ap-proach to standing is dependent upon theplaintiffs’ ability to plead and prove thedefendant’s ‘‘ ‘polluting source as the seedof his injury, and [that] the owner of thepolluting source has supplied no alterna-tive culprit TTT’ ’’ Id. at 974 (quoting inpart Gaston Copper, 204 F.3d at 162). Ul-timately, the court held that the NRDChad failed to show that defendants werethe ‘‘seed’’ of its injury, finding the ‘‘exist-ing polluted condition’’ of at least three ofthe water bodies involved that had previ-ously resulted from the discharge of rawbillions of gallons of raw sewage from vari-ous sources flowing into those rivers annu-ally. Id.

[32] Here, Plaintiffs acknowledge thatthe contribution principles upon whichthey rely have arisen in the context ofClean Water Act cases, but insist that‘‘there is no reason to assume that thepresence of a statutory scheme in thosecases limits the rule that plaintiffs needonly show contribution in CWA actionsalone.’’ Pls.’ Opp’n at 98. The Court dis-agrees. There is a critical distinction be-tween a statutory water pollution claimversus a common law nuisance claim. Un-der the Clean Water Act, the amount ofeffluent that may be legally discharged isstrictly regulated ‘‘to protect the designat-ed uses of the receiving waterways.’’ Ga-ston Copper, 204 F.3d at 157. Thus,where the plaintiff shows that a defen-dant’s discharge exceeds Congressionally-prescribed federal limits, it is presumedfor purposes of standing that ‘‘there is a‘substantial likelihood’ that defendant’sconduct caused plaintiffs’ harm,’’ even ifother parties have also made similar dis-charges. Id. at 72–73. Only then is itpermissible for the plaintiff to rely on the


notion that the defendant ‘‘contributed’’ toplaintiff’s injury on the ground that it maynot be possible to trace the injury to aparticular entity. Sierra Club, Lone StarChapter v. Cedar Point Oil Co. Inc., 73F.3d 546, 558 (5th Cir.1996) (‘‘Given thenumber of entities discharging chemicalsinto Galveston Bay, it would be virtuallyimpossible for any of Sierra Club’s mem-bers to trace his injuries to Cedar Point’sdischarge in particular.’’). In contrast,there are no federal standards limiting thedischarge of greenhouse gases. As a re-sult, no presumption arises that there is asubstantial likelihood that any defendant’sconduct harmed plaintiffs. Without thatpresumption, and especially given the ex-tremely attenuated causation scenario al-leged in Plaintiffs’ Complaint, it is entirelyirrelevant whether any defendant ‘‘contrib-uted’’ to the harm because a discharge,standing alone, is insufficient to establishinjury. See Texas Indep. Producers, 410F.3d at 974 (‘‘[e]stablishing a dischargedoes not also establish an injury.’’).7

2. ‘‘Seed’’ of the Injury

Even if the contribution theory wereapplicable outside the context of a statuto-ry water pollution claim, it is simply isinapposite where, as here, Plaintiffs havenot alleged that the ‘‘seed’’ of their injurycan be traced to any of the Defendants.See Texas Indep. Producers, 410 F.3d at974; Gaston Copper, 204 F.3d at 162.Plaintiffs allege that the genesis of theglobal warming phenomenon dates back

centuries and is a result of the emission ofgreenhouse gases by a multitude ofsources other than the Defendants.Compl. ¶¶ 124–25. The Complaint furtheralleges that the level of atmospheric car-bon dioxide, ‘‘the most significant green-house gas emitted by human activity,’’ hasbeen increasing steadily ‘‘since the dawn ofthe industrial revolution in the 18th centu-ry, and more than one-third of the increasehas occurred since 1980.’’ Id. Significant-ly, the source of the greenhouse gases areundifferentiated and cannot be traced toany particular source, let alone defendant,given that they ‘‘rapidly mix in the atmo-sphere’’ and ‘‘inevitably merge[ ] with theaccumulation of emissions in California andthe rest of the world.’’ Id. ¶¶ 254, 10.

