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 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 CO2 emissions.
Defendants moved to dismiss this action for lack of subject matter jurisdiction and failure to state a claim. Doc. 27. In-tervenors 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 interve
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 vehiclés, 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.
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 novo 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.,
Under Federal Rule of Civil Procedure 12(b)(1), 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 Publ’g Co., Inc. v. Gen. Tel. & Elec. Corp.,
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,
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.,
In Baker, the Supreme Court identified six criteria, each of which could indi
[ (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,
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,
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.” U.S. Dep’t of Commerce v. Montana,
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.” Zivotofsky ex rel Zivotofsky v. Clinton,
In Davis v. Passman,
Most recently, in Zivotofsky ex rel. Zi-votofsky v. Kerry, the Court held that the Constitution gives the president the exclusive authority to recognize foreign nations and governments. — U.S.-,
Unlike in the constitutional provisions at issue 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 Zivotoflcsy, climate
In the lower courts, the first Baker factor has found its broadest application in foreign policy cases. See, e.g., Corrie,
B. Second and Third Baker Factors
“The second and third Baker factors reflect circumstances in which a dispute calls for decisionmaking beyond courts’ competence.” Zivotofsky,
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
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 inventoiy of United States CO2 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 CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.” First Am. Compl. at 94. This Court could issue the requested declaration without directing any individual agency to take any particular action.
Finally, defendants and interve-nors 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,
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,
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 plaintiffs constitutional rights so long as the government has taken some steps to mitigate the damage. However, interve-nors 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,
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,
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
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),
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. Cha-dha,
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.
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.,
II. Standing to Sue
“A threshold question in every federal case is ... whether at least one plaintiff has standing.” Thomas v. Mun-dell,
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 Sews. (TOC), Inc.,
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. ¶¶ 17-18. Plaintiff Xiuhtezcatl Roske-Martinez alleges increased wildfires and extreme flooding jeopardize his personal safety. Id. ¶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. ¶26. Plaintiff Jacob Lebel alleges drought conditions required his family to install an irrigation system at their farm. Id. ¶32. Plaintiff Zealand B. alleges he has been unable to ski during the winter as a result of decreased snow-pack. Id. ¶ 38. Plaintiff Sahara V. alleges hot, dry conditions caused by forest fires aggravate her asthma. Id. ¶ 46.
Flood waters 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. ¶8. With no shelters available and nowhere else to go, the family remained in the flooded house for weeks. Id. ¶ 10. The floodwaters eventually receded, but the damage remains: the carpets are soaked with sewage water. Id. ¶ 12. The waterlogged 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. ¶ 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. ¶ 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., — U.S. --,
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,
That leaves imminence. Plaintiffs must demonstrate standing for each claim they seek to press and for each form of relief sought. DaimlerChrysler Corp. v. Cuno,
By alleging injuries that are concrete, particularized, and actual or imminent, plaintiffs have satisfied the first prong of the standing test.
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,
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,
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 focusedon 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 worldwide, 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 1188. 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.,
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 Agrie.,
The government broadly asserts that Bellon rejected “the argument that allegations that a source ‘contributed’ to climate change are sufficient to satisfy Article Ill’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 summary 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 in-centivize 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,
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
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 CO2[.]” 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 CO2 and slow climate change, then plaintiffs’ requested relief would redress their injuries.
Bellon is not to the contrary. In Bellon, the court concluded the plaintiffs 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.”
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. ¶ 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
III. Due Process Claims
The Due Process Clause of the Fifth Amendment to the United States Constitution bars the federal government from depriving a person of “life, liberty, or property” without “due process of law.” U.S. Const, amend. V. Plaintiffs allege defendants have violated their due process rights by “directly causing] atmospheric C02 to rise to levels that dangerously interfere with a stable climate system required alike by our nation and Plaintiffs[,]” First Am. Compl. ¶ 279; “knowingly endangering] Plaintiffs’ health and welfare by approving and promoting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion,” id. ¶ 280; and,“[a]fter knowingly creating this dangerous situation for Plaintiffs, ... continuing] to knowingly enhance that danger by allowing fossil fuel production, consumption, and combustion at dangerous levels,” id. ¶ 284.
Defendants and intervenors challenge plaintiffs’ due process claims on two grounds. First, they assert any challenge to defendants’ affirmative actions (i.e. leasing land, issuing permits) cannot proceed because plaintiffs have failed to identify infringement of a fundamental right or discrimination against a suspect class of persons. Second, they argue plaintiffs cannot challenge defendants’ inaction (i e., failure to prevent third parties from emitting C02 at dangerous levels) because defendants have no affirmative duty to protect plaintiffs from climate change.
A. Infringement of a Fundamental Right
When a plaintiff challenges affirmative government action under the due process clause, the threshold inquiry is the applicable level of judicial scrutiny. Witt v. Dep’t of the Air Force,
Fundamental liberty rights include both rights enumerated elsewhere in the Constitution and rights and liberties which are either (1) “deeply rooted in this Nation’s history and tradition” or (2) “fundamental to our scheme of ordered liberty[.]” McDonald v. City of Chicago, III,
This does not mean that “new” fundamental rights are out- of bounds, though. When the Supreme Court broke new legal ground by recognizing a constitutional right to same-sex marriage, Justice Kennedy wrote that
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights ... did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Obergefell v. Hodges, — U.S. -,
Often, an unenumerated fundamental right draws on more than one Constitutional source, The idea is that certain rights may be necessary to enable the exercise of other rights, whether enumerated or unenumerated. In Roe v. Wade,
Exercising my “reasoned judgment,” id. at 2598, I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the “foundation of the family,” a stable climate system is quite literally the foundation “of society, without which there would be neither civilization nor progress.” Id. (quoting Maynard v. Hill,
Defendants and intervenors contend plaintiffs are asserting a right to be free from pollution or climate change, and that courts have consistently rejected attempts to define such rights as fundamental, Defendants and intervenors miseharacterize the right plaintiffs assert. Plaintiffs do not object to the government’s role in producing any pollution or in causing any climate change; rather, they assert the government has caused pollution and climate change on a catastrophic level, and that if the government’s actions continue unchecked, they will permanently and irreversibly damage plaintiffs’ property, their economic livelihood, their recreational opportunities, their health, and ultimately their (and their children’s) ability to live long, healthy lives. Echoing Obergefell’s reasoning, plaintiffs allege a stable climate system is a necessary condition to exercising other rights to life, liberty, and property.
