Native Village of Kivalina et al v. Exxonmobile Corporation et alMOTION to Dismiss for Lack of Jurisdiction Pursuant to Federal Rule of Civil Procedure 12N.D. Cal.June 30, 20081 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA RONALD L. OLSON (SBN 44597) Ronald.Olson@mto.com DANIEL P. COLLINS (SBN 139164) Daniel.Collins@mto.com MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 JEROME C. ROTH (SBN 159483) Jerome.Roth@mto.com MUNGER, TOLLES & OLSON LLP 560 Mission Street San Francisco, CA 94105-2907 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Attorneys for Defendant SHELL OIL COMPANY [Counsel Listing Continued on Next Page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION NATIVE VILLAGE OF KIVALINA and CITY OF KIVALINA, Plaintiffs, vs. EXXON MOBIL CORPORATION; BP P.L.C.; BP AMERICA, INC.; BP PRODUCTS NORTH AMERICA, INC.; CHEVRON CORPORATION; CHEVRON U.S.A., INC.; CONOCOPHILLIPS COMPANY; ROYAL DUTCH SHELL PLC; SHELL OIL COMPANY; PEABODY ENERGY CORPORATION; THE AES CORPORATION; AMERICAN ELECTRIC POWER COMPANY, INC.; AMERICAN ELECTRIC POWER SERVICES CORPORATION; DTE ENERGY COMPANY; DUKE ENERGY CORPORATION; DYNEGY HOLDINGS, INC.; EDISON INTERNATIONAL; MIDAMERICAN ENERGY HOLDINGS COMPANY; MIRANT CORPORATION; NRG ENERGY; PINNACLE WET CAPITAL CORPORATION; RELIANT ENERGY, INC.; THE SOUTHERN COMPANY; AND XCEL ENERGY, INC., Defendants. CASE NO. C 08-01138 SBA NOTICE OF MOTION AND MOTION OF CERTAIN OIL COMPANY DEFENDANTS TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1); MEMORANDUM OF POINTS AND AUTHORITIES Time: December 9, 2008, 1:00 P.M. Ctrm.: Courtroom 3, 1301 Clay Street, Oakland, California The Honorable Saundra B. Armstrong Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 1 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA JOHN F. DAUM (SBN 52313) jdaum@omm.com O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6111 Facsimile: (213) 430-6407 JONATHAN D. HACKER (Pro hac vice pending) jhacker@omm.com O’MELVENY & MYERS LLP 1625 Eye Street, NW Washington, DC 20006-4001 Telephone: (202) 383-5300 Facsimile: (202) 383-5414 Attorneys for Defendant EXXON MOBIL CORPORATION ROBERT MEADOWS (Pro hac vice) rmeadows@kslaw.com TRACIE J. RENFROE (Pro hac vice) trenfroe@kslaw.com JONATHAN L. MARSH (Pro hac vice) jlmarsh@kslaw.com KING & SPALDING LLP 1100 Louisiana Street, Suite 4000 Houston, TX 77002-5213 Telephone: (713) 751-3200 Facsimile: (713) 751-3290 LISA KOBIALKA (SBN 191404) lkobialka@kslaw.com KING & SPALDING LLP 1000 Bridge Parkway, Suite 100 Redwood City, CA 94065 Telephone: (650) 590-0700 Facsimile: (650) 590-1900 Attorneys for Defendants CHEVRON CORPORATION and CHEVRON U.S.A. INC. STUART A. C. DRAKE (Pro hac vice) sdrake@kirkland.com ANDREW B. CLUBOK (Pro hac vice) aclubok@kirkland.com SUSAN E. ENGEL (Pro hac vice) KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Telephone: (202) 879-5173 Facsimile: (202) 879-5200 ELIZABETH DEELEY (SBN 230798) edeeley@kirkland.com KIRKLAND & ELLIS LLP 555 California Street San Francisco, CA 94104 Telephone: (415) 439-1861 Facsimile: (415) 439-1500 Attorneys for CONOCOPHILLIPS COMPANY MATTHEW HEARTNEY (SBN 123516) Matthew.Heartney@aporter.com ARNOLD & PORTER LLP 777 S. Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 Telephone: (213) 243-4150 Facsimile: (213) 243-4199 PHILIP H. CURTIS (Pro hac vice) Philip.Curtis@aporter.com MICHAEL B. GERRARD (Pro hac vice) Michael.Gerrard@ aporter.com ARNOLD & PORTER LLP 399 Park Avenue New York, New York 10022 Telephone: (212) 715-1000 Facsimile: (212) 715-1399 Attorneys for BP AMERICA INC., AND BP PRODUCTS NORTH AMERICA INC. Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 2 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA NOTICE OF MOTION AND MOTION ........................................................................................ 1 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 I. INTRODUCTION .............................................................................................................. 1 II. STATEMENT OF FACTS ................................................................................................. 4 A. The Political Branches’ Efforts to Formulate a National Policy on Global Climate Change....................................................................................................... 4 1. Early Congressional Activity ...................................................................... 5 2. U.S. Participation in International Negotiations and Protocols .................. 6 3. Recent Developments.................................................................................. 7 a. U.S. International Efforts ................................................................ 7 b. Federal Domestic Initiatives ........................................................... 8 B. Plaintiffs’ Complaint............................................................................................. 10 III. ARGUMENT .................................................................................................................... 13 A. Plaintiffs’ Global Warming Claims Raise Nonjusticiable Political Questions............................................................................................................... 13 1. A Case Presents a Political Question if Any One of the Six Alternative Tests Set Forth in Baker v. Carr Is Satisfied ......................... 15 2. Plaintiffs’ Theory That Defendants’ Emissions Were at a Level That “Wrongfully” Contributed to Global Warming Raises Inherently Political Questions ................................................................... 16 a. Determining “Wrongful” Levels of Emissions Would Require the Court to Make Initial Policy Judgments That Are Inherently Political in Nature ................................................. 16 b. There Are No Judicially Manageable Standards for Determining What Emissions “Wrongfully” Contribute to Global Warming............................................................................ 20 c. Judicial Promulgation of Climate Policy Would Interfere with Issues of Foreign Policy Committed to the Political Branches........................................................................................ 22 3. Plaintiffs’ Theory for Attributing Fault Raises Inherently Political Questions................................................................................................... 24 Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 3 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS (continued) Page - ii - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA 4. Plaintiffs’ Reliance on “Civil Conspiracy” and “Concert of Action” Does Nothing to Avoid the Political Question Doctrine........................... 28 B. Plaintiffs Cannot Demonstrate Article III Standing.............................................. 29 1. To Establish Article III Standing, Plaintiffs Must Plead Sufficient Facts to Show That Their Injuries Are “Fairly Traceable” to Defendants’ Conduct................................................................................. 30 2. Plaintiffs Have Not Pleaded Sufficient Facts to Establish That Their Alleged Injuries Are “Fairly Traceable” to Defendants’ Emissions......... 31 a. Because Plaintiffs Allege That Greenhouse Gas Emissions Are Undifferentiated in the Global Atmosphere, Plaintiffs’ Injuries Cannot Be Fairly Traced to Defendants’ Emissions, As Opposed to Those of Third Parties .......................................... 32 b. Plaintiffs Cannot Demonstrate “Fair Traceability” for the Additional Reason That the Alleged Line of Causation From Emission to Injury Is Too Attenuated ........................................... 37 IV. CONCLUSION................................................................................................................. 40 Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 4 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page - iii - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA FEDERAL CASES Allen v. Wright, 468 U.S. 737 (1984) ......................................................................................................... passim Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005)............................................................................................ passim Antolok v. United States, 873 F.2d 369 (D.C. Cir. 1989) ................................................................................................ 24 Baker v. Carr, 369 U.S. 186 (1962) ......................................................................................................... passim Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) ...................................................................................................... 31, 34 Bennett v. Spear, 520 U.S. 154 (1997) ................................................................................................................ 30 California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007) ................................................................ passim Center for Biological Diversity v. Brennan, 2007 WL 2408901 (N.D. Cal. Aug. 21, 2007)........................................................................ 36 Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994)..................................................................................................... 31 Comer v. Murphy Oil USA Inc., 1:05-CV-00436 (S.D. Miss. Aug. 30, 2007) .................................................................... passim Connecticut v. American Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005).............................................................................. passim Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004) .................................................................................................................. 4 Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007)................................................................................... 5, 10, 13, 23 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .......................................................................................................... 31, 38 Dreiling v. American Express Co., 458 F.3d 942 (9th Cir. 2006)................................................................................................... 10 EEOC v. Peabody W. Coal Co., 400 F.3d 774 (9th Cir. 2005)................................................................................................... 15 Fleck & Assocs. v. City of Phoenix, 471 F.3d 1100 (9th Cir. 2006)................................................................................................. 30 Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 5 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page - iv - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA Friends of the Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d 358 (5th Cir. 1996)..................................................................................................... 37 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) .................................................................................................................... 4 Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992) ................................................................................................................ 25 In re Sunset Bay Assocs., 944 F.2d 1503 (9th Cir. 1991)................................................................................................. 28 Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221 (1986) .......................................................................................................... 13, 17 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................................................................ 30, 31, 32, 33, 37 Massachusetts v. EPA, 127 S. Ct. 1438 (2007) ..................................................................................................... passim Mingtai Fire & Marine Ins. Co. v. United Parcel Serv., 177 F.3d 1142 (9th Cir. 1999)................................................................................................. 22 Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985 (9th Cir. 2000)................................................................................................... 36 No GWEN Alliance of Lane County, Inc. v. Aldridge, 855 F.2d 1380 (9th Cir. 1988)................................................................................................. 13 Pony v. County of Los Angeles, 433 F.3d 1138 (9th Cir. 2006)................................................................................................. 39 Prescott v. County of El Dorado, 298 F.3d 844 (9th Cir. 2002)............................................................................................. 30, 38 Pritikin v. Department of Energy, 254 F.3d 791 (9th Cir. 2001)................................................................................................... 35 Public Int. Research Group of New Jersey, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64 (3d Cir. 1990)...................................................................................................... 36 Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) .................................................................................... 20, 21, 24 Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976) ........................................................................................................... passim Sinochem Int’l Co. Ltd. v. Malaysia Intern. Shipping Corp., 127 S.Ct. 1184 (2007) ............................................................................................................. 13 Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 6 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page - v - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006)................................................................................................... 30 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001)................................................................................................... 28 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................................................................................................. 30 Texas Independent Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964 (7th Cir. 2005)................................................................................................... 37 United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990)................................................................................................. 16 United States v. Pink, 315 U.S. 203 (1942) ................................................................................................................ 22 Valley Forge Christian Collegev. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982) ................................................................................................................ 31 Vieth v. Jubelirer, 541 U.S. 267 (2004) .................................................................................................... 21, 24, 25 Wang v. Masaitis, 416 F.3d 992 (9th Cir. 2005)................................................................................................... 20 Warth v. Seldin, 422 U.S. 490 (1975) .................................................................................................... 35, 38, 39 Whitmore v. Arkansas, 495 U.S. 149 (1990) ................................................................................................................ 31 STATE CASES American Motorcycle Ass’n v. Superior Court, 20 Cal. 3d 578 (1978) ............................................................................................................. 27 FEDERAL STATUTES 42 U.S.C. § 7403 ............................................................................................................................ 6 42 U.S.C. § 16293........................................................................................................................... 8 Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (1992) ............................................................................. 6 Energy Security Act, Pub. L. No. 96-294, 94 Stat. 611 (1980) ................................................................................... 5 Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 7 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page - vi - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA Global Change Research Act, 15 U.S.C. § 2931, et seq. .......................................................................................................... 6 Global Climate Protection Act, Pub. L. No. 100-204, Title XI, 101 Stat. 1407 (1987) .......................................................... 5, 6 National Climate Program Act of 1978, 15 U.S.C. § 2901, et seq. .......................................................................................................... 5 Pub. L. No. 105-276, 112 Stat. 2461 (1998) ................................................................................... 7 Pub. L. No. 106-74, 113 Stat. 1047 (1999) ..................................................................................... 7 Pub. L. No. 106-377, 114 Stat. 1141 (2000) ................................................................................... 