Case Brief on Climate Change

Kelsey Juliana, et al.1 v. United States of America, et al.2

947 F.3d 1159 (9th Cir. 2020)3

Opinion by: Hurwitz
I.
The plaintiffs are twenty-one young citizens, an environmental organization, and a
“representative of future generations.” Their original complaint named as defendants the
President, the United States, and federal agencies (collectively, “the government”). The
operative complaint accuses the government of continuing to “permit, authorize, and subsidize”
fossil fuel use despite long being aware of its risks, thereby causing various climate-change
related injuries to the plaintiffs. Some plaintiffs claim psychological harm, others impairment to
recreational interests, others exacerbated medical conditions, and others damage to property.
The complaint asserts violations of: (1) the plaintiffs’ substantive rights under the Due Process
Clause of the Fifth Amendment; (2) the plaintiffs’ rights under the Fifth Amendment to equal
protection of the law; (3) the plaintiffs’ rights under the Ninth Amendment; and (4) the public
trust doctrine. The plaintiffs seek declaratory relief and an injunction ordering the government to
implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric
[carbon dioxide].”
The district court denied the government’s motion to dismiss, concluding that the plaintiffs had
standing to sue, raised justiciable questions, and stated a claim for infringement of a Fifth
Amendment due process right to a “climate system capable of sustaining human life.” …[and]
held that the plaintiffs had stated a public trust claim grounded in the Fifth and the Ninth
Amendments. [Plaintiffs awaited trial on the merits, while the government appealed, seeking to
reverse the district court and dismiss the case.]
II.
The plaintiffs have compiled an extensive record, which at this stage in the litigation we take in
the light most favorable to their claims. The record leaves little basis for denying that climate

1 KELSEY CASCADIA ROSE JULIANA; XIUHTEZCATL TONATIUH M., through his Guardian Tamara Roske-
Martinez; ALEXANDER LOZNAK; JACOB LEBEL; ZEALAND B., through his Guardian Kimberly Pash-Bell; AVERY

M., through her Guardian Holly McRae; SAHARA V., through her Guardian Toa Aguilar; KIRAN ISAAC OOMMEN;
TIA MARIE HATTON; ISAAC V., through his Guardian Pamela Vergun; MIKO V., through her Guardian Pamel
Vergun; HAZEL V., through her Guardian Margo Van Ummerson; SOPHIE K., through her Guardian Dr. James
Hansen; JAIME B., through her Guardian Jamescita Peshlakai; JOURNEY Z., through his Guardian Erika Schneider;
VICTORIA B., through her Guardian Daisy Calderon; NATHANIEL B., through his Guardian Sharon Baring; AJI P.,
through his Guardian Helaina Piper; LEVI D., through his Guardian Leigh-Ann Draheim; JAYDEN F., through her
Guardian Cherri Foytlin; NICHOLAS V., through his Guardian Marie Venner; EARTH GUARDIANS, a nonprofit
organization; FUTURE GENERATIONS, through their Guardian Dr. James Hansen, Plaintiffs-Appellees
2 UNITED STATES OF AMERICA; MARY B. NEUMAYR, in her capacity as Chairman of Council on Environmental
Quality; MICK MULVANEY, in his official capacity as Director of the Office of Management and the Budget; KELVIN
K. DROEGEMEIR, in his official capacity as Director of the Office of Science and Technology Policy; DAN
BROUILLETTE, in his official capacity as Secretary of Energy; U.S. DEPARTMENT OF THE INTERIOR; DAVID L.
BERNHARDT, in his official capacity as Secretary of Interior; U.S. DEPARTMENT OF TRANSPORTATION; ELAINE
L. CHAO, in her official capacity as Secretary of Transportation; UNITED STATES DEPARTMENT OF
AGRICULTURE; SONNY PERDUE, in his official capacity as Secretary of Agriculture; UNITED STATES
DEPARTMENT OF COMMERCE; WILBUR ROSS, in his official capacity as Secretary of Commerce; UNITED
STATES DEPARTMENT OF DEFENSE; MARK T. ESPER, in his official capacity as Secretary of Defense; UNITED
STATES DEPARTMENT OF STATE; MICHAEL R. POMPEO, in his official capacity as Secretary of State; ANDREW
WHEELER, in his official capacity as Administrator of the EPA; OFFICE OF THE PRESIDENT OF THE UNITED
STATES; U.S. ENVIRONMENTAL PROTECTION AGENCY; U.S. DEPARTMENT OF ENERGY; DONALD J.
TRUMP, in his official capacity as President of the United States, Defendants-Appellants.
3 Argued and Submitted, Portland, Oregon, June 4, 2019.