In framing the fundamental right at issue as the right to a climate system capable of sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims. On the one hand, the phrase “capable of sustaining human life” should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species. On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into a constitutional violation. In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation, To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink. Plaintiffs have adequately alleged infringement of a fundamental right.
B. “Danger Creation” Challenge to Inaction
With limited exceptions, the Due Process Clause does not impose on the government an affirmative obligation to act, even when “such aid may be neces
In the Ninth Circuit, a plaintiff challenging government inaction on a danger creation theory must first show the “state actor create[d] or expose[d] an individual to a danger which he or she would not have otherwise faced.” Kennedy v. City of Ridgefield,
Plaintiffs allege that “[a]cting with full appreciation of the consequences of their acts, Defendants 'knowingly'caused, and continue to cause, dangerous interference with out atmosphere' and climate system.” First Am. Compl. ¶ 85. They allege this danger stems, “in substantial part, [from] Defendants’ historie and continuing permitting, authorizing, and subsidizing of fossil fuel extraction, production, transportation, and utilization.” Id. ¶ 279. Plaintiffs allege defendants acted “with full appreciation” of the consequences of their acts, id. ¶¶ 278-79, specifically “[harm to] Plaintiffs’ dignity, including their capacity to provide for their basic human needs, safely raise families, practice their religious and spiritual beliefs, maintain their bodily integrity, and lead lives with access to clean air, water, shelter, and food.” Id. ¶ 283. In the face of these risks, plaintiffs allege defendants “have had longstanding, actual knowledge of the serious risks of harm and have failed to take necessary steps to address and ameliorate the known, serious risk to which they have exposed Plaintiffs.” Id. ¶285. In sum: plaintiffs allege defendants played a unique and central role in the creation of our current climate crisis; that they contributed to the crisis with full knowledge of the significant and unreasonable risks posed by climate change;
Defendants argue the DeShaney exceptions are inapplicable when the actor is the federal government rather than a state government. It is true that DeShaney was a section 1983 case and that the Ninth Circuit cases interpreting the DeShaney exceptions are also section 1983 cases. But in DeShaney, the Supreme Court was mapping the contours of the Due Process Clause, not section 1983. Defendants have cited no case or legal principle to justify limiting DeShaney to the section 1983 context.
Next, defendants contend application of the DeShaney danger creation exception in this context would permit plaintiffs to “raise a substantive due process claim to challenge virtually any government program”—for example, to challenge foreign policy decisions that heighten or exacerbate international tensions, or to health and safety regulations the plaintiff deems insufficiently stringent. Fed. Defs.’ Obj. 18. Defendants fail to recognize that DeSha-ney imposes rigorous proof requirements. A plaintiff asserting a danger-creation due process claim must show (1) the government’s acts created the danger to the plaintiff; (2) the government knew its acts caused that danger; and (3) the government with deliberate indifference failed to act to prevent the alleged harm. These stringent standards are sufficient safeguards against the flood of litigation concerns raised by defendants—indeed, they pose a significant challenge for plaintiffs in this very lawsuit.
Questions about difficulty of proof, however, must be left for another day. At the motion to dismiss stage, I am bound to accept the factual allegations in the complaint as true. Plaintiffs have alleged that defendants played a significant role in creating the current climate crisis, that defendants acted with full knowledge of the consequences of then- actions, and that defendants have failed to correct or mitigate the harms they helped create in deliberate indifference to the injuries caused by climate change. They may therefore proceed with their substantive due process challenge to defendants’ failure to adequately regulate C02 emissions.
IV. Public Trust Claims
In its broadest sense, the term “public trust” refers to the fundamental understanding that no government can legitimately abdicate its core sovereign powers. See Stone v. Mississippi,
Plaintiffs’ public trust claims arise from the particular application of the public trust doctrine to essential natural resources. With respect to these core resources, the sovereign’s public trust obligations prevent it from “depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens.” Br. of Amici Curiae Global Catholic Climate Movement and Leadership Council of Women Religious at 3 (footnote omitted) (doc. 51-1). Application of the public trust doctrine to natural resources predates the United States of America. Its roots are in the Institutes of Justinian, part of the Corpus Juris Civilis, the body of Roman law that is the “foundation for modern civil law systems.” Timothy G. Kearley, Justice Fred Blume and the Translation of Justinian’s Code, 99 Law Libr. J. 525, ¶ 1 (2007). The Institutes of Justinian declared “the following things are by natural law common to all—the air, running water, the sea, and consequently the seashore.” J. Inst. 2.1.1 (J.B. Moyle trans.). The doctrine made its way to the United States through the English common law. See Idaho v. Coeur d’Alene Tribe of Idaho,
The first court in this country to address the applicability of the public trust doctrine to natural resources was the New Jersey Supreme Court, in 1821. The court explained that public trust assets were part of a taxonomy of property:
Every thing susceptible of property is considered as belonging to the nation that possesses the country, as forming the entire mass of its wealth. But the nation does not possess all those things in the same manner. By very far the greater part of them are divided among the individuals of the nation, and become private property. Those things not divided among the individuals still belong to the nation, and are called public property. Of these, again, some are reserved for the necessities of the state, and are used for the public benefit, and those are called “the domain of the crown or of the republic,” others remain common to all the citizens, who take of them and use them, each according to his necessities, and according to the laws which regulate their use, and are called common property. Of this latter kind, according to the writers upon the law of nature and of nations, and upon the civil law, are the air, the running water, the sea, the fish, and the wild beasts.
The natural resources trust operates according to basic trust principles, which impose upon the trustee a fiduciary duty to “protect the trust property against damage or destruction.” George G. Bogert et al., Bogert’s Trusts and Trustees, § 582 (2016). The trustee owes this duty equally to both current and future beneficiaries of the trust. Restatement (Second) of Trusts § 183 (1959). In natural resources cases, the trust property consists of a set of resources important enough to the people to warrant public trust protection. See Mary C. Wood, A Nature’s Trust; Environmental Law for a New Ecological Age 167-75 (2014). The government, as trustee, has a fiduciary duty to protect the trust assets from damage so that current and future trust beneficiaries will be able to enjoy the benefits of the trust. Id. The public trust doctrine is generally thought to impose three types of restrictions on governmental authority:
[F]irst, the property subject to the trust must not only bé used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses.
Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 477 (1970).