7 Pub. L. No. 110-140, 121 Stat. 1492 (2007) .................................................................................. 8 STATE STATUTES Alaska Stat. § 09.17.080 ......................................................................................................... 27, 28 TREATIES AND INTERNATIONAL MATERIALS United Nations Framework Convention on Climate Change, S. TREATY DOC. No. 102-38 (1992).......................................................................................... 6 Kyoto Protocol, 37 I.L.M. 22 (1998) ............................................................................................................... 6, 7 LEGISLATIVE MATERIALS 154 Cong. Rec. S5334 (June 6, 2008)............................................................................................. 9 H.R. REP. NO. 102-474 (1992), reprinted in 1992 U.S.C.C.A.N. 1953.......................................... 6 H.R. 1590, Safe Climate Act of 2007 ............................................................................................ 9 S. Res. 98, 105th Cong. (1997) ................................................................................................. 7, 22 S. 280, Climate Stewardship and Innovation Act of 2007.............................................................. 9 S. 309, Global Warming Pollution Reduction Act ......................................................................... 9 S. 317, Electric Utility Cap and Trade Act of 2007........................................................................ 9 S. 1766, Low Carbon Economy Act of 2007 ................................................................................. 9 S. 3036, Lieberman-Warner Climate Security Act ........................................................................ 9 Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 8 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page - vii - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA United States General Accounting Office, Alaska Native Villages: Most Are Affected by Flooding and Erosion, but Few Qualify for Federal Assistance (Dec. 2003).............................................................................................................................. 10 EXECUTIVE AND ADMINISTRATIVE MATERIALS Control of Emissions of New Highway Vehicles and Engines, 68 Fed. Reg. 52922, 52928 (Sept. 8, 2003) ......................................................... 5, 7, 8, 20, 23 Energy Information Administration, Emissions of Greenhouse Gases in the U.S. 2006 ............................................................................................................ 11 Executive Order No. 13432, 72 Fed. Reg. 27717 (May 14, 2007) ......................................................................................... 8 Letter from EPA Administrator Stephen L. Johnson to Senators Boxer and Inhofe (Mar. 27, 2008) ..................................................................................................................... 8, 9 Letter from President George W. Bush to Senators Hagel, Helms, Craig, & Roberts (Mar. 13, 2001) ............................................................................................................ 7 President Bush Discusses Climate Change (Apr. 16, 2008)..................................................... 9, 10 President Clinton, 2 PUB. PAPERS (1997) ................................................................................. 7, 22 Statement by the Press Secretary (Dec. 15, 2007) .......................................................................... 7 Statement of Administration Policy on S. 3036 (June 2, 2008)...................................................... 9 U.S. Army Corps of Engineers, Alaska District, Alaska Village Erosion Technical Assistance Program: An Examination of Erosion Issues in the Communities of Bethel, Dillingham, Kaktovik, Kivalina, Newtok, Shishmaref, and Unalakleet (Apr. 2006).................................................................................................................. 10, 12, 13 U.S. Dept. of Energy, Major Economies Process on Energy Security and Climate Change.................................................................................................................. 8 OTHER AUTHORITIES Anchorage Daily News, PETA Wants Kivalina to Sue Meat Producers (Mar. 5, 2008) ............................................................................................. 18 12 DAN B. DOBBS, THE LAW OF TORTS (2001) ............................................................................. 28 Intergovernmental Panel on Climate Change, Climate Change 2007: Synthesis Report .......................................................................... 32, 34 National Academy of Sciences, Climate Change Science: An Analysis of Some Key Questions (2000) ............................................................................ 33 Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 9 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page - viii - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA Matthew Pawa, Global Warming Litigation Heats Up, TRIAL 18 (April 2008) ............................................................................................................. 27 Washington Post, Senate Leaders Pull Measure on Climate (June 7, 2008).................................. 9 Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 10 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on December 9, 2008 at 1:00 P.M., or as soon thereafter as counsel may be heard in Courtroom 3 of the above-captioned Court, located at 1301 Clay Street, Oakland, California, 94612, Defendants Shell Oil Company, Exxon Mobil Corporation, Chevron Corporation, Chevron U.S.A. Inc., ConocoPhillips Company, BP America Inc., and BP Products North America Inc. (“Oil Company Defendants” or “Defendants”) will and hereby do move to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1). By this motion, Defendants seek an order from this Court dismissing the case with prejudice. This motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the Declaration of Daniel P. Collins (“Collins Decl.”) filed concurrently herewith and the attachments thereto, the pleadings and records on file in this action, such additional authority and argument as may be presented in any Reply and at the hearing on this Motion, and such other matters of which this Court may take judicial notice. Pursuant to Section C of this Court’s Standing Order (as revised June 16, 2008), Defendants, through counsel, certify that, as contemplated in the stipulation previously filed with the Court on May 8, 2008, counsel for Defendants and counsel for Plaintiffs met and conferred telephonically on May 19, 2008, concerning, inter alia, the grounds to be asserted in this motion. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case is anything but typical. Plaintiffs seek to establish that certain segments of the U.S. energy industry are responsible for all injuries allegedly caused by global warming— including the coastal erosion of Plaintiffs’ remote Alaskan fishing village of Kivalina. While Plaintiffs’ allegations represent a sharp departure from settled legal principles, these Plaintiffs are not the first to try them out. Three different courts have considered similar lawsuits alleging that various corporations, including many of the defendants here, are liable for damages caused by global warming. Each court has reached the same conclusion: adjudicating such a suit would impermissibly invite the judiciary to craft global warming policy, a task that the Constitution Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 11 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA reserves to the political branches of government. See California v. General Motors Corp. (“GMC”), No. C-06-5755-MJJ, 2007 WL 2726871 at *8 (N.D. Cal. Sept. 17, 2007) (Jenkins, J.), appeal pending, No. 07-16908 (9th Cir.); Connecticut v. American Elec. Power Co. (“AEP”), 406 F. Supp. 2d 265, 270-74 (S.D.N.Y. 2005), appeal pending, No. 05-5104 (2d Cir.); see also Comer v. Murphy Oil USA Inc., 1:05-CV-00436 (S.D. Miss. Aug. 30, 2007) (Oral Ruling on Motion to Dismiss and Written Order of Dismissal) (respectively, Collins Decl., Exs. B, C) (dismissing the case based on both the political question doctrine and lack of Article III standing), appeal pending, No. 07-60756 (5th Cir.). This Court should reach the same conclusion here. The extraordinary nature of Plaintiffs’ theory is apparent from the “global” nature of their claims. According to Plaintiffs, the worldwide accumulation of greenhouse gases over the last several centuries has produced global warming that has “affected the thickness, extent, and duration of sea ice” around Kivalina; this loss of sea ice, in turn, “subject[s] Kivalina to coastal storm waves and surges,” and these “storms and waves are destroying the land upon which Kivalina is located.” Complaint (“Compl.”), ¶¶ 16, 185. Although Defendants’ emissions represent only a fraction of the total greenhouse gas emissions that have been produced by innumerable persons and entities throughout the world “since the dawn of the industrial revolution in the 18th century,” id., ¶ 125, Plaintiffs seek to hold Defendants liable for all of the assertedly global-warming-induced storm damage incurred by Kivalina. By singling out Defendants’ greenhouse gas emissions—from lawful energy production that is vital to the national economy—as somehow having been “unreasonable,” id., ¶ 250, Plaintiffs effectively attempt to make Defendants alone the insurers for damage assertedly caused by emissions produced over generations of human activity in every part of the globe. Plaintiffs’ suit founders on two fatal constitutional and jurisdictional objections. First, Plaintiffs’ allegations raise inherently nonjusticiable political questions that the judiciary lacks the authority to resolve. Plaintiffs’ theory assumes that some emissions of greenhouse gases are lawful, while others are not. But no statute or regulation sets forth standards of any kind for determining what levels of greenhouse gas emissions are excessive for which activities. To adjudicate Plaintiffs’ claims, this Court would have to make that determination on its own— Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 12 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA retroactively, no less—without guidance from the political branches. As three other district courts have recognized, the only way a court could perform this task is by weighing myriad competing policy considerations—economic, foreign policy, and environmental, among others— that are non-legal in nature and inappropriate for judicial resolution. By what yardstick would the Court assess what level of greenhouse gas emissions is “too much” for a particular activity? How would the Court weigh the competing effects of such a de facto capping of emissions on the economy, the national security, and the Nation’s foreign policy? At what point do increases in energy prices, disruption to the national economy, and increased dependence upon foreign oil become sufficiently great as to outweigh the asserted benefits of limiting the energy sector’s emissions to what Plaintiffs think is reasonable (as opposed, for example, to limiting emissions elsewhere or adopting other alternative measures)? Plaintiffs’ effort to enlist this Court in effectively setting greenhouse gas emissions standards for the United States (if not the world as a whole) would directly contravene the principle that large-scale societal change should be developed through the democratic process, where competing and incommensurate policy trade- offs can be made. Second, Plaintiffs lack standing under Article III to raise their claims because they allege no facts showing that their injuries are “fairly traceable” to the actions of Defendants. Plaintiffs’ theory of global-warming liability, as set forth in the Complaint, forecloses proof of the very causal connection the Constitution requires. By Plaintiffs’ own account, countless entities and persons emit greenhouse gases throughout the world and have done so for hundreds of years, and it is only the overall accumulation of these gases in the atmosphere that allegedly produces global warming, which in turn assertedly contributed to the injuries of which Plaintiffs complain. Because Plaintiffs’ own theory is that their injuries were caused by an undifferentiated mixing of gases from innumerable sources, including billions of independent third-parties not before the Court, Plaintiffs cannot establish that their injuries are “fairly traceable” to Defendants’ emissions. Plaintiffs also lack standing because the causal chain they advance is far too attenuated to satisfy Article III standards. Plaintiffs lay out a theory that begins with Defendants’ greenhouse gas emissions and ends with an Alaskan island facing increased storm damage, a Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 13 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA causal chain requiring multiple tenuous intermediate leaps all along the way. Article III clearly demands more. What Plaintiffs attempt to style as an ordinary tort suit is thus an improper attempt to wrest from the political branches the authority to make the fundamental choices required to develop global warming policy. Centuries of tort law offer no examples of even remotely comparable questions being adjudicated by courts, and Plaintiffs’ reliance on the lingo of torts— “nuisance” and “proximate cause”—is wholly insufficient to paper over the resulting justiciability problems. The political branches of government have devoted substantial effort to considering the proper approach to global warming, including negotiating with foreign counterparts in the interest of developing appropriately balanced global solutions. It is not the province of the courts to intermeddle in these efforts when the strictures of Article III are not met. II. STATEMENT OF FACTS A. The Political Branches’ Efforts to Formulate a National Policy on Global Climate Change The President and Congress have devoted increasing attention over the last thirty years to the complex policy issues associated with global warming, carefully researching and evaluating how government regulation could affect the economy, national security, and foreign relations. These extensive efforts reflect the fact that global warming presents challenges of an entirely different order from other environmental issues. For one thing, the primary greenhouse gas— carbon dioxide—differs in obvious respects from conventional “pollutants”; for example, it is produced every time a person exhales. Moreover, assessing the significance of particular emissions of greenhouse gases involves a level of complexity that greatly transcends that associated with a single-point source discharging a pollutant into a discrete body of water, see, e.g., Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 53-54 (1987) (discussing the Clean Water Act), or the remediation of a single piece of property damaged by environmentally hazardous substances, see, e.g., Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 160-63 (2004) (discussing Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)). Plaintiffs emphasize in their Complaint that global warming is a Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 14 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA global phenomenon, caused by the accumulated effects of activities throughout the world since the 18th century. Compl., ¶ 125, 255. That greenhouse gases are emitted around the world, by every industrial, agricultural, residential, and governmental concern, and indeed by every person, only serves to make the policy tradeoffs inherent in any environmental regulation that much more pronounced. As the EPA has commented, “[i]t is hard to imagine any issue in the environmental area having greater ‘economic and political significance’ than regulation of activities that might lead to global climate change.” Control of Emissions of New Highway Vehicles and Engines, 68 Fed. Reg. 52922, 52928 (Sept. 8, 2003) (hereinafter “Control of Emissions”). The justiciability of Plaintiffs’ claims must accordingly be assessed against the backdrop of the political branches’ decades-long efforts in this area. Notably, the political branches thus far have declined to adopt emission caps or standards, largely because of competing economic, energy, and foreign policy concerns.1 1. Early Congressional Activity Early congressional efforts concerning global climate change centered on researching and understanding the issue. Congress focused primarily on non-regulatory policy approaches, and expressly declined to adopt binding emission reduction measures in the absence of a comprehensive international regime. For example, in 1978, Congress established a “national climate program” to improve understanding of global climate change through research, data collection, and international cooperation. National Climate Program Act of 1978, 15 U.S.C. § 2901, et seq. Two years later, Congress directed the Office of Science and Technology Policy to engage the National Academy of Sciences in a study of the “projected impact, on the level of carbon dioxide in the atmosphere, of fossil fuel combustion, coal-conversion and related synthetic fuels activities.” Energy Security Act, Pub. L. No. 96-294, tit. VII, § 711, 94 Stat. 611, 774-75 (1980). Underscoring the need for a comprehensive approach to this multi-faceted and inherently global issue, Congress in 1987 enacted the Global Climate Protection Act, Title XI of Pub. L. No. 100-204, 101 Stat. 1407, 1 The relevant actions taken by the political branches are properly subject to judicial notice in determining whether a political question is presented. Corrie v. Caterpillar, Inc., 503 F.3d 974, 978 n.2 (9th Cir. 2007). Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 15 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA which ordered the Environmental Protection Agency (“EPA”) to propose a “coordinated national policy on global climate change,” id., § 1103(b), and directed the State Department to work “through the channels of multilateral diplomacy” to coordinate efforts addressing global climate change, id., § 1103(c). In 1990, Congress enacted the Global Change Research Act, which established a ten-year research program for global climate issues. 15 U.S.C. §§ 2931-2938. Congress also amended the Clean Air Act in 1990, stating that the United States’ domestic approach to global climate change is “to develop, evaluate and demonstrate nonregulatory strategies and technologies for air pollution prevention.” 42 U.S.C. § 7403(g) (emphasis added). Congress stated that “[n]othing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements.” Id. Mindful of the profound impacts that would result from limitations on greenhouse gases, Congress in 1992 directed the Energy Department to report on “the feasibility and economic, energy, social, environmental, and competitive implications, including implications for jobs,” of stabilizing and reducing greenhouse gas emission levels. Energy Policy Act of 1992, Pub. L. No. 102-486, § 1601(5), 106 Stat. 2776, 3002. Congress’s stated strategy was to “analyze the important technical and policy issues that will enable us to make wiser decisions on more dramatic and possibly higher cost actions which should be undertaken only in the context of concerted international action.” H.R. REP. No. 102-474, pt. 1, at 152 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 1975. 2. U.S. Participation in International Negotiations and Protocols As Congress passed the Energy Policy Act of 1992, President George H.W. Bush signed, and the Senate ratified, the United Nations Framework Convention on Climate Change (“UNFCCC”). The UNFCCC was a conceptual agreement among 154 nations to reduce atmospheric concentrations of carbon dioxide and other greenhouse gases for the purpose of “prevent[ing] dangerous anthropogenic [i.e., human-induced] interference with the [Earth’s] climate system.” S. TREATY DOC. No. 102-38, art. 2, p.5 (1992). Member nations of the UNFCCC subsequently negotiated and adopted the Kyoto Protocol on December 11, 1997, which Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 16 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA called for mandatory limits or reductions in greenhouse gas emissions for developed nations, but not for developing countries (such as China and India). See 37 I.L.M. 22 (1998). President Clinton signed the Kyoto Protocol, but did not present it to the Senate for ratification, having stated that the “United States will not assume binding obligations unless key developing nations meaningfully participate in this effort.” Remarks at the National Geographic Society, 2 PUB. PAPERS 1408, 1410 (Oct. 22, 1997). By a 95-0 vote, the Senate adopted a resolution objecting to any international protocol that would result in serious harm to the United States economy or that exempted developing countries from binding greenhouse gas limits or reductions. S. RES. 98, 105th Cong. (1997). Thereafter, Congress passed a series of appropriations bills that effectively barred the EPA from implementing the Kyoto Protocol. See, e.g., Pub. L. No. 105-276, 112 Stat. 2461, 2496 (1998); Pub. L. No. 106-74, 113 Stat. 1047, 1080 (1999); Pub. L. No. 106-377, 114 Stat. 1141, 1441A-41 (2000). 3. Recent Developments a. U.S. International Efforts The Bush Administration has opposed the Kyoto Protocol because it exempts developing nations who are major emitters, fails to address two major pollutants, and would have a negative economic impact on the United States. Letter from President George W. Bush to Senators Hagel, Helms, Craig, & Roberts (Mar. 13, 2001), available at . The Bush Administration’s policy “emphasizes international cooperation and promotes working with other nations to develop an efficient and coordinated response to global climate change.” Control of Emissions, 68 Fed. Reg. at 52933. On December 15, 2007, the Bush Administration agreed to the “Bali Roadmap,” which sets out an agenda for two years of diplomatic negotiations on a new global agreement to reduce greenhouse gas emissions. See Statement by the Press Secretary (Dec. 15, 2007), available at . In doing so, the Administration emphasized that, “for these negotiations to succeed, it is essential that the major developed and developing countries be prepared to negotiate commitments, consistent with their national circumstances, that will make a due contribution to the reduction of global emissions.” Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 17 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 8 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA Id. (emphasis added). The Administration also reiterated that “any arrangement must also take into account the legitimate right of the major developing economies and indeed all countries to grow their economies, develop on a sustainable basis, and have access to secure energy sources.” Id. These negotiations are well underway in a series of “Major Economies Meetings.” See U.S. Dept. of Energy, Major Economies Process on Energy Security and Climate Change, available at, . b. Federal Domestic Initiatives While the political branches have been working with the international community to develop a global solution to climate change, they also have been active in developing domestic policies on the subject. In February 2002, President Bush announced a voluntary, incentive- driven approach intended to reduce domestic greenhouse gas emission intensity levels by 18% by 2012. See Control of Emissions, 68 Fed. Reg. at 52931-52932. Consistent with this voluntary policy, the EPA refused to issue new mandatory rules on motor vehicle greenhouse gas emissions for climate change purposes, stating that it did not possess authority under the Clean Air Act to do so, and that, in any event, it would have declined to exercise such authority for scientific and policy reasons. Id. at 52925-52933. After the Supreme Court held in Massachusetts v. EPA, 127 S. Ct. 1438 (2007), that the EPA did in fact possess such authority under the Clean Air Act, President Bush issued an Executive Order calling for cooperation among agencies with respect to motor vehicle greenhouse gas emissions. Exec. Order No. 13432, 72 Fed. Reg. 27717 (May 14, 2007). On December 19, 2007, Congress enacted new legislation that, inter alia, increases fuel economy standards in part to reduce greenhouse gas emissions from motor vehicles and directs the Secretary of Energy to conduct research aimed at developing new approaches “to capture and sequester, or use[,] carbon dioxide to lead to an overall reduction of carbon dioxide emissions.” Pub. L. No. 110-140, § 702, 121 Stat. 1492, 1705 (amending 42 U.S.C. § 16293). The EPA also continues to take a lead role in addressing global climate change. On March 27, 2008, the EPA announced that it will request, through an Advanced Notice of Proposed Rulemaking, public input on possible regulations on greenhouse gas emissions under the Clean Air Act. See Letter Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 18 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 9 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA from EPA Administrator Stephen L. Johnson to Senators Boxer and Inhofe (Mar. 27, 2008), available at . Meanwhile, Congress continues actively to debate whether, and to what extent, the U.S. should undertake efforts to mandate reductions in domestic greenhouse gas emissions in the absence of binding commitments from major developing economies, such as China and India. Most notably, the Lieberman-Warner Climate Security Act (S. 3036)—which, inter alia, would have set prospective mandatory caps on domestic greenhouse gas emissions—was debated on the floor of the Senate in June 2008. However, the bill was ultimately blocked after opponents of the measure defeated an effort to end debate on a key amendment to the bill. See Washington Post, Senate Leaders Pull Measure on Climate, at A3 (June 7, 2008), available at ; see also 154 Cong. Rec. S5334 (June 6, 2008) (Senate vote defeating effort to close debate on sponsor’s substitute amendment for S. 3036). In addition, shortly before the Senate’s action, the White House issued a statement explaining the reasons for the President’s opposition to the bill and affirming his intention to veto it if passed by Congress. See . Notably, neither the Lieberman-Warner bill, nor any of the other major global-warming bills introduced in the current Congress,2 would create retroactive liability for emissions of the sort Plaintiffs ask the Court to create here. The Executive Branch likewise continues actively to consider measures aimed at addressing global warming. On April 16, 2008, President Bush announced that the United States would endeavor to stop the growth of U.S. greenhouse gas emissions by the year 2025. See President Bush Discusses Climate Change (Apr. 16, 2008), available at . Citing the need for a “rational, balanced approach” that would “reduce greenhouse gases, reduce our dependence on oil, and keep our 2 E.g., Climate Stewardship and Innovation Act of 2007, S. 280 (Sens. Lieberman and McCain); Safe Climate Act of 2007, H.R. 1590 (Reps. Waxman and Allen); Low Carbon Economy Act of 2007, S. 1766 (Sens. Bingaman and Specter); Electric Utility Cap and Trade Act of 2007, S. 317 (Sens. Feinstein and Carper); Global Warming Pollution Reduction Act, S. 309 (Sens. Sanders and Boxer). Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 19 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA economies vibrant,” the President explained that “America’s national plan will be a comprehensive blend of market incentives and regulations to reduce emissions by encouraging clean and efficient energy technologies.” Id. The President also reiterated the longstanding position that the United States would be willing to commit to a binding international agreement only if other major greenhouse gas producers (such as China and India) would do the same. Id. The President also emphasized that, given the “far-reaching impact” of any decision to reduce greenhouse gas emissions, the matter “should not be left to unelected regulators and judges but should be debated openly and made by the elected representatives of the people they affect.” Id. B. Plaintiffs’ Complaint It is against this backdrop of substantial and ongoing political branch activity with respect to greenhouse gas emissions and global climate change that Plaintiffs ask this Court to decide whether Defendants can and should be held liable, based on their emissions of greenhouse gases over the past several decades, for harms allegedly caused by global warming. Plaintiffs are the Native Village of Kivalina and the City of Kivalina, the self-described “governing bodies” of a small Alaskan village of 400 persons located north of the Arctic Circle. Compl., ¶ 1. The present-day village is situated at the tip of a slender barrier island that is exposed to extreme Arctic weather conditions. See U.S. Army Corps of Engineers, Alaska District, Alaska Village Erosion Technical Assistance Program: An Examination of Erosion Issues in the Communities of Bethel, Dillingham, Kaktovik, Kivalina, Newtok, Shishmaref, and Unalakleet 21-23 (Apr. 2006) (Collins Decl., Ex. D) (hereinafter “Alaska Village Erosion”); United States General Accounting Office, Alaska Native Villages: Most Are Affected by Flooding and Erosion, but Few Qualify for Federal Assistance 29-30 (Dec. 2003) (Collins Decl., Ex. E).3 According to Plaintiffs’ Complaint, Defendants have “for many years” emitted “greenhouse gases,” such as carbon dioxide and methane. Compl., ¶¶ 3, 163-80. As a result of 3 Plaintiffs cite both of these governmental reports in their Complaint, see Compl. ¶ 185 & n.60; id., ¶ 186 & n.61, and they are thus appropriate subjects for judicial notice against the party whose pleading references them. See Dreiling v. American Express Co., 458 F.3d 942, 946 n.2 (9th Cir. 2006) (court considering a motion to dismiss “may consider documents referred to in the complaint”); see also Corrie, 503 F.3d at 979 (in considering whether a case presents a political question a court may “tak[e] into consideration facts beyond the complaint”). Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 20 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA these emissions—which are generated through such economically vital activities as oil exploration, electricity generation, and refining, id., ¶¶ 163-80—Defendants have “contribut[ed] to global warming,” id., ¶ 2, and thus must be held singularly “responsible” for the “special injuries” suffered by Plaintiffs, namely, increased erosion to Kivalina’s barrier island caused by winter storms that previously would have been buffered by sea ice (which sea ice, Plaintiffs contend, has been reduced by global warming), id., ¶¶ 3, 4, 16, 185. The numbers alleged in Plaintiffs’ Complaint, together with those in the other documents they cite, give some context to Plaintiffs’ allegation that Defendants “are substantial contributors to global warming.” Compl., ¶ 260. Plaintiffs explicitly allege specific numbers for the total tonnage (in “carbon dioxide equivalents”) of all of the alleged 2006 greenhouse gas emissions of the Oil Company Defendants except for ExxonMobil (but apparently including, in some instances, affiliated companies not before the Court). See, e.g., id., ¶¶ 23, 29, 34, 46; see also id., ¶ 23 n.1 (explaining that carbon dioxide equivalent is “the universal unit of measurement used to indicate the global warming potential of each of the six greenhouse gases”). The total of these four numbers (converting them from short tons into metric tons) is approximately 275.2 million metric tons. Compl., ¶ 23, n.2 (numbers in Complaint are shown in short tons). But another document referenced in the Complaint reveals that in the United States alone, total anthropogenic (man-made) U.S. emissions of greenhouse gases in 2006 totaled approximately 7075.6 million metric tons of carbon dioxide equivalent, meaning that the alleged emissions of the four companies amount to less than 4% of the U.S. total. See Energy Information Administration, Emissions of Greenhouse Gases in the U.S. 2006 at 1 (Collins Decl., Ex. F) (hereinafter “Emissions of Greenhouse Gases”) (cited in Compl., ¶ 167, n.45, which gives the web address for the 2006 report, but incorrectly describes it as the 2005 report). That same report estimates (using only carbon dioxide figures) that the U.S. share of anthropogenic emissions is approximately 22% of the worldwide total, id. at 6, meaning that Plaintiffs’ idea of a “substantial contribution” for these four companies is one that amounts to less than 1% of worldwide anthropogenic emissions. In addition, because Plaintiffs allege that greenhouse gas emissions have been accumulating in the atmosphere “since the dawn of the industrial revolution in the 18th century,” Compl., ¶ 125, Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 21 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA these companies’ emissions would be yet an even smaller fraction than 1%. Unsurprisingly, Plaintiffs’ Complaint does not allege that Defendants’ fraction of emissions by itself caused them any injury, but only that Defendants’ alleged emissions contributed to global warming “in combination with emissions and conduct of others” who are not before the Court. Compl., ¶ 255 (emphasis added). Moreover, Plaintiffs do not allege that they can trace any of the alleged effects of global warming (including their alleged injuries) to any specific emissions of Defendants. On the contrary, the Complaint asserts that “greenhouse gas emissions resulting in global warming are inherently interstate in nature,” id., ¶ 254, and that Defendants’ emissions “rapidly mix in the atmosphere” and “inevitably merge[] with the accumulation of emissions in California and in the world,” id., ¶¶ 10, 254. Plaintiffs thus seek to impose liability for emissions in a manner that is unbounded by temporal or geographic limitations: the Complaint seeks damages for “defendants’ past and ongoing contributions to global warming,” id., ¶ 6 (emphasis added), arising from all of Defendants’ operations “no matter where such operations are located,” id., ¶ 254 (emphasis added). Indeed, even though Plaintiffs allege injury to property north of the Arctic Circle, they rely on Defendants’ alleged emissions activity in California to justify their filing this suit in a forum far from home, with no particular connection to their claims. See, e.g., id., ¶ 10. Based on these allegations, the Complaint seeks wide-ranging monetary damages and purports to assert, under “federal common law” and “applicable” (though unspecified) state law, causes of action for public and private nuisance, civil conspiracy, and concert of action. Compl., ¶¶ 6, 249-82. Plaintiffs’ alleged damages consist of injury to their property and the costs of relocating the entire village. E.g., id., ¶ 266. Plaintiffs seek these damages notwithstanding that “[e]rosion issues are not the only reasons why [Kivalina] want[s] to relocate,” as village residents want to leave their barrier island for the additional reason that “their current location has made it infeasible for them to have running water and sewer hookup,” a scenario that has “little to do with” erosion. See Alaska Village Erosion, supra, (Collins Decl., Ex. D) at 3. Plaintiffs also pursue this suit now, against these Defendants, even though “[t]he community has long assumed that the island would succumb to natural forces, and that [it] would have to move.” Id. at 24. Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 22 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA Indeed, discussions about relocating the village have been going on for decades. See id. III. ARGUMENT A. Plaintiffs’ Global Warming Claims Raise Nonjusticiable Political Questions Under the system of separated powers that is the hallmark of our constitutional government, the judiciary has no authority to “‘formulate national policies or develop standards for matters not legal in nature’”; those matters are committed for resolution to the Legislative and Executive Branches. Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986) (citation omitted). As a result, the courts lack jurisdiction over “those controversies which revolve around” such legislative or executive policy choices. Id. (citation omitted); see also Corrie v. Caterpillar, Inc., 503 F.3d 974, 981-82 (9th Cir. 2007) (political question doctrine implicates “a court’s power under Article III to hear a case” and precludes courts from making policy decisions that belong to political branches); see also No GWEN Alliance of Lane County, Inc. v. Aldridge, 855 F.2d 1380, 1384 (9th Cir. 1988) (political question doctrine bars courts from deciding, for example, “the merits of national defense policy”).4 Adjudication of Plaintiffs’ claims would violate these settled principles by improperly requiring this Court to resolve at least two political questions. First, to adjudicate Plaintiffs’ claim that Defendants should be held liable for “their emissions of large quantities of greenhouse gases” that “contribut[e] to global warming,” Compl., ¶¶ 2-3, the Court would have to take upon itself the task of defining what quantities of carbon dioxide and methane were wrongfully emitted by each Defendant throughout the world over the course of many decades. This question, however, inescapably involves initial political judgments of the sort that only the political branches can make. To determine what constitutes a wrongful level of emissions, the Court would have to determine—without any guidance from the political branches—what amount of greenhouse gases Defendants should have emitted, taking into account (1) any resulting contribution to global warming from these emissions; (2) the very 4 Because the political question doctrine, like standing, goes to the Court’s Article III jurisdiction over the matter, these threshold jurisdictional issues can be resolved in any order. Sinochem Int’l Co. Ltd. v. Malaysia Intern. Shipping Corp., 127 S.Ct. 1184, 1191 (2007) (although jurisdictional questions generally must be resolved before addressing the merits, “there is no mandatory ‘sequencing of jurisdictional issues’”) (citation omitted). Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 23 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA significant competing concerns about national energy policy and foreign policy (including the concern that self-imposed caps reduce U.S. leverage in negotiating agreements with other nations), as well as the negative effects that imposition of mandatory domestic emissions caps would have on the national economy; (3) the extent to which comparable reductions in greenhouse gases could be more effectively achieved through other and different domestic regulatory measures that are more broadly targeted; and (4) how these balances might reasonably have been struck at different points in time over the past several decades. As the Supreme Court recently stated, the courts “have neither the expertise nor the authority to evaluate these policy judgments.” Massachusetts, 127 S. Ct. at 1463. Second, even assuming the Court could somehow set standards for determining how much greenhouse gas emissions for energy production are too much, Plaintiffs’ claims still raise a further political question. In order for Plaintiffs to have a cause of action, they must show, not merely that Defendants’ conduct was wrongful in the abstract, but also that the alleged wrongful emissions were sufficiently causally connected to Plaintiffs’ injuries to warrant the imposition of liability from Defendants to Plaintiffs. But there are no judicially manageable standards for determining how to assign liability for particular injuries that are assertedly caused by global warming. Plaintiffs allege that the greenhouse gases emitted worldwide over the last several centuries by innumerable persons and enterprises “rapidly mix in the atmosphere and cause an increase in the atmospheric concentration of carbon dioxide and other greenhouse gases worldwide.” Compl., ¶ 254 (emphasis added). Because Plaintiffs’ own theory is that causation is mediated (in a highly attenuated fashion) through the contributions of billions of persons to an undifferentiated and global pool of emissions that has accumulated over centuries, the inevitably ad hoc policy judgments and trade-offs that would have to be made to assign fault can only be done by a legislature and not by a court. Unsurprisingly, every court to have considered similar allegations of global warming injury has found them nonjusticiable under the political question doctrine. See GMC, 2007 WL 2726871 at *8 (suit alleging that defendant auto manufacturers produced vehicles that emitted greenhouse gases, leading to global warming); AEP, 406 F. Supp. 2d at 270-74 (suit alleging that Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 24 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA defendant utilities emitted greenhouse gas, leading to global warming); Comer v. Murphy Oil USA Inc., supra, (Oral Ruling on Motion to Dismiss) (Collins Decl., Ex. B) at 34-41 (suit alleging that defendant oil and energy companies’ greenhouse gas emissions heated the Gulf of Mexico, exacerbating the strength of Hurricane Katrina). 1. A Case Presents a Political Question if Any One of the Six Alternative Tests Set Forth in Baker v. Carr Is Satisfied From its earliest days, the federal judiciary has held that “political questions” are reserved for the political branches of government, and are not the proper domain of courts. See generally Baker v. Carr, 369 U.S. 186, 210-17 (1962) (reviewing history of “political question” doctrine). Firmly rooted in fundamental constitutional principles of separation of powers, see Corrie, 503 F.3d at 980 (citing Baker, 369 U.S. at 210), the political question doctrine “‘excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch,’” EEOC v. Peabody W. Coal Co., 400 F.3d 774, 784 (9th Cir. 2005) (quoting Japan Whaling Ass’n, 478 U.S. at 230). The doctrine thus precludes courts from endeavoring to address policy matters that are inappropriate for judicial resolution. Baker, 369 U.S. at 210. The controlling standards for determining whether a case raises a nonjusticiable political question were set forth in Baker v. Carr. The Supreme Court identified six independent and alternative formulations that characterize a case as falling within that doctrine: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [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. Id. at 217 (emphasis added). If any “one of these formulations is inextricable from the case at bar,” the court should dismiss the suit as nonjusticiable on the ground that it involves a political question. Id.; see also Alperin v. Vatican Bank, 410 F.3d 532, 547 (9th Cir. 2005) (“[A]ny single Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 25 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA [Baker] test can be dispositive”); United States v. Mandel, 914 F.2d 1215, 1222 (9th Cir. 1990) (“Implicating any one of these factors renders a question ‘political’ and thus nonjusticiable.”). 2. Plaintiffs’ Theory That Defendants’ Emissions Were at a Level That “Wrongfully” Contributed to Global Warming Raises Inherently Political Questions Plaintiffs’ Complaint confirms that all of their claims are based on the premise that Defendants emitted too large a quantity of greenhouse gases. The sole injuries alleged by Plaintiffs are that, due to changes in “the thickness, extent, and duration of sea ice that forms along Kivalina’s coast,” Kivalina is more vulnerable to storms, which “now routinely batter Kivalina and are destroying its property to the point that Kivalina must relocate or face extermination.” Compl., ¶ 185. The Complaint alleges that these changes in sea ice formation are due to “[r]ising temperatures caused by global warming.” Id. Global warming, in turn, “is caused by emissions of greenhouse gases.” Id., ¶ 133. And because “Defendants contribute to global warming through their emissions of large quantities of greenhouse gases,” the Complaint alleges that they should be held legally responsible for Plaintiffs’ storm-related injuries. Id., ¶ 3. In challenging Defendants’ emissions, Plaintiffs pointedly do not focus on any geographically specific activities of the Defendants. They do not, for example, contend that Defendants took any action in the immediate vicinity of Kivalina that had any sort of direct and specific impact on that village. On the contrary, Plaintiffs’ theory is that the emissions of “greenhouse gases from defendants’ operations, no matter where such operations are located, rapidly mix in the atmosphere and cause an increase in the atmospheric concentration of carbon dioxide and other greenhouse gases worldwide.” Compl., ¶ 254 (emphasis added). Accordingly, to adjudicate Plaintiffs’ claims, the Court necessarily would have to determine what lesser quantity of emissions the Defendants should have been releasing over the last several decades. As every court confronted with similar claims has found, this issue raises a nonjusticiable political question. a. Determining “Wrongful” Levels of Emissions Would Require the Court to Make Initial Policy Judgments That Are Inherently Political in Nature The third Baker test is triggered when it is impossible to decide a case “without an initial Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 26 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA policy determination of a kind clearly for nonjudicial discretion.” Baker, 369 U.S. at 217. This test recognizes that, while the judiciary may effectuate regulatory programs that the political branches have adopted, see Massachusetts, 127 S. Ct. at 1463 (holding that Clean Air Act imposed certain limits on EPA’s authority to decline to adopt global-warming-based motor vehicle emissions standards), the courts “‘are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.’” Japan Whaling, 478 U.S. at 230 (citation omitted) (emphasis added). Put simply, the nature, complexity, scope, and multi-faceted implications of some problems call for an initial exercise of legislative or executive policy judgment before the courts may intervene. That is the case here. As then-Judge Jenkins concluded in rejecting analogous claims against the automobile industry, the third Baker test “largely controls the analysis in the current case due to the complexity of the initial global warming policy determinations that must be made by the elected branches prior to the proper adjudication” of the plaintiffs’ suit. GMC, 2007 WL 2726871 at *6. Plaintiffs, of course, identify no statute or regulation that supports their claims and that could provide the necessary predicate policy judgments that could guide courts in determining when the emission of greenhouse gases crosses the line from lawful energy production to unlawful, liability-attaching conduct. But in the absence of such a legislatively created framework that reflects and incorporates the political branches’ evaluation and weighing of the competing concerns implicated by the worldwide phenomenon of global warming, the courts “have neither the expertise nor the authority to evaluate these policy judgments.” Massachusetts, 127 S. Ct. at 1463 (emphasis added). Consideration of the specific policy questions that Plaintiffs seek to foist upon the Court demonstrates how inappropriate this matter is for judicial resolution. In order to determine the supposedly optimal amount of greenhouse gas emissions that Defendants should have been emitting from energy production—so as not to “unreasonably interfere with the use and enjoyment of Plaintiffs’ properties,” Compl., ¶ 265 (emphasis added)—the Court would have to weigh and evaluate a variety of competing policy judgments that are entirely non-legal in nature. Among other things, the Court necessarily would have to determine what level of reduced energy Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 27 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA production would properly balance the concerns about climate change with such competing considerations as the health of the national economy, the need for energy independence, the effect on national security, and the effect on foreign relations (including the ability to secure multi- lateral agreements). See AEP, 406 F. Supp. 2d at 272-73; GMC, 2007 WL 2726871 at *8. Moreover, this balancing of competing concerns could not be done in isolation, with a myopic focus only on the U.S. oil and energy industries. Because Plaintiffs allege that all greenhouse emissions from all sources “rapidly mix in the atmosphere” and that Defendants’ emissions could have an impact on global warming only “in combination with emissions and conduct of others,” Compl., ¶¶ 254-55, any evaluation of the optimal level of emissions from Defendants’ energy activities is inescapably a comparative judgment—in other words, one must consider the relative contributions to emissions reductions that are appropriate from all sectors of the economy, not just the energy sector. See AEP, 406 F. Supp. 2d at 273 (noting that one of the “initial policy determinations” that would have to be made is which industries and activities should be expected to reduce their comparative emissions); cf. Anchorage Daily News, PETA Wants Kivalina to Sue Meat Producers (Mar. 5, 2008), available at (“People for the Ethical Treatment of Animals faxed a letter to the Kivalina mayor this week alleging that raising animals for food creates 40 percent more greenhouse gases than all the world’s cars, trucks, planes and ships combined.”). On top of all this, the Court would have to make judgments retroactively with respect to decades’ worth of emissions. Plaintiffs’ Complaint is explicitly based on the aggregate impact of all of the greenhouse gas emissions that have occurred “since the dawn of the industrial revolution.” Compl., ¶ 125. As Plaintiffs explain, “[a] large fraction of carbon dioxide emissions persist in the atmosphere for several centuries, and thus have a lasting effect on climate. Atmospheric concentrations of carbon dioxide and other greenhouse gases continue to increase as each year’s emissions are added to those that came before.” Id. Plaintiffs’ Complaint thus does not call for a single judgment as to the propriety of one particular set of emissions at one point in time. Rather, Plaintiffs’ theory would require an assessment of what levels of emissions Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 28 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 19 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA Defendants “should” properly have been releasing from a wide variety of activities over a period of several decades or more. These policy questions and numerous others thus must be answered (either explicitly or implicitly) before the Court could even hope to determine whether liability can and should attach to Defendants’ actions. But the responsibility for making these sorts of judgments and balancing these competing interests—with their potentially enormous implications for the Nation’s economy and foreign affairs—lies with the policymaking branches of our government, not the judiciary. As the GMC court concluded in rejecting a comparable global-warming claim, “adjudication of Plaintiff’s claim would require the Court to balance the competing interests of reducing global warming emissions and the interests of advancing and preserving economic and industrial development,” but the “balancing of those competing interests is the type of initial policy determination to be made by the political branches, and not this Court.” 