Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 1 of 38 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON KELSEY ROSE CASCADIA JULIANA, et al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Federal Defendants. ) ) ) ) ) ) ) ) ) ) Civil No. 6:15-cv-01517-TC FEDERAL DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS JOHN C. CRUDEN Assistant Attorney General Environment and Natural Resources Division JUSTIN A. TORRES Trial Attorney, D.C. Bar No. 1003136 Environment and Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0874 Fax: (202) 305-0506 justin.torres@usdoj.gov Attorneys for Federal Defendants i Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 2 of 38 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 1 STANDARD OF REVIEW ............................................................................................................ 6 ARGUMENT .................................................................................................................................. 7 I. Under Lujan, Plaintiffs Lack Article III Standing to Bring This Suit. ................... 7 A. B. II. III. The Amended Complaint Fails To Allege Particularized Harm Traceable To Defendants’ Acts. ................................................................. 8 1. Plaintiffs Lack Standing Because They Allege A Generalized Grievance, Not A Particularized Harm. .......................................... 8 2. Plaintiffs Lack Standing Because They Allege A Causal Chain That Consists Of Generalized Assertions Of Defendants’ “Contribution” To Climate Change. ......................... 11 3. Plaintiffs Lack Standing Because Their Alleged Injuries Cannot Be Redressed By The Court. ............................................ 13 4. Future Generations Have Suffered No Injury In Fact And Thus Lack Standing. ..................................................................... 16 Plaintiffs’ Claims Are A Generalized Grievance Best Addressed Through Democratic Means, Not By A Federal Court. ............................ 17 Plaintiffs Fail To State A Claim Under The Constitution..................................... 19 A. There Is No Constitutional Right To Be Free of CO2 Emissions. ............ 20 B. Plaintiffs Are Not A Discrete Minority And Have No Equal Protection Claim. ...................................................................................... 23 C. The Ninth Amendment Guarantees No Substantive Rights. .................... 26 D. Defendants’ Acts Have A Rational Basis. ................................................ 27 This Court Lacks Jurisdiction Over Public Trust Doctrine Suits, Which Arise Under State Law. ......................................................................................... 27 CONCLUSION ............................................................................................................................. 29 ii Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 3 of 38 TABLE OF AUTHORITIES Cases Allen v. Wright, 468 U.S. 737 (1984) ........................................................................................... 13 Am. Bus Ass’n v. Slater, 231 F.3d 1 (D.C. Cir. 2000) .................................................................. 15 Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) ................................................ 18, 19 Amigos Bravos v. BLM, 816 F. Supp. 2d 1118 (D.N.M. 2011) .................................................... 11 Appleby v. City of New York, 271 U.S. 364 (1926) ...................................................................... 28 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................... 7 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) ....................................................... 7 C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th Cir. 1987) ....................................... 17 Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004) .............................................................. 17 Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115 (9th Cir. 2010) ................................. 6 Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988) .......................................................................... 20 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) .................................... 25, 26 City of Mobile, Ala. v. Bolden, 446 U.S. 55 (1980) ...................................................................... 25 Clynch v. Chapman, 285 F. Supp. 2d 213 (D. Conn. 2003) ......................................................... 26 Collins v. City of Harker Heights, 503 U.S. 115 (1992)......................................................... 20, 22 Concerned Citizens of Neb. v. U.S. Nuclear Regulatory Comm’n, 970 F.2d 421 (8th Cir. 1992) ............................................................................................ 21 Ctr. for Biological Diversity v. U.S. Dept. of the Interior, 563 F.3d 466, 475 (D.C. Cir. 2009) .................................................................................. 11 Cunningham v. Beavers, 858 F.2d 269 (5th Cir. 1988) ................................................................ 24 DeLeon v. Little, 981 F. Supp. 728 (D. Conn. 1997) .................................................................... 26 Detroit Bank v. United States, 317 U.S. 329 (1943) ....................................................................... 4 Douglas v. Hugh A. Stallings, M.D., Inc., 870 F.2d 1242 (7th Cir. 1989) ................................... 24 iii Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 4 of 38 Elizabeth Retail Props. LLC v. KeyBank Nat. Ass’n, 83 F. Supp. 3d 972 (D. Or. 2015) ............... 6 Ely v. Velde, 451 F.2d 1130 (4th Cir. 1970) ................................................................................. 22 Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005)............................................... 7 FCC v. Beach Cmmc’ns, 508 U.S. 307 (1993) ............................................................................. 27 Flast v. Cohen, 392 U.S. 83 (1968) ................................................................................................ 8 Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991)....................................................................... 26 Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979) ......................................................... 9 Gonzales v. Gorsuch, 688 F.2d 1263 (9th Cir. 1982) ................................................................... 13 Hagedorn v. Union Carbide Corp., 363 F. Supp. 1061 (N.D. W. Va. 1973) ............................... 22 Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148 (D.C. Cir. 2004) ....................... 25 Hill v. Stone, 421 U.S. 289 (1975) ................................................................................................ 24 Hirabayashi v. United States, 320 U.S. 81 (1943).......................................................................... 4 Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997)..................................................................... 28 Illinois Central Rail Company v. Illinois, 146 U.S. 387 (1892) ................................................... 28 Jaffee v. Soc’y of New York Hosp., 1999 WL 246747 (S.D.N.Y. Apr. 27, 1999) ........................ 24 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973)................................................. 27 Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014)...................... 13 Long Sault Dev. Co. v. Call, 242 U.S. 272 (1916)........................................................................ 28 Loortz v. McCarthy, 561 F. App'x 7 (D.C. Cir. 2014) ............................................................ 28, 29 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................... 7, 8, 9, 10, 16, 18 MacNamara v. Cnty. Council of Sussex Cnty., 738 F. Supp. 134 (D. Del. 1990) ........................ 22 Mann v. Meachem, 929 F. Supp. 622 (N.D.N.Y. 1996) ............................................................... 26 Massachusetts v. EPA, 549 U.S. 497 (2007) ...................................................................... 9, 11, 19 Michael H. v. Gerald D., 491 U.S. 110 (1989) ............................................................................. 20 Moore v. City of E. Cleveland, 431 U.S. 494 (1977) .................................................................... 20 iv Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 5 of 38 Nat’l Sea Clammers Ass’n v. City of New York, 616 F.2d 1222 (3d Cir. 1980) ........................... 21 Phillips Petrol. Co. v. Mississippi, 484 U.S. 469 (1988) .............................................................. 28 Pinkney v. Ohio Envtl. Prot. Agency, 375 F. Supp. 305 (N.D. Ohio 1974) .................................. 22 PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012) ............................................................. 28 Price v. Cohen, 715 F.2d 87 (3d Cir. 1983).................................................................................. 24 Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007) ......................................................................... 21 Reno v. Flores, 507 U.S. 292 (1993) ............................................................................................ 21 Reynolds v. Giusto, No. CV. 08-6261 PK, 2009 WL 2523727 (D. Or. Aug. 18, 2009) ................. 6 S.F. Chapter of A. Philip Randolph Inst. v. EPA, 2008 WL 859985 (N.D. Cal. Mar. 28, 2008) .................................................................... 22 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973..................................................... 23 Santana v. Zilog, Inc., 95 F.3d 780 (9th Cir. 1996) ...................................................................... 16 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974) ................................ 10, 17 Sequoyah v. Tenn. Valley Auth., 480 F. Supp. 608 (E.D. Tenn. 1979) ......................................... 22 Shively v. Bowlby, 152 U.S. 1 (1894) ........................................................................................... 28 Sierra Club v. Morton, 405 U.S. 727 (1972) .................................................................................. 8 Sierra Club v. U.S. Def. Energy Support Ctr., Civ. A. No. 01:11-cv-41, 2011 WL 3321296 (E.D. Va. July 29, 2011) ........................... 11 Steel Co. v. Citizens for a Better Envt., 523 U.S. 83 (1998) ........................................................... 7 Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986) ........................................................ 26 Summers v. Earth Island Inst., 555 U.S. 488 (2009) .................................................................... 10 Tanner v. Armco Steel Corp., 340 F. Supp. 532 (S.D. Tex. 1972) ............................................... 22 Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012) ........................................................ 16 Truax v. Corrigan, 257 U.S. 312 (1921)......................................................................................... 4 United States v. 32.42 Acres of Land, More or Less, Located in San Diego Cnty., Cal., 683 F.3d 1030 (9th Cir. 2012) .......................................................................................... 28 v Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 6 of 38 United States v. Bifield, 702 F.2d 342 (2d Cir. 1983)................................................................... 26 United States v. Mitchell, 915 F.2d 521 (9th Cir. 1990) ............................................................... 17 Upper W. Fork River Watershed Ass’n v. Corps of Eng’rs, U.S. Army, 556 F.2d 576 (4th Cir. 1977) ............................................................................................ 22 Upper W. Fork Watershed Assoc. v. Corps of Eng’rs, U. S. Army, 414 F. Supp. 908 (N.D. W.Va. 1976) ............................................................................... 22 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464 (1982) ............................................................................................................ 7 Warth v. Seldin, 422 U.S. 490 (1975) ............................................................................... 6, 8, 9, 10 Wash. Envtl. Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013) ....................................... 12, 13, 15 Washington v. Glucksberg, 521 U.S. 702 (1997) ................................................................... 21, 22 Whitmore v. Arkansas, 495 U.S. 149 (1990) .................................................................................. 7 WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) .................................................. 11 WildEarth Guardians v. Salazar, 880 F. Supp. 2d 77 (D.D.C. 2012) .......................................... 11 Statutes 15 U.S.C. § 717b ............................................................................................................................. 2 16 U.S.C. § 2601 ........................................................................................................................... 14 30 U.S.C. § 1201 ........................................................................................................................... 14 30 U.S.C. § 21a ............................................................................................................................. 15 42 U.S.C. § 5801 ........................................................................................................................... 15 P.L. 91-631, § 101......................................................................................................................... 15 P.L. 93-438, § 2(a) ........................................................................................................................ 14 P.L. 95-617, § 2............................................................................................................................. 14 P.L. 95-87, §101............................................................................................................................ 14 P.L. 96-294, § 100(3) .................................................................................................................... 14 vi Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 7 of 38 Other Authorities Fed. R. Civ. P. 12(b)(1)......................................................................................................... 1, 6, 29 Fed. R. Civ. P. 12(b)(6)..................................................................................................... 1, 6, 7, 27 Rules 80 Fed. Reg. 64,510 (Oct. 23, 2015)............................................................................................. 19 80 Fed. Reg. 64,662 (Oct. 23, 2015)............................................................................................. 19 Constitutional Provisions U.S. Const. amend. V.................................................................................................................... 20 U.S. Const. art. III § 2, cl.1 ............................................................................................................. 