In view of the Plaintiffs’ allegations as tothe undifferentiated nature of greenhousegas emissions from all global sources andtheir worldwide accumulation over long pe-riods of time, the pleadings makes clearthat there is no realistic possibility of trac-ing any particular alleged effect of globalwarming to any particular emissions byany specific person, entity, group at anyparticular point in time. See Pls.’ Opp’n at105. Plaintiffs essentially concede that thegenesis of global warming is attributableto numerous entities which individuallyand cumulatively over the span of centu-ries created the effects they now are expe-riencing. Even accepting the allegationsof the Complaint as true and construingthem in the light most favorable to Plain-

7. In AEP, the court noted that the contribu-tion prong of the Powell Duffryn test is notdependent upon a showing that the dischargeexceeded any federal limits because no suchlimits exist as to carbon dioxide emissions.582 F.3d at 346–47. This reasoning is circu-lar. Powell Duffryn held that to show fairtraceability, the plaintiff must show a ‘‘sub-stantial likelihood’’ that defendant’s conductcaused plaintiff’s injury. The tripartite testarticulated in Powell Duffryn to demonstratethe requisite ‘‘substantial likelihood’’ is stated

in the conjunctive, not the disjunctive as con-cluded by the AEP court. C.f., Gaston Copper,204 F.3d at 162 (finding that plaintiff had metthe Powell Duffryn test by showing that defen-dant exceeded its discharge permit limits andthat the waterway in dispute was within therange of the discharge). As such, it is illogi-cal to conclude that the mere contribution ofgreenhouse gases into the atmosphere is suffi-cient to establish that a plaintiff’s injury isfairly traceable to a defendant’s conduct.


tiffs, it is not plausible to state whichemissions—emitted by whom and at whattime in the last several centuries and atwhat place in the world—‘‘caused’’ Plain-tiffs’ alleged global warming related inju-ries. Thus, Plaintiffs have not and cannotshow that Defendants’ conduct is the ‘‘seedof [their] injury.’’ To the contrary, thereare, in fact, a multitude of ‘‘alternativeculprit[s]’’ allegedly responsible for thevarious chain of events allegedly leading tothe erosion of Kivalina. See Texas Indep.Producers, 410 F.3d at 974.

3. Zone of Discharge

[33] The above notwithstanding, thePowell Duffryn test simply has no applica-tion in this case given the remoteness ofthe injury claim. ‘‘[T]o satisfy the ‘fairlytraceable’ causation requirement, theremust be a distinction between ‘the plain-tiffs who lie within the discharge zone of apolluter and those who are so far down-stream that their injuries cannot fairly betraced to that defendant.’ ’’ Id. at 973(quoting in part Gaston Copper, 204 F.3dat 162); Friends of the Earth, Inc. v.Crown Cent. Petroleum Corp., 95 F.3d 358,361 (5th Cir.1996) (‘‘some ‘waterways’ cov-ered by the CWA may be so large thatplaintiffs should rightfully demonstrate amore specific geographic or other caus-ative nexus in order to satisfy the ‘fairlytraceable’ element of standing.’’). Thus,for example, an eighteen mile distance be-tween the point of discharge and the areaof plaintiff’s use of the body of waterwould be considered ‘‘too large to infercausation.’’ Id. (citation omitted). Like-wise, in Texas Indep. Producers, the FifthCircuit held that ‘‘where the specific waterbodies used by NRDC members run agreat distance [i.e., hundreds of miles], TTT

discharges in those water bodies [are] in-sufficient to establish the discharges arewithin the zone to infer causation.’’ 410F.3d at 973.

Here, the allegations of the Complaintdemonstrate that Plaintiffs are not withinthe zone of discharge. This is not aninstance in which Plaintiffs’ use of theirproperty is negatively impacted affectedby virtue of their proximity to the dis-charge, similar to discharges of effluentinto waterways. Indeed, Plaintiffs con-cede that ‘‘[i]t would be impossible to tracethe pathway of any particular greenhousegas emission, as each combines in the at-mosphere with other emissions, to createthe effects described in plaintiffs’ Com-plaint.’’ Pls.’ Opp’n at 105 (emphasis add-ed). Plaintiffs’ only response is that therelevant geographical area should be ‘‘theentire world, given the inherent nature ofglobal warming.’’ Pls.’ Opp’n at 98. Thatreasoning, however, suggests that everyinhabitant on this Earth is within the zoneof discharge, thereby effectively eliminat-ing the issue of geographic proximity inany case involving harms caused by globalwarming.