This lawsuit is part of a wave of recent environmental cases asserting state and national governments have abdicated their responsibilities under the public trust doctrine. See, e.g., Alec L. v. Jackson,
Defendants and intervenors argue the public trust doctrine has no application in this case. They advance four arguments:
A. Scope of Public Trust Assets
The complaint alleges defendants violated their duties as trustees by failing to protect the atmosphere, water, seas, seashores, and wildlife. First Am. Compl. ¶ 309. Defendants and intervenors argue plaintiffs’ public trust claims fail because the complaint focuses on harm to the atmosphere, which is not a public trust asset. I conclude that it is not necessary at this stage to determine whether the atmosphere is a public trust asset because plaintiffs have alleged violations of the public trust doctrine in connection with the territorial sea.
The federal government holds title to the submerged lands between three .and twelve miles from the coastlines of the United States. See Restatement (Third) of The Foreign Relations Law of the United States § 511(a) (1987) (international law permits a nation to claim as its territorial sea an area up to twelve miles from its
B. Applicability of Public Trust to the Federal Government
Defendants and intervenors contend that in the United States, the public trust doctrine applies only to the states and not to the federal government. This argument rests primarily on a passing statement in PPL Montana, LLC v. Montana,
PPL Montana was not a public trust case. Its central concern was the equal footing doctrine. PPL Montana, LLC used three rivers flowing through the state of Montana for hydroelectric projects. Id. at 580,
In addition to its main argument that the rivers were navigable, Montana argued that denying it title to the riverbeds in dispute would “undermine the public trust doctrine.” Id. at 601,
Unlike the equal-footing doctrine, ... which is the constitutional foundation for the navigability rule of riverbed title, the public trust doctrine remains a matter of state law, subject as well to the federal power to regulate vessels and navigation under the Commerce Clause and admiralty power. While equal-footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, the contours of that public trust do not depend upon the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine.
Id. at 603,
Defendants and intervenors take the phrase “the public trust doctrine remains a matter of state law,” and interpret it in isolation to foreclose all federal public trust claims. That is not a plausible interpretation of PPL Montana. The Court was simply stating that federal law, not state law, determined whether Montana has title to the riverbeds, and that if Montana had title, state law would define the scope of Montana’s public trust obligations. PPL Montana said nothing at all about the viability of federal public trust claims with respect to federally-owned trust assets.
In a string citation, PPL Montana cited Coeur d’Alene,
Defendants and intervenors also contend recognizing a federal public trust claim is contrary to United States v. 3242 Acres of Land, More or Less, Located in San Diego County, California,
In 2012, the federal district court for the District of Columbia held the public trust doctrine does not apply to the federal government. Alee L. was substantially similar to the instant action: five youth plaintiffs and two environmental advocacy organizations sued a variety of heads of federal agencies, alleging the defendants had “wasted and failed to preserve and protect the atmosphere Public Trust asset.”
I am not persuaded by the reasoning of the Alec L. courts. As explained above, a close reading of PPL Montana reveals that it says nothing about the viability of federal public trust claims. And in Air Florida, the D.C. Circuit emphasized that “we imply no opinion regarding either the applicability of the public trust doctrine to the federal government or the appropriateness of using the doctrine to afford trustees a means for recovering from tortfea-sors the cost of restoring public waters to their pre-injury condition.”
Two federal courts—the district courts for the Northern District of California and the District of Massachusetts—have concluded the public trust doctrine applies to the federal government. The decisions, from the 1980s, concerned the federal government’s acquisition of various state-owned public trust assets—for example, submerged land beneath navigable rivers or tidelands—through the power of eminent domain. The courts held that the federal government has no public trust obligations under state law, but does take the land subject to a federal public trust. As one court explained, “[t]he trust is of such a nature that it can be held only by the sovereign, and can only be destroyed by the destruction of the sovereign.” United States v. 1.58 Acres of Land Situated in the City of Boston, Suffolk Cnty., Mass.,
I am persuaded that the City of Alame-da and 1.58 Acres of Land courts were correct. Their decisions rested on the history of the public trust doctrine and the public trust’s unique relationship to sovereignty. I can think of no reason why the public trust doctrine, which came to this country through the Roman and English roots of our civil law system, would apply to the states but not to the federal government.
Defendants’ final argument is that recognition of a federal public trust doctrine cannot be reconciled With Kleppe v. New Meodco,
. The federal government, like the states, holds public assets—at a minimum, the territorial seas—in trust for the people. Plaintiffs’ federal public trust claims are cognizable in federal court.
C. Displacement of Public Trust Claims
Defendants and intervenors next argue that any common-law public-- trust claims have been displaced by a variety of acts of Congress, including the Clean Air Act and the Clean Water Act. For this proposition, they rely on American Electric Power Company, Inc. v. Connecticut,
Defendants and intervenors contend that AEP controls the displacement analysis. The district court in Alec L. agreed with them.
I am not persuaded by the Alec L. court’s reasoning regarding displacement. In AEP, the Court did not have public trust claims before it and so it had no cause to consider the differences between public trust claims and other types of claims. Public trust claims are unique because they concern inherent attributes of sovereignty. The public trust imposes on the government an obligation to protect the res of the trust. A defining feature of that obligation is that it cannot be legislated away, Because of the nature of public trust claims, a displacement analysis simply does not apply.
The interplay between Congress’s decision to grant regulatory authority to various federal agencies and the authority of the courts to adjudicate public trust claims raises weightier concerns. Those concerns go to whether this case presents a nonjus-ticiable political question, and have been addressed in Section I of this opinion.
D. Enforceability of Public Trust Obligations in Federal Court
As a final challenge to plaintiffs’ public trust claims, defendants contend that even if the public trust doctrine applies to the federal government, plaintiffs lack a cause of action to enforce the public trust obligations. Relatedly, defendants argue that creation of a right of action to permit plaintiffs to assert their claims in federal court would be an exercise in federal common law-making subject to the same statutory displacement arguments outlined above.
In order to evaluate the merits of these arguments, I must first locate the source of plaintiffs’ public trust claims. I conclude plaintiffs’ public trust rights both predated the Constitution and are secured by it. See Gerald Tones & Nathan Bellinger, The Public Trust: The Law’s DNA, 4 Wake Forest J. L. & Pol’y 281, 288-94 (2014).
The public trust doctrine defines inherent aspects of sovereignty. The Social Contract theory, which heavily influenced Thomas Jefferson and other Founding Fathers, provides that people possess certain inalienable lights and that governments were established by consent of the governed for the purpose of securing those rights.
