IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al,
Defendants.
AIKEN, Judge: 1
Case No. 6:15-cv-01517-TC
OPINION AND ORDER
Plaintiffs in this civil rights action are a group of young people between the ages of eight and nineteen ("youth plaintiffs"); Earth Guardians, an association of young environmental activists; and Dr. James Hansen, acting as guardian for future generations.
Plaintiffs filed this action against defendants the United States, President Barack Obama, and numerous executive agencies.
Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide ("CO;') produced by burning fossil fuels was destabilizing the climate system in a way that would "significantly endanger plaintiffs, with the damage persisting for millenia." First. Am. Comp!
Despite that knowledge, plaintiffs assert defendants, "(b)y their exercise of sovereign authority over our country's atmosphere and fossil fuel resources, … permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, ... deliberately allow[ing] atmospheric C02 concentrations to escalate to levels unprecedented in human history[.]" Id
Although many different entities contribute to greenhouse gas emissions, plaintiffs aver defendants bear "a higher degree of responsibility than any other individual, entity, or country" for exposing plaintiffs to the dangers of climate change. Id.
Plaintiffs argue defendants' actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.
Plaintiffs assert there is a very short window in which defendants could act to phase out fossil fuel exploitation and avert environmental catastrophe.
They seek (1) a declaration their constitutional and public trust rights have been violated and (2) an order enjoining defendants from violating those rights and directing defendants to develop a plan to reduce C02 emissions.
Defendants moved to dismiss this action for lack of subject matter jurisdiction and failure to state a claim. Doc. 27.
Intervenors the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute moved to dismiss on the same grounds. Doc. 19.
After oral argument, Magistrate Judge Coffin issued his Findings and Recommendation ("F&R") and recommended denying the motions to dismiss. Doc. 68.
Judge Coffin then referred the matter to me for review pursuant to 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Doc. 69.
Defendants and intervenors filed objections (docs. 73 & 74), and on September 13, 2016, this Court heard oral argument.
For the reasons set forth below, I adopt Judge Coffin's F&R as elaborated in this opinion and deny the motions to dismiss.
BACKGROUND
This is no ordinary lawsuit.
Plaintiffs challenge the policies, acts, and omissions of the President of the United States, the Council on Environmental Quality, the Office of Management and Budget, the Office of Science and Technology Policy, the Department of Energy, the Department of the Interior, the Department of Transportation ("DOT"), the Department of Agriculture, the Department of Commerce, the Department of Defense, the Department of State, and the Environmental Protection Agency ("EPA").
This lawsuit challenges decisions defendants have made across a vast set of topics - decisions like whether and to what extent to regulate C02 emissions from power plants and vehicles, whether to permit fossil fuel extraction and development to take place on federal lands, how much to charge for use of those lands, whether to give tax breaks to the fossil fuel industry, whether to subsidize or directly fund that industry, whether to fund the construction of fossil fuel infrastructure such as natural gas pipelines at home and abroad, whether to permit the export and import of fossil fuels from and to the United States, and whether to authorize new marine coal terminal projects.
Plaintiffs assert defendants' decisions on these topics have substantially caused the planet to warm and the oceans to rise.
They draw a direct causal line between defendants' policy choices and floods, food shortages, destruction of property, species extinction, and a host of other harms.
This lawsuit is not about proving that climate change is happening or that human activity is driving it.
For the purposes of this motion, those facts are undisputed.
The questions before the Court are whether defendants are responsible for some of the harm caused by climate change, whether plaintiffs may challenge defendants' climate change policy in court, and whether this Court can direct defendants to change their policy without running afoul of the separation of powers doctrine.
1 Student externs worked on each stage of the preparation of this opinion, from initial background research to final copy edits. I would be remiss if l did not acknowledge the invaluable contributions of Daniel Bodden (University of Kentucky), Elizabeth Jacklin (University of Oregon School of Law), Ann Richan Metler (Willamette University College of Law), James Mullins (University of Washington School of Law), Jessy R. Nations (University of Washington School of Law), Lydeah Negro (Lewis & Clark Law School), and Eleanor J. Vincent (University of Oregon School of Law.)
2 Although plaintiffs in this lawsuit hale from a number of different states, venue is proper in the District of Oregon. The majority of youth plaintiffs, including lead plaintiff Kelsey Juliana, reside in the District of Oregon. First Am. Comp!.~~ 16, 23, 31, 35, 44, 47, 50, 53, 57, 60. In addition, plaintiff Earth Guardians has a chapter in Eugene, Oregon.
TO BE CONTINUED ...
JULIANA v. UNITED STATES OF AMERICA
Re: JULIANA v. UNITED STATES OF AMERICA
STANDARDS
The Magistrates Act authorizes a district court to "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'' 28 U.S.C. § 636(b)(1).
When a party objects to any portion of the magistrate's findings and recommendation, the district court must review de nova that portion of the magistrate judge's report. Fed. R. Civ. P. 72(b)(3); see also McDonnell Douglas Corp. v. Commodore Bus. Machs., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981) (for dispositive motions, "the statute grants the broadest possible discretion to the reviewing district court").
Under Federal Rule of Civil Procedure 12(b)(l), a district court must dismiss an action if subject matter jurisdiction is lacking.
A motion to dismiss under Rule 12(b)(1) may attack either the allegations of the complaint or the "existence of subject matter in fact." Thornhill Publishin'g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
The party seeking to invoke the district court's jurisdiction bears the burden of establishing subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Under Federal Rule of Civil Procedure 12(b)(6), a complaint is construed in favor of the plaintiff, and its factual allegations are taken as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
However, the court need not accept as true "conclusory" allegations or
unreasonable inferences. Id.
Thus, "for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. US. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation marks omitted).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
"(O)nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).
3 For the purposes of this motion, I proceed on the understanding that climate change exists, is caused by humans, and poses a serious threat to our planet.
Defendants open their Objections to Judge Coffin's F&R by stating that "(c)limate change poses a monumental threat to Americans' health and welfare by driving long-lasting changes in our climate, leading to an array of severe negative effects, which will worsen over time." Fed. Defs.' Obj. to F&R 1 (doc. 78).
In the 2015 State of the Union address, defendant President Barack Obama declared "(n)o challenge ... poses a greater threat to future generations than climate change." President Barack Obama, Remarks in State of the Union Address (Jan. 20, 2015), available at www.whitehouse.gov/the-press-office/201 ... ry-20-2015 (last visited Nov. 7, 2016).
When asked at oral argument if they agreed that human-caused climate change poses a serious threat, intervenors declined to take a clear position.
All parties agree, however, that a dispute over the existence of climate change is not at the heart of this case.
TO BE CONTINUED ...
The Magistrates Act authorizes a district court to "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'' 28 U.S.C. § 636(b)(1).
When a party objects to any portion of the magistrate's findings and recommendation, the district court must review de nova that portion of the magistrate judge's report. Fed. R. Civ. P. 72(b)(3); see also McDonnell Douglas Corp. v. Commodore Bus. Machs., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981) (for dispositive motions, "the statute grants the broadest possible discretion to the reviewing district court").
Under Federal Rule of Civil Procedure 12(b)(l), a district court must dismiss an action if subject matter jurisdiction is lacking.
A motion to dismiss under Rule 12(b)(1) may attack either the allegations of the complaint or the "existence of subject matter in fact." Thornhill Publishin'g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
The party seeking to invoke the district court's jurisdiction bears the burden of establishing subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Under Federal Rule of Civil Procedure 12(b)(6), a complaint is construed in favor of the plaintiff, and its factual allegations are taken as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
However, the court need not accept as true "conclusory" allegations or
unreasonable inferences. Id.
Thus, "for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. US. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation marks omitted).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
"(O)nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).
3 For the purposes of this motion, I proceed on the understanding that climate change exists, is caused by humans, and poses a serious threat to our planet.
Defendants open their Objections to Judge Coffin's F&R by stating that "(c)limate change poses a monumental threat to Americans' health and welfare by driving long-lasting changes in our climate, leading to an array of severe negative effects, which will worsen over time." Fed. Defs.' Obj. to F&R 1 (doc. 78).
In the 2015 State of the Union address, defendant President Barack Obama declared "(n)o challenge ... poses a greater threat to future generations than climate change." President Barack Obama, Remarks in State of the Union Address (Jan. 20, 2015), available at www.whitehouse.gov/the-press-office/201 ... ry-20-2015 (last visited Nov. 7, 2016).
When asked at oral argument if they agreed that human-caused climate change poses a serious threat, intervenors declined to take a clear position.
All parties agree, however, that a dispute over the existence of climate change is not at the heart of this case.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
DISCUSSION
Judge Coffin recommended denying defendants' and intervenors' motions to dismiss and holding that plaintiffs' public trust and due process claims may proceed.
Defendants and intervenors object to those recommendations on a number of grounds.
They contend plaintiffs' claims must be dismissed for lack of jurisdiction because the case presents non-justiciable political questions, plaintiffs lack standing to sue, and federal public trust claims cannot be asserted against the federal government.
They further argue plaintiffs have failed to state a claim on which relief can be granted.
I first address the threshold challenges to jurisdiction, and then proceed to address the viability of plaintiffs' due process and public trust claims.
I. Political Question
If a case presents a political question, federal courts lack subject matter jurisdiction to decide that question. Corrie v. Caterpillar, Inc., 503 F.3d 974, 982 (9th Cir. 2007).
The political question doctrine is "primarily a function of the separation of powers." Baker v. Carr, 369 U.S. 186, 210
(1962).
This limitation on the federal courts was recognized in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803), in which Chief Justice Marshall wrote, "(q)uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."
However, the scope of the political question doctrine should not be overstated.
As Alexis de Tocqueville observed, "(t)here is hardly any political question in the United States that sooner or later does not turn into a judicial question." Alexis de Tocqueville, Democracy in America 440 (Liberty Fund 2012).
In Baker, the Supreme Court identified six criteria, each of which could individually signal the presence of a political question:
[(1)] A textually demonstrable constitutional commitment of the issue to a coordinate political department; [(2)] a lack of judicially discoverable and manageable standards for resolving it; [(3)] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [(4)] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [(5)] an unusual need for unquestioning adherence to a political decision already made; or [(6)] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217.