The tenuousness of Plaintiffs’ standingis further exemplified by their theory ofcausation. Unlike water pollution cases inwhich the discharges of effluent in excessof the permitted amount are deemedharmful, Plaintiffs’ arguments depend onan attenuated sequence of events that pur-portedly follow from the Defendants’ al-leged ‘‘excessive’’ discharge of greenhousegases. Id. ¶ 4, 123–125, 127, 130, 131. Assuccinctly stated by the Supreme Court inAllen v. Wright, ‘‘The links in the chain ofcausation between the challenged TTT con-duct and the asserted injury are far tooweak for the chain as a whole to sustain[Plaintiffs’] standing.’’ 468 U.S. 737, 759,104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).That observation is especially apropos inthe instant case where the Plaintiffs’ claimfor damages is dependent on a series ofevents far removed both in space and timefrom the Defendants’ alleged discharge ofgreenhouse gases. See Center for Biologi-


cal Diversity v. U.S. Dept. of Interior, 563F.3d 466, 478 (D.C.Cir.2009) (causal linkbetween government approval of offshoreleases for gas and oil development andclimate change was ‘‘too tenuous’’ to dem-onstrate standing); c.f., Benefiel v. ExxonCorp., 959 F.2d 805, 807 (9th Cir.1992)(holding that the aftereffects of a massiveoil spill were too remote to establish causa-tion for increased gasoline prices).

C. SPECIAL SOLITUDE

[34] Finally, Plaintiffs contend thatthey are entitled to relaxed standing re-quirements based upon the ‘‘special soli-tude’’ generally afforded to sovereigns.Pls.’ Opp’n at 106–109. This argumentderives from Massachusetts v. EPA, 549U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248(2007), a case where the State of Massa-chusetts along with private environmentalorganizations filed a rulemaking petitionrequesting the EPA to regulate carbondioxide emissions from new motor vehicles.Id. at 518, 127 S.Ct. 1438. In finding thatplaintiffs had standing, the Supreme Courtacknowledged ‘‘the special position and in-terest of Massachusetts’’ and noted that it‘‘is of considerable relevance that the partyseeking review here is a sovereign Stateand not TTT a private individual.’’ Id. at518, 127 S.Ct. 1438. The Court explainedthat ‘‘[w]hen a State enters the Union, itsurrenders certain sovereign preroga-tives,’’ such as those relating to ‘‘exerciseof its police powers to reduce in-state mo-tor-vehicle emissionsTTTT’’ Id. at 519, 127S.Ct. 1438. Such ‘‘sovereign preroga-tives,’’ the Court noted, are now vested inthe federal government, which has chargedthe EPA with the responsibility of protect-ing states by prescribing standards appli-cable to motor vehicle pollution. Id. at519–520, 127 S.Ct. 1438. States, nonethe-less, retain the procedural right to chal-lenge rulemaking by the EPA ‘‘as arbi-trary and capricious.’’ Id. at 520, 127 S.Ct.1438. The Supreme Court concluded that

‘‘[g]iven that procedural right and Massa-chusetts’ stake in protecting its quasi-sov-ereign interests, the Commonwealth is en-titled to special solicitude in our standinganalysis.’’ Id.