Although the public trust predates the Constitution, plaintiffs’ right of action to enforce the government’s obligations as trustee arises from the Constitution. I agree with Judge Coffin that plaintiffs’ public trust claims are properly categorized as substantive due process claims. As explained, the Due Process Clause’s substantive component safeguards fundamental rights that are “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition,” McDonald,
Plaintiffs’ claims rest “directly on the Due Process Clause of the Fifth Amendment.” Davis,
CONCLUSION
Throughout their objections, defendants and intervenors attempt to subject a lawsuit alleging constitutional injuries to case law governing statutory and common-law environmental claims. They are correct that plaintiffs likely could not obtain the relief they seek through citizen suits brought under the Clean Air Act, the Clean Water Act, or other environmental laws. But that argument misses the point. This action is of a different order than the typical environmental case. It alleges that defendants’ actions and inactions—whether or not they violate any specific statutory duty—have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.
Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it. As Judge Goodwin recently wrote,
The current state of affairs ... reveals a wholesale failure of the legal system to protect humanity from the collapse of finite natural resources by the uncontrolled pursuit of short-term profits.... [T]he modern judiciary has enfeebled itself to the point that law enforcement can rarely be accomplished by taking environmental predators to court....
The third branch can, and should, take another long and careful look at the barriers to litigation created by modern doctrines of subject-matter jurisdiction and deference to the legislative and administrative branches of government.
Alfred T. Goodwin, A Wake-Up Call for Judges, 2015 Wis. L. Rev. 785, 785-86, 788 (2015).
Judge Goodwin is no stranger to highly politicized legal disputes. Nearly fifty years ago, he authored the landmark opinion that secured Oregon’s ocean beaches for public use. Private landowners wanted to construct fences and otherwise keep private the beaches in front of their properties; they brought suit to challenge an Oregon state law requiring public access to all dry sand beaches. State ex rel. Thornton v. Hay,
Because so much of our law is the product of legislation, we sometimes lose sight of the importance of custom as a source of law in our society. It seems particularly appropriate in the case at bar to look to an ancient and accepted custom in this state as the source of a rule of law. The rule in this case, based upon custom, is salutary in confirming a public right, and at the same time it takes from no man anything which he has a legitimate reason to regard as exclusively his.14
Id, at 678.
In an argument with strong echoes in defendants’ and intervenors’ objections here, the plaintiff private property owner contended it was “constitutionally impermissible ... to dredge up an inapplicable, ancient English doctrine that has been universally rejected in modern America.” Kathryn A. Straten, Oregon’s Beaches: A Birthright Preserved 65 (Or. State Parks & Recreation 1977). The Oregon Supreme Court was not persuaded by this call to judicial conservatism. Because of the application of an ancient doctrine, Oregon’s
“A strong and independent judiciary is the cornerstone of our liberties.” These words, spoken by Oregon Senator Mark 0. Hatfield, are etched into the walls of the Portland United States courthouse for the District of Oregon. The words appear on the first floor, a daily reminder that- it is “emphatically the province and duty of the judicial department to say what the law is.” Marbury,
I ADOPT Judge Coffin’s Findings & Recommendation (doc. 68), as elaborated in this opinion, Defendants’ Motion to Dismiss (doc. 27) and Intervenors’ Motion to Dismiss (doc. 19) are DENIED.
IT IS SO ORDERED.
ORDER and FINDINGS & RECOMMENDATION
The motions before the court are directed against a relatively unprecedented lawsuit that, in essence, seeks relief from government action and inaction that allegedly results in carbon pollution of the atmosphere, climate destabilization, and ocean acidification. The government action and inaction allegedly threatens catastrophic consequences which have already began and will progressively worsen in the near future.
Plaintiffs include a group of younger individuals (aged 8-19) who assert concrete harm from excessive carbon emissions. Also among the plaintiffs are associations of activists who assert they are beneficiaries of a federal public trust which is being harmed by allegedly substantial impairment and alienation of public trust resources through ongoing actions to allow fossil fuel exploitation. Finally, plaintiff Dr. James Hansen participates as a guardian for plaintiff “future generations.”--
Plaintiffs are suing the United States and various government officials' and agencies because, they assert, the government has known for decades that carbon dioxide (C02) pollution has been causing catastrophic climate change and has failed to take necessary action to curtail fossil fuel emissions. Moreover, plaintiffs allege that the government and its agencies have taken action or failed to take action'that has resulted in increased carbon pollution through fossil fuel extraction, production, consumption, transportation, and exportation. Plaintiffs assert that a reduction of global C02 concentrations to less than 350 parts per million is possible, but action must be taken immediately to prevent further ocean acidification and ocean warming, Plaintiffs allege the current actions and omissions of defendants make it extremely difficult for plaintiffs to protect their vital natural systems and a livable world. Consequently, plaintiffs seek immediate action to restore energy balance and implementation of a plan to put the nation on a trajectory (that if adhered to by other major emitters) will reduce atmospheric C02 concentrations to no more than 350 parts per million by 2100.
Plaintiffs assert the actions and omissions of defendants that increased C02 emissions “shock the conscience,” and are infringing the plaintiffs’ right to- life and liberty in violation of their substantive due process rights. Plaintiffs also allege defendants have violated plaintiffs’ equal protection rights embedded in the Fifth Amendment by denying them protections afforded to previous generations and by favoring short term economic interests of certain citizens. Plaintiffs further allege defendants’ acts and omissions violate the implicit right, via the Ninth Amendment, to a stable climate and an ocean and atmo
Through this action, plaintiffs ask the court to:
1. Declare that Defendants have violated and are violating Plaintiffs’ fundamental constitutional rights to life, liberty, and property by substantially causing or contributing to a dangerous concentration of C02 in the atmosphere, and that, in so doing, Defendants dangerously interfere with a stable climate system required by our nation and Plaintiffs alike;
2. Enjoin Defendants from further violations of the Constitution underlying each claim for relief;
3. Declare the Energy Policy Act, Section 201, to be unconstitutional on its face;
4. Declare DOE/FE Order No. 3041, granting long-term multi-contract authorization to Jordan Cove Energy for LNG exports from its Coos Bay terminal, to be unconstitutional as applied and set it aside;
5. Declare Defendants’ public trust violations and enjoin Defendants from violating the public trust doctrine underlying each claim for relief;
6. Order Defendants to prepare a consumption-based inventory of U.S. C02 emissions;
7. Order Defendants 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 Amended Complaint (#7) at 94. Plaintiffs also seek to have this court retain jurisdiction over this action to monitor and enforce defendants’ compliance with a national remedial plan and associated orders requiring the above.