The Baker tests "are probably listed in descending order of both importance and certainty." Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality op.).
The factors overlap, with the analyses "often collapsing into one another." Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005).
The "common underlying inquiry" is whether "the question is one that can properly be decided by the judiciary." Id.
Determining whether the political question doctrine requires abstention calls on a court to balance profoundly important interests.
On the one hand, the separation of powers is fundamental to our system of government, known "(e)ven before the birth of this country" to be "a defense against tyranny." Loving v. United States, 517 U.S. 748, 756 (1996).
It is a "basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another." Id at 757.
On the other hand, "(t)he decision to deny access to judicial relief" should never be made "lightly,'' because federal courts "have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them." Alperin, 410 F.3d at 539 (quoting Liu v. Rep. of China, 892 F.2d 1419, 1433 (9th Cir. 1989) and W.S. Kirkpatrick & Co. v. Envt'l Tectonics Comp., Int'l, 493 U.S. 400, 409 (1990)).
Accordingly, a court cannot simply err on the side of declining to exercise jurisdiction when it fears a political question may exist; it must instead diligently map the precise limits of jurisdiction.
Climate change, energy policy, and environmental regulation are certainly "political" in the sense that they have "motivated partisan and sectional debate during important portions of our history." US. Dep't of Commerce v. Montana, 503 U.S. 442, 458 (1992).
But a case does not present a political question merely because it "raises an issue of great importance to the political branches." Id.
Instead, dismissal on political question grounds is appropriate only if one of the Baker considerations is "inextricable" from the case. Baker, 369 U.S. at 217.
As a result, federal courts regularly adjudicate claims that arise in connection with politically charged issues. See, e.g., Jewel v. Nat'l Sec. Agency, 673 F.3d 902, 912 (9th Cir. 2011) (electronic surveillance); Chiles v. Thornburgh, 865 F.2d 1197, 1216 (11th Cir. 1989) (detention of undocumented immigrants); Planned Parenthood Fed'n of Am., Inc. v. Agency for Int'I Dev., 838 F.2d 649, 656 (2d Cir. 1988) (international funding for birth control and abortion).
In each of the above cases, the court engaged in "discriminating inquiry into the precise facts" before concluding the controversy was justiciable. Baker, 369 U.S. at 217.
A similar rigorous analysis is necessary here.
TO BE CONTINUED ...
Judge Coffin recommended denying defendants' and intervenors' motions to dismiss and holding that plaintiffs' public trust and due process claims may proceed.
Defendants and intervenors object to those recommendations on a number of grounds.
They contend plaintiffs' claims must be dismissed for lack of jurisdiction because the case presents non-justiciable political questions, plaintiffs lack standing to sue, and federal public trust claims cannot be asserted against the federal government.
They further argue plaintiffs have failed to state a claim on which relief can be granted.
I first address the threshold challenges to jurisdiction, and then proceed to address the viability of plaintiffs' due process and public trust claims.
I. Political Question
If a case presents a political question, federal courts lack subject matter jurisdiction to decide that question. Corrie v. Caterpillar, Inc., 503 F.3d 974, 982 (9th Cir. 2007).
The political question doctrine is "primarily a function of the separation of powers." Baker v. Carr, 369 U.S. 186, 210
(1962).
This limitation on the federal courts was recognized in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803), in which Chief Justice Marshall wrote, "(q)uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."
However, the scope of the political question doctrine should not be overstated.
As Alexis de Tocqueville observed, "(t)here is hardly any political question in the United States that sooner or later does not turn into a judicial question." Alexis de Tocqueville, Democracy in America 440 (Liberty Fund 2012).
In Baker, the Supreme Court identified six criteria, each of which could individually signal the presence of a political question:
[(1)] A textually demonstrable constitutional commitment of the issue to a coordinate political department; [(2)] a lack of judicially discoverable and manageable standards for resolving it; [(3)] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [(4)] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [(5)] an unusual need for unquestioning adherence to a political decision already made; or [(6)] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217.
The Baker tests "are probably listed in descending order of both importance and certainty." Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality op.).
The factors overlap, with the analyses "often collapsing into one another." Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005).
The "common underlying inquiry" is whether "the question is one that can properly be decided by the judiciary." Id.
Determining whether the political question doctrine requires abstention calls on a court to balance profoundly important interests.
On the one hand, the separation of powers is fundamental to our system of government, known "(e)ven before the birth of this country" to be "a defense against tyranny." Loving v. United States, 517 U.S. 748, 756 (1996).
It is a "basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another." Id at 757.
On the other hand, "(t)he decision to deny access to judicial relief" should never be made "lightly,'' because federal courts "have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them." Alperin, 410 F.3d at 539 (quoting Liu v. Rep. of China, 892 F.2d 1419, 1433 (9th Cir. 1989) and W.S. Kirkpatrick & Co. v. Envt'l Tectonics Comp., Int'l, 493 U.S. 400, 409 (1990)).
Accordingly, a court cannot simply err on the side of declining to exercise jurisdiction when it fears a political question may exist; it must instead diligently map the precise limits of jurisdiction.
Climate change, energy policy, and environmental regulation are certainly "political" in the sense that they have "motivated partisan and sectional debate during important portions of our history." US. Dep't of Commerce v. Montana, 503 U.S. 442, 458 (1992).
But a case does not present a political question merely because it "raises an issue of great importance to the political branches." Id.
Instead, dismissal on political question grounds is appropriate only if one of the Baker considerations is "inextricable" from the case. Baker, 369 U.S. at 217.
As a result, federal courts regularly adjudicate claims that arise in connection with politically charged issues. See, e.g., Jewel v. Nat'l Sec. Agency, 673 F.3d 902, 912 (9th Cir. 2011) (electronic surveillance); Chiles v. Thornburgh, 865 F.2d 1197, 1216 (11th Cir. 1989) (detention of undocumented immigrants); Planned Parenthood Fed'n of Am., Inc. v. Agency for Int'I Dev., 838 F.2d 649, 656 (2d Cir. 1988) (international funding for birth control and abortion).
In each of the above cases, the court engaged in "discriminating inquiry into the precise facts" before concluding the controversy was justiciable. Baker, 369 U.S. at 217.
A similar rigorous analysis is necessary here.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
A. First Baker Factor
The first Baker factor requires abstention "(w)hen a case would require a court to decide an issue whose resolution is textually committed to a coordinate political department" because "the court lacks authority to resolve that issue." Zivotofeky ex rel. Zivotofeky v. Clinton, 132 S. Ct. 1421, 1431 (2012) (Sotomayor, J., concurring).
Since Baker, the Supreme Court has found such "textual commitment" in very few cases.
In Nixon v. United States, 506 U.S. 224 (1993), a former federal judge sought to challenge the Senate's processes for taking evidence during impeachment trials. Id. at 226.
The Court found his claim nonjusticiable due to the Constitution's clear statement granting the Senate "the sole Power to try all Impeachments." Id. at 229 (quoting U.S. Const. att. I,§ 3, cl. 6).
The Court found the provision's use of the word "sole" to be "of considerable significance." Id. at 231.
The Court also discussed the history of the clause at issue, noting that the "Framers labored over the question of where the impeachment power should lie" and "at least two considered" - and rejected - placing that power within the federal judiciary. Id. at 233.
In Davis v. Passman, 442 U.S. 228, 235 n.11 (1979), the Court characterized the Speech or Debate Clause as the "paradigm example" of a "textually demonstrable constitutional commitment."
That clause provides that Senators and Representatives, "for any Speech or Debate in either House, ... shall not be questioned in any other place." U.S. Const. Art. I,§ 6, cl. 1.
The Court explained that the clause plainly shields statements of federal legislators made during speech or debate in committees or on the House or Senate floor from any sort of judicial review, and thus speaks "directly to ... separation-of-powers concerns." Davis, 442 U.S. at 235 n.11.
Most recently, in Zivotoftky, the Court held that the Constitution gives the president the exclusive authority to recognize foreign nations and governments. 135 S. Ct. at 2086.
The Court acknowledged that the Constitution does not use the term "recognition." Id. at 2084.
Nonetheless, the Court determined that the Constitution granted the recognition power to the Executive Branch "(a)s a matter of constitutional structure." Id. at 2085.
The Court concluded that the clauses giving the president exclusive authority to receive ambassadors and to negotiate treaties implicitly granted the recognition power. Id. at 2086.
That determination rested in part on the Court's conclusion that recognition was uniquely "a topic on which the Nation much speak with one voice." Id. at 2086 (quotation marks and ellipsis omitted).
If Congress had the power to decline to recognize a foreign state the Executive had decided to recognize, the president would be unable to assure that foreign state that its ambassadors would be received, its officials would be immune from suit in federal court, and it would be permitted to initiate lawsuits in the United States to vindicate its rights. Id.
In issuing its decision, the Court expressly declined to hold that the Constitution gives the president the "unbounded power" to "conduct diplomatic relations" and exercise "the bulk of foreign-affairs powers." Id at 2089.
Unlike in the constitutional provisions at issue in Nixon and Passman, the constitutional provisions cited here contain nothing approaching a clear reference to the subject matter of this case.
The Constitution does not mention environmental policy, atmospheric emissions, or global warming.
And unlike in Zivotojksy, climate change policy is not a fundamental power on which any other power allocated exclusively to other branches of government rests.
Intervenors correctly point out that the Constitution gives the political branches authority over commerce, foreign relations, national defense, and federal lands - all areas affected by climate change policy. See U.S. Const. art. I, §8 cl. 3 (Congress has authority to "regulate commerce with foreign nations, and among the several states"); Zivotoftky, 135 S. Ct. at 2084-86 (discussing various constitutional provisions granting the
Executive Branch foreign relations authority); U.S. Const. art. I,§ 8 cl. 11-16 (detailing Congress's powers relating to war and the military); U.S. Const. art. II, § 2, cl. 1 (President is commander in chief of armed forces); U.S. Const. at 1. IV,§ 3, cl. 2 (Congress has power to "dispose of and make all needful rules and regulations" regarding federal land).
But holding the first Baker factor applies in any case relating to these topic areas would permit the exception to swallow the rule.