change is occurring at an increasingly rapid pace. It documents that since the dawn of the
Industrial Age, atmospheric carbon dioxide has skyrocketed to levels not seen for almost three
million years. …Copious expert evidence establishes that this unprecedented rise stems from
fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked. …The problem
is approaching “the point of no return.” …
The record also conclusively establishes that the federal government has long understood the
risks of fossil fuel use and increasing carbon dioxide emissions. As early as 1965, the Johnson
Administration cautioned that fossil fuel emissions threatened significant changes to climate,
global temperatures, sea levels, and other stratospheric properties. In 1983, an Environmental
Protection Agency (“EPA”) report projected an increase of 2 degrees Celsius by 2040, … in the
1990s, the EPA implored the government to act before it was too late. Nonetheless, by 2014,
U.S. fossil fuel emissions had climbed to 5.4 billion metric tons…. From 2008 to 2017, domestic
petroleum and natural gas production increased by nearly 60%, and the country is now
expanding oil and gas extraction four times faster than any other nation….The government
affirmatively promotes fossil fuel use in a host of ways, including beneficial tax provisions,
permits for imports and exports, subsidies for domestic and overseas projects, and leases for
fuel extraction on federal land….
The government by and large has not disputed the factual premises of the plaintiffs’ claims. …
B.
The government [ ] argues that the plaintiffs lack Article III standing to pursue their constitutional
claims. To have standing under Article III, a plaintiff must have (1) a concrete and particularized
injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable
judicial decision. A plaintiff need only establish a genuine dispute as to these requirements to
survive summary judgment.

The district court correctly found the injury requirement met. At least some plaintiffs claim
concrete and particularized injuries. Jaime B., for example, claims that she was forced to leave
her home because of water scarcity, separating her from relatives on the Navajo Reservation.
These injuries are not simply “‘conjectural’ or ‘hypothetical;’” at least some of the plaintiffs have
presented evidence that climate change is affecting them now in concrete ways and will
continue to do so unless checked.
The government argues that the plaintiffs’ alleged injuries are not particularized because climate
change affects everyone. But, “it does not matter how many persons have been injured” if the
plaintiffs’ injuries are “concrete and personal” (Massachusetts v. EPA (2007))….

The district court also correctly found the Article III causation requirement satisfied for purposes
of summary judgment. Causation can be established “even if there are multiple links in the
chain,” as long as the chain is not “hypothetical or tenuous.” The causal chain here is sufficiently
established. The plaintiffs’ alleged injuries are caused by carbon emissions from fossil fuel
production, extraction, and transportation. A significant portion of those emissions occur in this
country; … federal subsidies and leases have increased those emissions. About 25% of fossil
fuels extracted in the United States come from federal waters and lands, an activity that requires
authorization from the federal government.
…[T]he government argues that the causal chain is too attenuated because it depends in part
on the independent actions of third parties. … But the plaintiffs … blame a host of federal

policies, from subsidies to drilling permits, spanning “over 50 years,” and direct actions by the
government. There is at least a genuine factual dispute as to whether those policies were a
“substantial factor” in causing the plaintiffs’ injuries.