7 vii Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 8 of 38 Federal Defendants—the United States of America, the Office of the President of the United States, and a group of federal agencies and their respective heads sued in their official capacities—hereby file this Memorandum of Points and Authorities in support of their Motion to Dismiss. INTRODUCTION To provide the relief requested by Plaintiffs in this case, the Court would be required to make and enforce national policy concerning energy production and consumption, transportation, science and technology, commerce, and any other social or economic activity that contributes to carbon dioxide (“CO2”) emissions. Article III does not give Plaintiffs standing to bring such an action or invest a federal court with the power to transform its limited jurisdiction to decide “cases” and “controversies” into a national writ to make climate policy. Nor does the Constitution or public trust doctrine give rise to a claim in federal court to vindicate the generalized public interest in limiting CO2 emissions. The Amended Complaint should be dismissed with prejudice under Rule 12(b)(1) because Plaintiffs lack Article III standing or, alternatively, under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. BACKGROUND Plaintiffs are a group of individuals—of majority age or minors proceeding through guardians ad litem—as well as the non-profit organization Earth Guardians, a “tribe of young activists, artists and musicians,” dedicated to “creat[ing] a sustainable world for themselves and future generations.” First Amended Complaint for Declaratory and Injunctive Relief ¶ 91, ECF No. 7 (Sept. 10, 2015) (“Am. Compl.”). In addition, this suit is brought by “Future Generations,” by and through their putative guardian, Dr. James Hansen. Id. ¶ 92. Plaintiffs filed this Amended Complaint on September 10, 2015, bringing four claims against the United 1 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 9 of 38 States and a group of federal agencies and officials. Id. ¶¶ 98-130. The Amended Complaint alleges that increases in atmospheric carbon dioxide levels have caused rising sea levels, leading to glacier and sea ice melting, id. ¶¶ 214-15, 218-19, 223, 225; increased global surface temperatures, id. ¶¶ 217, 224; changes to atmospheric moisture levels and rainfall patterns and increased wildfires, id. ¶ 229; and coastal erosion, id. ¶ 219. Plaintiffs allege that these changes have impacted, or will negatively impact, drinking water quality, id. ¶ 226; agriculture and food production, id. ¶¶ 226-27; ocean acid levels, id. ¶¶ 230-32; coral reef health, id. ¶¶ 233-34; plant and animal biodiversity, id. ¶¶ 235-37; human health, id. ¶ 238; national security, id. ¶ 239; and migration and demographic patterns, id. ¶ 240. The individual plaintiffs and the organizational plaintiff allege that they or its members have already experienced these impacts, id. ¶¶ 16-96, and that those impacts will accelerate during the likely life span of the individual plaintiffs and Future Generations, id. ¶¶ 97, 242-55. Plaintiffs allege that Defendants are causing unsustainable CO2 emissions and increased CO2 atmospheric levels and associated impacts by permitting increases in fossil fuel production and combustion, id. ¶¶ 151-70, 185-91, subsidizing the fossil fuel industry, id. ¶¶ 171-78; and allowing interstate and international transport of fossil fuels, id. ¶¶ 179-84. Plaintiffs also specifically complain about DOE/FE Order No. 3041, the Department of Energy’s (“DOE”) order granting long-term multi-contract authorization, under Section 201 of the Energy Policy Act of 1992, for export of liquefied natural gas (“LNG”) from the proposed Jordan Cove LNG terminal in Coos Bay, Oregon (“the Coos Bay facility”). Id. ¶¶ 192-201. 1 1 Section 201 of the Energy Policy Act of 1992 amended 15 U.S.C. § 717b to state that the importation of natural gas from, or the exportation of natural gas to, “a nation with which there is in effect a free trade agreement requiring national treatment for trade in natural gas, shall be deemed to be consistent with the public interest, and applications for such importation or 2 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 10 of 38 Plaintiffs bring four claims. First, they claim that Defendants’ actions violate “Plaintiffs’ substantive Fifth Amendment rights [under the Due Process Clause] because Defendants directly caused atmospheric CO2 to rise to levels that dangerously interfere with a stable climate system required alike by our nation and Plaintiffs,” thus “endanger[ing] Plaintiffs’ lives, liberties, and property.” Am. Compl. ¶ 279. Plaintiffs further allege that Defendants have acted with deliberate indifference by failing to “implement[] their own plans for climate stabilization or any other comprehensive policy measures to effectively reduce CO2 emissions to levels that would adequately protect Plaintiffs from the dangerous situation of climate destabilization.” Id. ¶ 285. Plaintiffs add that Defendants’ acts, “if not fundamentally altered without delay, will effect a complete taking of some of Plaintiffs’ property interests by virtue of the sea level rise,” though they do not bring a claim under the Fifth Amendment’s Just Compensation Clause. Id. ¶ 287. Finally, Plaintiffs claim that the Department of Energy in particular has infringed on their fundamental substantive due process rights by approving the exportation and importation of natural gas pursuant to Section 201 of the Energy Policy Act of 1992, which because it “increase[s] carbon pollution and exacerbate[s] already-dangerous climate instability” is unconstitutional on its face and as applied to Plaintiffs through DOE/FE Order No. 3041. Id. ¶ 288. However, Plaintiffs do not claim that DOE/FE Order No. 3041 suffers from any procedural or facial defect, and it appears that the issuance of this order is simply one more of Defendants’ exportation shall be granted without modification or delay.” See P.L. 102– 1992). DOE/FE Order No. 3041 permits export of liquefied natural gas from a liquefaction facility and export terminal that Jordan Cove Energy Project, L.P. proposes to build—but has not yet built—in Coos Bay, Oregon. See Declaration of Cassandra Bernstein Exh. A, at 2 (DOE/FE Order No. 3041). 3 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 11 of 38 “aggregate acts” that Plaintiffs allege are unconstitutional because they contribute to climate change and associated impacts. See, e.g., id. ¶¶ 1, 5, 9, 129, 305-06, 309-10. As a second claim, Plaintiffs allege that Defendants’ acts violate “the equal protection principles of the Fourteenth Amendment, embedded in the Due Process Clause of the Fifth Amendment.” Am. Compl. ¶ 291. 2 Plaintiffs claim that they are a “separate suspect class[]” and “insular minority” under those provisions because they have “no voting rights and little, if any, political power or influence over Defendants.” Id. ¶ 294. Plaintiffs also allege that plaintiff Future Generations “do not have present political power or influence, have immutable characteristics, and are also an insular minority.” Id. ¶ 295. Plaintiffs allege that they must be treated as a protected class for purposes of equal protection analysis, and that “federal laws and actions that disproportionately discriminate against and endanger them must be invalidated.” Id. ¶ 297. Plaintiffs further allege that Section 201 of the Energy Policy Act is unconstitutional on its face and as applied through DOE/FE Order No. 3041 because both have “a disproportionate impact on suspect classes.” Id. ¶ 299. As a third claim, Plaintiffs bring suit under the Ninth Amendment, on the ground that “[f]undamental to our scheme of ordered liberty . . . is the implied right to a stable climate system and an atmosphere and oceans that are free from dangerous levels of anthropogenic CO2,” Am. Compl. ¶ 304, and that Defendants’ acts have infringed on those unenumerated 2 “Unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” Detroit Bank v. United States, 317 U.S. 329, 337 (1943). However, the Supreme Court has held that the due process and equal protection clauses are “associated” and that “[i]t may be that they overlap, that a violation of one may involve at times the violation of the other.” Truax v. Corrigan, 257 U.S. 312, 331 (1921); see also Hirabayashi v. United States, 320 U.S. 81, 100 (1943). For purposes of the present motion, Federal Defendants will presume, but do not admit, that there is a viable Fifth Amendment claim for violation of the equal protection principles of the Fourteenth Amendment. 4 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 12 of 38 rights, id. ¶ 306. Plaintiffs do not bring a Ninth Amendment claim specific to the Energy Policy Act or any DOE order. Finally, Plaintiffs allege that they are beneficiaries of rights under the public trust doctrine that “protect the rights of present and future generations” to “vital natural resources” such as air and water quality, biological diversity, and intact shorelines. Am. Compl. ¶ 308. Plaintiffs allege that Defendants “have failed in their duty of care as trustees to manage the atmosphere in the best interests of the present and future beneficiaries of the trust property,” including Plaintiffs. Id. ¶ 310. Plaintiffs do not bring a public trust doctrine claim specific to the Energy Policy Act or any DOE order. Plaintiffs seek a declaratory judgment that Defendants’ acts have violated the Constitution; that Section 201 of the Energy Policy Act is unconstitutional on its face and as applied in DOE/FE Order No. 3041; and that Defendants have violated the public trust. They seek an injunction prohibiting future constitutional and public trust violations by the Defendants and ordering the U.S. government and the Defendant agencies to “prepare a consumption-based inventory of U.S. CO2 emissions,” though they do not specifically state whether this request is limited to an inventory of emissions by the Defendants or by all emitting sources in the United States. Plaintiffs also request that the U.S. government be ordered to “implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2,” and ask the Court to retain jurisdiction over the case for an indefinite period of time to monitor the Government’s compliance with the plan to phase out CO2 emissions and reduce atmospheric CO2 levels. Am. Compl. at 94 (Prayer for Relief). While the Plaintiffs do not specifically state whether this requested relief should be directed solely at emissions by the Defendants or by all U.S. emission sources, elsewhere in the Amended Complaint they do state 5 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 13 of 38 that CO2 emissions reductions of 6 percent annually would be required to reduce atmospheric CO2 levels by the year 2100 to 350 ppm, a level that will head off the future impacts that Plaintiffs allege. Id. ¶¶ 257-59. These reductions would be required globally, not just of Defendants or even all U.S. sources, since reductions on that order would only reduce atmospheric CO2 levels to 350 ppm if that “trajectory [were] adhered to by other major emitters.” Id. ¶ 262. STANDARD OF REVIEW A court reviews a motion to dismiss a complaint for lack of Article III standing under Fed. R. Civ. P. 12(b)(1). See Elizabeth Retail Props. LLC v. KeyBank Nat. Ass’n, 83 F. Supp. 3d 972, 985-86 (D. Or. 2015). A jurisdictional challenge may be facial or factual. Where the jurisdictional attack is facial, the court determines whether the allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, accepting all material allegations in the complaint as true and construing them in favor of the party asserting jurisdiction. See Warth v. Seldin, 422 U.S. 490, 501 (1975). Once a party has moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the opposing party bears the burden of establishing the Court’s jurisdiction. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). A court may also dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion, the court must accept all of the claimant’s material factual allegations as true and view all facts in the light most favorable to the claimant. See Reynolds v. Giusto, No. CV. 08-6261 PK, 2009 WL 2523727, at *1 (D. Or. Aug. 18, 2009). However, a court need not accept as true any legal conclusion set forth in a pleading. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Supreme 6 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 14 of 38 Court addressed the proper pleading standard under Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly: “While a complaint attacked [under] Rule 12(b)(6) . . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” 550 U.S. 544, 555 (2007) (citation and brackets omitted). The complaint must set forth facts supporting a plausible, not merely possible, claim for relief. Id. ARGUMENT I. Under Lujan, Plaintiffs Lack Article III Standing to Bring This Suit. A federal court, being one of limited jurisdiction, may act only where it is granted power to do so by the Constitution and applicable statutes and regulations. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). One limitation on a court’s power to act is Article III standing, which restricts the jurisdiction of the federal courts to the resolution of “[c]ases” and “[c]ontroversies.” U.S. Const. art. III § 2, cl.1; Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42 (1986). The standing doctrine “serves to identify those disputes which are appropriately resolved through the judicial process.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). A suit brought by a plaintiff without Article III standing is not a “case or controversy,” and an Article III federal court therefore lacks subject matter jurisdiction over the suit. Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 101 (1998). The Supreme Court in Lujan v. Defenders of Wildlife reiterated the “irreducible minimum,” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 472 (1982), that a plaintiff seeking to invoke a federal court’s jurisdiction must establish. 504 U.S. 555, 560-61 (1992). Plaintiffs must show (1) an “injury in fact” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical”; (2) that their injury is fairly traceable to the challenged action of the defendant, and not the result of the 7 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 15 of 38 “independent action of some third party not before the court”; and (3) that it is “‘likely’ as opposed to merely ‘speculative’ that the injury will be ‘redressed by a favorable decision.’” Id. at 560-61. A particularized injury, the Court noted, is one that “affect[s] the plaintiff in a personal and individual way.” Id. at 561 n.1. Because Plaintiffs’ alleged injuries are not particular to them but are shared by every person in the Nation, living or yet to be born, and because the impacts that Plaintiffs allege are not traceable to the Defendants’ acts and would not be redressed by a favorable decision, Plaintiffs lack standing. A. The Amended Complaint Fails To Allege Particularized Harm Traceable To Defendants’ Acts. 1. Plaintiffs Lack Standing Because They Allege A Generalized Grievance, Not A Particularized Harm. To invoke the jurisdiction of a federal court, a plaintiff must allege “such a personal stake in the outcome of the controversy as to ensure that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” Sierra Club v. Morton, 405 U.S. 727, 732 (1972) (quotations omitted). Federal courts are not “a forum in which to air . . . generalized grievances about the conduct of government. . . .” Flast v. Cohen, 392 U.S. 83, 106 (1968). Each plaintiff must press a personal stake in the outcome of litigation sufficient “to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth, 422 U.S. at 498-99 (emphases added). This requires some modicum of personal interest, as standing to sue may not be predicated upon an interest which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Unless a plaintiff asserts “an injury that is peculiar to himself or to a distinct group of which he is a part, rather than one ‘shared in substantially equal measure by all or a large class of citizens,’” he 8 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 16 of 38 lacks standing. Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 101 (1979) (quoting Warth, 422 U.S. at 499). In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court considered a challenge by states, local governments, and environmental organizations to the Environmental Protection Agency’s denial of a rulemaking petition asking EPA to regulate greenhouse gas emissions from new motor vehicles under the mobile source provisions of the Clean Air Act. EPA had denied the petition primarily because it then believed that as a legal matter greenhouse gases were not “air pollutants” within the meaning of the Clean Air Act. Id. at 513. In a 5-4 decision, the Court found that the Commonwealth of Massachusetts had standing to bring the challenge. Massachusetts, 549 U.S. at 518. The majority rejected the notion that “because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle.” Id. at 517. It pointed to this language from Justice Kennedy’s concurrence in Lujan: While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that the legal questions presented . . . will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. Id. at 517 (quoting Lujan, 504 U.S. at 581). The majority then applied the three-part test for Article III standing drawn from the majority opinion in Lujan, and held that, based in particular on the loss of state-owned lands to rising sea levels caused by global warming, Massachusetts had alleged sufficiently particularized injury. Id. at 522-23. Since EPA’s legal position on the scope of the Clean Air Act had led it to refuse to regulate a major specific source of greenhouse gas emissions, Massachusetts was able to show that its injury was traceable to the challenged 9 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 17 of 38 agency action, and that the Court could redress the injury by correcting EPA’s erroneous view of the statute. Id. at 524-25. The differences between this case and Massachusetts v. EPA are stark, and show why Plaintiffs lack standing. Plaintiffs allege that they have suffered and will suffer injuries from Defendants’ acts, which allegedly have contributed to climate change. But they have not alleged with sufficient particularity a “personal and individual” injury, which under Lujan is a requirement to establish standing. Lujan, 504 U.S. at 561 n.1 (“By particularized, we mean that the injury must affect the plaintiff in a personal and individual way”); see also Summers v. Earth Island Inst., 555 U.S. 488, 495-97 (2009) (plaintiff may not rely on speculation to show particularized injury at hands of challenged government action). “[W]hen the asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction.” Warth, 422 U.S. at 499 (citing Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221-27 (1974)). In Massachusetts v. EPA the Court found that the State was injured in a particularized way by sea level rise. But none of the Plaintiffs here have been injured in the same way as Massachusetts— or indeed, in any way that distinguishes them from any other person in the Nation—and thus they are in no different a position than any other person when it comes to climate change impacts. Indeed, Plaintiffs acknowledge as much when they allege that Defendants’ acts have endangered the “stable climate system required alike by our nation and Plaintiffs,” Am. Compl. ¶ 279 (emphasis added), and “impose[d] harm on the nation and on Plaintiffs,” id. ¶ 154 (emphasis added)—an implicit admission that the grievances animating the Amended Complaint are shared by all. Whatever injuries climate change has caused or will cause, those injuries are “not focused any more on these petitioners than [they are] on the remainder of the world’s 10 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 18 of 38 population,” Ctr. for Biological Diversity v. U.S. Dept. of the Interior, 563 F.3d 466, 475 (D.C. Cir. 2009), and hence cannot establish particularized injury for standing for these Plaintiffs. 3 See also WildEarth Guardians v. Salazar, 880 F. Supp. 2d 77, 83-87 (D.D.C. 2012), aff’d sub nom. WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) 4; Amigos Bravos v. BLM, 816 F. Supp. 2d 1118, 1126-28 (D.N.M. 2011); Sierra Club v. U.S. Def. Energy Support Ctr., Civ. A. No. 01:11-cv-41, 2011 WL 3321296, at *4-*6 (E.D. Va. July 29, 2011). Their claims should be dismissed. 2. Plaintiffs Lack Standing Because They Allege A Causal Chain That Consists Of Generalized Assertions Of Defendants’ “Contribution” To Climate Change. Also deficient are the Amended Complaint’s allegations tracing the alleged injuries to the challenged actions of the Defendants. In Massachusetts v. EPA, the State could show that the particular EPA determination under challenge—that EPA lacked authority to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act—led to a substantial 3 Plaintiffs’ allegations concerning the approval of natural gas exportation through the Coos Bay facility do not change the fact that the injury in fact they allege is not particularized and concrete. Plaintiffs have not alleged that there was any facial or procedural defect in DOE/FE Order No. 3041, such as would support a claim under the Administrative Procedure Act or National Environmental Policy Act. Rather, they allege that the export of natural gas through the Coos Bay facility pursuant to Section 201 of the Energy Policy Act will “increase carbon pollution and exacerbate[s] already-dangerous climate instability,” and thus is unconstitutional because it contributes to the harms that Plaintiffs allege. Am. Compl. ¶ 288. Thus, the approval of the export of natural gas from this facility does not cause Plaintiffs any alleged harm that is not suffered by the citizenry as a whole. 4 In WildEarth Guardians, the D.C. Circuit affirmed the district court’s finding that the environmental plaintiffs lacked standing to allege constitutional claims for climate change impacts caused by global emissions, but held that plaintiffs had standing under the National Environmental Policy Act because of alleged harms to aesthetic and recreational interests caused by local pollution. WildEarth Guardians, 738 F.3d at 317-18. Plaintiffs in this case have not brought a NEPA claim, and they allege no separate and specific injuries apart from those related to global CO2 emissions, so these alleged local impacts do not suffice to establish standing in this case. 11 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 19 of 38 amount of additional carbon dioxide emissions threatening the State’s interest in preserving its shoreline areas from rising sea levels. 549 U.S. at 524. The causal chain presented in the Amended Complaint, by contrast, is nothing more than “a series of links strung together by conclusory, generalized statements of ‘contribution.’” Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1142 (9th Cir. 2013). Plaintiffs point to harms they have suffered that were allegedly caused by climate change, including harms to their recreational interests, see, e.g., Am. Compl. ¶¶ 16, 18, 21, 29, 35; drinking water and diets, see, e.g., id. ¶¶ 16-18, 33; physical health, see, e.g., id. ¶¶ 19, 37, 62, 75; psychological well-being, see, e.g., id. ¶¶ 19, 21, 24, 33; and economic interests, see, e.g., id. ¶¶ 24, 26, 32, 38. But they never attempt to connect those impacts to the Defendants’ acts, except through vague and generalized assertions that those acts contribute to global climate change. See, e.g., id. ¶ 106 (“DOE’s actions and omissions have substantially contributed to unsafe levels of atmospheric CO2 and a dangerous climate system.”); ¶ 112 (“DOI is substantially contributing to dangerous levels of atmospheric CO2 and a dangerous climate system in our nation.”); ¶ 115 (“DOT acknowledges the severity of the threats of climate change, yet continues to facilitate the severity of climate change impacts by contributing approximately 27% of U.S. CO2 emissions in 2013.”); ¶ 117 (“USDA has substantially contributed to and continues to substantially contribute to a dangerous climate system . . . .”). The Ninth Circuit has explicitly rejected the argument that allegations that a source “contributed” to climate change are sufficient to satisfy Article III’s causation requirement: Plaintiffs “need not connect each molecule to their injuries, [but] simply saying that [Defendants] have failed to curb emission of greenhouse gases, which contribute (in some undefined way and to some undefined degree) to their injuries, relies on an ‘attenuated chain of conjecture’ insufficient to support standing.” 12 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 20 of 38 Wash. Envtl. Council, 732 F.3d. at 1142-43. 5 Because Plaintiffs do not adequately allege a causal connection between Defendants’ actions and their generalized statements of harm, their claims should be dismissed. 3. Plaintiffs Lack Standing Because Their Alleged Injuries Cannot Be Redressed By The Court. Plaintiffs also lack standing because the injuries they allege cannot be redressed by an order within this Court’s authority to issue. “It is a prerequisite of justiciability that judicial relief will prevent or redress the claimed injury, or that there is a significant likelihood of such redress. Redressability in this sense is an aspect of standing.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (citations omitted). Plaintiffs lack standing when they fail to provide evidence of “a close relation between . . . the injury asserted and the relief claimed.” Id. Under the Supreme Court’s standing cases, redressability is a matter of the “fit” between an act or omission and the injury that results from it: Plaintiffs must trace their injury to a particular government action that is prohibited, or inaction in the face of a duty to act, the reversal of which will concretely address their injury. Plaintiffs fail to establish standing where “the injury [is] too abstract,” or “the line of causation between the illegal conduct and injury [is] too attenuated,” such that “the prospect of obtaining relief from the injury as a result of a favorable ruling [is] too speculative.” Allen v. Wright, 468 U.S. 737, 752 (1984), abrogated in part on non-relevant 5 The allegations regarding the Coos Bay facility suffer from the same deficiencies in causation as do Plaintiffs’ allegations regarding all of Defendants’ acts. The Ninth Circuit has observed that “there is limited scientific capability in assessing, detecting, or measuring the relationship between a certain [greenhouse gas] emission source and localized climate impacts in a given region. . . [I]t is currently beyond the scope of existing science to identify a specific source of CO2 emissions and designate it as the cause of specific climate impacts at an exact location.” Wash. Envtl. Council, 732 F.3d at 1143 (quotation omitted). 13 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 21 of 38 grounds by Lexmark Intern., Inc. v. Static Control Components, Inc., --- U.S. ----, 134 S. Ct. 1377 (2014). The Amended Complaint here presents a generalized attack on government action and inaction regarding climate change, rather than a challenge to specifically identifiable violations of law that can be concretely rectified by a favorable decision. Even assuming, arguendo, that Plaintiffs’ injuries could satisfy the standing analysis in Massachusetts v. EPA—and they do not, see Wash. Envtl. Council, 732 F.3d at 1146—the relief that Plaintiffs seek far exceeds the relatively narrow request in that case to enact regulations under a specific provision in one statute. Instead, Plaintiffs seek a comprehensive national climate policy, overseen by a single federal district court, that would require wholesale changes to energy production and consumption in this country. Meeting this demand would require many Federal energy regulations to be rewritten, and would negate the purposes and findings of several Federal statutes that explicitly direct agencies to balance various policy goals with environmental protection. 6 Formulating and enforcing this expansive relief lies outside this Court’s competence 6 Congress balances energy needs against conservation and environmental goals in a host of statutes that subsidize fossil fuel production, regulate environmental impacts from energy consumption, and provide for efficient production and transportation of energy resources— exactly the activities that Plaintiffs attack in this case. See, e.g., Energy Security Act of 1980, P.L. 96-294, § 100(3) (stating that a Congressional purpose is “attainment of synthetic fuel production in the United States in a timely manner and in a manner consistent with the protection of the environment”); Public Utilities Regulatory Policies Act of 1978, P.L. 95-617, § 2 (“The Congress finds that the protection of the public health, safety, and welfare . . . require—(1) a program providing for increased conservation of electric energy, . . . (2) a program to improve the wholesale distribution of electric energy . . . , (4) a program for the conservation of natural gas while insuring that rates to natural gas consumers are equitable, [and] (5) a program to encourage the development of crude oil transportation systems. . .”), codified at 16 U.S.C. § 2601; Surface Mining Control and Reclamation Act of 1977, P.L. 95-87, §101 (“The Congress finds and declares that— . . . (b) coal mining operations presently contribute significantly to the Nation’s energy requirements . . . and it is, therefore, essential to the national interest to insure the existence of an expanding and economically healthy underground coal mining industry; . . . 14 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 22 of 38 and jurisdiction. Agencies are “creatures of statute” whose powers and obligations are dependent upon congressional authorization. Am. Bus Ass’n v. Slater, 231 F.3d 1, 9 (D.C. Cir. 2000). Courts are not at liberty to encumber agencies with duties not contemplated by Congress. Id. at 9-10 (“Unless Congress delegates authority to an agency, the agency is without power to act”). Plaintiffs do not allege any statutory framework specifying the agency duties that are supposedly being violated, such that the Court could provide redress by requiring compliance with those specific duties. Nor do Plaintiffs cite any statute that authorizes federal courts at the behest of allegedly injured parties to issue, for example, an injunction requiring national CO2 emissions reductions of 6 percent per year for the next century, which they allege is the minimum required to reduce atmospheric CO2 levels by the year 2100 to 350 ppm, a level that Plaintiffs claim will head off the future impacts they allege. Am. Compl. ¶¶ 257-59. Plaintiffs accordingly cannot show that their alleged injuries resulting from Defendants’ acts can be concretely redressed by any specific relief that is within the power of the Court to grant. 