The question is not whether a case implicates issues that appear in the portions of the Constitution allocating power to the Legislative and Executive Branches - such a test would, by definition, shield nearly all legislative and executive action from legal challenge.
Rather, the question is whether adjudicating a claim would require the Judicial Branch to second-guess decisions committed exclusively to another branch of government.
In the lower courts, the first Baker factor has found its broadest application in foreign policy cases. See, e.g., Corrie, 503 F.3d at 983 ("Whether to grant military or other aid to a foreign nation is a political decision inherently entangled with the conduct of foreign relations."); Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1263 (D.C. Cir. 2006) (decision to take "drastic measures" to keep Chilean dictator Augusto Pinochet in power was a foreign policy decision textually committed to the Executive Branch); Sadowski v. Bush, 293 F. Supp. 2d 15, 21 (D. C. Cir. 2003) (decision to go to war in Afghanistan was not justiciable, "primarily because war powers have been explicitly committed to the political branches").
As a result, I give special consideration to the argument that granting plaintiffs' requested relief would usurp the Executive Branch's foreign relations authority.
Climate change policy has global implications and so is sometimes the subject of international agreements.
But unlike the decisions to go to war, take action to keep a particular foreign leader in power, or give aid to another country, climate change policy is not inherently, or even primarily, a foreign policy decision.
Moreover, in the foreign policy context, Baker expressly warned against framing the "textually committed" inquiry too broadly. See Baker, 369 U.S. at 211 ("(I)t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.")
The first Baker factor does not apply.
TO BE CONTINUED ...
The first Baker factor requires abstention "(w)hen a case would require a court to decide an issue whose resolution is textually committed to a coordinate political department" because "the court lacks authority to resolve that issue." Zivotofeky ex rel. Zivotofeky v. Clinton, 132 S. Ct. 1421, 1431 (2012) (Sotomayor, J., concurring).
Since Baker, the Supreme Court has found such "textual commitment" in very few cases.
In Nixon v. United States, 506 U.S. 224 (1993), a former federal judge sought to challenge the Senate's processes for taking evidence during impeachment trials. Id. at 226.
The Court found his claim nonjusticiable due to the Constitution's clear statement granting the Senate "the sole Power to try all Impeachments." Id. at 229 (quoting U.S. Const. att. I,§ 3, cl. 6).
The Court found the provision's use of the word "sole" to be "of considerable significance." Id. at 231.
The Court also discussed the history of the clause at issue, noting that the "Framers labored over the question of where the impeachment power should lie" and "at least two considered" - and rejected - placing that power within the federal judiciary. Id. at 233.
In Davis v. Passman, 442 U.S. 228, 235 n.11 (1979), the Court characterized the Speech or Debate Clause as the "paradigm example" of a "textually demonstrable constitutional commitment."
That clause provides that Senators and Representatives, "for any Speech or Debate in either House, ... shall not be questioned in any other place." U.S. Const. Art. I,§ 6, cl. 1.
The Court explained that the clause plainly shields statements of federal legislators made during speech or debate in committees or on the House or Senate floor from any sort of judicial review, and thus speaks "directly to ... separation-of-powers concerns." Davis, 442 U.S. at 235 n.11.
Most recently, in Zivotoftky, the Court held that the Constitution gives the president the exclusive authority to recognize foreign nations and governments. 135 S. Ct. at 2086.
The Court acknowledged that the Constitution does not use the term "recognition." Id. at 2084.
Nonetheless, the Court determined that the Constitution granted the recognition power to the Executive Branch "(a)s a matter of constitutional structure." Id. at 2085.
The Court concluded that the clauses giving the president exclusive authority to receive ambassadors and to negotiate treaties implicitly granted the recognition power. Id. at 2086.
That determination rested in part on the Court's conclusion that recognition was uniquely "a topic on which the Nation much speak with one voice." Id. at 2086 (quotation marks and ellipsis omitted).
If Congress had the power to decline to recognize a foreign state the Executive had decided to recognize, the president would be unable to assure that foreign state that its ambassadors would be received, its officials would be immune from suit in federal court, and it would be permitted to initiate lawsuits in the United States to vindicate its rights. Id.
In issuing its decision, the Court expressly declined to hold that the Constitution gives the president the "unbounded power" to "conduct diplomatic relations" and exercise "the bulk of foreign-affairs powers." Id at 2089.
Unlike in the constitutional provisions at issue in Nixon and Passman, the constitutional provisions cited here contain nothing approaching a clear reference to the subject matter of this case.
The Constitution does not mention environmental policy, atmospheric emissions, or global warming.
And unlike in Zivotojksy, climate change policy is not a fundamental power on which any other power allocated exclusively to other branches of government rests.
Intervenors correctly point out that the Constitution gives the political branches authority over commerce, foreign relations, national defense, and federal lands - all areas affected by climate change policy. See U.S. Const. art. I, §8 cl. 3 (Congress has authority to "regulate commerce with foreign nations, and among the several states"); Zivotoftky, 135 S. Ct. at 2084-86 (discussing various constitutional provisions granting the
Executive Branch foreign relations authority); U.S. Const. art. I,§ 8 cl. 11-16 (detailing Congress's powers relating to war and the military); U.S. Const. art. II, § 2, cl. 1 (President is commander in chief of armed forces); U.S. Const. at 1. IV,§ 3, cl. 2 (Congress has power to "dispose of and make all needful rules and regulations" regarding federal land).
But holding the first Baker factor applies in any case relating to these topic areas would permit the exception to swallow the rule.
The question is not whether a case implicates issues that appear in the portions of the Constitution allocating power to the Legislative and Executive Branches - such a test would, by definition, shield nearly all legislative and executive action from legal challenge.
Rather, the question is whether adjudicating a claim would require the Judicial Branch to second-guess decisions committed exclusively to another branch of government.
In the lower courts, the first Baker factor has found its broadest application in foreign policy cases. See, e.g., Corrie, 503 F.3d at 983 ("Whether to grant military or other aid to a foreign nation is a political decision inherently entangled with the conduct of foreign relations."); Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1263 (D.C. Cir. 2006) (decision to take "drastic measures" to keep Chilean dictator Augusto Pinochet in power was a foreign policy decision textually committed to the Executive Branch); Sadowski v. Bush, 293 F. Supp. 2d 15, 21 (D. C. Cir. 2003) (decision to go to war in Afghanistan was not justiciable, "primarily because war powers have been explicitly committed to the political branches").
As a result, I give special consideration to the argument that granting plaintiffs' requested relief would usurp the Executive Branch's foreign relations authority.
Climate change policy has global implications and so is sometimes the subject of international agreements.
But unlike the decisions to go to war, take action to keep a particular foreign leader in power, or give aid to another country, climate change policy is not inherently, or even primarily, a foreign policy decision.
Moreover, in the foreign policy context, Baker expressly warned against framing the "textually committed" inquiry too broadly. See Baker, 369 U.S. at 211 ("(I)t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.")
The first Baker factor does not apply.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
B. Second and Third Baker Factors
"The second and third Baker factors reflect circumstances in which a dispute calls for decisionmaking beyond courts' competence." Zivotoftky, 132 S. Ct. at 1432 (Sotomayor, J., concurring).
"When a court is given no standard by which to adjudicate a dispute, or cannot resolve a dispute in the absence of a yet-unmade policy determination charged to a political branch, resolution of the suit is beyond the judicial role envisioned by Article III." Id
Defendants' and intervenors' arguments on the second and third Baker factors can be divided into two main points.
First, intervenors contend the Court cannot set a permissible emissions level without making ad hoc policy determinations about how to weigh competing economic and environmental concerns.
But plaintiffs do not ask this Court to pinpoint the "best" emissions level; they ask this Court to determine what emissions level would be sufficient to redress their injuries.
That question can be answered without any consideration of competing interests. Cf Coleman v. Schwarzenegger, 2010 WL 99000, *l (E.D. Cal. & N.D. Cal. Jan. 12, 2010) (requiring state to reduce the population of adult prisons to 137.5% of their total design capacity, a target which "extend[ ed] no further than necessary to correct the violation of California inmates' federal constitutional rights").
The science may well be complex, but logistical difficulties are immaterial to the political question analysis. See Alperin, 410 F.3d at 552, 555 ("(T)he crux of the political question inquiry is . . . not whether the case is unmanageable in the sense of being large, complicated, or otherwise difficult to tackle from a logistical standpoint," but rather whether "a legal framework exists by which courts can evaluate ... claims in a reasoned manner.").
Second, intervenors aver the Court would have to choose which agencies and sectors should reduce emissions, and by how much.
At oral argument, intervenors contended this would require review of every environmental rule and regulation in the last one hundred years.
These arguments mischaracterize the relief plaintiffs seek.
Plaintiffs do not seek to have this Court direct any individual agency to issue or enforce any particular regulation.
Rather, they ask the Court to declare the United States' current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of United States C02 emissions, and use that inventory to "prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric C02 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend." First Am. Comp!. at 94.
This Court could issue the requested declaration without directing any individual agency to take any particular action.
Finally, defendants and intervenors contend that plaintiffs' failure to identify violations of precise statutory or regulatory provisions leaves this court without any legal standard by which to judge plaintiffs' claims.
Plaintiffs could have brought a lawsuit predicated on technical regulatory violations, but they chose a different path.
As masters of their complaint, they have elected to assert constitutional rather than statutory claims.
Every day, federal courts apply the legal standards governing due process claims to new sets of facts.
The facts in this case, though novel, are amenable to those well-established standards.
Neither the second nor the third Baker factor divests this Court of jurisdiction.
In the political question section of their objections to Judge Coffin's F&R, defendants assert the allegations in the complaint are not specific enough to put them on notice of plaintiffs' claims.
This argument relates to the second and third Baker factors and the competence of this Court to adjudicate those claims, considerations which are addressed above.
The argument also touches on concerns about causation and redressability, which are discussed in Section II of this opinion.
However, the argument is also phrased in terms common to cases governing general pleading standards. See Twombly, 550 U.S. at 555 (complaint in federal court must contain enough information to "give the defendant fair notice" of both the claim and the "grounds upon which it rests" (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
To the extent defendants challenge the First Amended Complaint as inadequately pleaded, that challenge fails.
This is not a typical environmental case.