In essence, plaintiffs assert a novel theory somewhere between a civil rights action and NEPA/Clean Air Act/Clean Water Act suit to force the government to take action to reduce harmful pollution. Although, plaintiffs, for the most part, do not challenge a specific agency action and urge the court to order government-wide action for the benefit of the earth and mankind, they also seek “other relief as the Court deems just and proper.” Id
The court has previously granted the National Association of Manufacturers (NAM), American Fuel & Petrochemical Manufacturers (AFPM), and American Petroleum Institute (API) motion to intervene in this action. These organizations represent various entities in the coal, oil, and gas industry, including businesses that extract, refine, and use such energy sources. The intervenors move to dismiss the amended complaint. The government similarly moves to dismiss all claims.
Movants assert plaintiffs lack standing to bring this suit, raise non-justiciable political questions, and they fail to state a constitutional claim. In addition, the mov-ants assert the public trust doctrine does not provide a cognizable federal cause of action.
A. Standing
Plaintiffs must demonstrate standing for each claim they seek to press and for each form of relief sought. DaimlerChrysler Corp. v. Cuno,
L Concrete, Particularized, Imminent Injury
Plaintiffs allege that climate change endangers humanity and nature and is a consequence of human caused or influenced green house gases, primarily C02, derived from the combustion of fossil fuels. First Amended Complaint (FAC)(# 7) at ¶ 202. Plaintiffs allege because C02 persists in the atmosphere, future emissions will lead to severe impacts on children and future generations and the current level of C02 has already taken our country into the “danger zone.” Id. At 206-07. Plaintiffs aver emissions must be rapidly and systematically reduced in order to avoid crossing the tipping points that set in motion disastrous, irrevocable impacts to human civilization and nature. Id. At 208. According to plaintiffs it will be nearly impossible for them to adapt to all of the current climate change impacts in the quick time-frame in which they will occur and that, therefore, “the survival and well-being of plaintiffs is significantly threatened by climate destabilization.” Id. at ¶ 208, ¶ 211. Plaintiffs further allege that climate change is “already damaging human and natural systems, causing loss of life and pressing species to extinction.” Id. at ¶ 213. Plaintiffs allege specifics regarding global changes that also lead to local harm such as: disintegration of both the West and East Antarctic ice sheets with concomitant sea level rise damaging coastal regions; changing rainfall and atmospheric conditions affecting water and heat distribution causing severe storm surges, floods, hurricanes, droughts, insect infestation, reduced crop yields, increased invasive vegetation, and fires; ocean acidification damaging sea life; increase in allergies, asthma, cancer, and other diseases; and harm to national security causing destabilization in various regions of the world. Id. at ¶¶ 213-241.
However, plaintiffs also assert injuries that are personal in nature such as: jeopardy to family farms resulting from the planned Jordan Cove gas line,
Often the fact that an interest is abstract and the fact that it is.widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found “injury in fact.” See Public Citizen [v. U.S. Dept. of Justice], 491 U.S. [at 440,] 449-50, 109 S.Ct. at [2558,] 2564—2565[,105 L.Ed.2d 377 (1989) ] (“The fact that other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure ... does not lessen [their] asserted injury”). Thus the fact that a political forum may be more readily available where an injury is widely shared (while counseling against, say, interpreting a statute as conferring standing) does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an “injury in fact.” This conclusion seems particularly obvious where (to use a hypothetical example) large numbers of individuals suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. Cf. Lujan, supra, at 572,112 S.Ct. at 2142-2143: Shaw v. Hunt,517 U.S. 899 , 905,116 S.Ct. 1894 , 1900-1901,135 L.Ed.2d 207 (1996).
The court must accept the allegations as true and those allegations plausibly allege harm, though widespread, that is concrete.
Of course, federal courts are not forums in which to air generalized grievances about the conduct of government. See Flast v. Cohen,
Even when a case falls within these constitutional boundaries, a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim. For example, a litigant normally must assert an injury that is peculiar to himself or to a distinct group of which he is a part, rather than one “shared in substantially equal measure by all or a large class of citizens.” Warth v. Seldin,422 U.S. at 499 ,95 S.Ct. at 2205 . He also must assert his own legal interests rather than those of third parties, [footnote omitted] Ibid. Accord, Arlington Heights v. Metropolitan Housing Dev. Corp., supra,429 U.S. at 263 ,97 S.Ct. at 561 .
Given the allegations of direct or threatened direct harm, albeit shared by most of the population or future population, the court should be loath to decline standing to persons suffering an alleged concrete injury of a constitutional magnitude. See U.S. v. Students Challenging Regulatory Agency Procedures,
standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons across the Nation could be adversely affected by major governmental actions. See, e.g., Environmental Defense Fund v. Hardin,138 U.S.App.D.C. 391 ,428 F.2d 1093 , 1097 [ (D.C. Cir. 1970)3 (interests of consumers affected by decision of Secretary of Agriculture refusing to suspend registration of certain pesticides containing DDT); Reade v. Ewing,205 F.2d 630 , 631-632 [ (2d Cir. 1953) ] (interests of consumers of oleomargarine in fair labeling of product regulated by Federal Security Administration). To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.
While the FAC identifies numerous climatic, meteorologic, and political harms that the Earth and its inhabitants will suffer as a result of the government’s action and failure to act with respect to C02 emissions, the plaintiffs differentiate the impacts by alleging greater harm to youth and future generations.
The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society. It may be that eventually the alleged harms, assuming the correctness of plaintiffs’ analysis of the impacts of global climate change, will befall all of us. But the intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society.
To reiterate, at this stage of the proceedings the court must accept the allegations of concrete particularized harm or imminent threat of such harm as true. The question then becomes whether the alleged harm is traceable to defendants’ conduct and whether the court can redress such harm.