7 [and] (d) the expansion of coal mining to meet the Nation’s energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public.”), codified at 30 U.S.C. § 1201; Energy Reorganization Act of 1974, P.L. 93-438, § 2(a) (“The Congress hereby declares that the general welfare and the common defense and security require effective action to develop, and increase the efficiency and reliability of use of, all energy sources to meet the needs of present and future generations, . . . to make the Nation self-sufficient in energy, [and] to advance the goals of restoring, protecting, and enhancing environmental quality. . .”), codified at 42 U.S.C. § 5801; Mining and Minerals Policy Act, P.L. 91-631, § 101 (“The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in . . . (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs”), codified at 30 U.S.C. § 21a. 7 This is equally true of Plaintiffs’ request for invalidation, on constitutional grounds, of Section 201 of the Energy Policy Act and the Department of Energy permit authorizing the export of natural gas from the Coos Bay facility, since invalidating Section 201 or vacating 15 Case 6:15-cv-01517-TC 4. Document 27-1 Filed 11/17/15 Page 23 of 38 Future Generations Have Suffered No Injury In Fact And Thus Lack Standing. Regardless of whether any individual plaintiff has standing, Future Generations lack standing and are not proper plaintiffs. To have standing, a plaintiff must have suffered an injury in fact that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 561. By definition, Future Generations have not yet suffered any actual injury because Future Generations do not presently exist, such that they could sustain an injury. And even assuming that the future impacts of climate change are “imminent,” Future Generations do not have any constitutional or other rights that are in imminent danger of being harmed. 8 While some federal and state courts have recognized that viable and even pre-viability fetuses may have legal interests under state tort law, see, e.g., Santana v. Zilog, Inc., 95 F.3d 780, 785 (9th Cir. 1996), courts have rejected on standing grounds constitutional claims brought on behalf of non-persons. See, e.g., Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262 (S.D. Cal. 2012) (rejecting constitutional claim brought on behalf of captive whales). To Defendants’ knowledge, no federal court has ever recognized that future, and therefore hypothetical, persons have DOE/FE Order No. 3041 would not redress the recreational, health, economic, and dietary harms they allege to have experienced as a result of global climate change. This is simply the flip side of the Ninth Circuit’s holding that “[i]t is currently beyond the scope of existing science to identify a specific source of CO2 emissions and designate it as the cause of specific climate impacts at an exact location.” Wash. Envtl. Council, 732 F.3d at 1143 (quotation omitted). 8 Plaintiffs appear to rely on the “Posterity” language in the Preamble to the Constitution as support for their assertion that Future Generations have constitutional rights that could support standing in this case. See Am. Compl. ¶ 278. But as several courts have held, the Preamble does not create actionable rights independent of those specifically articulated in the Constitution. See, e.g., Tinsley v. Methodist Hosp. of Ind., 70 F.3d 1275, 1995 WL 695960, at *2 (7th Cir. 1995) (unpublished table decision); Maybrick v. Soc. Sec. Admin., No. 2:13-CV-508 TS, 2013 WL 6571819, at *2 (D. Utah Dec. 13, 2013); Hazelton v. City of Grand Praire, Tex., 8 F. Supp. 2d 570, 578 n.18 (N.D. Tex. 1998). 16 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 24 of 38 constitutional rights that may be impaired, and thus have standing to maintain an action to vindicate those constitutional rights in federal court. Furthermore, Plaintiffs have failed to allege any facts showing that the putative guardian of Future Generations has standing to pursue these claims on their behalf. Plaintiffs have not alleged any statute providing future persons a private right of action for constitutional claims that can be pursued by a third party (such as Dr. Hansen) on the non-person’s behalf. Cf. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1176 (9th Cir. 2004) (“If Article III does not prevent Congress from granting standing to an animal by statutorily authorizing a suit in its name, the question becomes whether Congress has passed a statute actually doing so.”). Constitutional claims are personal and, absent statutory authorization, cannot be asserted vicariously. United States v. Mitchell, 915 F.2d 521, 526 n.8 (9th Cir. 1990). While a non-attorney may appear pro se on his own behalf, a non-attorney “has no authority to appear as an attorney for others than himself.” C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Even if the Court determines that the individual plaintiffs have standing—and they do not—Future Generations clearly do not have standing because they have not suffered an injury in fact to a cognizable constitutional right that is actual or imminent. B. Plaintiffs’ Claims Are A Generalized Grievance Best Addressed Through Democratic Means, Not By A Federal Court. The allegations on behalf of Future Generations simply highlight the generalized nature of the grievance that animates this case and why this judicial proceeding is not the appropriate forum for addressing it. Plaintiffs allege—not simply on behalf of certain persons living in the Nation presently, but also on behalf of all persons in the Nation yet to be born—that “the Judicial Branch [should] compel the Executive Branch to act in conformity with . . . an interest shared by all.” Schlesinger, 418 U.S. at 217. This is a generalized grievance that raises substantial 17 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 25 of 38 separation of powers concerns because its resolution would transform the district court into a super-regulator setting national climate policy. Explaining its generalized grievance cases, the Supreme Court in Lujan observed: ‘The province of the court,’ as Chief Justice Marshall said in Marbury v. Madison, ‘is, solely, to decide on the rights of individuals.’ Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. Lujan, 504 U.S. at 576 (citation omitted). Plaintiffs’ claims in this case amount to a generalized grievance because they seek to convert the universal public interest in having executive officers undertake appropriate measures to address the threat of climate change into an individual right, vindicable in the courts. Allowing such claims to proceed in open-ended litigation, divorced from any statutory duty to undertake specific action to reduce CO2 emissions or address climate change, would require courts to make determinations about strategies to protect the climate that are essentially legislative in character, as well as determine how Executive Branch agencies should carry out those strategies. See Am. Compl. at 94 (Prayer for Relief requesting the Court to “[r]etain jurisdiction over this action to monitor and enforce Defendants’ compliance with the national remedial plan and all associated orders of this Court”). It is not the role of the district court to resolve questions such as how much the nation’s greenhouse gas emissions should be reduced to address global climate change; how much of the burden of reducing worldwide greenhouse gas emissions should be borne by the United States; which federal agencies should promulgate regulations or alter their modes of operation; and what is the appropriate level of funding for such efforts. By design, Article III confines a federal district court’s jurisdiction to resolving disputes between specific parties; courts are institutionally ill-suited to balance the various interests of, and the burdens to be borne by, the many entities, groups, and sectors of the 18 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 26 of 38 economy that, although not parties to this litigation, are affected by a phenomenon that spans the globe. See Am. Elec. Power Co. v. Connecticut, --- U.S. ----, 131 S. Ct. 2527, 2539-40 (2011). The establishment of appropriate targets for the reduction of CO2 emissions in the United States would entail a host of policy judgments that should be made by decision makers who are politically accountable, have expertise, and are able to pursue a coherent national or international strategy. Cf. Massachusetts, 549 U.S. at 524 (“[Agencies] whittle away at [massive problems] over time, refining their preferred approach as circumstances change and as they develop a more nuanced understanding of how best to proceed.”). Since the Supreme Court held in Massachusetts v. EPA in 2007 that CO2 falls within delegated regulatory authority, federal agencies have undertaken substantial efforts to address climate change. See, e.g., Am. Elec. Power, 131 S. Ct. at 2533 (acknowledging EPA’s post-Massachusetts regulatory initiatives limiting greenhouse gas emissions); Am. Compl. ¶ 148 (noting that Defendant Environmental Protection Agency commenced “regulation of greenhouse gases under the Clean Air Act from mobile and stationary sources of air pollution” in 2011); Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015); Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,510 (Oct. 23, 2015). The Court should decline Plaintiff’s invitation to short-circuit this regulatory process. II. Plaintiffs Fail To State A Claim Under The Constitution. Assuming, arguendo, that Plaintiffs have standing to maintain this action, Counts One through Three of the Amended Complaint must be dismissed for failure to state a claim. No court anywhere has ever recognized a federal constitutional right to be free of CO2 emissions (or any pollutant), and more generally have consistently rejected attempts to constitutionalize permissible levels of environmental contamination and environmental impacts. Plaintiffs—those 19 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 27 of 38 under the age of 18, those of majority age, and Future Generations—do not constitute a discrete and insular minority for purposes of climate change, and Plaintiffs have not adequately alleged that they lack access to the political process. And the Ninth Amendment secures no substantive rights at all. Since Defendants’ acts do not implicate a fundamental right or a protected class, they are subject only to rational basis review, and Plaintiffs have not adequately alleged that the Federal Defendants’ acts or omissions were impermissible under any “reasonably conceivable” set of facts. A. There Is No Constitutional Right To Be Free of CO2 Emissions. Plaintiffs do not allege that the Constitution explicitly provides a right to be free of climate change. They instead allege that such a right is found in the Fifth Amendment’s guarantee that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. Plaintiffs claim that “[o]ur nation’s climate system, including the atmosphere and oceans, is critical to” the enjoyment of the rights guaranteed by the Constitution, Am. Compl. ¶ 279, and that Defendants have placed Plaintiffs in a state of “climate danger,” id. ¶ 285, by “allowing fossil fuel production, consumption, and combustion at dangerous levels, thereby violating Plaintiffs’ substantive Fifth Amendment due process rights,” id. ¶ 284. The Supreme Court has stated that courts should exercise the “utmost care and restraint” when contemplating expanding substantive due process protection beyond the rights explicitly identified in the Constitution. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). To be considered fundamental, an unenumerated right must be “deeply rooted in this Nation’s history and tradition,” Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977), and the Supreme Court has admonished lower federal courts to “exercise restraint in creating new definitions of substantive due process,” Christy v. Hodel, 857 F.2d 1324, 1330 (9th Cir. 1988). The party 20 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 28 of 38 asserting such a right has the burden of establishing it. See Michael H. v. Gerald D., 491 U.S. 110, 125 (1989). As the Ninth Circuit has recognized, the first step in determining whether an asserted fundamental right is deeply rooted in the Nation’s history and tradition is to “adopt a narrow definition of the interest at stake.” Raich v. Gonzales, 500 F.3d 850, 863 (9th Cir. 2007) (citing Washington v. Glucksberg, 521 U.S. 702, 722 (1997)). See also id. (“[W]e have a tradition of carefully formulating the interest at stake in substantive-due-process cases.”). For example, in Reno v. Flores, the Supreme Court declined to describe an asserted fundamental right broadly as the “right to be free of physical restraint,” in favor of the more narrow asserted “right to an individualized hearing on whether private placement [as opposed to placement in governmentsponsored institutions] would be in the . . . ‘best interests’” of children committed to the care of the state. 507 U.S. 292, 293, 299 (1993). The Court then noted that no court had ever recognized such a right and that “[t]he mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it; the alleged right certainly cannot be considered ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Id. at 303. The Court should use the same analytical framework in this case and reject Plaintiffs’ claim to a fundamental constitutional right to be free of CO2 emissions. No court has ever recognized such a right; more generally, no court has ever recognized a federal constitutional right to a natural environment free of pollutants. Quite the opposite: courts have consistently held that “there is no constitutional right to a pollution-free environment.” Nat’l Sea Clammers Ass’n v. City of New York, 616 F.2d 1222, 1237-38 (3d Cir. 1980), dismissed and vacated in part 21 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 29 of 38 on other grounds, 453 U.S. 1 (1981). 9 Nor is there cause for this Court create such a right. The Supreme Court has warned that “[b]y extending constitutional protection to an asserted right or liberty interest, [courts], to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore ‘exercise the utmost care whenever we are asked to break new ground in this field’ . . . .” Glucksberg, 521 U.S. at 720. Making environmental policy always involves balancing “competing social, political, and economic forces.” Collins, 503 U.S. at 128. The Constitution envisions that such balancing is distinctly the province of the Executive and Legislative branches of government, not that of federal courts. See supra at 17-19. 