The more difficult question is whether the plaintiffs’ claimed injuries are redressable by an
Article III court. In analyzing that question, we start by stressing what the plaintiffs do and do not
assert. They do not claim that the government has violated a statute or a regulation. They do
not assert the denial of a procedural right. Nor do they seek damages under the Federal Tort
Claims Act. Rather, their sole claim is that the government has deprived them of a substantive
constitutional right to a “climate system capable of sustaining human life,” and they seek
remedial declaratory and injunctive relief.
Reasonable jurists can disagree about whether the asserted constitutional right exists. …In
analyzing redressability, however, we assume its existence. But …“not all meritorious legal
claims are redressable in federal court.” To establish Article III redressability, the plaintiffs must
show that the relief they seek is both (1) substantially likely to redress their injuries; and (2)
within the district court’s power to award. …
The plaintiffs first seek a declaration that the government is violating the Constitution. But that
relief alone is not substantially likely to mitigate the plaintiffs’ asserted concrete injuries. A
declaration, although undoubtedly likely to benefit the plaintiffs psychologically, is unlikely by
itself to remediate their alleged injuries absent further court action (Steel Co. v. Citizens for a
Better Env’t, (1998)).
The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to
cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject
to judicial approval to draw down harmful emissions. The plaintiffs thus seek not only to enjoin
the Executive from exercising discretionary authority expressly granted by Congress, but also to
enjoin Congress from exercising power expressly granted by the Constitution over public lands.
As an initial matter, we note that although the plaintiffs contended at oral argument that they
challenge only affirmative activities by the government, an order simply enjoining those activities
will not, according to their own experts’ opinions, suffice to stop catastrophic climate change or
even ameliorate their injuries. …Indeed, the plaintiffs’ experts make plain … that such a result
calls for no less than a fundamental transformation of this country’s energy system, if not that of
the industrialized world….
The plaintiffs concede that their requested relief will not alone solve global climate change, but
they assert that their “injuries would be to some extent ameliorated.” Relying on Massachusetts
v. EPA, the district court apparently found the redressability requirement satisfied because the
requested relief would likely slow or reduce emissions. That case, however, involved a
procedural right that the State of Massachusetts was allowed to assert “without meeting all the
normal standards for redressability;” in that context, the Court found redressability because
“there [was] some possibility that the requested relief [would] prompt the injury-causing party to
reconsider the decision that allegedly harmed the litigant.” The plaintiffs here do not assert a
procedural right, but rather a substantive due process claim.
We are therefore skeptical that the first redressability prong is satisfied. But even assuming that
it is, the plaintiffs do not surmount the remaining hurdle—establishing that the specific relief they
seek is within the power of an Article III court. … As the opinions of their experts make plain,
any effective plan would necessarily require a host of complex policy decisions entrusted, for
better or worse, to the wisdom and discretion of the executive and legislative branches. These

decisions range, for example, from determining how much to invest in public transit to how
quickly to transition to renewable energy, and plainly require consideration of “competing social,
political, and economic forces,” … And, given the complexity and long-lasting nature of global
climate change, the court would be required to supervise the government’s compliance with any
suggested plan for many decades….
[R]edressability questions implicate the separation of powers[.] …[W]ithout standards to guide in
the exercise of such authority…, federal judicial power could be “unlimited in scope and
duration,” and would inject “the unelected and politically unaccountable branch of the Federal
Government [into] assuming such an extraordinary and unprecedented role.” Because … “the
Constitution contemplates that democracy is the appropriate process for change,” some
questions—even those existential in nature—are the province of the political branches….
The plaintiffs’ experts opine that atmospheric carbon levels of 350 parts per million are
necessary to stabilize the global climate. …Although the plaintiffs’ invitation to get the ball rolling
by simply ordering the promulgation of a plan is beguiling, it ignores that an Article III court will
thereafter be required to determine whether the plan is sufficient to remediate the claimed
constitutional violation of the plaintiffs’ right to a “climate system capable of sustaining human
life.” We doubt that any such plan can be supervised or enforced by an Article III court. And, in
the end, any plan is only as good as the court’s power to enforce it.
C.
Contrary to the dissent, we do not “throw up [our] hands” by concluding that the plaintiffs’ claims
are nonjusticiable. Rather, we recognize that “Article III protects liberty not only through its role
in implementing the separation of powers, but also by specifying the defining characteristics of
Article III judges.” Not every problem posing a threat—even a clear and present danger—to the
American Experiment can be solved by federal judges. …
We reluctantly conclude [ ] that the plaintiffs’ case must be made to the political branches or to
the electorate at large, the latter of which can change the composition of the political branches
through the ballot box. That the other branches may have abdicated their responsibility to
remediate the problem does not confer on Article III courts, no matter how well-intentioned, the
ability to step into their shoes.
III.
For the reasons above, we…remand this case to the district court with instructions to dismiss for
lack of Article III standing.
REVERSED.