Plaintiffs are not entitled to any ‘‘specialsolitude’’ under the circumstances present-ed. Unlike Massachusetts, Plaintiffs arenot seeking to enforce any proceduralrights concerning an agency’s rulemakingauthority. Rather, Plaintiffs claim is onefor damages directed against a variety ofprivate entities. Nor may Plaintiffs relyon the ‘‘quasi sovereign interests’’ refer-enced by the Supreme Court. The specialsolitude recognized by the Court is predi-cated on the rights a State relinquishes tothe federal government when it ‘‘entersthe Union.’’ Id. at 519, 127 S.Ct. 1438.This rationale does not apply to Plaintiffs,which did not surrender its sovereignty asthe price for acceding to the Union. Evenif the special solitude mentioned in Massa-chusetts applied to Plaintiffs, they stillwould lack standing. As discussed above,Plaintiffs lack standing on the basis of thepolitical question doctrine and based ontheir inability to establish causation underArticle III. Even a relaxed application ofthe requisite standing requirements wouldnot overcome these fatal flaws in Plaintiffs’case.

D. SUPPLEMENTAL STATE LAW CLAIMS

Aside from their first claim for commonlaw nuisance, all of Plaintiffs’ remainingclaims are based upon state law. A dis-trict court may decline to exercise supple-mental jurisdiction over a claim if it hasdismissed all claims over which it has orig-inal jurisdiction. 28 U.S.C. § 1367(c)(3);Imagineering, Inc. v. Kiewit Pacific Co.,976 F.2d 1303, 1309 (9th Cir.1992). There-fore, the Court declines to assert supple-mental jurisdiction over the remainingstate law claims which are dismissed with-

883SARVISS v. GENERAL DYNAMICS INFORMATION TECHNOLOGYCite as 663 F.Supp.2d 883 (C.D.Cal. 2009)

out prejudice to their presentation in astate court action.

IV. CONCLUSION

The Court concludes that Plaintiffs’ fed-eral claim for nuisance is barred by thepolitical question doctrine and for lack ofstanding under Article III. Accordingly,

IT IS HEREBY ORDERED THAT De-fendants’ motions to dismiss for lack ofjurisdiction are GRANTED. The remain-ing motions to dismiss are DENIED asmoot. Plaintiffs’ state law claims are dis-missed without prejudice to refiling instate court. The Clerk shall close the fileand terminate all pending matters.

IT IS SO ORDERED.

,

John D. SARVISS, individually and onbehalf of all others similarly

situated, Plaintiff,

v.

GENERAL DYNAMICS INFOR-MATION TECHNOLOGY,

INC., Defendant.

Case No. CV 08–01484 DDP (CWx).

United States District Court,C.D. California.

July 14, 2009.

Background: Helicopter pilot formerlyemployed by government contractor totrain Pakistani helicopter pilots for mili-tary and defense purposes brought actionin state court alleging putative collectiveand class actions against employer, includ-ing claims under the Fair Labor StandardsAct (FLSA), the California Labor Code,and California’s unfair competition law(UCL). Following removal, contractormoved for summary judgment, and pilotmoved for collective action certification of

the FLSA claim and for class certificationof California claims.

Holdings: The District Court, Dean D.Pregerson, J., held that:

(1) triable issues regarding nature of pi-lot’s duties precluded summary judg-ment on issue of whether FLSA ex-emption for ‘‘highly paid employees’’applied;

(2) California Industrial Welfare Commis-sion (IWC) wage orders governingovertime pay did not apply;

(3) pilot failed to meet burden for collec-tive certification on FLSA overtimeclaim; and

(4) claims under California law, allegingfailure to provide accurate itemizedwage statements and failure to paywages promptly upon termination orresignation, could not be certified asclass action on grounds that questionscommon to the class predominated.

Defendants’ motion granted in part anddenied in part; Plaintiffs’ motion denied.

1. Labor and Employment O2385(6)An employer has the burden of proof

to establish the applicability of an exemp-tion to overtime requirements under theFLSA. Fair Labor Standards Act of 1938,§ 7(a), 29 U.S.C.A. § 207(a).

2. Labor and Employment O2397(2)Whether employees are exempt from

the overtime pay requirements of theFLSA is primarily a question of fact. FairLabor Standards Act of 1938, § 7(a), 29U.S.C.A. § 207(a).

3. Labor and Employment O2252Helicopter pilot formerly employed by

government contractor to train Pakistanihelicopter pilots for military and defensepurposes was considered an employee witha total annual compensation of at least

native village of kivalina v. exxonmobil corp. 863 · standing; and (5) village and city did not...

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