2. Causation
As noted above, there must be a causal connection between the injury and the conduct of which plaintiffs complained. In other words, the injury has to be fairly traceable to' the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Simon v. Eastern Ky. Welfare Rights Organization,
At the pleading stage, general factual allegations of injury resulting from the defendants’ conduct may suffice because the court must presume that general allegations embrace those specific facts that are necessary to support the claim. Lujan v. Defenders of Wildlife,
To survive a motion to dismiss for lack of constitutional standing, plaintiffs must establish a line of causation between defendants’ action and their alleged harm that is more than attenuated. Allen v. Wright,
But here, there is an alleged strong link between all the supposedly independent and numerous third party decisions given the government’s regulation of C02 emissions. See, e.g., 42 U.S.C. § 7409 (providing the EPA the authority to regulate national ambient air quality standards for the attainment and maintenance of the public health); Massachusetts v. EPA,
At this stage of the proceedings, the court’s job is not to determine whether increased greenhouse gases have impacted the climate and will have dire consequences for future generations. The issue is whether the court can fashion a remedy to address that alleged harm should plaintiffs prove it. Redressability does not require certainty, but it does require a substantial likelihood that the injury will be redressed by a favorable judicial decision. Wolfson v. Brammer,
Assuming plaintiffs are correct that the United States is responsible for about 25% of the global C02 emissions, the court cannot say, without the record being developed, that it is speculation to posit that a court order to undertake regulation of greenhouse gas emissions to protect the public health will not effectively redress the alleged resulting harm. The impact is an issue for the experts to present to the court after the case moves beyond the pleading stage. And although this court has no authority outside of its jurisdiction, it is worth noting that a Dutch court, on June 24, 2015, did order a reduction of greenhouse gas emissions nationwide by at least 25% by 2020. See Urgenda Foundation v. The State of The Netherlands, The Hague District Court, Chamber for Commercial Affairs, Case No. C/09/456689/HA ZA 13-1396 (June 24, 2015) (http:// deeplink.rechtspraak.nl/uitspraak?id= ECLI:NL:RBDHA:2015:7196) (rejecting arguments that a reduction of Netherlands’ emissions would be ineffectual in light of other nations’ practices, observing that “The state should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts. Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this.”). Thus, regulation by this country, in combination with regulation already being undertaken by other countries, may very well have sufficient impact to redress the alleged harms. The effect may or may not be scientifically indiscernible, but that is an issue better resolved at summary judgment or trial rather than on a motion to dismiss. See Washington Environmental Council v. Bellon,
At this stage, the court will not dismiss the premise that an order to regulate, per EPA’s statutory authority to regulate C02, will result in that impact. The allegations establish that, for instance, the EPA’s failure to regulate impacts the younger population within this district and it may very well be that an order to act to protect the public health as directed will address that harm.
In sum, for the above reasons, the court should decline to dismiss the case for a lack of standing.
Closely related to the standing issue, is the issue of non-justiciable political questions. As plaintiffs note, “Standing is just the obverse of political question. If a litigant claims that an individual right has been invaded, the lawsuit by definition does not involve a political question.” Plaintiffs’ Memorandum in Opposition to Intervenors’ Motion to Dismiss (# 56) at p. 16, n. 12 (citing Howard Fink & Mark Tushnet, Federal Jurisdiction: Policy and Practice 231 (2d ed.1987).
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker v. Carr,
While on the surface this case appears to implicate authority of the Congress, courts can order agencies delegated that authority (via Congress) to craft regulations, to engage in such process. Some defendant agencies have undertaken regulation of greenhouse gases allegedly exercising their discretion to prioritize relatively cheap energy over deleterious impacts to the environment. While courts cannot intervene to assert “better” policy, see, e.g., Massachusetts v. E.P.A.,
As implied above, the amended complaint’s broad request for relief does implicate some unmanageable issues, but that does not bar the case completely. As also noted, at a minimum, the EPA is charged with regulating greenhouse gas emissions to protect the public health. While the efficacy of any proposed regulations is perhaps beyond the expertise of the court, it can evaluate the competing experts on either side of the issues and direct the EPA to take a hard look at the best available scientific evidence. The court need not dictate any regulations, only direct the EPA to adopt standards that prevent the alleged constitutional harm to the youth and future generation plaintiffs, should plaintiffs prevail in demonstrating such is possible.
Turning to the next issue, plaintiffs’ standing and the lack of political questions require a valid constitutional claim.
C. Valid Constitutional Claim
Defendants argue that there is no constitutional right to be free from C02 emissions, that the complaint fails to allege a classification appropriate for an equal protection claim, that the Ninth Amendment does not provide any substantive rights, and that the plaintiffs have failed to allege an otherwise complete lack of any rational basis for the purported aggregate action/inaction taken by defendants. However, at this stage of the proceedings, defendants take an overly simplistic approach in construing the constitutional claims raised by plaintiffs. The complaint does not assert a right to be free from C02 emission's.
The Fifth Amendment provides in part that “no person shall ... be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
Courts must employ caution and restraint when employing substantive due process protections to government action. See Moore v. City of East Cleveland, Ohio,
Generally, the Due Process Clause limits the government’s power to act, but does not guarantee certain minimal levels of safety and security. DeShaney v. Winnebago County Dept. of Social Services,
The government argues that the complaint fails to allege a clear and present danger of imminent harm, an overt government act that proximately causes the dangerous situation, deliberate indifference on the part of the government to plaintiffs’ safety, or subsequent physical harm or loss of life. For purposes of a motion to dismiss, plaintiffs need only plead government action, or failure to act where it has a duty to do so, which creates a threat of imminent harm, and the government’s deliberate indifference to that threat of harm.
In this case, the government has allegedly taken action through subsidies, regulations, etc. that creates massive C02 emissions, and has failed to limit such emissions despite a duty to do so. Plaintiffs further allege they are prevented any means of escape from the resulting climate that threatens their property, health, and even existence. As noted above, the EPA has a duty to regulate C02 emissions for the benefit of the public health and plaintiffs allege a deliberate indifference to the purported catastrophic risk to their health and well-being. Whether such action, or inaction in the face of a duty to act, shocks the conscience cannot be determined on a motion to dismiss, which is focused solely on the plaintiffs’ complaint and is bereft of any evidentiary record.
D. Public Trust Doctrine
Similarly, the court should decline to dismiss any notions in the amended complaint that the Due Process Clause also provides a substantive right under the public trust doctrine. As noted above, the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” Moore,
Defendants argue that the Supreme Court and the Ninth Circuit have already foreclosed on the possibility of an independent cause of action under the doctrine against the federal government by a private individual. See PPL Montana, LLC v. Montana,
However, the cases cited by defendants are distinguishable. In PPL Montana. LLC, the Supreme Court essentially held that the State of Montana did not hold title to riverbeds , under segments of river that were non-navigable at the time of statehood. Under the equal footing doctrine,
While equal-footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, see Shively,152 U.S. at 49, 15-17, 24, 46 ,14 S.Ct. 548 , the contours of that public trust do not depend upon the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine.
PPL Montana, LLC,
In other words, Montana’s argument essentially was an attempt to conflate the equal footing doctrine with the public trust doctrine resulting in the State having title to even non-navigable riverbeds pursuant to the latter doctrine. The Court merely rejected this contention as “apples and oranges,” pointing out that the equal footing doctrine requires that a State take title to riverbeds of navigable rivers upon statehood, and that thereafter state law determines the scope of the public trust over such waters. The question whether the United States has public trust obligations for waters over which it alone has sovereignty (e.g., the territorial seas of its coastline) was simply not presented to or decided by the Court in PPL Montana, LLC.