STATON, District Judge, dissenting:
In these proceedings, the government accepts as fact that the United States has reached a
tipping point crying out for a concerted response—yet presses ahead toward calamity….My
colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary.
On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects
of climate change predicted by the government and scientists…[but that] does not mean that it
presents no claim suitable for judicial resolution.
… [C]onsidering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and
temporary reprieve would constitute meaningful redress. Such relief, much like the
desegregation orders and statewide prison injunctions the Supreme Court has sanctioned,

would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province. For
these reasons, I respectfully dissent….
II.
A.
The Constitution protects the right to “life, liberty, and property, to free speech, a free press,
[and] freedom of worship and assembly.” Through “reasoned judgment,” the Supreme Court has
recognized that the Due Process Clause, enshrined in the Fifth and Fourteenth Amendments,
also safeguards certain “interests of the person so fundamental that the [government] must
accord them its respect.” Some rights serve as the necessary predicate for others….
Much like the right to vote, the perpetuity of the Republic occupies a central role in our
constitutional structure as a “guardian of all other rights.” …And, of course, in our system, that
organized society consists of the Union. Without it, all the liberties protected by the Constitution
to live the good life are meaningless….[T]he Preamble declares that the Constitution is intended
to secure “the Blessings of Liberty” not just for one generation, but for all future generations—
our “Posterity.” The Constitution’s structure reflects this perpetuity principle. …
This perpetuity principle does not amount to “a right to live in a contaminant-free, healthy
environment.” … The perpetuity principle is not an environmental right at all, and it does not task
the courts with determining the optimal level of environmental regulation; rather, it prohibits only
the willful dissolution of the Republic.
…Only over time, as the Nation confronts new challenges, are constitutional principles tested….
Thus, it should come as no surprise that the Constitution’s commitment to perpetuity only now
faces judicial scrutiny, for never before has the United States confronted an existential threat
that has not only gone unremedied but is actively backed by the government.
The mere fact that we have alternative means to enforce a principle, such as voting, does not
diminish its constitutional stature. Americans can vindicate federalism, separation of powers,
equal protection, and voting rights through the ballot box as well, but that does not mean these
constitutional guarantees are not independently enforceable….
B.
Of course, …federal courts are not free to address every grievance. “Whether a party has a
sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that
controversy is what has traditionally been referred to as the question of standing to sue.” Sierra
Club v. Morton (1972). Standing is “a doctrine rooted in the traditional understanding of a case
or controversy,” developed to “ensure that federal courts do not exceed their authority as it has
been traditionally understood.” … Because I find that plaintiffs have also established the third
prong for standing, redressability, I conclude that plaintiffs’ legal stake in this action suffices to
invoke the adjudicative powers of the federal bench.

“Redressability” concerns whether a federal court is capable of vindicating a plaintiff’s legal
rights. I agree with the majority that our ability to provide redress is animated by two inquiries,
one of efficacy and one of power. First, as a causal matter, is a court order likely to actually
remediate the plaintiffs’ injury? If so, does the judiciary have the constitutional authority to levy
such an order?

Addressing the first question, my colleagues are skeptical that curtailing the government’s
facilitation of fossil-fuel extraction and combustion will ameliorate the plaintiffs’ harms. I am not,
as the nature of the injury at stake informs the effectiveness of the remedy.
As described above, the right at issue is not to be entirely free from any climate change. …
Hence, the injury at issue is not climate change writ large; it is climate change beyond the
threshold point of no return. As we approach that threshold, the significance of every emissions
reduction is magnified…. Accordingly, I conclude that the court could do something to help the
plaintiffs before us.
And “something” is all that standing requires. In Massachusetts v. EPA (2007, at 525-26), the
Supreme Court explicitly held that a non-negligible reduction in emissions—there, by regulating
vehicles emissions—satisfied the redressability requirement of Article III standing:
While it may be true that regulating motor-vehicle emissions will not by itself reverse
global warming, it by no means follows that we lack jurisdiction to decide whether
EPA has a duty to take steps to slow or reduce it. … A reduction in domestic
emissions would slow the pace of global emissions increases, no matter what
happens elsewhere.
In other words, under Article III, a perceptible reduction in the advance of climate change is
sufficient to redress a plaintiff’s climate change-induced harms. Full stop. The majority
dismisses this precedent because Massachusetts v. EPA involved a procedural harm, whereas
plaintiffs here assert a purely substantive right. But this difference in posture does not affect the
outcome.
2.