Plaintiffs are not arguing defendants issued any particular permit in violation of a statutory provision in the Clean Air Act or the Clean Water Act.
They are not arguing any specific tax break, royalty rate, or contract runs afoul of an agency's governing regulations.
Rather, the theme of plaintiffs' case is much broader: it is that defendants' aggregate actions violate their substantive due process rights and the government's public trust obligations.
That theme, which requires no citation to particular statutory or regulatory provisions, is clear from the face of the First Amended Complaint.
TO BE CONTINUED ...
"The second and third Baker factors reflect circumstances in which a dispute calls for decisionmaking beyond courts' competence." Zivotoftky, 132 S. Ct. at 1432 (Sotomayor, J., concurring).
"When a court is given no standard by which to adjudicate a dispute, or cannot resolve a dispute in the absence of a yet-unmade policy determination charged to a political branch, resolution of the suit is beyond the judicial role envisioned by Article III." Id
Defendants' and intervenors' arguments on the second and third Baker factors can be divided into two main points.
First, intervenors contend the Court cannot set a permissible emissions level without making ad hoc policy determinations about how to weigh competing economic and environmental concerns.
But plaintiffs do not ask this Court to pinpoint the "best" emissions level; they ask this Court to determine what emissions level would be sufficient to redress their injuries.
That question can be answered without any consideration of competing interests. Cf Coleman v. Schwarzenegger, 2010 WL 99000, *l (E.D. Cal. & N.D. Cal. Jan. 12, 2010) (requiring state to reduce the population of adult prisons to 137.5% of their total design capacity, a target which "extend[ ed] no further than necessary to correct the violation of California inmates' federal constitutional rights").
The science may well be complex, but logistical difficulties are immaterial to the political question analysis. See Alperin, 410 F.3d at 552, 555 ("(T)he crux of the political question inquiry is . . . not whether the case is unmanageable in the sense of being large, complicated, or otherwise difficult to tackle from a logistical standpoint," but rather whether "a legal framework exists by which courts can evaluate ... claims in a reasoned manner.").
Second, intervenors aver the Court would have to choose which agencies and sectors should reduce emissions, and by how much.
At oral argument, intervenors contended this would require review of every environmental rule and regulation in the last one hundred years.
These arguments mischaracterize the relief plaintiffs seek.
Plaintiffs do not seek to have this Court direct any individual agency to issue or enforce any particular regulation.
Rather, they ask the Court to declare the United States' current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of United States C02 emissions, and use that inventory to "prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric C02 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend." First Am. Comp!. at 94.
This Court could issue the requested declaration without directing any individual agency to take any particular action.
Finally, defendants and intervenors contend that plaintiffs' failure to identify violations of precise statutory or regulatory provisions leaves this court without any legal standard by which to judge plaintiffs' claims.
Plaintiffs could have brought a lawsuit predicated on technical regulatory violations, but they chose a different path.
As masters of their complaint, they have elected to assert constitutional rather than statutory claims.
Every day, federal courts apply the legal standards governing due process claims to new sets of facts.
The facts in this case, though novel, are amenable to those well-established standards.
Neither the second nor the third Baker factor divests this Court of jurisdiction.
In the political question section of their objections to Judge Coffin's F&R, defendants assert the allegations in the complaint are not specific enough to put them on notice of plaintiffs' claims.
This argument relates to the second and third Baker factors and the competence of this Court to adjudicate those claims, considerations which are addressed above.
The argument also touches on concerns about causation and redressability, which are discussed in Section II of this opinion.
However, the argument is also phrased in terms common to cases governing general pleading standards. See Twombly, 550 U.S. at 555 (complaint in federal court must contain enough information to "give the defendant fair notice" of both the claim and the "grounds upon which it rests" (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
To the extent defendants challenge the First Amended Complaint as inadequately pleaded, that challenge fails.
This is not a typical environmental case.
Plaintiffs are not arguing defendants issued any particular permit in violation of a statutory provision in the Clean Air Act or the Clean Water Act.
They are not arguing any specific tax break, royalty rate, or contract runs afoul of an agency's governing regulations.
Rather, the theme of plaintiffs' case is much broader: it is that defendants' aggregate actions violate their substantive due process rights and the government's public trust obligations.
That theme, which requires no citation to particular statutory or regulatory provisions, is clear from the face of the First Amended Complaint.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
C. Fourth through Sixth Baker Factors
The fourth through sixth Baker factors "address circumstances in which prudence may counsel against a court's resolution of an issue presented."
Zivotofsky, 132 S. Ct. at 1432 (Sotomayor, J., concurring).
Only in "rare" cases will Baker's "final factors alone render a case nonjusticiable." Id. at 1434.
Intervenors contend the fourth Baker factor, which concerns a court expressing lack of respect to another branch of government, applies in this case.
They argue that because the Executive and Legislative branches have taken numerous steps to address climate change, a ruling in plaintiffs' favor would be disrespectful to those efforts.
Intervenors would have this Court hold the political question doctrine prevents a court from determining whether the federal government has violated a plaintiff's constitutional rights so long as the government has taken some steps to mitigate the damage.
However, intervenors cite no cases - and this Court is aware of none - to support such a broad application of the fourth Baker factor.
Rather, courts have found the fourth factor applies in cases asking a court to "question the good faith with which another branch attests to the authenticity of its internal acts." Id. at 1433.
The fourth factor has also been held relevant when "judicial resolution of a question would contradict prior decisions taken by a political branch in those limited contexts where such contradiction would seriously interfere with important governmental interests." Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995).
Consistent with those formulations, federal appellate courts have found the fourth Baker factor present when judicial adjudication of a claim would be wholly incompatible with foreign relations decisions made by one of the political branches. See, e.g., Whiteman v. Dorotheum GmbH & Co. KG, 431 F .3d 57, 59 (2d Cir. 2005) (political question doctrine prevented court from adjudicating claims against Austrian government for seizure of property from Jewish families during World War II because two presidential administrations had "committed the United States to a policy of resolving Holocaust-era restitution claims through international agreements rather than litigation."); Schneider v. Kissinger, 412 F2d 190, 198 (D.C. Cir. 2005) (political question doctrine barred review of Executive Branch decision to participate in covert operations in Chile, a decision that had already been the subject of congressional inquiry).
Although the United States has made international commitments regarding climate change, granting the relief requested here would be fully consistent with those commitments.
There is no contradiction between promising other nations the United States will reduce C02 emissions and a judicial order directing the United States to go beyond its international commitments to more aggressively reduce C02 emissions.
Because this Court could grant plaintiffs' requested relief without expressing disrespect for the Executive Branch's international climate change agreements, the fourth Baker factor does not apply.
Neither intervenors nor defendants suggest the fifth or sixth Baker factors apply here.
Nonetheless, I address those factors because federal courts have an "independent obligation to assure [them]selves of' the existence of subject matter jurisdiction." Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764, 769 n.5 (9th Cir. 2008).
On the face of the complaint, I see no evidence of an "unusual need for unquestioning adherence to a political decision already made" or any "potentiality of embarrassment from multifarious pronouncements by various departments on one question." Baker, 369 U.S. at 217.
I conclude neither of the two final Baker factors deprives this Court of subject matter jurisdiction.
TO BE CONTINUED ...
The fourth through sixth Baker factors "address circumstances in which prudence may counsel against a court's resolution of an issue presented."
Zivotofsky, 132 S. Ct. at 1432 (Sotomayor, J., concurring).
Only in "rare" cases will Baker's "final factors alone render a case nonjusticiable." Id. at 1434.
Intervenors contend the fourth Baker factor, which concerns a court expressing lack of respect to another branch of government, applies in this case.
They argue that because the Executive and Legislative branches have taken numerous steps to address climate change, a ruling in plaintiffs' favor would be disrespectful to those efforts.
Intervenors would have this Court hold the political question doctrine prevents a court from determining whether the federal government has violated a plaintiff's constitutional rights so long as the government has taken some steps to mitigate the damage.
However, intervenors cite no cases - and this Court is aware of none - to support such a broad application of the fourth Baker factor.
Rather, courts have found the fourth factor applies in cases asking a court to "question the good faith with which another branch attests to the authenticity of its internal acts." Id. at 1433.
The fourth factor has also been held relevant when "judicial resolution of a question would contradict prior decisions taken by a political branch in those limited contexts where such contradiction would seriously interfere with important governmental interests." Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995).
Consistent with those formulations, federal appellate courts have found the fourth Baker factor present when judicial adjudication of a claim would be wholly incompatible with foreign relations decisions made by one of the political branches. See, e.g., Whiteman v. Dorotheum GmbH & Co. KG, 431 F .3d 57, 59 (2d Cir. 2005) (political question doctrine prevented court from adjudicating claims against Austrian government for seizure of property from Jewish families during World War II because two presidential administrations had "committed the United States to a policy of resolving Holocaust-era restitution claims through international agreements rather than litigation."); Schneider v. Kissinger, 412 F2d 190, 198 (D.C. Cir. 2005) (political question doctrine barred review of Executive Branch decision to participate in covert operations in Chile, a decision that had already been the subject of congressional inquiry).
Although the United States has made international commitments regarding climate change, granting the relief requested here would be fully consistent with those commitments.
There is no contradiction between promising other nations the United States will reduce C02 emissions and a judicial order directing the United States to go beyond its international commitments to more aggressively reduce C02 emissions.
Because this Court could grant plaintiffs' requested relief without expressing disrespect for the Executive Branch's international climate change agreements, the fourth Baker factor does not apply.
Neither intervenors nor defendants suggest the fifth or sixth Baker factors apply here.
Nonetheless, I address those factors because federal courts have an "independent obligation to assure [them]selves of' the existence of subject matter jurisdiction." Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764, 769 n.5 (9th Cir. 2008).
On the face of the complaint, I see no evidence of an "unusual need for unquestioning adherence to a political decision already made" or any "potentiality of embarrassment from multifarious pronouncements by various departments on one question." Baker, 369 U.S. at 217.
I conclude neither of the two final Baker factors deprives this Court of subject matter jurisdiction.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
D. Summary: This Case Does Not Raise a Nonjusticiable Political Question
There is no need to step outside the core role of the judiciary to decide this case.
At its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs' constitutional rights.