10 9 See also Concerned Citizens of Neb. v. U.S. Nuclear Regulatory Comm’n, 970 F.2d 421, 426 (8th Cir. 1992) (no Ninth Amendment right to be free from environmental harm due to radioactive waste); Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1970) (declining “to elevate to a constitutional level” a claimed right to be protected from unnecessary and unreasonable environmental degradation and destruction); S.F. Chapter of A. Philip Randolph Inst. v. EPA, 2008 WL 859985, at *6-7 (N.D. Cal. Mar. 28, 2008) (“Plaintiffs also allege deprivation of the right to be free of climate change pollution, but that right is not protected by the Fourteenth Amendment either.”); MacNamara v. Cnty. Council of Sussex Cnty., 738 F. Supp. 134, 142-43 (D. Del. 1990), aff'd 922 F.2d 832 (3d Cir. 1990); Sequoyah v. Tenn. Valley Auth., 480 F. Supp. 608, 611 (E.D. Tenn. 1979), aff’d, 620 F.2d 1159 (6th Cir. 1980) (“[T]he Ninth Amendment grants no substantive rights to [environmental] plaintiffs”); Upper W. Fork Watershed Assoc. v. Corps of Eng’rs, U. S. Army, 414 F. Supp. 908, 931-32 (N.D. W.Va. 1976) aff’d sub nom. Upper W. Fork River Watershed Ass’n v. Corps of Eng’rs, U.S. Army, 556 F.2d 576 (4th Cir. 1977) (“[C]laims about environmental degradation cannot be elevated to Constitutional levels”); Pinkney v. Ohio Envtl. Prot. Agency, 375 F. Supp. 305, 310 (N.D. Ohio 1974) (“[T]he Court has not found a guarantee of the fundamental right to a healthful environment implicitly or explicitly in the Constitution. Therefore, in light of the prevailing test of a fundamental right, the Court is unable to rule that the right to a healthful environment is a fundamental right under the Constitution.”); Hagedorn v. Union Carbide Corp., 363 F. Supp. 1061, 1064-65 (N.D. W. Va. 1973); Tanner v. Armco Steel Corp., 340 F. Supp. 532, 537 (S.D. Tex. 1972) (“[N]o legally enforceable right to a healthful environment, giving rise to an action for damages, is guaranteed by the Fourteenth Amendment or any other provision of the Federal Constitution.”). 10 Because Plaintiffs’ substantive due process claims regarding the Energy Policy Act and DOE/FE Order No. 3041 are derivative of Plaintiffs’ larger claim of a constitutional right to be free of climate change that is violated by Defendants’ aggregate acts, see Am. Compl. ¶¶ 288-91, those claims must also be dismissed. 22 Case 6:15-cv-01517-TC B. Document 27-1 Filed 11/17/15 Page 30 of 38 Plaintiffs Are Not A Discrete Minority And Have No Equal Protection Claim. Plaintiffs also allege that Defendants’ acts, in the aggregate, are an equal protection violation. Am. Compl. ¶ 291. Plaintiffs claim that Defendants’ acts have “denied Plaintiffs the same protection of fundamental rights afforded to prior and present generations of adult citizens,” and that because “fundamental rights are at stake and are being infringed by the affirmative aggregate acts of Defendants, this Court must apply strict scrutiny for a denial of equal protection of the law.” Id. ¶ 292. Plaintiffs also claim that they are a separate and insular minority for purposes of equal protection analysis, because “Defendants have a long history of deliberately discriminating against children and future generations in exerting their sovereign authority over our nation’s air space and federal fossil fuel resources for the economic benefit of present generations of adults.” Id. ¶ 294. Similarly, Plaintiffs allege, “Future generations do not have present political power or influence” and thus are an insular minority for purposes of equal protection analysis. Id. ¶ 295. Because Plaintiffs include “citizens presently below the voting age and future generations, this Court should determine they must be treated as protected classes.” Id. ¶ 297. Plaintiffs’ assertions lack any basis in law. First, as noted above, the right to be free of CO2 emissions is not a fundamental right deeply rooted in the Nation’s tradition and history. Supra at 20-22. “It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973). Accordingly, where a legislative or executive act does not impair a fundamental right protected by the Constitution, there is no occasion to “depart[] from the settled mode of constitutional analysis . . . involving questions of economic and social policy,” which is to defer to a legislature’s rational choices unless the act impacts a protected class. Id. 23 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 31 of 38 Even taking Plaintiffs’ allegations as true, Defendants’ acts do not impact a protected class. Young people—whether defined as children below the age of majority, or young adults— are not a suspect class for equal protection purposes, at least as pertains to climate change. Courts have several times rejected attempts to constitutionalize environmental policy choices, including claims brought under the Fifth and Fourteenth Amendments. See supra at 21 n.9. More specifically, “[n]o cases have ever held . . . that children are a suspect class.” Cunningham v. Beavers, 858 F.2d 269, 273 (5th Cir. 1988). In fact, courts regularly apply rational basis scrutiny to classifications based on youth or infancy. See, e.g., Douglas v. Hugh A. Stallings, M.D., Inc., 870 F.2d 1242, 1246 (7th Cir. 1989) (holding that “statutes which classify on the basis of age are subject only to the minimal rational relationship review”); Jaffee v. Soc’y of New York Hosp., 1999 WL 246747, at *3 (S.D.N.Y. Apr. 27, 1999) (same). And at least one federal appellate court has held that persons between the ages of 18 and 45—an age range that would encompass the non-youth individual plaintiffs—are not a “‘discrete and insular’ group in need of ‘extraordinary protection from the majoritarian political process.’” Price v. Cohen, 715 F.2d 87, 93 (3d Cir. 1983) (citation omitted). The Court should decline Plaintiffs’ invitation to create an equal protection claim for climate change impacts available to children or young adults. Plaintiffs are clearly not differently situated from any other person of any age when it comes to the alleged current impacts of climate change. See supra at 8-11. Nor have Plaintiffs alleged that they have been shut out of the political or electoral processes in any formal sense, such that they have been deprived of equal protection of the laws. The mere fact that children do not possess the right to vote is not an equal protection violation, see, e.g., Hill v. Stone, 421 U.S. 289, 297 (1975), and the “broad array of laws and government programs dedicated to protecting and nurturing 24 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 32 of 38 children—combined with the large numbers of voters who are parents or otherwise concerned about children—belies the argument that children and their needs cannot attract the attention of the legislature,” Hedgepeth ex rel. Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1155 (D.C. Cir. 2004) (citing City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 445 (1985)). To Defendants’ knowledge, no court has ever recognized a constitutional claim based on the expectation that a group of young plaintiffs (even less, unborn plaintiffs) will confront an acute social problem during their expected lifetimes. There is a ripeness issue implicit in any such claim; further, this absence no doubt reflects the recognition that youth eventually become political decision makers, empowered to confront those problems. Id. at 1154 (“Youth is . . . far less ‘immutable’ than old age: minors mature to majority and literally outgrow their prior status.”). In fact, Plaintiffs’ allegations indicate that they already engage in political activism advocating for their preferred policy outcomes, and several have had opportunities to press their concerns to policy makers. 11 That Plaintiffs have not yet succeeded in enacting their preferred policies through the normal mechanisms of democratic decision making does not give rise to an equal protection claim. See City of Mobile, Ala. v. Bolden, 446 U.S. 55, 77 (1980) (the “right to equal participation in the electoral process does not protect any ‘political group,’ however defined, from electoral defeat”). “Any minority can be said to be powerless to assert 11 See, e.g., Am. Compl. ¶ 16 (Plaintiff “walked 1,600 miles from Nebraska to Washington D.C. in the Great March for Climate Action to raise awareness about the climate crisis”); ¶ 20 (since the age of six, Plaintiff “has advocated for reductions in CO2 emissions before local, state, federal, and international governmental bodies, including three speeches before the United Nations, and [serves] on the Presidential Youth Council to advise the President of the United States”); ¶ 30 (Plaintiff “has taken individual action to try to protect the climate system by . . . lobbying his state legislators to pass comprehensive climate legislation”); ¶ 44 (Plaintiff “has been involved in both local and state initiatives to raise awareness about climate change and advocate for science-based CO2 emission reductions”); ¶ 53 (Plaintiff “started a petition asking the city of Beaverton to adopt a resolution to lower the city’s carbon emissions”). 25 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 33 of 38 direct control over the legislature,” but that does not justify heightened scrutiny under the Fifth and Fourteenth Amendments. Cleburne Living Ctr., 473 U.S. at 445. The Court should reject Plaintiffs’ equal protection claim, whatever its asserted basis. 12 C. The Ninth Amendment Guarantees No Substantive Rights. Plaintiffs also allege that Defendants have infringed on their unenumerated right to a stable climate system in violation of the Ninth Amendment. Am. Compl. ¶¶ 302-06. But “[t]he [N]inth [A]mendment has never been recognized as independently securing any constitutional right.” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986). Rather, it is “a rule of construction” that does not give rise to individual rights. United States v. Bifield, 702 F.2d 342, 349 (2d Cir. 1983); see also Clynch v. Chapman, 285 F. Supp. 2d 213, 219 (D. Conn. 2003) (dismissing Ninth Amendment cause of action for failure to state a claim). So while the Ninth Amendment may provide the basis for recognition of unenumerated rights, which themselves may be enforceable under the Fifth or Fourteenth Amendments, the Ninth Amendment itself secures no substantive right. See Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991) (dismissing claim on the ground that “the [N]inth [A]mendment does not confer substantive rights in addition to those conferred by other portions of our governing law”); DeLeon v. Little, 981 F. Supp. 728, 734 (D. Conn. 1997) (holding that “‘the [Ninth Amendment] does not guarantee any constitutional right’”) (quotation omitted); Mann v. Meachem, 929 F. Supp. 622, 634 (N.D.N.Y. 1996) (“The Ninth Amendment is recognized as a rule of construction and does 12 Because Plaintiffs’ equal protection claims regarding the Energy Policy Act and DOE/FE Order No. 3041 are derivative of Plaintiffs’ larger claim that Defendants’ aggregate acts are an equal protection violation, see Am. Compl. ¶¶ 298-301, those equal protection claims must also be dismissed. 26 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 34 of 38 not protect any specific right”) (citation omitted). Since Plaintiffs have failed to state any claim under the Fifth or Fourteenth Amendments, this claim must also be dismissed. D. Defendants’ Acts Have A Rational Basis. Because the challenged acts and omissions of Defendants do not implicate a fundamental right or impact a suspect class, the Court must apply rational basis review and afford those acts a strong presumption of validity. See FCC v. Beach Cmmc’ns, 508 U.S. 307, 313 (1993). Evidentiary support is not required; this Court must uphold Defendant’s acts “if there is any reasonably conceivable state of facts that could provide a rational basis” for them. Id. at 315 (emphasis added). What is more, those attacking the rationality of legislative acts have the burden “‘to negative every conceivable basis which might support [them].’” Id. (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Plaintiffs cannot meet that burden, and their allegations do not even make the attempt. The federal government clearly has an interest in shaping greenhouse gas mitigation policies given their intricate interdependence with the nation’s broader energy generation landscape. See supra at 21 n.9. That interest is more than enough to justify Defendants’ strong efforts to reduce the Nation’s carbon emissions through regulations promulgated under various statutes and related regulating and permitting regimes while ensuring continued access to affordable, reliable energy sources. III. This Court Lacks Jurisdiction Over Public Trust Doctrine Suits, Which Arise Under State Law. Finally, Plaintiffs allege that they are “beneficiaries of rights under the public trust doctrine, rights that are secured by the Ninth Amendment and embodied in the reserved powers doctrines of the Tenth Amendment and the Vesting, Nobility, and Posterity Clauses of the Constitution.” Am. Compl. ¶ 308. Plaintiffs claim that Defendants have “alienated substantial portions of the atmosphere in favor of the interests of private parties so that these private parties 27 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 35 of 38 can treat our nation’s atmosphere as a dump for their carbon emissions.” Id. ¶ 310. This claim must be also be dismissed under Rule 12(b)(6). The public trust doctrine has its roots in English common law. See PPL Montana, LLC v. Montana, --- U.S. ----, 132 S. Ct. 1215, 1234 (2012). The classic statement of the public trust doctrine was articulated in Illinois Central Rail Company v. Illinois, 146 U.S. 387 (1892). The Supreme Court there found that the Illinois legislature did not have authority to vest the State’s title to a portion of the navigable waters of Lake Michigan in a private party. The attempted transfer was beyond the authority of the legislature since it amounted to abdication of its obligation to regulate, improve, and secure submerged lands for the benefit of every individual. Id. at 453-60. In cases decided both before and after Illinois Central, the Supreme Court has steadfastly and without exception treated the public trust doctrine as a matter of state law, not federal law. See PPL Montana, 132 S. Ct. at 1235 (“the public trust doctrine remains a matter of state law” and its “contours . . . do not depend upon the Constitution”); Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 285 (1997); Phillips Petrol. Co. v. Mississippi, 484 U.S. 469, 475 (1988); Appleby v. City of New York, 271 U.S. 364, 395 (1926); Long Sault Dev. Co. v. Call, 242 U.S. 272, 278-79 (1916); Shively v. Bowlby, 152 U.S. 1, 57-58 (1894). The Ninth Circuit has done the same. United States v. 32.42 Acres of Land, More or Less, Located in San Diego Cnty., Cal., 683 F.3d 1030, 1037–38 (9th Cir. 2012) (relying on PPL Montana in holding that “the contours of [the public trust doctrine] are determined by the states, not by the United States Constitution”). Furthermore, in Alec L. ex rel. Loortz v. McCarthy, litigated by several of Plaintiffs’ counsel, the U.S. Court of Appeals for the District of Columbia Circuit rejected the precise claims Plaintiffs bring here. 561 F. App’x 7, 8 (D.C. Cir.) (per curiam), cert. denied, 135 S. Ct. 774 (2014). 