2007 WL 2726871 at *8; see also AEP, 406 F. Supp. 2d at 272-73; Comer v. Murphy Oil USA, supra, (Oral Ruling on Motion to Dismiss) (Collins Decl., Ex. B) at 40 (explaining that adjudication of plaintiffs’ claim would require a court to do exactly “what Baker versus Carr told [it] not to do, and that is to balance economic, environmental, foreign policy, and national security interest[s] and make an initial policy determination of a kind which is clearly nonjudicial”). The difficulty and impropriety of a court making the initial policy determinations that adjudication of Plaintiffs’ suit would require is underscored by the political branches’ ongoing efforts to formulate an appropriate policy response to the many issues raised by global warming. See AEP, 406 F. Supp. 2d at 273 (“Looking at the past and current actions (and deliberate inactions) of Congress and the Executive within the United States and globally in response to the issue of climate change merely reinforces [the] opinion that the questions raised by Plaintiffs’ complaints are [non-justiciable] political questions.”); GMC, 2007 WL 2726871 at * 8 (“The political branches’ actions and deliberate inactions in the area of global warming further highlight this case as one for nonjudicial discretion.”). As explained at length above, the political branches have been grappling for many years and on many fronts with the difficult and complex task of fashioning an appropriate response to global warming, and they have thus far failed to establish Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 29 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 20 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA fixed standards (much less retroactive ones) for appropriate levels of greenhouse gas emissions. See supra at 4-10; see also Massachusetts, 127 S. Ct. at 1448-49 (describing evolution of executive and legislative policy on global warming). It would be inappropriate for the courts to attempt to resolve these sorts of questions where, as here, the political branches are continuing actively to consider the political judgments necessary for their resolution, and it would be especially inappropriate for the courts to purport to resolve them in a manner that is inconsistent with the judgments made by the political branches thus far. Moreover, these ongoing policy debates within the elected branches amply demonstrate that responding to global climate change brings to the fore a wide range of rival considerations— domestic economic prosperity, national security, and environmental responsibility, among others—that are inherently political in nature, nuanced in dimension, and ever-changing in their relative importance, as particular events (such as war and economic slowdown) inevitably modify the Nation’s priorities. As the EPA has observed, “[i]t is hard to imagine any issue in the environmental area having greater ‘economic and political significance’ than regulation of activities that might lead to global climate change.” Control of Emissions, 68 Fed. Reg. at 52928. Put simply, Plaintiffs seek to have the judiciary do precisely what the political question doctrine forbids—namely, to determine matters that are “not the stuff of adjudication, but of policymaking.” Schneider v. Kissinger, 412 F.3d 190, 197 (D.C. Cir. 2005).5 b. There Are No Judicially Manageable Standards for Determining What Emissions “Wrongfully” Contribute to Global Warming For similar reasons, Plaintiffs’ claims are likewise barred under Baker’s second test, which requires dismissal when there is “a lack of judicially discoverable and manageable standards” for adjudication. Baker, 369 U.S. at 217; see Wang v. Masaitis, 416 F.3d 992, 996 5 That Plaintiffs’ Complaint seeks damages and not injunctive relief makes no difference to the application of the political question doctrine in this case. The principal political question here arises not from the particular remedy requested, but rather from the theory of liability asserted— to find Defendants’ emissions wrongful, the courts would have to make political judgments that can be made only by the political branches. The court in GMC—in which the plaintiffs sought money damages—reached precisely this conclusion, holding that “regardless of the relief sought, the Court is left to make an initial decision as to what is unreasonable in the context of carbon dioxide emissions.” GMC, 2007 WL 2726871 at *8. Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 30 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 21 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA (9th Cir. 2005) (considering second and third Baker factors together); Alperin, 410 F.3d at 544 (explaining that “in practice,” the analyses under the independent Baker tests “often collaps[e] into one another”). As the Ninth Circuit has recognized, the second Baker inquiry requires the courts to “ask whether they have the legal tools to reach a ruling that is ‘principled, rational, and based upon reasoned distinctions.’” Alperin, 410 F.3d at 552 (quoting Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality op.)). Here, Plaintiffs’ suit inescapably would require the Court to separate out permissible, “reasonable” greenhouse gas emissions that are the acceptable byproduct of an appropriate level of economically valuable activities by worthy industries, from those inappropriate emissions that constitute “a substantial and unreasonable interference” with the right to enjoy public and private property. See Compl., ¶ 250. But, in the absence of the sort of initial policy guidance discussed above, there are simply no legal standards by which courts could attempt to intelligibly undertake this exercise. See GMC, 2007 WL 2726871 at *15 (“The Court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the Earth’s atmosphere.”). Indeed, Congress and the Executive Branch have been struggling for years to develop appropriate legal standards; that the political branches have not yet done so does not somehow suddenly make this task appropriate for resolution by the judiciary. Although Plaintiffs apparently believe that the common law of torts can somehow supply the necessary legal framework for reasoned judicial decision-making in this case, that is wrong. The rhetorical assertion that the Court need only determine whether Defendants’ emissions constitute a “substantial and unreasonable interference” with Plaintiffs’ property does not resolve the political question, but merely restates it. Such a “recasting” of political questions “in tort terms does not provide standards for making or reviewing [such] judgments.” Schneider, 412 F.3d at 197; Alperin, 410 F.3d at 562 (noting that “slave labor claims” pleaded in tort “present no mere tort suit,” and dismissing those claims under the political question doctrine). Indeed, Judge Jenkins in GMC squarely rejected this precise argument that the common law of nuisance could provide a satisfactory set of legal principles sufficient to avoid dismissal under Baker’s second factor. Citing the unique “national and international policy issues” implicated in a global- Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 31 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 22 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA warming nuisance suit, Judge Jenkins explained that nuisance law simply does not provide courts with “a manageable method of discerning the entities that are creating and contributing to the alleged nuisance.” GMC, 2007 WL 2726871 at *15; see also AEP, 406 F. Supp. 2d at 272 (rejecting contention that plaintiffs’ global warming suit was “simple nuisance claim of the kind courts have adjudicated in the past”). c. Judicial Promulgation of Climate Policy Would Interfere with Issues of Foreign Policy Committed to the Political Branches Any effort by a court to assign liability to specific industries for the effects of global climate change would also be barred under the first Baker test, because it would intrude upon the political branches’ constitutionally committed authority over foreign policy. As Baker itself makes clear, numerous cases have applied the political question doctrine to matters “touching foreign relations.” 369 U.S. at 211. This is in accord with our constitutional design, as “[i]t is axiomatic that ‘the conduct of foreign relations is committed by the Constitution to the political departments of the Federal Government; [and] that the propriety of the exercise of that power is not open to judicial review.’” Mingtai Fire & Marine Ins. Co. v. United Parcel Serv., 177 F.3d 1142, 1144 (9th Cir. 1999) (quoting United States v. Pink, 315 U.S. 203, 222-23 (1942)). Several Congresses and various Presidents have by now actively considered the interrelationship between global climate change and foreign affairs. As discussed above, supra, at 5-10, the political branches have refused to adopt emissions caps without agreement that developing nations be willing to participate in greenhouse gas reduction. See S. RES. 98, 105th Cong. (1997); President Clinton, 2 PUB. PAPERS at 1410. The political branches’ continued refusal thus far to establish limits on greenhouse gas emissions without commitments from countries such as China and India rests on two stated considerations. First, the political branches have recognized that efforts to address global warming will be successful only if they are global in approach. As President Clinton observed, “[i]f the entire industrialized world reduces emissions over the next several decades but emissions from the developing world continue to grow at their current pace, concentrations of greenhouse [gases] in the atmosphere will continue to climb.” Id. Second, the political branches have also recognized that if the United States acts Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 32 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 23 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA without international cooperation, it could find itself in an inferior bargaining position during any future diplomatic attempts to address climate change. As the EPA has explained, “[u]nilateral EPA regulation of [greenhouse gas] emissions could … weaken U.S. efforts to persuade key developing countries to reduce the [greenhouse gas] intensity of their economies.… Any potential benefit of EPA regulation could be lost to the extent other nations decided to let their emissions significantly increase in view of U.S. emission reductions.” Control of Emissions, 68 Fed. Reg. at 52931. By asking this Court to establish (retroactively) appropriate levels of greenhouse gas emissions for the particular U.S. corporations before this Court, Plaintiffs would have this Court override the considered foreign policy judgment of the political branches and, in effect, award to the Nation’s counterparts in the rapidly developing world the sort of one-sided emissions caps that they have been unable to obtain by diplomatic means. The request is entirely improper. See GMC, 2007 WL 2726871 at *14 (finding first Baker test applicable because “the political branches have weighed in on the issue, and have made foreign policy determinations regarding the United States’ role in the international concern about global warming”); see also Corrie, 503 F.3d at 984 (because decision to award foreign aid to Israel is foreign policy judgment committed to political branches, suit based on an aspect of that aid was nonjusticiable under political question doctrine). To the extent that Plaintiffs’ Complaint seeks to address any emissions by Defendants in other countries, Compl., ¶ 10, adjudication of Plaintiffs’ suit could also result in the inappropriate extraterritorial imposition of American (judge-crafted) emissions standards on point sources in other nations, confounding the attempts of foreign governments to regulate greenhouse gases within their sovereign territories, thereby producing international tension with the United States. The political question doctrine is designed to prevent courts from becoming embroiled in such matters of foreign affairs, which are constitutionally assigned to the President and Congress. See GMC, 2007 WL 2726871 at *14.6 6 The remaining three Baker tests are also implicated here for substantially the same reasons discussed above. See Alperin, 410 F.3d at 544 (noting that the Baker factors often overlap). Any attempt by a court to assess liability against Defendants for injuries caused by global warming Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 33 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 24 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA 3. Plaintiffs’ Theory for Attributing Fault Raises Inherently Political Questions Even assuming that a court could fashion manageable standards from which to determine the level of greenhouse gas emissions that Defendants ought to have produced over the last several decades, it would still encounter a further “sea of imponderables,” Vieth, 541 U.S. at 290, in determining whether and how liability for Plaintiffs’ alleged injuries should be allocated among all of the companies and persons who “wrongfully” emit greenhouse gases all over the world. This issue raises additional political questions, and in particular runs afoul of the second and third Baker tests. Specifically, even assuming that the Court could coherently settle upon the point at which greenhouse gas emissions for specific activities, at various points in time and in various places, had crossed the line and become tortious, the Court would still need to determine whether Defendants’ supposedly wrongful levels of emissions are sufficiently connected to Plaintiffs’ alleged injuries to warrant the imposition of liability from Defendants to Plaintiffs. That raises a further political question, as the GMC court specifically noted: “The Court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the Earth’s atmosphere, or in determining who should bear the costs associated with the global climate change that admittedly result[ed] from multiple sources around the globe.” 2007 WL 27226871 at *15 (emphasis added). The Complaint seeks to paper over these problems by including boilerplate allegations that Defendants’ wrongful emissions “are a direct and proximate contributing cause” of Plaintiffs’ injuries and that Defendants should be “jointly and severally liable.” Compl., ¶¶ 251, 260. But as the D.C. Circuit has observed, the artifice of “recasting” political questions “in tort terms does not provide standards for making or reviewing [such] judgments.” Schneider, 412 F.3d at 197; see would demonstrate a profound lack of respect for the political branches’ policy decisions (foreign and otherwise) on the issue of global climate change, and would seriously undermine those decisions already made (fourth and fifth Baker tests). It would likewise result in multiple branches of the federal government taking inconsistent stances on the same issue (sixth Baker test), even though “the questions presented here ‘uniquely demand single-voiced statement of the Government’s views.’” AEP, 406 F. Supp. 2d at 274 (quoting Baker, 369 U.S. at 211). Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 34 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 25 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA also Antolok v. United States, 873 F.2d 369, 383 (D.C. Cir. 1989) (Sentelle, J., concurring) (“As plaintiffs view the cause, these are simply questions of tort liability and damages—obviously matters within normal judicial competence. Were we to follow plaintiffs’ view, there would hardly be a political question doctrine left.”). Plaintiffs’ invocation of “proximate causation” and “joint and several liability” is not sufficient to avoid the political question inherent in attributing fault for particular global-warming-induced injuries. As Defendants have explained in their separate motion to dismiss under Fed. R. Civ. P. 12(b)(6), Plaintiffs cannot satisfy the minimum requirements of proximate causation, such as the requirement for “some direct relation between the injury asserted and the injurious conduct alleged.” Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268 (1992). But the proximate causation inquiry requires more: “[a]t bottom, the notion of proximate cause reflects ‘ideas of what justice demands, or of what is administratively possible and convenient.’” Id. (citation omitted). In the unique context of a global phenomenon in which, according to Plaintiffs’ allegations, all emissions from all sources around the world “mix in the atmosphere” over many centuries into a “worldwide” blending of gases that only in the aggregate, and over time, causes particular injury, an initial legislative judgment would be required to fix attributions of fault that are consistent with “what justice demands” and “what is administratively possible and convenient.” Just as in the Article III standing context a lack of the requisite “fair traceability” between a defendant’s conduct and a plaintiff’s injury can be cured, in some cases, only by Congress’s articulation of “‘chains of causation that will give rise to a case or controversy where none existed before,’” Massachusetts, 127 S. Ct. at 1453 (citation omitted); see infra at 36, so too here, only a legislative articulation of rights and liabilities can sort out the inherently intractable problem of assigning fault for allegedly contributing (along with literally everyone else in the world) to a phenomenon that purportedly contributes (in varying degrees) to particular injuries. See also infra at 32-37. Only a legislature can make the sort of ad hoc distinctions that would be necessary to differentiate in law what Plaintiffs allege is undifferentiated in fact. “Laws promulgated by the Legislative Branch can be illogical, inconsistent, and ad hoc; laws Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 35 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 26 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA pronounced by the courts must be principled, rational, and based on reasoned distinctions.” Vieth, 541 U.S. at 278 (plurality op.). Contrary to what Plaintiffs may contend, assigning fault for particular injuries is not simply a matter of figuring out which entities have released more greenhouse gases than others. Rather, there is no available legal apparatus that is capable of dealing with the enormous number of causal factors at play (every industrial, agricultural, and governmental entity, and indeed every person emits greenhouse gases), and the severe issues of proximate causation that Plaintiffs’ suit presents. See Comer v. Murphy Oil USA, supra, (Oral Ruling on Defendants’ Motion to Dismiss) (Collins Decl., Ex. B) at 39-40 (“[T]his is a case in which the plaintiffs directly ask this Court to attribute fault to these defendants under standards that as of yet do not exist.”). Any attempt to assign responsibility for Plaintiffs’ injuries to particular emissions would thus inevitably return to policy considerations about who should bear liability for what level of contribution to the purported effects of greenhouse gases (whether liability should be assessed on each producer, only certain industries, or the entire world); which victims of alleged global-warming-enhanced erosion should receive compensation from whom for what injuries; and the relative blameworthiness of Defendants’ emissions (as well as the relative utility of Defendants’ otherwise lawful activities) as compared to the myriad other factors that also contributed to the injury in question. Simply put, in this case a court is not “capable of granting relief in a reasoned fashion.” Alperin, 410 F.3d at 553. Plaintiffs’ appeal to joint and several liability principles fares no better. Even assuming arguendo that that standard could be applied here, it would simply amplify the magnitude of the political questions at the heart of this case. Given Plaintiffs’ allegations concerning the undifferentiated nature of cumulative global greenhouse gas emissions, see Compl., ¶¶ 10, 125, 254, Plaintiffs’ Complaint presumably rests on the remarkable and completely unprecedented suggestion that Defendants alone can be held jointly and severally liable for all injuries allegedly caused by global warming at any time and throughout the world. But if Plaintiffs’ theory would internalize all liability for all global warming injuries in a single set of industries in a single country, that only serves to underscore how dramatically Plaintiffs seek to use the courts to set Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 36 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 27 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA national (if not worldwide) energy policy in utter disregard of the competing economic, national security, and foreign policy concerns. There is another important respect in which Plaintiffs’ invocation of joint and several liability fails to evade the political question doctrine. Application of joint and several liability would simply mean that Defendants would have to add to this litigation all other emitters of greenhouse gases. See, e.g., American Motorcycle Ass’n v. Superior Court, 20 Cal. 3d 578, 598 (1978) (under doctrine of equitable indemnity, defendant can assert a cross-complaint to obtain indemnity from other defendants (including defendants not listed in the complaint) on a “comparative fault basis”). The Court would thus inevitably confront the inherently political task of trying to allocate liability among the parties. See GMC, 2007 WL 2726871 at *15 (“[T]he Court is left without a manageable method of discerning the entities that are creating and contributing to the alleged nuisance. In this case, there are multiple worldwide sources of atmospheric warming across myriad industries and multiple countries.”). The enormously unwieldy nature of what would easily become the largest and most complex litigation in the annals of jurisprudence would dramatically illustrate the complete “lack of judicially discoverable and manageable standards for resolving it.” Baker, 369 U.S. at 217. Finally, the issue of which State’s laws should apply to these claims presents another intractable layer of complexity that magnifies the unmanageability of the case and the need for an initial political judgment by the elected branches. While Plaintiffs’ Complaint conspicuously avoids informing the Court of the applicable state law in this case, counsel for Plaintiffs has elsewhere suggested that it is “the law of the state”—and presumably the country—“where the source of the pollution is located.” Matthew Pawa, Global Warming Litigation Heats Up, TRIAL 18, 22 (April 2008). Unsurprisingly, the laws of the States differ quite dramatically in their rules for allocating fault in tort suits. For example, many States, including Alaska, have adopted “pure” several (but not joint) liability schemes that require courts and juries to calculate “the percentage of the total fault” that is to be allocated to each plaintiff, defendant, third-party defendant, and all other persons, and to enter judgment against each defendant based only on the percentage of fault for which it is responsible. Alaska Stat. §§ 09.17.080(a)(2), (d). Thus, Alaska Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 37 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 28 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA specifically requires that “[i]n determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each person at fault, and the extent of the causal relation between the conduct and the damages claimed.” Id. § 09.17.080(b). This sort of task would be impossible enough with respect to all of the responsible emitters in a single State over the course of many decades; but that, of course, would allocate responsibility for only the activities of that State’s emitters. There is still the further, larger problem of emitters in other States, under possibly other rules, and the additional problem of what to do about emitters in foreign countries (even assuming the highly dubious proposition that the Court has the power to define the standards of liability or allocation for those emissions). And then the Court would have to figure out—without any help from the political branches—how to amalgamate all of this complexity into an overall composite determination that a particular industry’s contribution to global warming is responsible to a specified degree for a particular injury. One could scarcely contrive a more unmanageable controversy. 4. Plaintiffs’ Reliance on “Civil Conspiracy” and “Concert of Action” Does Nothing to Avoid the Political Question Doctrine For several reasons, Plaintiffs allegations of a “civil conspiracy” and of liability based on “concert of action,” Compl., ¶¶ 268-82, cannot avoid or resolve the political questions that lie at the heart of this lawsuit. First, it is well settled that civil conspiracy and concert of action are not separate torts, but rather are merely theories of secondary liability. See Sprewell v. Golden State Warriors, 266 F.3d 979, 992 (9th Cir. 2001); In re Sunset Bay Assocs., 944 F.2d 1503, 1516 n.14 (9th Cir. 1991); 2 Dan B. Dobbs, THE LAW OF TORTS 936 (2001) (“Conspiracy is not a tort in itself; it reflects the conclusion that each participant should be liable for the tortious course of conduct.”). As a result, these doctrines of secondary liability can operate only to extend to additional parties an underlying liability that otherwise already exists. Accordingly, allegations of secondary liability cannot cure a fatal deficiency in, or survive independently from, the alleged underlying torts; if the predicate tort fails, there is nothing to which secondary liability can attach. Because Plaintiffs’ theories of liability in this case all would require resolution of nonjusticiable political Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 38 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 29 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA questions, see supra at 13-28, Plaintiffs’ addition of allegations of joint conduct does not and cannot make the underlying political questions justiciable. See Collins Decl., Exs. A, C (respectively, the Complaint and Written Order of Dismissal in Comer v. Murphy Oil Co., supra) (political question doctrine barred suit for global warming damages where plaintiffs asserted causes of action for, inter alia, civil conspiracy). Second, the allegations of Plaintiffs’ own Complaint make clear that, as a factual matter, all of Plaintiffs’ theories unavoidably rest on nonjusticiable political questions. Regardless of the theory invoked (nuisance, civil conspiracy, or concert of action), the Complaint confirms that Plaintiffs’ sole theory of injury is that emissions-induced global warming caused damage to Plaintiffs’ property; as a result, all of their claims (including the causes of action for civil conspiracy and concert of action) are dependent upon their allegations that Defendants’ emissions were greater than they otherwise should have been. See Compl., ¶ 269 (civil conspiracy) (alleging that “[t]he Conspiracy Defendants have engaged in agreements to participate in the intentional creation, contribution to and/or maintenance of a public nuisance, global warming”); id., ¶ 279 (concert of action) (alleging that “Defendants have engaged in and/or are engaging in concert with each other over the creation, contribution to and/or maintenance of a public nuisance, global warming”). Consequently, all of Plaintiffs’ theories necessarily rest on the untenable premise that this Court can decide what the “proper” level of greenhouse gas emissions should have been over the last several decades. Because the political question problem is thus “inextricable from the case at bar,” Baker, 369 U.S. at 217, Plaintiffs’ Complaint must be dismissed in its entirety. B. Plaintiffs Cannot Demonstrate Article III Standing Plaintiffs’ claims fail as a matter of law for the additional reason that, as their own Complaint confirms, they cannot satisfy the standing requirements of Article III—specifically, they cannot show that the alleged injuries are “fairly traceable” to Defendants’ challenged emissions. For example, the Complaint does not state when and where on the planet the greenhouse gas emissions that allegedly caused harm to Plaintiffs occurred. Which, if any, of these alleged Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 39 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 30 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA injury-producing emissions were “excessive” at the time they occurred such that tort liability could be based on them? How can Plaintiffs’ alleged injury be traced to any one of these Defendants’ emissions, as opposed to the emissions of the many other emitters on the planet, dating back centuries? Have Defendants’ emissions actually caused an impact to Plaintiffs or have they been offset by other factors or forces? The Complaint is devoid of well-pleaded facts necessary to answer these questions and to connect these Plaintiffs’ claimed injuries to these Defendants’ alleged emissions; indeed, the Complaint itself makes clear that Plaintiffs cannot do so. Because, as a matter of law, Plaintiffs cannot satisfy all of the required elements for Article III standing, their Complaint must be dismissed. 1. To Establish Article III Standing, Plaintiffs Must Plead Sufficient Facts to Show That Their Injuries Are “Fairly Traceable” to Defendants’ Conduct The Supreme Court has long held that “the irreducible constitutional minimum of standing contains three elements”: (1) the plaintiff must have suffered an injury-in-fact; (2) “there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court’”; and (3) it must be “‘likely,’” rather than simply “‘speculative,’” that a favorable decision will redress the plaintiff’s injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)); see also Smelt v. County of Orange, 447 F.3d 673, 682 (9th Cir. 2006). The primary standing element at issue in this case is the second one—fair traceability. This element, which the Supreme Court has defined as “the causation requirement” of standing,7 requires that the plaintiff’s injury be “fairly traceable” to the defendant’s challenged conduct rather than to “the independent action of some third party not before the court.” Bennett v. Spear, 520 U.S. 154, 167 (1997). In addition, an injury is not fairly traceable to the defendant’s conduct if the causal chain linking the two is “too attenuated.” Allen v. Wright, 468 U.S. 737, 757 (1984); 7 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 106 n.7 (1998); see also Fleck & Assocs. v. City of Phoenix, 471 F.3d 1100, 1104 (9th Cir. 2006) (this element of standing requires “a fairly traceable causal connection between the alleged injury and the ... challenged conduct”) (citation omitted) (emphasis added). Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 40 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 31 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA see also Prescott v. County of El Dorado, 298 F.3d 844, 846 (9th Cir. 2002) (fair traceability requirement not satisfied where the “causal relationship is too remote”). Plaintiffs bear the burden of establishing the elements of Article III standing, including fair traceability. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 & n.3 (2006); Lujan, 504 U.S. at 561. They cannot satisfy that burden simply by presenting labels or conclusions or generalized factual allegations. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982) (“The requirements of Art. III standing are not satisfied merely because a party requests a court of the United States to declare its legal rights, and has couched that request for forms of relief historically associated with courts of law in terms that have a familiar ring to those trained in the legal process.”). Rather, as “an indispensable part of the plaintiff’s case,” the elements of Article III standing “must be supported in the same way as any other matter on which plaintiff bears the burden of proof.” Lujan, 504 U.S. at 561. Thus, as with any other element of a plaintiff’s claim, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007), and “to raise a right to relief above the speculative level,” id. at 1965 (emphasis added). The Federal Rules require “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. 8 2. Plaintiffs Have Not Pleaded Sufficient Facts to Establish That Their Alleged Injuries Are “Fairly Traceable” to Defendants’ Emissions As set forth below, Plaintiffs’ theory of causation fails to satisfy the fair traceability requirement in two respects. First, their own Complaint confirms that they cannot trace their alleged injuries to Defendants’ emissions, as opposed to the independent emissions of countless third parties occurring throughout the world over the last several centuries—not to mention other potential competing causes of coastal erosion on barrier islands in northwestern Alaska. Second, 8 Accordingly, Plaintiffs’ conclusory allegations of causation (e.g., Compl., ¶163) are manifestly inadequate to establish fair traceability, especially where (as here) the Complaint’s factual allegations actually negate the fair traceability required by Article III. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-755 (9th Cir. 1994) (legal conclusions presented as factual allegations are insufficient to establish federal court’s jurisdiction); see also Whitmore v. Arkansas, 495 U.S. 149, 155-156 (1990) (“A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.”). Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 41 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 32 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA Plaintiffs have failed to plead fair traceability for the additional reason that the alleged causal chain between Defendants’ emissions and Plaintiffs’ damage is much too attenuated to satisfy Article III standards. a. Because Plaintiffs Allege That Greenhouse Gas Emissions Are Undifferentiated in the Global Atmosphere, Plaintiffs’ Injuries Cannot Be Fairly Traced to Defendants’ Emissions, As Opposed to Those of Third Parties It is well settled that there is no Article III standing where the plaintiff’s injuries cannot be fairly traced to the defendant’s challenged conduct, as opposed to the independent actions of third parties not before the court. See, e.g., Simon, 426 U.S. at 41-42 (“the ‘case or controversy’ limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court”) (emphasis added); see also Lujan, 504 U.S. at 560 (same). This principle controls this case. Global warming, as its name indicates, is a global phenomenon: every person and entity on the planet is responsible for some emissions of greenhouse gases. As established by Plaintiffs’ own Complaint and the documents cited in it, the levels of atmospheric greenhouse gases that Plaintiffs decry are the result of worldwide emissions by many persons over a very long period of time. Thus, Plaintiffs’ Complaint asserts that global warming is the “‘globally averaged net effect of human activities since 1750,’” see Compl., ¶ 161 (emphasis added) (quoting Intergovernmental Panel on Climate Change, Climate Change 2007: Synthesis Report 37 (Collins Decl., Ex. G)), and that Defendants’ emissions only “contribut[ed] to global warming and caus[ed] injuries to” Plaintiffs “in combination with emissions and conduct of others,” Compl., ¶ 255 (emphasis added).9 Moreover, Plaintiffs’ Complaint and the materials it cites also assert that greenhouse gases, once emitted into the atmosphere, are undifferentiated— making them necessarily untraceable to any source—because they “rapidly mix in the atmosphere” with gases emitted by persons all across the planet. See Compl., ¶ 254.10 Plaintiffs 9 See also Emissions of Greenhouse Gases, supra, (Collins Decl., Ex. F) at 6, 11-25 (attributing most greenhouse gas emissions to sources other than the challenged emissions of Defendants). 