That question is squarely within the purview of the judiciary. See INS v. Chadha, 462 U.S. 919, 941 (1983) (judiciary is bound to determine whether the political branches have "chosen a constitutionally permissible means of implementing [their] power"); Jewel, 673 F.3d at 912 (although lawsuit challenging federal agencies' surveillance practices "strikes at the heart of a major public policy controversy," claims were justiciable because they were "straightforward claims of statutory and constitutional rights, not political questions").
This case shares some key features with Baker itself.
In Baker, a group of voters challenged a statute governing the apportionment of state legislative districts. 369 U.S. at 188-95.
Sixty years of population growth without legislative reapportionment had led to some votes carrying much more weight than others. Id. at 192-93.
Here, the majority of youth plaintiffs are minors who cannot vote and must depend on others to protect their political interests.
Thus, as amicus the League of Women Voters persuasively argues, the youth plaintiffs' claims are similar to the Baker claims because they are "rooted in a 'debasement of their votes' and an accompanying diminishment of their voice in representational government." Br. for the League of Women Voters in the United States et al. as Amici Curiae at 19-20 (doc. 79-1 ).
In Baker, the Court acknowledged that the plaintiffs' claims had political dimensions and ramifications - but nonetheless concluded none of the Baker factors was inextricable from the case. 369 U.S. at 209.
Similarly, as discussed in detail above, this case raises political issues yet is not barred by the political question doctrine.
Should plaintiffs prevail on the merits, this Court would no doubt be compelled to exercise great care to avoid separation-of-powers problems in crafting a remedy.
The separation of powers might, for example, permit the Court to direct defendants to ameliorate plaintiffs' injuries but limit its ability to specify precisely how to do so. Cf S. Burlington Cnty. N.A.A.C.P. v. Mt. Laurel Twp., 336 A.2d 713, 734 (N.J. 1975) (leaving to municipality "in the first instance at least" the determination of how to remedy the constitutional problems with a local zoning ordinance).
That said, federal courts retain broad authority "to fashion practical remedies when confronted with complex and intractable constitutional violations." Brown v. Plata, 563 U.S. 493, 526 (2011).
In any event, speculation about the difficulty of crafting a remedy could not support dismissal at this early stage. See Baker, 369 U.S. at 198 ("Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at trial.")
Because no Baker factor is inextricable from the merits of this case, the political question doctrine is not a barrier to plaintiffs' claims.
4 The motion of the League of Women Voters of the United States and the League of Women Voters of Oregon to appear as amici curiae (doc. 79) is granted.
TO BE CONTINUED ...
There is no need to step outside the core role of the judiciary to decide this case.
At its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs' constitutional rights.
That question is squarely within the purview of the judiciary. See INS v. Chadha, 462 U.S. 919, 941 (1983) (judiciary is bound to determine whether the political branches have "chosen a constitutionally permissible means of implementing [their] power"); Jewel, 673 F.3d at 912 (although lawsuit challenging federal agencies' surveillance practices "strikes at the heart of a major public policy controversy," claims were justiciable because they were "straightforward claims of statutory and constitutional rights, not political questions").
This case shares some key features with Baker itself.
In Baker, a group of voters challenged a statute governing the apportionment of state legislative districts. 369 U.S. at 188-95.
Sixty years of population growth without legislative reapportionment had led to some votes carrying much more weight than others. Id. at 192-93.
Here, the majority of youth plaintiffs are minors who cannot vote and must depend on others to protect their political interests.
Thus, as amicus the League of Women Voters persuasively argues, the youth plaintiffs' claims are similar to the Baker claims because they are "rooted in a 'debasement of their votes' and an accompanying diminishment of their voice in representational government." Br. for the League of Women Voters in the United States et al. as Amici Curiae at 19-20 (doc. 79-1 ).
In Baker, the Court acknowledged that the plaintiffs' claims had political dimensions and ramifications - but nonetheless concluded none of the Baker factors was inextricable from the case. 369 U.S. at 209.
Similarly, as discussed in detail above, this case raises political issues yet is not barred by the political question doctrine.
Should plaintiffs prevail on the merits, this Court would no doubt be compelled to exercise great care to avoid separation-of-powers problems in crafting a remedy.
The separation of powers might, for example, permit the Court to direct defendants to ameliorate plaintiffs' injuries but limit its ability to specify precisely how to do so. Cf S. Burlington Cnty. N.A.A.C.P. v. Mt. Laurel Twp., 336 A.2d 713, 734 (N.J. 1975) (leaving to municipality "in the first instance at least" the determination of how to remedy the constitutional problems with a local zoning ordinance).
That said, federal courts retain broad authority "to fashion practical remedies when confronted with complex and intractable constitutional violations." Brown v. Plata, 563 U.S. 493, 526 (2011).
In any event, speculation about the difficulty of crafting a remedy could not support dismissal at this early stage. See Baker, 369 U.S. at 198 ("Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at trial.")
Because no Baker factor is inextricable from the merits of this case, the political question doctrine is not a barrier to plaintiffs' claims.
4 The motion of the League of Women Voters of the United States and the League of Women Voters of Oregon to appear as amici curiae (doc. 79) is granted.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
II. Standing to Sue
"A threshold question in every federal case is ... whether at least one plaintiff has standing." Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009) (citation and quotation marks omitted).
Standing requires a plaintiff to allege "such a personal stake in the outcome of the controversy as to warrant [the] invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers[.]" Warth v. Seldin, 442 U.S. 490, 498 (1975).
To demonstrate standing, a plaintiff must show (1) she suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the defendant's challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
A plaintiff must support each element of the standing test "with the manner and degree of evidence required at the successive stages of the litigation." Id. at 561.
Accordingly, at the motion to dismiss stage "general allegations" suffice to establish standing because those allegations are presumed to "embrace those specific facts that are necessary to support the claim." Id. (citation and quotation marks omitted).
A Injury in Fact
In an environmental case, a plaintiff cannot demonstrate injury in fact merely by alleging injury to the environment; there must be an allegation that the challenged conduct is harming (or imminently will harm) the plaintiff. Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (I'OC), Inc., 528 U.S. 167, 181 (2000).
For example, a plaintiff may meet the injury in fact requirement by alleging the challenged activity "impairs his or her economic interests or aesthetic and environmental well-being." Wash. Envt 'l Council v. Bellon, 732 F.3d 1131, 1140 (9th Cir. 2013) (quotation marks omitted and alterations normalized).
Plaintiffs adequately allege injury in fact.
Lead plaintiff Kelsey Juliana alleges algae blooms harm the water she drinks, and low water levels caused by drought kill the wild salmon she eats. First Am. Compl pp. 17-18.
Plaintiff Xiuhtezcatl Roske-Martinez alleges increased wildfires and extreme flooding jeopardize his personal safety. Id p.21.
Plaintiff Alexander Loznak alleges record setting temperatures harm the health of the hazelnut orchard on his family farm, an important source of both revenue and food for him and his family. Id p.26.
Plaintiff Jacob Lebel alleges drought conditions required his family to install an irrigation system at their farm. Id p.32.
Plaintiff Zealand B. alleges he has been unable to ski during the winter as a result of decreased snowpack. Id p.38.
Plaintiff Sahara V. alleges hot, dry conditions caused by forest fires aggravate her asthma. Id. p.46.
The most recent allegations of injury appear in the supplemental declaration of plaintiff Jayden F., a thirteen-year-old resident of Rayne, Louisiana.
Jayden alleges that at five o'clock the morning of August 13, 2016, her siblings woke her up. Decl. Jayden F. 5 Sept. 7, 2016 (doc. 78).
She stepped out of bed into ankle-deep water.
By the end of the day, Floodwaters were pouring into our home through every possible opening.
We tried to stop it with towels, blankets, and boards.
The water was flowing down the hallway, into my Mom's room and my sisters' room.
The water drenched my living room and began to cover our kitchen floor.
Our toilets, sinks, and bathtubs began to overflow with awful smelling sewage because our town's sewer system also flooded.
Soon the sewage was everywhere.
We had a stream of sewage and water running through our house.
Id p8.
With no shelters available and nowhere else to go, the family remained in the flooded house for weeks. Id p10.
The floodwaters eventually receded, but the damage remains: the carpets are
soaked with sewage water. Id p.12.
The water-logged walls must be torn down to prevent the growth of black mold. Id
The entire family sleeps together in the living room because the bedrooms are uninhabitable. Id p.15.
Jayden alleges the storm that destroyed her home "ordinarily would happen once every 1,000 years, but is happening now as a result of climate change." Id p.2.
The government contends these injuries are not particular to plaintiffs because they are caused by climate change, which broadly affects the entire planet (and all people on it) in some way.
According to the government, this renders plaintiffs' injuries nonjusticiable generalized grievances. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.3 (2014) (explaining that generalized grievances do not meet Article III's case or controversy requirement).
The government misunderstands the generalized grievance rule.
As the Ninth Circuit recently explained, federal courts lack jurisdiction to hear a case when the harm at issue is "not only widely shared, but is also of an abstract and indefinite nature - for example, harm to the common concern for obedience to the law." Novak v. United States, 795 F.3d 1012, 1018 (9th Cir. 2015) (quoting Fed Elec. Comm'n v. Akins, 524 U.S. 11, 23 (1998)).
Standing alone, "the fact that a harm is widely shared does not necessarily render it a generalized grievance." Jewel, 673 F .3d at 909; see
also Massachusetts v. EPA, 549 U.S. 497, 517 (2007) ("(I)t does not matter how many persons have been injured by the challenged action" so long as "the party bringing suit shows that the action injures him in a concrete and personal way." (quotation marks omitted and alterations normalized)); Akins, 524 U.S. at 24 ("(A)n injury .... widely shared ... 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."'); Covington v. Jefferson Cnty., 358 F.3d 626, 651 (9th Cir. 2004) (Gould, J., concurring) ("(T)he most recent Supreme Court precedent appears to have rejected the notion that injury to all is injury to none for standing purposes."); Pye v. United States, 269 F.3d 459, 469 (4th Cir. 2001) ("So long as the plaintiff ... has a concrete and particularized injury, it does not matter that legions of other persons have the same injury.").