The seminal case for the public trust doctrine is Illinois Cent. R. Co. v. State of Illinois,
That the state holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the state holds title to soils under tide water, by the common law, we have already shown; and that title necessarily carries with it control over the waters above them, whenever the lands are subjected to use. But it is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of Ashing therein, freed from the obstruction or interference of private parties.
Id. at 452,
Once the State obtains sovereignty over navigable riverbeds, the United States has ceded all its title and thus the public trust doctrine governing the State’s disposition of such lands “remains a matter of state law.” PPL Montana, LLC,
Likewise, in U.S. v. 32.42 Acres of Land, More or Less, Located in San Diego County, Cal., the Ninth Circuit dealt with a case wherein the federal government exercised its powers of eminent domain to acquire San Diego Port District tidelands (for use by the United States Navy) which had been transferred to the State of California under the equal footing doctrine in 1850 when California was admitted to the Union. In response to the California Lands Commission argument that the public trust doctrine restricted the ability of both federal and State governments to alienate public trust lands free of the public trust, the Ninth Circuit held:
While the equal-footing doctrine is grounded in the Constitution, “the public trust doctrine remains a matter of state law,” the contours of which are determined by the states, not by the United States Constitution. PPL Montana, 565 U.S. 576 ,132 S.Ct. 1215 at 1235,182 L.Ed.2d 77 . Holding that California’s public trust interest in the Property survives the federal government’s attempt to condemn it would subjugate the federal government’s eminent domain power to California’s state law public trust doctrine. See [U.S. v. ]Carmack, 329 U.S. at[230, ]240-42,67 S.Ct. 252 [,91 L.Ed. 209 (1946)]; United States v. 11.037 Acres of Land,685 F.Supp. 214 , 217 (N.D.Cal.1988) (holding that California’s public trust is extinguished by United States’ declaration of taking because state law public trust is trumped by federal power). The Supremacy Clause prevents this outcome. U.S. Const., art. VI, cl. 2.
U.S. v. 32.42 Acres of Land, More or Less, Located in San Diego County, Cal.,
I also note that in the 32.42 Acres case the district court had specifically found, over the government’s objection, that a portion of the land acquired by the United States within the tidelands (4.88 acres) was acquired subject to its own federal trust. See Order dated April 28, 2006(# 24) at p. 11 in United States v. 32.42 Acres of Land, Case No. 05-cv-1137-DMS, (S.D.Cal. April 28, 2006) (emphases added). The government did not cross-appeal this part of the district court’s order and it was not disturbed or addressed by the Ninth Circuit.
This case is different in that it does not at all implicate the equal footing doctrine or public trust obligations of the State of Oregon. The public trust doctrine invoked instead is directed against the United States and its unique sovereign interests over the territorial ocean waters and atmosphere of the nation.
The doctrine is deeply rooted in our nation’s history and indeed predates it. See, e.g., Shively v. Bowlby,
At common law, the title and the dominion in lands flowed by the tide were in the king for the benefit of the nation. Upon the settlement of the colonies, like rights passed to the grantees in the royal charters, in trust for the communities to be established. Upon the American Revolution, these rights, charged with a like trust, were vested in the original states within their respective borders, subject to the rights surrendered by the constitution to the United States.
Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory.
The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands under them, within their respective jurisdictions. The title and rights of riparian or littoral proprietors in the soil below high-water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the Constitution.
Id. at 57-58,
While the scope of the public trust doctrine may only reach the low water mark on the regions of the sea and great lakes, the water over those lands, and the waters
What emerges from an analysis of the public trust doctrine is that it is rare to find instances where the United States retains vestiges of trust obligations once territories become states and title vests in the newly formed state pursuant to the equal footing doctrine of the Constitution. Some guidance is found, however, in those cases wherein the United States has reacquired tidelands through eminent domain from the State. One such case is United States v. 32.42 Acres of Land, supra. Another is City of Alameda v. Todd Shipyards Corp.,
we hold that the federal government may take property below the low water mark in “full fee simple” insofar as no other principal may hold a greater right to such land. It must be recognized, however, that the federal government is as restricted as the Commonwealth in its ability to abdicate to private individuals its sovereign jus publicum in the land. So restricted, neither the Commonwealth’s nor the federal government’s trust responsibilities are destroyed by virtue of this taking, since neither government has the power to destroy the trust or to destroy the other sovereign.
The court’s intervention in this area may seemingly touch upon powers committed to Congress under Article IV, § 3, Cl. 2 (Congress shall have the power to dispose and make all needful rules and regulations respecting the territory and other property of the United States). In addition, it is not for the courts to say how the trust in resources and the territory shall be administered, that is for Congress to determine. State of Alabama v. State of Texas,
At the hearing on defendants and inter-venors’ motions to dismiss, the court their queried counsel whether, hypothetically, Congress could alienate the territorial wa
As explained above, I cannot read PPL Montana, LLC, given the context of the argument being addressed by the Courts to have such a sweeping and profound effect.
When combined with the EPA’s duty to protect the public health from airborne pollutants and the government’s public trust duties deeply ingrained in this country’s history, the allegations in the complaint state, for purposes of a motion to dismiss, a substantive due process claim. At this stage of the proceedings, the court cannot say that the public trust doctrine does not provide at least some substantive due process protections for some plaintiffs within the navigable water areas of Oregon. Accordingly, the court should not dismiss any claims under the public trust doctrine to that extent.
The nascent nature of these proceedings dictate further development of the record before the court can adjudicate whether any claims or parties should not survive for trial. Accordingly, the court should deny the motions to dismiss.
CONCLUSION
For the reasons stated above, the inter-venors’ motion to dismiss (# 19) and the government’s motion to dismiss (# 27) should be denied. The government’s motion to strike (# 58) is denied.
This recommendation is not ah order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court’s judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party’s right to de novo consideration of the factual issues and will constitute a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
Notes
. Student externs worked on each stage of the preparation of this opinion, from initial background research to final copyedits. I would be remiss if I did not acknowledge the invaluable contributions of Daniel Bodden (University of Kentucky), Elizabeth Jacklin (University of Oregon School of Law), Ann Richan Metier (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.)
. 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. Compl. ¶¶ 16, 23, 31, 35, 44, 47, 50, 53, 57, 60. In addition, plaintiff Earth Guardians has a chapter in Eugene, Oregon.
. 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/2015/01/ 20/remarks-president-state-union-address-january-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.
. 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.