28 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 36 of 38 Noting that there is no case “standing for the proposition that the public trust doctrine—or claims based upon violations of that doctrine—arise under the Constitution or laws of the United States,” the D.C. Circuit held that the Supreme Court had “categorically rejected . . . without qualification or reservation” any claim that there was a federal public trust doctrine. Id. On that basis, the D.C. Circuit affirmed the district court’s Rule 12 dismissal of plaintiff’s claim that there was a public trust duty to prevent CO2 emissions into the atmosphere. Id. This Court should reach the same conclusion. CONCLUSION Considering the foregoing, Plaintiffs’ claims must be dismissed for lack of Article III standing under Rule 12(b)(1) or alternatively for failure to state a claim under Rule 12(b)(6). Respectfully submitted this 17th day of November, 2015. JOHN C. CRUDEN Assistant Attorney General Environment and Natural Resources Division /s/ Justin A. Torres JUSTIN A. TORRES Trial Attorney, D.C. Bar No. 1003136 Environment and Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0874 Fax: (202) 305-0506 justin.torres@usdoj.gov Attorneys for Federal Defendants 29 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 37 of 38 CERTIFICATE OF COMPLIANCE This brief complies with the applicable word-count limitation under LR 7-2(b), 26-3(b), 54-1(c), or 54-3(e) because it contains 10,029 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of cases and authorities, signature block, exhibits, and any certificates of counsel. /s/ Justin A. Torres JUSTIN A. TORRES 30 Case 6:15-cv-01517-TC Document 27-1 Filed 11/17/15 Page 38 of 38 CERTIFICATE OF SERVICE I hereby certify that on this 17th day of November, 2015, a copy of the foregoing Federal Defendants’ Memorandum of Points and Authorities in Support of the Motion to Dismiss was filed via the Court’s electronic case filing (ECF) system, which will send notice to all counsel of record. /s/ Justin A. Torres JUSTIN A. TORRES 31 Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 1 of 24 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON KELSEY CASCADE ROSE JULIANA; et al., Plaintiffs, 6:15-cv-1517-TC ORDER and FINDINGS & RECOMMENDATION v. The UNITED STATES OF AMERICA; et al., Defendants. COFFIN, Magistrate Judge: The motions before the court are directed against a relatively unprecedented lawsuit that, in essence, seeks relief from government action and inaction that allegedly results in carbon pollution of the atmosphere, climate destabilization, and ocean acidification. The government action and inaction allegedly threatens catastrophic consequences which have already began and will progressively worsen in the near future. Plaintiffs include a group of younger individuals (aged 8-19) who assert concrete harm from excessive carbon emissions. Also among the plaintiffs are associations of activists who assert they are beneficiaries of a federal public trust which is being harmed by allegedly substantial impairment and alienation of public trust resources through ongoing actions to allow fossil fuel exploitation. Finally, plaintiff Dr. James Hansen participates as a guardian for plaintiff "future generations." Page 1 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 2 of 24 Plaintiffs are suing the United States and various government officials and agencies because, they assert, the government has known for decades that carbon dioxide (C0 2) pollution has been causing catastrophic climate change and has failed to take necessary action to curtail fossil fuel emissions. Moreover, plaintiffs allege that the government and its agencies have taken action or failed to take action that has resulted in increased carbon pollution through fossil fuel extraction, production, consumption, transportation, and exportation. Plaintiffs assert that a reduction of global C0 2 concentrations to less than 350 parts per million is possible, but action must be taken immediately to prevent further ocean acidification and ocean warming. Plaintiffs allege the current actions and omissions of defendants make it extremely difficult for plaintiffs to protect their vital natural systems and a livable world. Consequently, plaintiffs seek immediate action to restore energy balance and implementation of a plan to put the nation on a trajectory (that if adhered to by other major emitters) will reduce atmospheric C0 2 concentrations to no more than 350 parts per million by 2100. Plaintiffs assert the actions and omissions of defendants that increased C0 2 emissions "shock the conscience," and are infringing the plaintiffs' right to life and liberty in violation of their substantive due process rights. Plaintiffs also allege defendants have violated plaintiffs' equal protection rights embedded in the Fifth Amendment by denying them protections afforded to previous generations and by favoring short term economic interests of certain citizens. Plaintiffs further allege defendants' acts and omissions violate the implicit right, via the Ninth Amendment, to a stable climate and an ocean and atmosphere free from dangerous levels of C0 2 • Finally, plaintiffs allege defendants have violated a public trust doctrine, secured by the Ninth Amendment, by denying future generations essential natural resources. Page 2 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 3 of 24 Through this action, plaintiffs ask the court to: 1. Declare that Defendants have violated and are violating Plaintiffs' fundamental constitutional rights to life, liberty, and property by substantially causing or contributing to a dangerous concentration of C02 in the atmosphere, and that, in so doing, Defendants dangerously interfere with a stable climate system required by our nation and Plaintiffs alike; 2. Enjoin Defendants from further violations ofthe Constitution underlying each claim for relief; 3. Declare the Energy Policy Act, Section 201, to be unconstitutional on its face; 4. Declare DOE/FE Order No. 3041, granting long-term multi-contract authorization to Jordan Cove Energy for LNG exports from its Coos Bay terminal, to be unconstitutional as applied and set it aside; 5. Declare Defendants' public trust violations and enjoin Defendants from violating the public trust doctrine underlying each claim for relief; 6. Order Defendants to prepare a consumption-based inventory of U.S. C0 2 emissions; 7. Order Defendants to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric C0 2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend ... First Amended Complaint (#7) at 94. Plaintiffs also seek to have this court retain jurisdiction over this action to monitor and enforce defendants' compliance with a national remedial plan and associated orders requiring the above. In essence, plaintiffs assert a novel theory somewhere between a civil rights action and NEPA/Clean Air Act/Clean Water Act suit to force the government to take action to reduce harmful pollution. Although, plaintiffs, for the most part, do not challenge a specific agency action and urge the court to order government-wide action for the benefit of the earth and mankind, they also seek "other relief as the Court deems just and proper." Id. Page 3 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 4 of 24 The court has previously granted the National Association of Manufacturers (NAM), American Fuel & Petrochemical Manufacturers (AFPM), and American Petroleum Institute (API) motion to intervene in this action. These organizations represent various entities in the coal, oil, and gas industry, including businesses that extract, refine, and use such energy sources. The intervenors move to dismiss the amended complaint. The government similarly moves to dismiss all claims. 1 Movants assert plaintiffs lack standing to bring this suit, raise non-justiciable political questions, and they fail to state a constitutional claim. In addition, the movants assert the public trust doctrine does not provide a cognizable federal cause of action. A. Standing Plaintiffs must demonstrate standing for each claim they seek to press and for each form of relief sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). For Article III standing, plaintiffs must satisfy three "irreducible constitutional minimum" requirements: (1) they suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Id. at 560-61. .L Concrete, Particularized, Imminent Injury Plaintiffs allege that climate change endangers humanity and nature and is a consequence of human caused or influenced green house gases, primarily C02 , derived from the combustion of fossil 1 The government also moves to strike various exhibits to declarations and declarations submitted by plaintiffs in opposition to the motion to dismiss. This recommendation is made without resort to these materials. Accordingly, the motion to strike is denied. Page 4 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 fuels. First Amended Complaint (F AC) (#7) Filed 04/08/16 Page 5 of 24 202. Plaintiffs allege because C0 2 persists in the atmosphere, future emissions will lead to severe impacts on children and future generations and the current level of C0 2 has already taken our country into the "danger zone." Id. At 206-07. Plaintiffs aver emissions must be rapidly and systematically reduced in order to avoid crossing the tipping points that set in motion disastrous, irrevocable impacts to human civilization and nature. 208. According to plaintiffs it will be nearly impossible for them to adapt to all of the Id. current climate change impacts in the quick time-frame in which they will occur and that, therefore, "the survival and well-being of plaintiffs is significantly threatened by climate destabilization." Id. 208, 211. Plaintiffs further allege that climate change is "already damaging human and natural systems, causing loss of life and pressing species to extinction." Id. at 213. Plaintiffs allege specifics regarding global changes that also lead to local harm such as: disintegration of both the West and East Antarctic ice sheets with concomitant sea level rise damaging coastal regions; changing rainfall and atmospheric conditions affecting water and heat distribution causing severe storm surges, floods, hurricanes, droughts, insect infestation, reduced crop yields, increased invasive vegetation, and fires; ocean acidification damaging sea life; increase in allergies, asthma, cancer, and other diseases; and harm to national security causing destabilization in various regions of the world. Id. 213-241. However, plaintiffs also assert injuries that are personal in nature such as: jeopardy to family farms resulting from the planned Jordan Cove gas line, 2 increased temperatures, and wildfires (FA C 2 Following oral argument on the motions, the Federal Energy Regulatory Commission denied applications to locate the Jordan Cove Energy Project in Coos Bay, Oregon and its associated pipeline. The decision, balancing the need of the project against adverse impacts on landowners and the environment appears to be primarily based on a lack of current market need from natural gas customers in Asia. The applicants, Veresen Inc. and the Williams Partners, are Page 5 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 31-34, 23-30); lost recreational dwellings from superstorms Filed 04/08/16 FAC FAC Page 6 of 24 31-34); and harm to family 71-72), 3 etc. See, Memorandum of Plaintiffs in Opposition to Federal Defendants' Motion to Dismiss (#41) at pp. 29-3?. While the personal harms are a consequence of the alleged broader harms, noted above, that does not discount the concrete harms already suffered by individual plaintiffs or likely to be suffered by these plaintiffs in particular in the future. See Federal Election Com'n v. Akins, 524 U.S. 11, 24 (1998): Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found "injury in fact." See Public Citizen, 491 U.S., at 449-450, 109 S.Ct., at 2564-2565 ("The fact that other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure ... does not lessen [their] asserted injury"). Thus the fact that a political forum may be more readily available where an injury is widely shared (while counseling against, say, interpreting a statute as conferring standing) does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an "injury in fact." This conclusion seems particularly obvious where (to use a hypothetical example) large numbers of individuals suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. C.f. Lujan, supra, at 572, 112 S.Ct., at 2142-2143; Shaw v. Hunt, 517 U.S. 899, 905, 116 S.Ct. 1894, 1900-1901, 135 L.Ed.2d 207 (1996). The court must accept the allegations as true and those allegations plausibly allege harm, free to reapply in the future and the Commission will reconsider the planned pipeline if they can demonstrate a market need for liquified natural gas. In addition, the applicants plan to file a request to rehear the decision. For purposes of the motion to dismiss, the court takes as true the allegations of an imminent threat from the proposed project. 3 Plaintiff Victoria B's allegations(in addition to other plaintiffs) raise another issue not addressed in the motions to dismiss regarding this court's jurisdiction to address harms arising outside of the district from action and inaction by various government agencies that often also 72-73 (damage to home and school in arise outside of the District of Oregon. See, e.g., FAC New York as a result of superstorm Sandy). While such allegations highlight the unwieldy nature of the case, the allegations establish that C0 2 emissions cross geographic boundaries and cause harm within the district and outside the district from many of the same sources regulated by the defendants. Page 6 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 7 of 24 though widespread, that is concrete. Of course, federal courts are not forums in which to air generalized grievances about the conduct of government. See Flast v. Cohen, 392 U.S. § 83, 106 (1968). The constitutional limits on standing eliminate claims in which a plaintiff has failed to make out a case or controversy between himself and the defendant. In order to satisfy Art. III, a plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978). Even when a case falls within these constitutional boundaries, a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim. For example, a litigant normally must assert an injury that is peculiar to himself or to a distinct group of which he is a part, rather than one "shared in substantially equal measure by all or a large class of citizens." Warth v. Seldin, 422 U.S., at 499, 95 S.Ct., at 2205. He also must assert his own legal interests rather than those of third parties. [footnote omitted] Ibid. Accord, Arlington Heights v. Metropolitan Housing Dev. Corp., supra, 429 U.S., at 263, 97 S.Ct., at 561. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 (1979). Given the allegations of direct or threatened direct harm, albeit shared by most of the population or future population, the court should be loath to decline standing to persons suffering an alleged concrete injury of a constitutional magnitude. See U.S. v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687: standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons across the Nation could be adversely affected by major governmental actions. See, e.g., Environmental Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1097 (interests ofconsumers affected by decision of Secretary of Agriculture refusing to suspend registration of certain pesticides Page 7 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 8 of 24 containing DDT); Reade v. Ewing, 2 Cir., 205 F.2d 630, 631-632 (interests of consumers of oleomargarine in fair labeling of product regulated by Federal Security Administration). To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion. While the FAC identifies numerous climatic, meteorologic, and political harms that the Earth and its inhabitants will suffer as a result of the government's action and failure to act with respect to C02 emissions, the plaintiffs differentiate the impacts by alleging greater harm to youth and future generations. 