Indeed, even if "the experience at the root of [the] complaint was shared by virtually every American," the inquiry remains whether that shared experience caused an injury that is concrete and particular to the plaintiff. Jewel, 673 F.3d at 910.
Applying the correct formulation of the generalized grievance rule, plaintiffs' alleged injuries - harm to their personal, economic and aesthetic interests - are concrete and particularized, not abstract or indefinite.
That leaves imminence.
Plaintiffs must demonstrate standing for each claim they seek to press and for each form of relief sought. Daimler Chrysler Corp. v. Cuna, 547 U.S. 332, 352 (2006).
Because plaintiffs seek injunctive relief, they must show their injuries are "ongoing or likely to recur." Consumer Fin. Prof. Bureau v. Gordon, 819 F.3d 1179, 1197 (9th Cir. 2016)(quoting FTC v. Evans Prods. Co., 77 5 F .2d 1084, 1087 (9th Cir. 1985)).
They have met this requirement.
The complaint alleges that "(t)he present level of C02 and its warming, both realized and latent, are already in the zone of danger." First Am. Compl para.8.
It also alleges that "our country is now in a period of carbon overshoot, with early consequences that are already threatening and that will, in the short term, rise to unbearable unless Defendants take immediate action[.]" Id. para.10 (quotation marks omitted).
Youth plaintiffs each allege harm that is ongoing and likely to continue in the future. See, e.g., id. para.17 (alleging current harm and harm "(I)n the coming decades" from ocean acidification and rising sea levels); id. para.45 (alleging damage to freshwater resources now and in the future "if immediate action is not taken" to reduce C02 emissions).
This is sufficient to satisfy the imminence requirement.
By alleging injuries that are concrete, particularized, and actual or imminent, plaintiffs have satisfied the first prong of the standing test.
TO BE CONTINUED ...
"A threshold question in every federal case is ... whether at least one plaintiff has standing." Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009) (citation and quotation marks omitted).
Standing requires a plaintiff to allege "such a personal stake in the outcome of the controversy as to warrant [the] invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers[.]" Warth v. Seldin, 442 U.S. 490, 498 (1975).
To demonstrate standing, a plaintiff must show (1) she suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the defendant's challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
A plaintiff must support each element of the standing test "with the manner and degree of evidence required at the successive stages of the litigation." Id. at 561.
Accordingly, at the motion to dismiss stage "general allegations" suffice to establish standing because those allegations are presumed to "embrace those specific facts that are necessary to support the claim." Id. (citation and quotation marks omitted).
A Injury in Fact
In an environmental case, a plaintiff cannot demonstrate injury in fact merely by alleging injury to the environment; there must be an allegation that the challenged conduct is harming (or imminently will harm) the plaintiff. Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (I'OC), Inc., 528 U.S. 167, 181 (2000).
For example, a plaintiff may meet the injury in fact requirement by alleging the challenged activity "impairs his or her economic interests or aesthetic and environmental well-being." Wash. Envt 'l Council v. Bellon, 732 F.3d 1131, 1140 (9th Cir. 2013) (quotation marks omitted and alterations normalized).
Plaintiffs adequately allege injury in fact.
Lead plaintiff Kelsey Juliana alleges algae blooms harm the water she drinks, and low water levels caused by drought kill the wild salmon she eats. First Am. Compl pp. 17-18.
Plaintiff Xiuhtezcatl Roske-Martinez alleges increased wildfires and extreme flooding jeopardize his personal safety. Id p.21.
Plaintiff Alexander Loznak alleges record setting temperatures harm the health of the hazelnut orchard on his family farm, an important source of both revenue and food for him and his family. Id p.26.
Plaintiff Jacob Lebel alleges drought conditions required his family to install an irrigation system at their farm. Id p.32.
Plaintiff Zealand B. alleges he has been unable to ski during the winter as a result of decreased snowpack. Id p.38.
Plaintiff Sahara V. alleges hot, dry conditions caused by forest fires aggravate her asthma. Id. p.46.
The most recent allegations of injury appear in the supplemental declaration of plaintiff Jayden F., a thirteen-year-old resident of Rayne, Louisiana.
Jayden alleges that at five o'clock the morning of August 13, 2016, her siblings woke her up. Decl. Jayden F. 5 Sept. 7, 2016 (doc. 78).
She stepped out of bed into ankle-deep water.
By the end of the day, Floodwaters were pouring into our home through every possible opening.
We tried to stop it with towels, blankets, and boards.
The water was flowing down the hallway, into my Mom's room and my sisters' room.
The water drenched my living room and began to cover our kitchen floor.
Our toilets, sinks, and bathtubs began to overflow with awful smelling sewage because our town's sewer system also flooded.
Soon the sewage was everywhere.
We had a stream of sewage and water running through our house.
Id p8.
With no shelters available and nowhere else to go, the family remained in the flooded house for weeks. Id p10.
The floodwaters eventually receded, but the damage remains: the carpets are
soaked with sewage water. Id p.12.
The water-logged walls must be torn down to prevent the growth of black mold. Id
The entire family sleeps together in the living room because the bedrooms are uninhabitable. Id p.15.
Jayden alleges the storm that destroyed her home "ordinarily would happen once every 1,000 years, but is happening now as a result of climate change." Id p.2.
The government contends these injuries are not particular to plaintiffs because they are caused by climate change, which broadly affects the entire planet (and all people on it) in some way.
According to the government, this renders plaintiffs' injuries nonjusticiable generalized grievances. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.3 (2014) (explaining that generalized grievances do not meet Article III's case or controversy requirement).
The government misunderstands the generalized grievance rule.
As the Ninth Circuit recently explained, federal courts lack jurisdiction to hear a case when the harm at issue is "not only widely shared, but is also of an abstract and indefinite nature - for example, harm to the common concern for obedience to the law." Novak v. United States, 795 F.3d 1012, 1018 (9th Cir. 2015) (quoting Fed Elec. Comm'n v. Akins, 524 U.S. 11, 23 (1998)).
Standing alone, "the fact that a harm is widely shared does not necessarily render it a generalized grievance." Jewel, 673 F .3d at 909; see
also Massachusetts v. EPA, 549 U.S. 497, 517 (2007) ("(I)t does not matter how many persons have been injured by the challenged action" so long as "the party bringing suit shows that the action injures him in a concrete and personal way." (quotation marks omitted and alterations normalized)); Akins, 524 U.S. at 24 ("(A)n injury .... widely shared ... 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."'); Covington v. Jefferson Cnty., 358 F.3d 626, 651 (9th Cir. 2004) (Gould, J., concurring) ("(T)he most recent Supreme Court precedent appears to have rejected the notion that injury to all is injury to none for standing purposes."); Pye v. United States, 269 F.3d 459, 469 (4th Cir. 2001) ("So long as the plaintiff ... has a concrete and particularized injury, it does not matter that legions of other persons have the same injury.").
Indeed, even if "the experience at the root of [the] complaint was shared by virtually every American," the inquiry remains whether that shared experience caused an injury that is concrete and particular to the plaintiff. Jewel, 673 F.3d at 910.
Applying the correct formulation of the generalized grievance rule, plaintiffs' alleged injuries - harm to their personal, economic and aesthetic interests - are concrete and particularized, not abstract or indefinite.
That leaves imminence.
Plaintiffs must demonstrate standing for each claim they seek to press and for each form of relief sought. Daimler Chrysler Corp. v. Cuna, 547 U.S. 332, 352 (2006).
Because plaintiffs seek injunctive relief, they must show their injuries are "ongoing or likely to recur." Consumer Fin. Prof. Bureau v. Gordon, 819 F.3d 1179, 1197 (9th Cir. 2016)(quoting FTC v. Evans Prods. Co., 77 5 F .2d 1084, 1087 (9th Cir. 1985)).
They have met this requirement.
The complaint alleges that "(t)he present level of C02 and its warming, both realized and latent, are already in the zone of danger." First Am. Compl para.8.
It also alleges that "our country is now in a period of carbon overshoot, with early consequences that are already threatening and that will, in the short term, rise to unbearable unless Defendants take immediate action[.]" Id. para.10 (quotation marks omitted).
Youth plaintiffs each allege harm that is ongoing and likely to continue in the future. See, e.g., id. para.17 (alleging current harm and harm "(I)n the coming decades" from ocean acidification and rising sea levels); id. para.45 (alleging damage to freshwater resources now and in the future "if immediate action is not taken" to reduce C02 emissions).
This is sufficient to satisfy the imminence requirement.
By alleging injuries that are concrete, particularized, and actual or imminent, plaintiffs have satisfied the first prong of the standing test.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
B. Causation
The second requirement of standing is causation.
A plaintiff must show the injury alleged is "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." Lujan, 504 U.S. at 560 (citation and quotation marks omitted).
Although a defendant's action need not be the sole source of injury to support standing, Barnum Timber Co. v. EPA, 633 F.3d 894, 901 (9th Cir. 2011), "(t)he line of causation between the defendant's action and the plaintiffs harm must be more than attenuated," Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 867 (9th Cir. 2012) (citations and quotation marks omitted).
However, a "causal chain does not fail simply because it has several links, provided those links are not hypothetical or tenuous and remain plausible." Id. (citations, quotation marks, and bracket omitted).
The government contends plaintiffs have not adequately alleged causation, relying on the Ninth Circuit's decision in Bellon.
In that case, environmental advocacy groups sought to compel the Washington State Department of Ecology and other regional agencies "to regulate greenhouse gas emissions" ("GHGs") from five oil refineries. Bellon, 732 F.3d at 1135.
The court held plaintiffs lacked standing to sue because the causal link between the agencies' regulatory decisions and the plaintiffs' injuries was "too attenuated." Id. at 1141.
The court explained the special challenge of showing causation with respect to the production of greenhouse gases: Greenhouse gases, once emitted from a specific source, quickly mix and disperse in the global atmosphere and have a long atmospheric lifetime.
Current research on how greenhouse gases influence global climate change has focused on the cumulative environmental effects from aggregate regional or global sources.
But there is limited scientific capability in assessing, detecting, or measuring the relationship between a certain GHG emission source and localized climate impacts in a given region. Id at 1143.