The majority laments that it cannot step into the shoes of the political branches, but appears
ready to yield even if those branches walk the Nation over a cliff. This deference-to-a-fault
promotes separation of powers to the detriment of our countervailing constitutional mandate to
intervene where the political branches run afoul of our foundational principles. Our tripartite
system of government is often and aptly described as one of “checks and balances.” The
doctrine of standing preserves balance among the branches by keeping separate questions of
general governance and those of specific legal entitlement. But the doctrine of judicial review
compels federal courts to fashion and effectuate relief to right legal wrongs, even when—as
frequently happens—it requires that we instruct the other branches as to the constitutional
limitations on their power. …
… In sum, although it is the plaintiffs’ burden to establish injury in fact, causation, and
redressability, it is the government’s burden to establish why this otherwise-justiciable
controversy implicates grander separation-of-powers concerns not already captured by those
requirements. …[T]he majority [ ] suggests that this case is “special”—and beyond our
redress—because plaintiffs’ requested relief requires (1) the messy business of evaluating
competing policy considerations to steer the government away from fossil fuels and (2) the
intimidating task of supervising implementation over many years, if not decades. I admit these
are daunting tasks, but we are constitutionally empowered to undertake them. There is no
justiciability exception for cases of great complexity and magnitude.

I readily concede that courts must on occasion refrain from answering those questions that are
truly reserved for the political branches, even where core constitutional precepts are implicated.
This deference is known as the “political question doctrine,” … not one of “political cases.” …

Without endorsement from the constitutional text, the majority’s theory is grounded exclusively
in the … (supposed) lack of clear judicial standards for shaping relief. …[T]he majority contends
that we cannot formulate standards (1) to determine what relief “is sufficient to remediate the
claimed constitutional violation” or (2) to “supervise[] or enforce[]” such relief.
The first point is a red herring. Plaintiffs submit ample evidence that there is a discernable
“tipping point” at which the government’s conduct turns from facilitating mere pollution to
inducing an unstoppable cataclysm in violation of plaintiffs’ rights. Indeed, the majority itself
cites plaintiffs’ evidence that “atmospheric carbon levels of 350 parts per million are necessary
to stabilize the climate.” … Of course, plaintiffs will have to carry their burden of proof to
establish this fact in order to prevail at trial, but that issue is not before us. We must not get
ahead of ourselves.
… My colleagues take great issue with plaintiffs’ request for a “plan” to reduce fossil-fuel
emissions. I am not so concerned. At this stage, we need not promise plaintiffs the moon (or,
more apropos, the earth in a habitable state). For purposes of standing, we need hold only that
the trial court could fashion some sort of meaningful relief should plaintiffs prevail on the merits.
Nor would any such remedial “plan” necessarily require the courts to muck around in
policymaking to an impermissible degree…. Indeed, our history is no stranger to widespread,
programmatic changes in government functions ushered in by the judiciary’s commitment to
requiring adherence to the Constitution. [I]n its finest hour, the Court mandated the racial
integration of every public school—state and federal—in the Nation, vindicating the
Constitution’s guarantee of equal protection under the law (Brown v. Bd. of Educ. (1954))….

In sum, resolution of this action requires answers only to scientific questions, not political ones.
And plaintiffs have put forth sufficient evidence demonstrating their entitlement to have those
questions addressed at trial in a court of law.
…I would hold that plaintiffs have standing to challenge the government’s conduct, have
articulated claims under the Constitution, and have presented sufficient evidence to press those
claims at trial. I would therefore a

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