4 At this stage of the proceedings, the allegations, which must be taken as true, establish action/inaction that injures plaintiffs in a concrete and personal way. The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society. It may be that eventually the alleged harms, assuming the correctness of plaintiffs' analysis of the impacts of global climate change, will befall all of us. But the intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society. To reiterate, at this stage of the proceedings the court must accept the allegations of concrete particularized harm or imminent threat of such harm as true. The question then becomes whether 4 The plaintiffs essentially allege that the defendants have "discounted" emissions so as to pass on more severe impacts to younger and future generations to allow the present (and older) generations to reap the economic benefits of higher carbon emissions. Page 8 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 9 of 24 the alleged harm is traceable to defendants' conduct and whether the court can redress such harm. 2. Causation As noted above, there must be a causal connection between the injury and the conduct of which plaintiffs complained. In other words, the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). At the pleading stage, general factual allegations of injury resulting from the defendants' conduct may suffice because the court must presume that general allegations embrace those specific facts that are necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The government asserts that the association between the complained of conduct (such as subsidizing the fossil fuel industry, favorable revenue code provisions, allowing transport of fossil fuels, and authorizing fossil fuel combustion in the energy/refinery/transportation/manufacturing sectors) and the associated greenhouse gas emissions that ultimately cause the harm is tenuous and filled with countless intervening actions by unidentified third parties. However, as alleged, without the complained of conduct, the third parties would not be able to engage as extensively in the activities that allegedly cause climate change and the resulting harm. To survive a motion to dismiss for lack of constitutional standing, plaintiffs must establish a line of causation between defendants' action and their alleged harm that is more than attenuated. Allen v. Wright, 468 U.S. 737, 757 (1984). A causal chain does not simply because it has several links, provided those links are not hypothetical or tenuous and remain plausible. Nat'l Audubon Soc., Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 2002). In cases where a chain of causation Page 9 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 10 of 24 involves numerous third parties whose independent decisions collectively have a significant effect on plaintiffs' injuries, the causal chain may be too weak to support standing at the pleading stage. See Allen, 468 U.S. at 759. But here, there is an alleged strong link between all the supposedly independent and numerous third party decisions given the government's regulation of C0 2 emissions. See, e.g., 42 U.S.C. § 7409 (providing the EPA the authority to regulate national ambient air quality standards for the attainment and maintenance of the public health); Massachusetts v. EPA, 549 U.S. 497 (2007) (EPA has power to regulate greenhouse gas emissions). If the allegations in the complaint are to be believed, the failure to regulate the emissions has resulted in a danger of constitutional proportions to the public health. Presumably, sweeping regulations by this agency (the EPA) alone could result in curtailing of major C0 2 producing activities by not just the defendant agencies, but by the purported independent third parties as well. 5 At this pleading stage, the court need not sort out the necessity or propriety of all the various agencies and individuals to participate as defendants, at least with respect to issues of standing. For now, it is sufficient that EP A's action/inaction with respect to the regulation of greenhouse gases allegedly results in the numerous instances of emissions that purportedly cause or will cause the plaintiffs harm. Assuming lack of EPA or other government action to reduce emissions, the analysis turns to redressability. 5 The court is aware that there are administrative procedures to petition EPA to make rules and that a denial of that decision is reviewable by the courts. The plaintiffs have apparently not sought such rulemaking to limit C02 emissions, but the court does have jurisdiction to address alleged constitutional violations by government agencies and to provide equitable relief. C.f. Reeves Brothers, Inc. v. EPA, 956 F.Supp. 665 (W.D.Va. 1995) (CERCLA general prohibition against federal court jurisdiction over challenges to remedial actions did not bar constitutional challenges to actions of EPA). Page 10 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 11 of 24 Redressability of the Injury At this stage of the proceedings, the court's job is not to determine whether increased greenhouse gases have impacted the climate and will have dire consequences for future generations. The issue is whether the court can fashion a remedy to address that alleged harm should plaintiffs prove it. Redressability does not require certainty, but it does require a substantial likelihood that the injury will be redressed by a favorable judicial decision. Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir. 2010). Assuming plaintiffs are correct that the United States is responsible for about 25% of the global C0 2 emissions, the court cannot say, without the record being developed, that it is speculation to posit that a court order to undertake regulation of greenhouse gas emissions to protect the public health will not effectively redress the alleged resulting harm. The impact is an issue for the experts to present to the court after the case moves beyond the pleading stage. And although this court has no authority outside of its jurisdiction, it is worth noting that a Dutch court, on June 24, 2015, did order a reduction of greenhouse gas emissions nationwide by at least 25% by 2020. See Urgenda Foundation v. The State of The Netherlands, The Hague District Court, Chamber for Commercial Affairs, Case No. C/09/456689/HA ZA 13-1396 (June 24, 2015) (http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2015 :7196) (rejecting arguments that a reduction of Netherlands' emissions would be ineffectual in light of other nations' practices, observing that "The state should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts. Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this."). Thus, regulation by this country, in combination with regulation already being Page 11 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 12 of 24 undertaken by other countries, may very well have sufficient impact to redress the alleged harms. The effect may or may not be scientifically indiscernible, but that is an issue better resolved at summary judgment or trial rather than on a motion to dismiss. See Washington Environmental Council v. Bellon, 732 F .3d 1131, 1142-43 (9th Cir. 2013) (deciding at the summary judgment stage that numerous greenhouse gas sources inside and outside the U.S. contribute to the effect and that the nexus between the state's refinery emissions and localized impacts was too scientifically uncertain). Plaintiffs allege that expert evidence will show that the effect resulting from a court order for the government to take action to deter fossil fuel production and regulate emissions will have a discernible impact on the alleged constitutional harms likely to befall plaintiffs if the court does nothing. At this stage, the court will not dismiss the premise that an order to regulate, per EPA' s statutory authority to regulate C0 2, will result in that impact. The allegations establish that, for instance, the EPA' s failure to regulate impacts the younger population within this district and it may very well be that an order to act to protect the public health as directed will address that harm. 6 Given the complexities of the allegations and the need for expert opinion to establish the harm associated with government action and the extent to which a court order can limit that harm, the issue may be better addressed at the summary judgment stage. In sum, for the above reasons, the court should decline to dismiss the case for a lack of standing. 6 Plaintiffs allege that "events, omissions, and harms giving rise to the claims herein arise in substantial part in this judicial district." (F AC 15) Page 12 -FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC B. Document 68 Filed 04/08/16 Page 13 of 24 Political Question Closely related to the standing issue, is the issue of non-justiciable political questions. As plaintiffs note, "Standing is just the obverse of political question. If a litigant claims that an individual right has been invaded, the lawsuit by definition does not involve a political question." Plaintiffs' Memorandum in Opposition to Intervenors' Motion to Dismiss (#56) at p. 16, n. 12 (citing Howard Fink & Mark Tushnet, Federal Jurisdiction: Policy and Practice 231 (2d ed. 1987). It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker v. Carr, 369 U.S. 186, 217 (1962). While on the surface this case appears to implicate authority ofthe Congress, courts can order agencies delegated that authority (via Congress) to craft regulations, to engage in such process. Some defendant agencies have undertaken regulation of greenhouse gases allegedly exercising their discretion to prioritize relatively cheap energy over deleterious impacts to the environment. While courts cannot intervene to assert "better" policy, see, e.g., Massachusetts v. E.P.A., 549 U.S. at 533 ( once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute), they can address constitutional violations by government agencies and provide equitable relief. C.f. Reeves Brothers, Inc. v. EPA, 956 F .Supp. 665 (W.D. Va. Page 13 -FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 14 of 24 1995) (CERCLA general prohibition against federal court jurisdiction over challenges to remedial actions did not bar constitutional challenges to actions of EPA). The complaint does raise issues of whether government action/inaction violates the Constitution and these are issues committed to the courts rather than either of the political branches. As implied above, the amended complaint's broad request for relief does implicate some unmanageable issues, but that does not bar the case completely. As also noted, at a minimum, the EPA is charged with regulating greenhouse gas emissions to protect the public health. While the efficacy of any proposed regulations is perhaps beyond the expertise of the court, it can evaluate the competing experts on either side of the issues and direct the EPA to take a hard look at the best available scientific evidence. The court need not dictate any regulations, only direct the EPA to adopt standards that prevent the alleged constitutional harm to the youth and future generation plaintiffs, should plaintiffs prevail in demonstrating such is possible. 7 Again, it is too early in the proceedings to determine whether the issue can be resolved without expressing lack of respect due to the executive branch in conducting its rule-making authority delegated it by Congress. The motion to dismiss, on this basis, should be denied at this time. Turning to the next issue, plaintiffs' standing and the lack of political questions require a valid constitutional claim. 7 Although not the route plaintiffs have expressly chosen in the prayer for remedies, they have asked for "other relief [deemed] just and proper" and, the court can compel EPA to perform nondiscretionary acts or duties. 42 U.S.C. § 7604(a)(2); see, e.g., Sierra Club v. Thomas, 828 F.2d 783, 787-92 (D.C.Cir. 1987). The court's authority in this regard demonstrates that simply ordering an agency to take action delegated it by Congress in order to avoid constitutional harms does implicate justiciability and negates a finding that the issue is committed solely to another branch of government. Page 14 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC C. Document 68 Filed 04/08/16 Page 15 of 24 Valid Constitutional Claim Defendants argue that there is no constitutional right to be free from C0 2 emissions, that the complaint fails to allege a classification appropriate for an equal protection claim, that the Ninth Amendment does not provide any substantive rights, and that the plaintiffs have failed to allege an otherwise complete lack of any rational basis for the purported aggregate action/inaction taken by defendants. However, at this stage of the proceedings, defendants take an overly simplistic approach in construing the constitutional claims raised by plaintiffs. The complaint does not assert a right to be free from C0 2 emissions. 8 Plaintiffs assert that the defendants' action/inaction with respect to their obligations regarding regulating environmental pollutants has ,violated their substantive due process rights and has done so in favor of older generations. The Fifth Amendment provides in part that "no person shall ... be deprived of life, liberty, or property, without due process oflaw." U.S. Const. amend. V. Courts must employ caution and restraint when employing substantive due process protections to government action. See Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 502 (1977). However, courts must not abandon substantive due process rights either. Id. Accordingly, substantive due process rights are limited by careful respect for the teachings of history and recognition of the basic values that underlie our society. Id. at 503. Therefore, only official conduct that "shocks the conscience" is cognizable as a due process violation. Porter v. Osborn, 546 U.S. 1131, 1137 (9th Cir. 2008). 