The court noted that the five oil refineries at issue were responsible for just under six percent of total greenhouse gas emissions produced in the state of Washington, and quoted the state's expert's declaration that the effect of those emissions on global climate change was "scientifically indiscernible, given the emission levels, the dispersal of GHGs world-wide, and the absence of any meaningful nexus between Washington refinery emissions and global GHG concentrations now or as projected in the future." Id. at 1144 (quotation marks omitted).
The court concluded the "causal chain [wa]s too tenuous to support standing." Id.
This case is distinguishable from Bellon in two important respects.
First, the procedural posture is different.
In Bellon, the appeal was taken from a grant of summary judgment. Id at 1138.
That procedural posture is underscored by the court's reliance on expert declarations in rendering its decision.
Plaintiffs have alleged a causal relationship between their injuries and defendants' conduct.
At this stage, I am bound to accept those allegations as true.
This rule appropriately acknowledges the limits of the judiciary's expertise: at the motion to dismiss stage, a federal court is in no position to say it is impossible to introduce evidence to support a well-pleaded causal connection. See Connecticut v. Am. Elec. Power Co., Inc., 582 F.3d 309, 347 (2d Cir. 2009) (holding that causation in climate change cases is "best left to the rigors of evidentiary proof at a future stage of the proceedings, rather than dispensed with as a threshold question of constitutional standing"), rev'd on other grounds, Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 429 (2011).
I note, too, that climate science is constantly evolving. See Kirsten Engel & Jonathan Overpeck, Adaptation and the Courtroom: Judging Climate Science, 3 Mich. J. Envt'I & Admin. L. 1, 25 (2013) (although "climate impacts at the regional and local levels are subject, among other things, to the uncertainties of downscaling techniques[,] ... our knowledge of the climate is developing at a breakneck pace.")
As a result, I cannot interpret Bellon - which relied on a summary judgment record developed more than five years ago - to forever close the courthouse doors to climate change claims.
Second, the emissions at issue in this case, unlike the emissions at issue in Bellon, make up a significant share of global emissions.
In Bellon, as noted, the five oil refineries were responsible for just under six percent of the greenhouse gas emissions generated in the state of Washington.
The Ninth Circuit recently explained that in Bellon, "causation was lacking because the defendant oil refineries were such minor contributors to greenhouse gas emissions, and the independent third-party causes of climate change were so numerous, that the contribution of the defendant oil refineries was 'scientifically undiscernable."' WildEarth Guardians v. U.S. Dep't of Agric. , 795 F.3d 1148, 1158 (9th Cir. 2015) (quoting Bellon, 732 F.3d at 1144).
Here, by contrast, plaintiffs' chain of causation rests on the core allegation that defendants are responsible for a substantial share of worldwide greenhouse gas emissions.
Plaintiffs allege that over the 263 years between 1751 and 2014, the
United States produced more than twenty-five percent of global C02 emissions. First Am. Compl. para.151.
Greenhouse gas emissions produced in the United States continue to increase. Id. ~ 152.
In 2012, the United States was the second largest producer and consumer of energy in the world. Id. ~ 160.
Bellon's reasoning, which rested on a determination the oil refineries were "minor contributors" to climate change, does not apply. WildEarth Guardians, 795 F.3d at 1158.
The government broadly asserts that Bellon rejected "the argument that allegations that a source 'contributed' to climate change are sufficient to satisfy Article III' s causation requirement[.]" Fed. Defs.' Mem. of Points & Auth. in Supp. of Mot. Dismiss at 12 (doc. 27-1).
Not so.
Bellon rejected - at the summmy judgment stage - "vague, conclusory" statements purporting to establish a causal relationship between the emissions of five refineries and the plaintiffs' injuries. 732 F.3d at 1142.
Although the Constitution did not require the Bellon plaintiffs to "connect each molecule to their injuries," it demanded more than "simply saying that the Agencies have failed to curb emission of greenhouse gases, which contribute (in some undefined way and to some undefined degree) to their injuries[.]" Id. at 1142-43.
The causal chain alleged by plaintiffs here is conclusory, but that is because they have not yet had the opportunity to present evidence.
And unlike in Bellon, plaintiffs' causation allegations are not vague.
At oral argument, plaintiffs explained that their theory of causation has two components.
The first relates to defendants' affirmative acts.
Specifically, plaintiffs allege that fossil fuel combustion accounts for approximately ninety-four percent of United States C02 emissions. First Am. Compl.~ 158.
Defendants lease public lands for oil, gas, and coal production; undercharge royalties in connection with those leases; provide tax breaks to companies to encourage fossil fuel development; permit the import and export of fossil fuels; and incentivize the purchase of sport utility vehicles. Id.~~ 164, 166, 171, 173, 181, 190.
Here, the chain of causation is: fossil fuel combustion accounts for the lion's share of greenhouse gas emissions produced in the United States; defendants have the power to increase or decrease those emissions; and defendants use that power to engage in a variety of activities that actively cause and promote higher levels of fossil fuel combustion.
The second component of plaintiffs' causation theory involves defendants' failure to act in areas where they have authority to do so.
Plaintiffs allege that together, power plants and transportation produce nearly two-thirds of C02 emissions in the United States. Id. ~ 115 (transportation produces approximately twenty-seven percent of annual emissions); id. ~ 125 (power plants produce roughly thirty-seven percent of annual emissions).
Plaintiffs also allege DOT and EPA have broad power to set emissions standards in these sectors.
So the chain of causation is: DOT and EPA have jurisdiction over sectors producing sixty-four percent of United States emissions, which in turn constitute roughly fourteen percent of emissions worldwide; they allow high emissions levels by failing to set demanding standards; high emissions levels cause climate change; and climate change causes plaintiffs' injuries.
Each link in these causal chains may be difficult to prove, but the "spectre of difficulty down the road does not inform [the] justiciability determination at this early stage of the proceedings." Alperin, 410 F.3d at 539.
At the pleading stage, plaintiffs have adequately alleged a causal link between defendants' conduct and the asserted injuries.
TO BE CONTINUED ...
The second requirement of standing is causation.
A plaintiff must show the injury alleged is "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." Lujan, 504 U.S. at 560 (citation and quotation marks omitted).
Although a defendant's action need not be the sole source of injury to support standing, Barnum Timber Co. v. EPA, 633 F.3d 894, 901 (9th Cir. 2011), "(t)he line of causation between the defendant's action and the plaintiffs harm must be more than attenuated," Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 867 (9th Cir. 2012) (citations and quotation marks omitted).
However, a "causal chain does not fail simply because it has several links, provided those links are not hypothetical or tenuous and remain plausible." Id. (citations, quotation marks, and bracket omitted).
The government contends plaintiffs have not adequately alleged causation, relying on the Ninth Circuit's decision in Bellon.
In that case, environmental advocacy groups sought to compel the Washington State Department of Ecology and other regional agencies "to regulate greenhouse gas emissions" ("GHGs") from five oil refineries. Bellon, 732 F.3d at 1135.
The court held plaintiffs lacked standing to sue because the causal link between the agencies' regulatory decisions and the plaintiffs' injuries was "too attenuated." Id. at 1141.
The court explained the special challenge of showing causation with respect to the production of greenhouse gases: Greenhouse gases, once emitted from a specific source, quickly mix and disperse in the global atmosphere and have a long atmospheric lifetime.
Current research on how greenhouse gases influence global climate change has focused on the cumulative environmental effects from aggregate regional or global sources.
But there is limited scientific capability in assessing, detecting, or measuring the relationship between a certain GHG emission source and localized climate impacts in a given region. Id at 1143.
The court noted that the five oil refineries at issue were responsible for just under six percent of total greenhouse gas emissions produced in the state of Washington, and quoted the state's expert's declaration that the effect of those emissions on global climate change was "scientifically indiscernible, given the emission levels, the dispersal of GHGs world-wide, and the absence of any meaningful nexus between Washington refinery emissions and global GHG concentrations now or as projected in the future." Id. at 1144 (quotation marks omitted).
The court concluded the "causal chain [wa]s too tenuous to support standing." Id.
This case is distinguishable from Bellon in two important respects.
First, the procedural posture is different.
In Bellon, the appeal was taken from a grant of summary judgment. Id at 1138.
That procedural posture is underscored by the court's reliance on expert declarations in rendering its decision.
Plaintiffs have alleged a causal relationship between their injuries and defendants' conduct.
At this stage, I am bound to accept those allegations as true.
This rule appropriately acknowledges the limits of the judiciary's expertise: at the motion to dismiss stage, a federal court is in no position to say it is impossible to introduce evidence to support a well-pleaded causal connection. See Connecticut v. Am. Elec. Power Co., Inc., 582 F.3d 309, 347 (2d Cir. 2009) (holding that causation in climate change cases is "best left to the rigors of evidentiary proof at a future stage of the proceedings, rather than dispensed with as a threshold question of constitutional standing"), rev'd on other grounds, Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 429 (2011).
I note, too, that climate science is constantly evolving. See Kirsten Engel & Jonathan Overpeck, Adaptation and the Courtroom: Judging Climate Science, 3 Mich. J. Envt'I & Admin. L. 1, 25 (2013) (although "climate impacts at the regional and local levels are subject, among other things, to the uncertainties of downscaling techniques[,] ... our knowledge of the climate is developing at a breakneck pace.")
As a result, I cannot interpret Bellon - which relied on a summary judgment record developed more than five years ago - to forever close the courthouse doors to climate change claims.
Second, the emissions at issue in this case, unlike the emissions at issue in Bellon, make up a significant share of global emissions.
In Bellon, as noted, the five oil refineries were responsible for just under six percent of the greenhouse gas emissions generated in the state of Washington.
The Ninth Circuit recently explained that in Bellon, "causation was lacking because the defendant oil refineries were such minor contributors to greenhouse gas emissions, and the independent third-party causes of climate change were so numerous, that the contribution of the defendant oil refineries was 'scientifically undiscernable."' WildEarth Guardians v. U.S. Dep't of Agric. , 795 F.3d 1148, 1158 (9th Cir. 2015) (quoting Bellon, 732 F.3d at 1144).
Here, by contrast, plaintiffs' chain of causation rests on the core allegation that defendants are responsible for a substantial share of worldwide greenhouse gas emissions.
Plaintiffs allege that over the 263 years between 1751 and 2014, the
United States produced more than twenty-five percent of global C02 emissions. First Am. Compl. para.151.