. Defendants and intervenors also challenge the standing of future generations plaintiffs on a number of grounds. It is not necessary to address these arguments because once a federal court concludes one plaintiff has standing, it need not determine whether the remaining plaintiffs have standing, Nat'l Ass'n of Optometrists & Opticians LensCrafters, Inc. v. Broum,
. Plaintiffs’ due process claims encompass asserted equal protection violations and violations of unenumerated rights secured by the Ninth Amendment. For simplicity’s sake, this opinion refers to these claims collectively as “due process claims.”
. Strict scrutiny also is triggered by an allegation that the government discriminated on the basis of a suspect classification, regardless of whether the government action infringed a fundamental right. Green v. City of Tucson,
. At oral argument, plaintiffs supplied the Court with a timeline documenting purported evidence of defendants’ knowledge of climate change. The timeline, which dates back to 1955, includes the 1988 testimony of Dr. James Hansen before the Senate Committee on Energy and Natural Resources. Dr. Hansen, who appears in this lawsuit as a guardian for his granddaughter and for future generations, testified about rising global temperatures and their relationship to human activity. First Session on the Greenhouse Effect and
. There are other barriers to asserting defendants’ hypothetical danger-creation claims. For example, as discussed in Part I of this opinion, the political question doctrine sharply limits judicial review of decisions inherently entangled with the conduct of foreign relations.
. To be clear, today’s opinion should not be taken to suggest that the atmosphere is not a public trust asset. The Institutes of Justinian included the air in the list of assets “by natural law common to all.” J. Inst, 2.1.1 (J.B. Moyle trans.). The New Jersey Supreme Court in Arnold, similarly included air in its list of “common property.” 6 N.J.L, at 71. Even Supreme Court case law suggests the atmosphere may properly be deemed part of the public trust res. See United States v. Causby,
Even if the atmosphere was not always considered a public trust asset, some courts have concluded the doctrine should "be molded and extended to meet changing conditions and needs of the public it was created to benefit.” Matthews v. Bay Head Improvement Ass’n,
The Supreme Court arguably endorsed this pragmatic approach to the identification of trust assets in Illinois Central, where it held, contrary to English common law, that lakes and rivers unaffected by the ebb and flow of the tide could be navigable waters within the meaning of the public trust doctrine.
. See, e.g., First Am. Compl. ¶ 16 ("An important part of Kelsey’s diet includes food that comes from the marine waters and freshwater rivers, including salmon, cod, tuna, clams, mussels, and crab.”); id. ¶ 27 ("Other food sources for Alex, including crab and seafood, are negatively impacted by ocean acidification, warming, and sea level rise caused by Defendants.”); id. ¶ 33 ("Ocean acidification caused by Defendants has already begun to adversely impact shellfish along the coast, and is predicted to take its toll on crab, mussels, and all shelled seafood.”); id. ¶ 45 ("On the Oregon coast, Sahara enjoys climbing rocks and sand dunes, swimming, and tidepooling to see marine life. Sahara’s enjoyment of these activities is being increasingly harmed in the future by sea level rise, greater erosion, enhanced ocean acidification, and increased water temperatures.”).
. The D.C. Circuit did not address the displacement question on appeal.
. The Founding Fathers were also influenced by intergenerational considerations. They believed the inalienable rights to life, liberty, and property were rooted in a philosophy of intergenerational equity. Thomas Jefferson, for example, thought that each generation had the obligation to pass the natural estate undiminished to future generations. See Br. of Amicus Curiae John Davidson at 21-25 (doc. 60). In a 1789 letter to James Madison, Jefferson wrote that "no man can, by natural right, oblige lands he occupied ... to the payments of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to than the living, which would be the reverse of our principle. What is true of every member of the society individually is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of the individuals.” Letter from Thomas Jefferson to James Madison, Sept. 6, 1789, in The Founders’ Constitution (Philip B. Kurland & Ralph Lerner, eds.) (1986), available at press-pubs.uchica-go.edu/founders/documents/vlch2s23.html (last visited Nov. 7, 2016). Although I find it unnecessary today to address the standing of future generations or the merits of plaintiffs’ argument that youth and posterity are suspect classifications, I am mindful of the intergen-
. The sixth justice concurred in the judgment. He found the English rule of custom useful by analogy, but would have held the beaches were public property pursuant to the public trust doctrine. Hay,
. The government also moves to strike various exhibits to declarations and declarations submitted by plaintiffs in opposition to the motion to dismiss. This recommendation is made without resort to these materials. Accordingly, the motion to strike is denied.
. Following oral argument on the motions, the Federal Energy Regulatory Commission denied applications to locate the Jordan Cove Energy Project in Coos Bay, Oregon and its associated pipeline. The decision, balancing the need of the project against adverse impacts on landowners and the environment appears to be primarily based on a lack of current market need from natural gas customers in Asia. The applicants, Veresen Inc. and the Williams Partners, are free to reapply in the future and the Commission will reconsider the planned pipeline if they can demonstrate a market need for liquified natural gas. In addition, the applicants plan’ to file a request to rehear the decision. For putposes of the motion to dismiss, the court takes as true the allegations of an imminent threat from the proposed project..
. Plaintiff Victoria B's allegations(in addition to other plaintiffs) raise another issue not addressed in the motions to dismiss regarding this court's jurisdiction to address harms arising outside of the district from action and inaction by various government agencies that often also arise outside of the District of Oregon. See, e.g., FAC at ¶ 72-73 (damage to
. The plaintiffs essentially allege that the defendants have “discounted” emissions so as to pass on more severe impacts to younger and future generations to allow the present (and older) generations to reap the economic benefits of higher carbon emissions.
. The court is aware that there are administrative procedures to petition EPA to make rules and that a denial of that decision is reviewable by the courts. The plaintiffs have apparently not sought such rulemaking to limit C02 emissions, but the court does have jurisdiction to address alleged constitutional violations by government agencies and to provide equitable relief. C.f. Reeves Brothers, Inc. v. EPA,
. Plaintiffs allege that ‘events, omissions, and harms giving rise to the claims herein arise in substantial part in this judicial district.' (FAC at ¶ 15)
. Although not the route plaintiffs have expressly chosen in the prayer for remedies,
. Plaintiffs do, however, assert that future generations are a suspect class. The court should decline to create a new separate suspect class based on posterity. Nonetheless, the complaint does allege discrimination against a class of younger individuals with respect to a fundamental right protected by substantive due process.
. For example, discovery may produce evidence regarding when defendants and inter-venors were aware of the harmful effects of C02 emissions and whether the public was purposely misled about those effects, which evidence would be relevant to the "shocks the conscience” standard.
. In Shively, which the Court cited in its PPL Montana, LLC decision, expressly held that "[u]pon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory. Shively,