8 Plaintiffs do, however, assert that future generations are a suspect class. The court should decline to create a new separate suspect class based on posterity. Nonetheless, the complaint does allege discrimination against a class of younger individuals with respect to a fundamental right protected by substantive due process. Page 15 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 16 of 24 Generally, the Due Process Clause limits the government's power to act, but does not guarantee certain minimal levels of safety and security. DeShaney v. Winnebago County Dept. Of Social Services, 489 U.S. 189, 195 (1989). The language of the Due Process Clause does not impose an affirmative obligation on the government to ensure that those interests do not come to harm through other means. Id. However, there is an exception where government action creates the danger. See L.W. v. Grubbs, 974 F.2d 119, 121-22 (9th Cir. 1992). In such cases, deliberate indifference may suffice to establish a due process violation. See L.W. v. Grubbs, 92 F.3d 894, 896 (9th Cir. 1996). Deliberate indifference requires creation of a dangerous situation with actual knowledge or willful ignorance of impending harm. Id. at 900. Plaintiffs allege that the defendants' action in this case has created a life-threatening situation and that defendants have willfully ignored long-standing and overwhelming scientific evidence of that impending harm to the young and future generations. The government argues that the complaint fails to allege a clear and present danger of imminent harm, an overt government act that proximately causes the dangerous situation, deliberate indifference on the part of the government to plaintiffs' safety, or subsequent physical harm or loss oflife. For purposes of a motion to dismiss, plaintiffs need only plead government action, or failure to act where it has a duty to do so, which creates a threat of imminent harm, and the government's deliberate indifference to that threat of harm. In this case, the government has allegedly taken action through subsidies, regulations, etc. that creates massive C02 emissions, and has failed to limit such emissions despite a duty to do so. Plaintiffs further allege they are prevented any means of escape from the resulting climate that threatens their property, health, and even existence. As noted above, the EPA has a duty to regulate Page 16 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 17 of 24 C02 emissions for the benefit of the public health and plaintiffs allege a deliberate indifference to the purported catastrophic risk to their health and well-being. Whether such action, or inaction in the face of a duty to act, shocks the conscience cannot be determined on a motion to dismiss, which is focused solely on the plaintiffs' complaint and is bereft of any evidentiary record. 9 Accordingly, the court should decline to dismiss the complaint for failure to allege a substantive due process claim. D. Public Trust Doctrine Similarly, the court should decline to dismiss any notions in the amended complaint that the Due Process Clause also provides a substantive right under the public trust doctrine. As noted above, the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," Moore, 431 U.S. at 503; Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Defendants argue that the Supreme Court and the Ninth Circuit have already foreclosed on the possibility of an independent cause of action under the doctrine against the federal government by a private individual. See PPL Montana, LLC v. Montana, 132 S.Ct. 1215, 1235 (2012) (the public 9 For example, discovery may produce evidence regarding when defendants and intervenors were aware of the harmful effects of C02 emissions and whether the public was purposely misled about those effects, which evidence would be relevant to the "shocks the conscience" standard. Page 17 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 18 of 24 trust doctrine remains a matter of state law); U.S. v. 32.42 Acres of Land, More or Less, Located in San Diego County, Cal., 683 F.3d 1030, 1038 (9th Cir. 2012) (While the equal-footing doctrine is grounded in the Constitution, "the public trust doctrine remains a matter of state law"). However, the cases cited by defendants are distinguishable. In PPL Montana, LLC, the Supreme Court essentially held that the State of Montana did not hold title to riverbeds under segments of river that were non-navigable at the time of statehood. Under the equal footing doctrine, which is embedded in the Constitution, a State takes title to all riverbeds of navigable rivers upon statehood. In response to the State of Montana's argument that "denying the State title to the riverbeds here in dispute will undermine the public trust doctrine," the Court observed: While equal-footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, see Shively, 152 U.S., at 49, 15-17, 24, 46, 14 S.Ct. 548, the contours of that public trust do not depend upon the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine. PPL Montana, LLC, 132 S.Ct. at 1235. In other words, Montana's argument essentially was an attempt to conflate the equal footing doctrine with the public trust doctrine resulting in the State having title to even non-navigable riverbeds pursuant to the latter doctrine. The Court merely rejected this contention as "apples and oranges," pointing out that the equal footing doctrine requires that a State take title to riverbeds of navigable rivers upon statehood, and that thereafter state law determines the scope of the public trust over such waters. The question whether the United States has public trust obligations for waters over which it alone has sovereignty (e.g., the territorial seas of its coastline) was simply not presented to or decided by the Court in PPL Montana, LLC. Page 18 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 19 of 24 The seminal case for the public trust doctrine is Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387 (1892) which likewise implicated an equal footing question and in which the Court noted: That the state holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the state holds title to soils under tide water, by the common law, we have already shown; and that title necessarily carries with it control over the waters above them, whenever the lands are subjected to use. But it is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. Id. at 452. Once the State obtains sovereignty over navigable riverbeds, the United States has ceded all its title and thus the public trust doctrine governing the State's disposition of such lands "remains a matter of state law." PPL Montana, LLC, 132 S.Ct. at 1235. Likewise, in U.S. v. 32.42 Acres of Land, More or Less, Located in San Diego County, Cal., the Ninth Circuit dealt with a case wherein the federal government exercised its powers of eminent domain to acquire San Diego Port District tidelands (for use by the United States Navy) which had been transferred to the State of California under the equal footing doctrine in 1850 when California was admitted to the Union. In response to the California Lands Commission argument that the public trust doctrine restricted the ability of both federal and State governments to alienate public trust lands free of the public trust, the Ninth Circuit held: While the equal-footing doctrine is grounded in the Constitution, "the public trust doctrine remains a matter of state law," the contours of which are determined by the states, not by the United States Constitution. PPL Montana, 132 S.Ct. 1215 at 1235. Holding that California's public trust interest in the Property survives the federal government's attempt to condemn it would subjugate the federal government's eminent domain power to California's state law public trust doctrine. See Carmack, Page 19- FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 20 of 24 329 U.S. at 240-42, 67 S.Ct. 252; United States v. 11.037 Acres of Land, 685 F.Supp. 214, 217 (N.D.Cal. 1988) (holding that California's public trust is extinguished by United States' declaration of taking because state law public trust is trumped by federal power). The Supremacy Clause 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., 683 F.3d at 1038. I also note that in the 32.42 Acres case the district court had specifically found, over the government's objection, that a portion of the land acquired by the United States within the tidelands (4.88 acres) was acquired 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. April 28, 2006) (emphases added). The government did not cross-appeal this part of the district court's order and it was not disturbed or addressed by the Ninth Circuit. This case is different in that it does not at all implicate the equal footing doctrine or public trust obligations of the State of Oregon. The public trust doctrine invoked instead is directed against the United States and its unique sovereign interests over the territorial ocean waters and atmosphere of the nation. The doctrine is deeply rooted in our nation's history and indeed predates it. See, e.g., Shively v. Bowlby, 152 U.S. 1 (1894) (recounting the American history of the doctrine). As observed in Shively: At common law, the title and the dominion in lands flowed by the tide were in the king for the benefit of the nation. Upon the settlement of the colonies, like rights passed to the grantees in the royal charters, in trust for the communities to be established. Upon the American Revolution, these rights, charged with a like trust, were vested in the original states within their respective borders, subject to the rights surrendered by the constitution to the United States. Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit Page 20 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 21 of 24 of the whole people, and in trust for the several states to be ultimately created out of the territory. The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands under them, within their respective jurisdictions. The title and rights of riparian or littoral proprietors in the soil below high-water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the Constitution. Id. at 57-58. While the scope of the public trust doctrine may only reach the low water mark on the regions of the sea and great lakes, the water over those lands, and the waters and streams of any consequence, see, e.g., The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 4 71, 556 (1970), the complaint touches upon protected areas (territorial ocean waters at a minimum) impacted by the government's alleged conduct and harm to many plaintiffs given the alleged sea level rise, ocean acidification, and atmosphere change. What emerges from an analysis of the public trust doctrine is that it is rare to find instances where the United States retains vestiges of trust obligations once territories become states and title vests in the newly formed state pursuant to the equal footing doctrine of the Constitution. Some guidance is found, however, in those cases wherein the United States has re-acquired tidelands through eminent domain from the State. One such case is United States v. 32.42 Acres of Land, supra. Another is City of Alameda v. Todd Shipyards Corp., 635 F.Supp. 1447 (N.D.Cal. 1986), wherein the court squarely held that "The United States may not abdicate the role of trustee for the public when it acquires land by condemnation." Id. at 1450. See also United States v. 1.58 Acres of Land Situated in City of Boston, Suffolk County, Com. of Mass., 523 F.Supp. 120, 124-25 (D.Mass. 1981): Page 21 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 22 of 24 we hold that the federal government may take property below the low water mark in "full fee simple" insofar as no other principal may hold a greater right to such land. It must be recognized, however, that the federal government is as restricted as the Commonwealth in its ability to abdicate to private individuals its sovereign jus publicum in the land. So restricted, neither the Commonwealth's nor the federal government's trust responsibilities are destroyed by virtue ofthis taking, since neither government has the power to destroy the trust or to destroy the other sovereign. The court's intervention in this area may seemingly touch upon powers committed to Congress under Article IV, § 3, CL 2 (Congress shall have the power to dispose and make all needful rules and regulations respecting the territory and other property of the United States). In addition, it is not for the courts to say how the trust in resources and the territory shall be administered, that is for Congress to determine. State of Alabama v. State of Texas, 347 U.S. 272, 273 (1954) (citing United States v. California, 332 U.S. 19, 27 (1947) ("the constitutional power of Congress under Article IV, § 3, CL 2 is without limitation."). However, even defendant Department of the Interior has recognized limits on government control over the territorial sea. See United States Department of Justice, Office of Legal Counsel, Memorandum Opinion for the Solicitor Department of the Interior, Administration of Coral Reef Resources in the Northwest Hawaiian Islands, 2000 WL 34475732 at *7 (September 15, 2000) (the public trust doctrine, which the Court did not address in Alabama, might limit in some ways the extent of the Government's control over the territorial sea). The Department further noted that doctrine does grant the government power to exercise dominion over that area to protect it and its resources for public enjoyment and noted the government's role as public trustee. Id. And, as noted above, courts have noted and restricted the federal government's actions with respect to tidelands based on the 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. 144 7, supra. Page 22 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 23 of 24 At the hearing on defendants and intervenors' motions to dismiss, the court their queried counsel whether, hypothetically, Congress could alienate the territorial waters of the United States off the West Coast to a private corporation, or whether that would implicate a public trust issue under the Constitution. Both parties suggested Congress could cede the territorial waters to a private corporation, and that PPL Montana, LLC, forecloses any argument that the public trust doctrine applies to the federal government. As explained above, I cannot read PPL Montana, LLC, given the context of the argument being addressed by the Court; to have such a sweeping and profound effect. 10 Nor can I imagine that our coastal sea waters could possibly be privatized without implicating principles that reflect core values of our Constitution and the very essence of the purpose of our nation's government. When combined with the EP A's duty to protect the public health from airborne pollutants and the government's public trust duties deeply ingrained in this country's history, the allegations in the complaint state, for purposes of a motion to dismiss, a substantive due process claim. At this stage of the proceedings, the court cannot say that the public trust doctrine does not provide at least some substantive due process protections for some plaintiffs within the navigable water areas of Oregon. Accordingly, the court should not dismiss any claims under the public trust doctrine to that extent. The nascent nature of these proceedings dictate further development of the record before the court can adjudicate whether any claims or parties should not survive for trial. Accordingly, the 10 In Shively, which the Court cited in its PPL Montana, LLC decision, expressly held that "[u]pon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory. Shively, 152 U.S. at 57. Thus, a federal public trust doctrine was recognized in Shively, and PPL Montana, LLC did not overrule this precedent. Page 23 - FINDINGS & RECOMMENDATION Case 6:15-cv-01517-TC Document 68 Filed 04/08/16 Page 24 of 24 court should deny the motions to dismiss. CONCLUSION For the reasons stated above, the intervenors' motion to dismiss (# 19) and the government's motion to dismiss (#27) should be denied. The government's motion to strike (#58) is denied. This recommendation is not_ an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen ( 14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de nova consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation. DATED this tf of April 2016. Page 24 - FINDINGS & RECOMMENDATION