Greenhouse gas emissions produced in the United States continue to increase. Id. ~ 152.
In 2012, the United States was the second largest producer and consumer of energy in the world. Id. ~ 160.
Bellon's reasoning, which rested on a determination the oil refineries were "minor contributors" to climate change, does not apply. WildEarth Guardians, 795 F.3d at 1158.
The government broadly asserts that Bellon rejected "the argument that allegations that a source 'contributed' to climate change are sufficient to satisfy Article III' s causation requirement[.]" Fed. Defs.' Mem. of Points & Auth. in Supp. of Mot. Dismiss at 12 (doc. 27-1).
Not so.
Bellon rejected - at the summmy judgment stage - "vague, conclusory" statements purporting to establish a causal relationship between the emissions of five refineries and the plaintiffs' injuries. 732 F.3d at 1142.
Although the Constitution did not require the Bellon plaintiffs to "connect each molecule to their injuries," it demanded more than "simply saying that the Agencies have failed to curb emission of greenhouse gases, which contribute (in some undefined way and to some undefined degree) to their injuries[.]" Id. at 1142-43.
The causal chain alleged by plaintiffs here is conclusory, but that is because they have not yet had the opportunity to present evidence.
And unlike in Bellon, plaintiffs' causation allegations are not vague.
At oral argument, plaintiffs explained that their theory of causation has two components.
The first relates to defendants' affirmative acts.
Specifically, plaintiffs allege that fossil fuel combustion accounts for approximately ninety-four percent of United States C02 emissions. First Am. Compl.~ 158.
Defendants lease public lands for oil, gas, and coal production; undercharge royalties in connection with those leases; provide tax breaks to companies to encourage fossil fuel development; permit the import and export of fossil fuels; and incentivize the purchase of sport utility vehicles. Id.~~ 164, 166, 171, 173, 181, 190.
Here, the chain of causation is: fossil fuel combustion accounts for the lion's share of greenhouse gas emissions produced in the United States; defendants have the power to increase or decrease those emissions; and defendants use that power to engage in a variety of activities that actively cause and promote higher levels of fossil fuel combustion.
The second component of plaintiffs' causation theory involves defendants' failure to act in areas where they have authority to do so.
Plaintiffs allege that together, power plants and transportation produce nearly two-thirds of C02 emissions in the United States. Id. ~ 115 (transportation produces approximately twenty-seven percent of annual emissions); id. ~ 125 (power plants produce roughly thirty-seven percent of annual emissions).
Plaintiffs also allege DOT and EPA have broad power to set emissions standards in these sectors.
So the chain of causation is: DOT and EPA have jurisdiction over sectors producing sixty-four percent of United States emissions, which in turn constitute roughly fourteen percent of emissions worldwide; they allow high emissions levels by failing to set demanding standards; high emissions levels cause climate change; and climate change causes plaintiffs' injuries.
Each link in these causal chains may be difficult to prove, but the "spectre of difficulty down the road does not inform [the] justiciability determination at this early stage of the proceedings." Alperin, 410 F.3d at 539.
At the pleading stage, plaintiffs have adequately alleged a causal link between defendants' conduct and the asserted injuries.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
C. Redressability
The final prong of the standing inquiry is redressability.
The causation and redressability prongs of the standing inquiry "overlap and are two facets of a single causation requirement." Bellon, 732 F.3d at 1146 (citation and quotation marks omitted).
They are distinct in that causation "examines the connection between the alleged misconduct and injury, whereas redressability analyzes the connection between the alleged injury and requested judicial relief." Id
A plaintiff need not show a favorable decision is certain to redress his injury, but must show a substantial likelihood it will do so. Id
It is sufficient for the redressability inquiry to show that the requested remedy would "slow or reduce" the harm. Massachusetts, 549 U.S. at 525 (citing Larson v. Valente, 456 U.S. 228, 243 n.15 (1982)).
The declaratory and injunctive relief plaintiffs request meets this standard.
Most notably, plaintiffs ask this Court to "(o)rder Defendants to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric C02. J" First
Am. Compl. ~ 94.
If plaintiffs can show, as they have alleged, that defendants have control over a quarter of the planet's greenhouse gas emissions, and that a reduction in those emissions would reduce atmospheric C02 and slow climate change, then plaintiffs' requested relief would redress their injuries.
Bellon is not to the contrary.
In Bellon, the court concluded the plaintiff's injuries would continue unabated even if the five oil refineries shut down, repeating its conclusion that the effect of the emissions produced by those refineries on global emissions levels was "scientifically indiscernable." 732 F.3d at 1147 (quotation marks omitted).
Thus, Bellon's redressability holding, like its causation holding, rested on a factor not present here: that the defendants were minor contributors to global climate change.
Accordingly, Bellon's reasoning does not apply.
Defendants and intervenors essentially argue that because many entities contribute to global warming, an injunction operating on one entity - even a major player - would offer no guarantee of an overall reduction in greenhouse gas emissions.
But whether the Court could guarantee an overall reduction in greenhouse gas emissions is the wrong inquiry for at least two reasons.
First, redressability does not require certainty, it requires only a substantial likelihood that the Court could provide meaningful relief.
Second, the possibility that some other individual or entity might later cause the same injury does not defeat standing - the question is whether the injury caused by the defendant can be redressed.
Redressability in this case is scientifically complex, particularly in light of the specter of "irreversible climate change,'' wherein greenhouse gas emissions above a certain level push the planet past "points of no return, beyond which irreversible consequences become inevitable, out of humanity's control." Hansen Decl. if 13 & Ex. 2 at 13 Sept. 10, 2015 (docs. 7-1 & 7-3) (quotation marks omitted).
This raises a host of questions, among them: What part of plaintiffs' injuries are attributable to causes beyond this Court's control?
Even if emissions increase elsewhere, will the magnitude of plaintiffs' injuries be less if they obtain the relief they seek in this lawsuit?
When would we reach this point of no return, and do defendants have it within their power to avert reaching it even without cooperation from third parties?
All of these questions are inextricably bound up in the causation inquiry, and none of them can be answered at the motion to dismiss stage.
Plaintiffs ask this Court to "order Defendants to cease their permitting, authorizing, and subsidizing of fossil fuels and, instead, move to swiftly phase out C02 emissions, as well as take such other action necessary to ensure that atmospheric C02 is no more concentrated than 350 ppm by 2100, including to develop a national plan to restore Earth's energy balance, and implement that national plan so as to stabilize the climate system." First Am. Compl. if 12 (emphasis omitted).
Construing the complaint in plaintiffs' favor, they allege that this relief would at least partially redress their asserted injuries.
Youth plaintiffs have adequately alleged they have standing to sue.
TO BE CONTINUED ...
The final prong of the standing inquiry is redressability.
The causation and redressability prongs of the standing inquiry "overlap and are two facets of a single causation requirement." Bellon, 732 F.3d at 1146 (citation and quotation marks omitted).
They are distinct in that causation "examines the connection between the alleged misconduct and injury, whereas redressability analyzes the connection between the alleged injury and requested judicial relief." Id
A plaintiff need not show a favorable decision is certain to redress his injury, but must show a substantial likelihood it will do so. Id
It is sufficient for the redressability inquiry to show that the requested remedy would "slow or reduce" the harm. Massachusetts, 549 U.S. at 525 (citing Larson v. Valente, 456 U.S. 228, 243 n.15 (1982)).
The declaratory and injunctive relief plaintiffs request meets this standard.
Most notably, plaintiffs ask this Court to "(o)rder Defendants to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric C02. J" First
Am. Compl. ~ 94.
If plaintiffs can show, as they have alleged, that defendants have control over a quarter of the planet's greenhouse gas emissions, and that a reduction in those emissions would reduce atmospheric C02 and slow climate change, then plaintiffs' requested relief would redress their injuries.
Bellon is not to the contrary.
In Bellon, the court concluded the plaintiff's injuries would continue unabated even if the five oil refineries shut down, repeating its conclusion that the effect of the emissions produced by those refineries on global emissions levels was "scientifically indiscernable." 732 F.3d at 1147 (quotation marks omitted).
Thus, Bellon's redressability holding, like its causation holding, rested on a factor not present here: that the defendants were minor contributors to global climate change.
Accordingly, Bellon's reasoning does not apply.
Defendants and intervenors essentially argue that because many entities contribute to global warming, an injunction operating on one entity - even a major player - would offer no guarantee of an overall reduction in greenhouse gas emissions.
But whether the Court could guarantee an overall reduction in greenhouse gas emissions is the wrong inquiry for at least two reasons.
First, redressability does not require certainty, it requires only a substantial likelihood that the Court could provide meaningful relief.
Second, the possibility that some other individual or entity might later cause the same injury does not defeat standing - the question is whether the injury caused by the defendant can be redressed.
Redressability in this case is scientifically complex, particularly in light of the specter of "irreversible climate change,'' wherein greenhouse gas emissions above a certain level push the planet past "points of no return, beyond which irreversible consequences become inevitable, out of humanity's control." Hansen Decl. if 13 & Ex. 2 at 13 Sept. 10, 2015 (docs. 7-1 & 7-3) (quotation marks omitted).
This raises a host of questions, among them: What part of plaintiffs' injuries are attributable to causes beyond this Court's control?
Even if emissions increase elsewhere, will the magnitude of plaintiffs' injuries be less if they obtain the relief they seek in this lawsuit?
When would we reach this point of no return, and do defendants have it within their power to avert reaching it even without cooperation from third parties?
All of these questions are inextricably bound up in the causation inquiry, and none of them can be answered at the motion to dismiss stage.
Plaintiffs ask this Court to "order Defendants to cease their permitting, authorizing, and subsidizing of fossil fuels and, instead, move to swiftly phase out C02 emissions, as well as take such other action necessary to ensure that atmospheric C02 is no more concentrated than 350 ppm by 2100, including to develop a national plan to restore Earth's energy balance, and implement that national plan so as to stabilize the climate system." First Am. Compl. if 12 (emphasis omitted).
Construing the complaint in plaintiffs' favor, they allege that this relief would at least partially redress their asserted injuries.
Youth plaintiffs have adequately alleged they have standing to sue.
TO BE CONTINUED ...