10 See also Compl., ¶ 254 (“Carbon dioxide and other greenhouse gas emissions resulting in global warming are inherently interstate in nature. Emissions of carbon dioxide and other Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 42 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 33 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA further expressly allege that carbon dioxide, once emitted, remains in the atmosphere for “hundreds of years,” id., ¶ 180; see also id., ¶ 125 (a “large fraction of carbon dioxide emissions persist in the atmosphere for several centuries”), and that two-thirds of the increase in carbon dioxide emissions occurred between the mid-18th century and 1980, id. But if Plaintiffs cannot identify when the particular emissions occurred that allegedly put in motion the events leading to their injuries, they cannot hope to trace their injuries to Defendants’ emissions, as opposed to those of the many others that have emitted greenhouse gases over the last century or longer. In view of the Complaint’s allegations as to the undifferentiated nature of the greenhouse gas emissions from all global sources, and their worldwide accumulation over long periods of time, Plaintiffs’ own pleading makes clear that there is no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions of any specified person, entity, or group, at any specific point in time. Taking the allegations of the Complaint as true, there is no way to say which emissions—emitted by whom and at what time in the last several centuries and at what place in the world—“caused” Plaintiffs’ alleged global-warming related injuries. As the District Court in Comer held in dismissing analogous global-warming claims for lack of the fair traceability required by Article III, the injuries alleged are not “attributable or traceable to these individual defendants,” but rather “are attributable to a larger group” that is “not before this Court, not only within this nation but outside of our jurisdictional boundaries as well.” Comer v. Murphy Oil USA, supra, (Oral Ruling on Motion to Dismiss) (Collins Decl., Ex. B) at 36. The lack of fair traceability is exacerbated by the fact that Plaintiffs must tie their alleged global-warming related injuries, not merely to Defendants’ emissions as a whole, but rather to that portion of Defendants’ emissions that were supposedly tortious. See Lujan, 504 U.S. at 560 greenhouse gases from defendants’ operations, no matter where such operations are located, rapidly mix in the atmosphere and cause an increase in the atmospheric concentration of carbon dioxide and other greenhouse gases worldwide.”); id., ¶ 10 (alleging that Defendants’ emissions “do[] not remain localized and inevitably merge[] with the accumulation of emissions in California and in the world”); see also National Academy of Sciences, Climate Change Science: An Analysis of Some Key Questions 10 (2000) (Collins Decl., Ex. H) (cited in Compl., ¶ 157, n.36) (CO2, and other long-lasting gases, are spread “throughout the lower atmosphere” within a year or more). Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 43 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 34 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA (injury must be fairly traceable “‘to the challenged action of the defendant’”) (quoting Simon, 426 U.S. at 41-42) (emphasis added). As noted earlier, Plaintiffs’ Complaint necessarily rests on the premise that Defendants emitted excessive amounts of greenhouse gases. See supra at 16-20. (No one contends that greenhouse gas emissions can or should be reduced to zero.) The Complaint identifies no plausible way in which Plaintiffs could hope to fairly trace their global- warming relating injuries to that subset of Defendants’ greenhouse gas emissions that exceeded some hypothetical “proper” level of emissions—as opposed to Defendants’ proper emissions, and the emissions (proper or wrongful) of everyone else in the world. See Twombly, 127 S. Ct. at 1974 (plaintiff must plead “enough facts to state a claim to relief that is plausible on its face”). These already insurmountable fair traceability problems are compounded yet further by the principle of “inertia”: as explained in the Intergovernmental Panel on Climate Change report cited in Plaintiffs’ Complaint (¶ 161), a stabilization in greenhouse gas levels would take at least a “few decades” to slow increases in global temperatures, and even then “[s]mall increases in global average temperatures could still be expected for several centuries.” Climate Change 2007: Synthesis Report, supra, (Collins Decl., Ex. G) at 66. Accordingly, even if Defendants (and the rest of the world) had stopped emitting greenhouse gases decades ago, this “inertia” principle suggests that global warming sufficient to have melted protective Arctic sea ice may well have occurred anyway. As a result, only by “unadorned speculation” could Plaintiffs hope to say that greenhouse gases emitted in any particular timeframe caused their injuries. Simon, 426 U.S. at 44. It is, of course, essential to evaluating the reasonableness of any particular emissions to know which emissions are at issue and at what point in time. Plaintiffs’ failure to trace their injuries to particular wrongful levels of emissions by these Defendants at particular points in time confirms their inability sufficiently to plead the fair traceability required by Article III. Plaintiffs’ Complaint thus reveals a failure of fair traceability that is far beyond what has been found inadequate by the Supreme Court and the Ninth Circuit in cases implicating the independent actions of third parties. See, e.g., Allen, 468 U.S. at 756-59 (no standing to challenge IRS’s non-enforcement of policy denying tax-exempt status to racially discriminatory private schools because attendance of plaintiffs’ children in integrated schools depended not only on IRS Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 44 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 35 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA enforcement but on decisions by third parties, such as school officials and parents); Simon, 426 U.S. at 43 (holding that indigent plaintiffs lacked standing to challenge IRS policy according favorable tax treatment to certain non-profit hospitals because the denial of service to indigents could have “result[ed] from decisions made by the hospitals without regard to the tax implications”); Warth v. Seldin, 422 U.S. 490, 505-06 (1975) (no standing to challenge zoning ordinance because lack of low-income housing may have been attributable to builders’ unwillingness to build low-cost housing and to plaintiffs’ financial situations); see also Pritikin v. Department of Energy, 254 F.3d 791, 797 (9th Cir. 2001) (no Article III standing to challenge Energy Department’s failure to make budget requests for medical monitoring program; any resulting injury to Plaintiff would depend critically on the independent decisions of a separate agency, “a third party not before the court, to begin the medical monitoring program”). Indeed, whereas all of those cases involved a finite number of additional actors, Plaintiffs’ claims here implicate the conduct of all individuals and entities on the planet, each of whom emitted their own quantities and concentrations of greenhouse gases over varying periods of time. See Compl., ¶¶ 125, 161, 254. If standing did not exist in the much less complex third-party causation scenarios of Allen, Simon, Warth, and comparable cases, there can be no standing here where the traceability analysis must disentangle the role of billions of third-party emitters over centuries. Plaintiffs’ Complaint suggests that they believe that these problems can be evaded merely by alleging that Defendants “contribute” to global warming, see Compl., ¶¶ 3, 251, 255, 260, and that this alleged contribution, “in combination with emissions and conduct of others,” has caused injury to Plaintiffs, id., ¶ 255. These conclusory labels do nothing to address the clear lack of fair traceability; on the contrary, they simply beg the question, because all emitters likewise “contribute” to global warming. See, e.g., Warth, 422 U.S. at 504 (lack of fair traceability due to role of independent third parties was not cured by allegation that the defendants’ conduct “ha[d] contributed, perhaps substantially, to the cost of housing” in the plaintiffs’ locality) (emphasis added). A theory that would give undifferentiated standing to sue almost anyone and everyone in the whole world is the very antithesis of “fair traceability.” The fatal lack of the required traceability is likewise not cured by the allegation that Defendants are “substantial contributors to Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 45 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 36 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA global warming.” Compl., ¶ 260 (emphasis added). Even setting aside the fact that the Complaint has a very broad notion of what counts as “substantial,” see supra at 11, Plaintiffs fail to explain how the relative size of a party’s emissions can do anything to cure the fact that all worldwide emissions from all sources, occurring over very long periods of time, join together in creating the aggregate levels of greenhouse gases allegedly necessary to cause Plaintiffs’ injury. Indeed, Plaintiffs’ complete inability to establish traceability only serves to reinforce the need for an initial policy decision by the political branches. See supra at 24-28. As the Supreme Court recently reaffirmed, “‘Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.’” Massachusetts, 127 S. Ct. at 1453 (citation omitted). Congress, for example, has exercised such power in the Clean Water Act by defining (through permits and regulations) what levels of what substances may be released by a party into a waterway and by providing that discharges in excess of the permitted levels that contribute to injuries to another may give rise to liability. See, e.g., Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir. 1990) (plaintiff in Clean Water Act action must show that “a defendant has 1) discharged some pollutant in concentrations greater than allowed by its permit 2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and that 3) the pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs”) (emphasis added); see also Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, 995 (9th Cir. 2000) (following Powell Duffryn and its progeny). Here, of course, there is a complete absence of any statutory scheme that would define the relevant wrongful emissions of greenhouse gases, much less one that establishes which chains of causation associated with those emissions should give rise to liability for what injuries to which persons. That sort of statutory “authorization is of critical importance to the standing inquiry,” Massachusetts, 127 S. Ct. at 1453, and its absence here is fatal to Plaintiffs’ effort to establish traceability. Cf. id. at 1454-55 (relying critically on, inter alia, Congress’s creation of statutory procedural rights in holding that Massachusetts had standing to challenge the EPA’s failure to regulate automobile emissions of greenhouse gases); Center for Biological Diversity v. Brennan, No. 06-7062-SBA, 2007 WL Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 46 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 37 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA 2408901 at *11 (N.D. Cal. Aug. 21, 2007) (holding that Congress’s creation of statutory procedural rights to participate in commenting on climate-change reports “relaxes a plaintiff’s burden on the traceability and redressability prongs of the Article III standing test” because “‘[t]he person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards’”) (quoting Lujan, 504 U.S. at 572 n.7). Moreover, it is telling that, even the statutorily based Clean Water Act cases disallow standing based on geographically remote contributions to an alleged pollution injury: the plaintiffs in such cases must “demonstrate a more specific geographic or other causative nexus in order to satisfy the ‘fairly traceable’ element of standing.” Friends of the Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d 358, 361 (5th Cir. 1996) (holding that eighteen-mile distance from discharge to place of alleged impact on plaintiff was “too large to infer causation” for standing purposes); see also Texas Independent Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964, 973 (7th Cir. 2005) (en banc) (“[T]o satisfy the ‘fairly traceable’ causation requirement, there must be a distinction between the plaintiffs who lie within the discharge zone of a polluter and those who are so far downstream that their injuries cannot fairly be traced to that defendant.”) (internal quotation omitted). Plaintiffs’ asserted injuries concededly cannot be “fairly traced” to any geographically proximate contribution of greenhouse gases, because the Complaint alleges that any injuries were caused only by an undifferentiated worldwide accumulation of greenhouse gases. That Plaintiffs could not satisfy even the relaxed standing requirements applicable to a congressionally created liability regime only underscores their inability to establish Article III standing here, where no statutory scheme is available that could possibly serve to relax the required chain of causation. b. Plaintiffs Cannot Demonstrate “Fair Traceability” for the Additional Reason That the Alleged Line of Causation From Emission to Injury Is Too Attenuated Plaintiffs’ claims must be dismissed for the additional reason that “[t]he links in the chain of causation between the challenged … conduct and the asserted injury are far too weak for the chain as a whole to sustain [Plaintiffs’] standing.” Allen, 468 U.S. at 759. Indeed, Plaintiffs’ allegations epitomize an impermissibly attenuated and speculative theory of causation: the Oil Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 47 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 38 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA Company Defendants’ exploration and production activities release greenhouse gases; those emissions have joined with all of the other emissions of people and entities worldwide over the past several centuries to increase greenhouse gas levels; those increased greenhouse gas levels, together with other factors, contribute to overall global warming; global warming (together with yet other factors) contributes to higher temperatures in the Arctic region; those warmer temperatures have resulted in melting of sea ice that has acted in the past as a barrier against the effects of coastal storms that occur in the Chukchi Sea; those storms (again, together with other factors) have subjected the barrier reef (on which the Village of Kivalina is located) to waves and surges that have resulted, over time, in the erosion of the reef; and the erosion of the reef (again, together with other factors) poses a threat to the integrity of structures that make up the village, allegedly necessitating relocation of Kivalina’s residents. See Complaint, at ¶¶ 3, 10, 16, 123, 127, 130, 131, 185, 254. Plaintiffs’ proffered causal chain, to put it mildly, is “attenuated at best.” Allen, 468 U.S. at 757. Plaintiffs’ theory of traceability contains too many links and relies on the conduct of too many parties over too long a period of time and dispersed over too wide a geographic area. This flaw is only magnified by the role of independent third parties and other competing influences. See id. (no fair traceability where chain of causation was “highly indirect” and depended on actions of third parties); Prescott, 298 F.3d at 846 (no standing where the alleged “causal relationship is too remote” in light of the role of independent third parties); see also supra at 32- 37. At bottom, Plaintiffs’ allegations improperly “rely on little more than the remote possibility, unsubstantiated by allegations of fact, that their situation might have been better had [Defendants] acted otherwise.” Warth, 422 U.S. at 507. Moreover, while the exact traceability standard may not be “susceptible of precise definition,” in “many cases the standing question can be answered chiefly by comparing the allegations of the particular complaint to those made in prior standing cases.” Allen, 468 U.S. at 751-52. In this regard, Plaintiffs’ Complaint advances a causal chain that is exceedingly more strained than those the courts have previously rejected. See, e.g., DaimlerChrysler, 547 U.S. at 346 (theory that taxpayer was injured by tax breaks to corporation was too attenuated and Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 48 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 39 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA speculative to support Article III standing); Allen, 468 U.S. at 757-59 (holding that line of causation between IRS’s grant of tax exemptions to racially discriminatory schools and plaintiffs’ children attending segregated schools was too tenuous); Pony v. County of Los Angeles, 433 F.3d 1138, 1146 (9th Cir. 2006) (claim that attorney would have received higher fees if county rescinded its alleged policy of only agreeing to lump-sum settlements was too speculative to be fairly traceable and could not support standing); see also supra at 34-35 (discussing Simon and Warth). * * * “[T]he standing inquiry requires careful judicial examination of a complaint’s allegations” to determine whether “the line of causation between the illegal conduct and injury [is] too attenuated” to justify standing. Allen, 468 U.S. at 752 (emphasis added). That is consistent with the principle that standing questions are “threshold determinants of the propriety of judicial intervention,” Warth, 422 U.S. at 518, and are thus often resolved early in litigation, preferably so as to prevent the expenditure of judicial resources where the court ultimately lacks power to act. Plaintiffs’ inability to allege traceability here counsels strongly against judicial involvement in a suit that is hardly of the sort “traditionally thought to be capable of resolution through the judicial process.” Allen, 468 U.S. at 752 (internal quotation omitted).11 11 Plaintiffs’ allegations of conspiracy and concert of action—all of which rely on these same attenuated theories of causation to connect Defendants’ alleged conduct (through Defendants’ alleged emissions) to Plaintiffs’ asserted injuries—do nothing to cure Plaintiffs’ fatal lack of standing. And, as noted earlier, Plaintiffs’ invocation of these theories of secondary liability, which are not independent causes of action, necessarily fail where (as here) the predicate torts alleged are legally defective. See supra at 28-29. Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 49 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 40 - OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA IV. CONCLUSION For the foregoing reasons, Plaintiffs’ Complaint should be dismissed with prejudice. Dated: June 30, 2008 Respectfully Submitted, MUNGER, TOLLES & OLSON LLP By: /s/ Daniel P. Collins Daniel P. Collins Attorneys for Defendant SHELL OIL COMPANY O’MELVENY & MYERS LLP By: /s/ John F. Daum John F. Daum Attorneys for Defendant EXXONMOBIL CORPORATION KING & SPALDING LLP By: /s/ Tracie J. Renfroe Tracie J. Renfroe Attorneys for Defendants CHEVRON CORPORATION and CHEVRON U.S.A. INC. KIRKLAND & ELLIS LLP By: /s/ Andrew B. Clubok Andrew B. Clubok Attorneys for Defendant CONOCOPHILLIPS COMPANY ARNOLD & PORTER LLP By: /s/ Matthew Heartney Matthew Heartney Attorneys for Defendants BP AMERICA, INC., AND BP PRODUCTS NORTH AMERICA, INC. Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 50 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OIL CO. DEFTS.’ MOT. TO DISMISS UNDER RULE 12(b)(1); MEMO. OF P’S & A’S―C-08-1138 SBA DECLARATION PURSUANT TO GENERAL ORDER 45, SECTION X I, Daniel P. Collins, declare and attest, pursuant to this Court’s General Order 45, section X, subparagraph B, that I am an ECF User and the filer of this document and that concurrence in the filing of this document has been obtained from each of the other signatories (in addition to myself) shown on page 40 of this document. I further declare and attest, pursuant to that same subparagraph of General Order 45, that I will maintain records to support this concurrence for subsequent production for the court if so ordered or for inspection upon request by a party until one year after final resolution of the action (including appeal, if any). I declare, under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct. Dated June 30, 2008 /s/ Daniel P. Collins Daniel P. Collins Case 4:08-cv-01138-SBA Document 135 Filed 06/30/2008 Page 51 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING OIL CO. DEFTS.’ RULE 12(b)(1) MOT. TO DISMISS ―C-08-1138 SBA RONALD L. OLSON (SBN 44597) Ronald.Olson@mto.com DANIEL P. COLLINS (SBN 139164) Daniel.Collins@mto.com MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 JEROME C. ROTH (SBN 159483) Jerome.Roth@mto.com MUNGER, TOLLES & OLSON LLP 560 Mission Street San Francisco, CA 94105-2907 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Attorneys for Defendant SHELL OIL COMPANY [Counsel Listing Continued on Next Page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION NATIVE VILLAGE OF KIVALINA and CITY OF KIVALINA, Plaintiffs, vs. EXXON MOBIL CORPORATION; BP P.L.C.; BP AMERICA, INC.; BP PRODUCTS NORTH AMERICA, INC.; CHEVRON CORPORATION; CHEVRON U.S.A., INC.; CONOCOPHILLIPS COMPANY; ROYAL DUTCH SHELL PLC; SHELL OIL COMPANY; PEABODY ENERGY CORPORATION; THE AES CORPORATION; AMERICAN ELECTRIC POWER COMPANY, INC.; AMERICAN ELECTRIC POWER SERVICES CORPORATION; DTE ENERGY COMPANY; DUKE ENERGY CORPORATION; DYNEGY HOLDINGS, INC.; EDISON INTERNATIONAL; MIDAMERICAN ENERGY HOLDINGS COMPANY; MIRANT CORPORATION; NRG ENERGY; PINNACLE WET CAPITAL CORPORATION; RELIANT ENERGY, INC.; THE SOUTHERN COMPANY; AND XCEL ENERGY, INC., Defendants. CASE NO. C 08-01138 SBA [PROPOSED] ORDER GRANTING CERTAIN OIL COMPANY DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1) Time: December 9, 2008, 1:00 P.M. Ctrm.: Courtroom 3, 1301 Clay Street, Oakland, California The Honorable Saundra B. Armstrong Case 4:08-cv-01138-SBA Document 135-2 Filed 06/30/2008 Page 1 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING OIL CO. DEFTS.’ RULE 12(b)(1) MOT. TO DISMISS ―C-08-1138 SBA JOHN F. DAUM (SBN 52313) jdaum@omm.com O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6111 Facsimile: (213) 430-6407 JONATHAN D. HACKER (Pro hac vice pending) jhacker@omm.com O’MELVENY & MYERS LLP 1625 Eye Street, NW Washington, DC 20006-4001 Telephone: (202) 383-5300 Facsimile: (202) 383-5414 Attorneys for Defendant EXXON MOBIL CORPORATION ROBERT MEADOWS (Pro hac vice) rmeadows@kslaw.com TRACIE J. RENFROE (Pro hac vice) trenfroe@kslaw.com JONATHAN L. MARSH (Pro hac vice) jlmarsh@kslaw.com KING & SPALDING LLP 1100 Louisiana Street, Suite 4000 Houston, TX 77002-5213 Telephone: (713) 751-3200 Facsimile: (713) 751-3290 LISA KOBIALKA (SBN 191404) lkobialka@kslaw.com KING & SPALDING LLP 1000 Bridge Parkway, Suite 100 Redwood City, CA 94065 Telephone: (650) 590-0700 Facsimile: (650) 590-1900 Attorneys for Defendants CHEVRON CORPORATION and CHEVRON U.S.A. INC. STUART A. C. DRAKE (Pro hac vice) sdrake@kirkland.com ANDREW B. CLUBOK (Pro hac vice) aclubok@kirkland.com SUSAN E. ENGEL (Pro hac vice) KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Telephone: (202) 879-5173 Facsimile: (202) 879-5200 ELIZABETH DEELEY (SBN 230798) edeeley@kirkland.com KIRKLAND & ELLIS LLP 555 California Street San Francisco, CA 94104 Telephone: (415) 439-1861 Facsimile: (415) 439-1500 Attorneys for CONOCOPHILLIPS COMPANY MATTHEW HEARTNEY (SBN 123516) Matthew.Heartney@aporter.com ARNOLD & PORTER LLP 777 S. Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 Telephone: (213) 243-4150 Facsimile: (213) 243-4199 PHILIP H. CURTIS (Pro hac vice) Philip.Curtis@aporter.com MICHAEL B. GERRARD (Pro hac vice) Michael.Gerrard@ aporter.com ARNOLD & PORTER LLP 399 Park Avenue New York, New York 10022 Telephone: (212) 715-1000 Facsimile: (212) 715-1399 Attorneys for BP AMERICA INC., AND BP PRODUCTS NORTH AMERICA INC. Case 4:08-cv-01138-SBA Document 135-2 Filed 06/30/2008 Page 2 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING OIL CO. DEFTS.’ RULE 12(b)(1) MOT. TO DISMISS ―C-08-1138 SBA On June 30, 2008, Defendants Shell Oil Company, Exxon Mobil Corporation, Chevron Corporation, Chevron U.S.A. Inc., ConocoPhillips Company, BP America Inc., and BP Products North America Inc. (“Defendants”) filed a “Motion of Certain Oil Company Defendants to Dismiss Plaintiffs’ Complaint Pursuant to Fed. R. Civ. P. 12(b)(1)” (“Motion”). Upon consideration of all of the moving, opposition, and reply papers, and the materials submitted therewith, the files and records of this case, and the argument presented at the hearing on the Motion, the Court grants the Motion and orders the Complaint dismissed with prejudice. Plaintiffs are the Native Village of Kivalina and the City of Kivalina, the self-described “governing bodies” of a small Alaskan village of 400 persons located north of the Arctic Circle. Complaint (“Compl.”), ¶ 1. According to Plaintiffs’ Complaint, Defendants have “for many years” emitted “greenhouse gases,” such as carbon dioxide and methane. Compl., ¶¶ 3, 163-80. Plaintiffs allege that, as a result of these emissions, Defendants have “contribut[ed] to global warming,” id., ¶ 2, and thus must be held singularly “responsible” for the “special injuries” suffered by Plaintiffs, namely, increased erosion to Kivalina’s barrier island caused by winter storms that previously would have been buffered by sea ice (which sea ice, Plaintiffs contend, has been reduced by global warming), id., ¶¶ 3, 4, 16, 185. Plaintiffs’ suit founders on two fatal constitutional and jurisdictional objections. I. Dismissal Is Required Under the Political Question Doctrine Plaintiffs’ allegations raise inherently nonjusticiable political questions that the judiciary lacks the authority to resolve. The controlling standards for determining whether a case raises a nonjusticiable political question were set forth in Baker v. Carr, 369 U.S. 186 (1962). The Supreme Court identified six independent and alternative formulations that characterize a case as falling within that doctrine: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [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. Case 4:08-cv-01138-SBA Document 135-2 Filed 06/30/2008 Page 3 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - [PROPOSED] ORDER GRANTING OIL CO. DEFTS.’ RULE 12(b)(1) MOT. TO DISMISS ―C-08-1138 SBA Id. at 217 (emphasis added). If any “one of these formulations is inextricable from the case at bar,” the court should dismiss the suit as nonjusticiable on the ground that it involves a political question. Id.; see also Alperin v. Vatican Bank, 410 F.3d 532, 547 (9th Cir. 2005) (“[A]ny single [Baker] test can be dispositive”). Adjudication of Plaintiffs’ claims would violate these settled principles by improperly requiring this Court to resolve at least two political questions. First, to adjudicate Plaintiffs’ claim that Defendants should be held liable for “their emissions of large quantities of greenhouse gases” that “contribut[e] to global warming,” Compl., ¶¶ 2-3, the Court would have to take upon itself the task of defining what quantities of carbon dioxide and methane were wrongfully emitted by each Defendant throughout the world over the course of many decades. This raises a political question implicating all six of the Baker tests, and especially the third, second, and first tests. All of the theories in Plaintiffs’ Complaint assume that some emissions of greenhouse gas are wrongful, while others are not. But no statute or regulation sets forth standards of any kind for determining what levels of greenhouse gas emissions are excessive for which activities. To adjudicate Plaintiffs’ claims, this Court would have to make that determination on its own— retroactively, no less—without guidance from the political branches. As three other district courts have recognized, the only way a court could perform this task is by weighing myriad competing policy considerations—economic, foreign policy, and environmental, among others— that are non-legal in nature and inappropriate for judicial resolution. See California v. General Motors Corp. (“GMC”), No. C-06-5755-MJJ, 2007 WL 2726871 at *6 (N.D. Cal. Sept. 17, 2007) (the third Baker test “largely controls the analysis in the current case due to the complexity of the initial global warming policy determinations that must be made by the elected branches prior to the proper adjudication” of the plaintiffs’ suit), appeal pending, No. 07-16908 (9th Cir.); id. at *13-*16 (also finding the first and second Baker tests applicable); Connecticut v. American Elec. Power Co. (“AEP”), 406 F. Supp. 2d 265, 270-74 (S.D.N.Y. 2005), appeal pending, No. 05-5104 (2d Cir.); see also Comer v. Murphy Oil USA Inc., 1:05-CV-00436 (S.D. Miss. Aug. 30, 2007) (Oral Ruling on Motion to Dismiss and Written Order of Dismissal) (attached respectively, as Exs. B and C to the Declaration of Daniel P. Collins submitted in support of the Motion) Case 4:08-cv-01138-SBA Document 135-2 Filed 06/30/2008 Page 4 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - [PROPOSED] ORDER GRANTING OIL CO. DEFTS.’ RULE 12(b)(1) MOT. TO DISMISS ―C-08-1138 SBA (dismissing the case based on both the political question doctrine and lack of Article III standing), appeal pending, No. 07-60756 (5th Cir.). Second, even assuming that the Court could fashion manageable standards from which to determine the level of greenhouse gas emissions that Defendants ought to have produced over the last several decades, the Court would still have to determine whether and how liability for Plaintiffs’ alleged injuries should be allocated among all of the companies and persons who “wrongfully” emit greenhouse gases all over the world. This issue raises additional political questions, and in particular runs afoul of the second and third Baker tests. As the GMC court explained: “The Court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the Earth’s atmosphere, or in determining who should bear the costs associated with the global climate change that admittedly result[ed] from multiple sources around the globe.” 2007 WL 27226871 at *15 (emphasis added). II. Plaintiffs Lack Standing Under Article III The Complaint must be dismissed for the further reason that Plaintiffs lack standing under Article III. The “irreducible constitutional minimum of standing contains three elements”: (1) the plaintiff must have suffered an injury-in-fact; (2) “there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court’”; and (3) it must be “‘likely,’” rather than simply “‘speculative,’” that a favorable decision will redress the plaintiff’s injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). The primary standing element at issue in this case is the second one—fair traceability. This element requires that the plaintiff’s injury be “fairly traceable” to the defendant’s challenged conduct rather than to “the independent action of some third party not before the court.” Bennett v. Spear, 520 U.S. 154, 167 (1997). In addition, an injury is not fairly traceable to the defendant’s conduct if the causal chain linking the two is “too attenuated.” Allen v. Wright, 468 U.S. 737, 757 (1984). Plaintiffs’ theories fail to satisfy the fair traceability requirement in both respects. First, Plaintiffs’ own Complaint confirms that they cannot trace their alleged injuries to Case 4:08-cv-01138-SBA Document 135-2 Filed 06/30/2008 Page 5 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - [PROPOSED] ORDER GRANTING OIL CO. DEFTS.’ RULE 12(b)(1) MOT. TO DISMISS ―C-08-1138 SBA Defendants’ emissions, as opposed to the independent emissions of countless third parties occurring throughout the world over the last several centuries—not to mention other potential competing causes of coastal erosion on barrier islands in northwestern Alaska. Plaintiffs’ Complaint asserts that global warming is the “‘globally averaged net effect of human activities since 1750,’” see Compl., ¶ 161 (emphasis added) (citation omitted), and that Defendants’ emissions only “contribut[ed] to global warming and caus[ed] injuries to” Plaintiffs “in combination with emissions and conduct of others,” id., ¶ 255 (emphasis added). Moreover, Plaintiffs’ Complaint also asserts that greenhouse gases, once emitted into the atmosphere, are undifferentiated—making them necessarily untraceable to any source: “greenhouse gas emissions resulting in global warming are inherently interstate in nature,” id., ¶ 254, and Defendants’ emissions “rapidly mix in the atmosphere” and “inevitably merge[] with the accumulation of emissions in California and in the world,” id., ¶¶ 10, 254. Plaintiffs further expressly allege that carbon dioxide, once emitted, remains in the atmosphere for “hundreds of years.” Id., ¶ 180. But if Plaintiffs cannot identify when the particular emissions occurred that allegedly put in motion the events leading to their injuries, they cannot hope to trace their injuries to Defendants’ emissions, as opposed to those of the many others that have emitted greenhouse gases over the last century or longer. The lack of fair traceability is exacerbated by the fact that Plaintiffs must tie their alleged injuries, not merely to Defendants’ emissions as a whole, but rather to that portion of Defendants’ emissions that were supposedly tortious. See Lujan, 504 U.S. at 560 (injury must be fairly traceable “‘to the challenged action of the defendant’”) (quoting Simon, 426 U.S. at 41-42) (emphasis added). As noted earlier, Plaintiffs’ Complaint necessarily rests on the premise that Defendants emitted excessive amounts of greenhouse gases; they do not contend that greenhouse gas emissions can or should be reduced to zero. The Complaint identifies no plausible way in which Plaintiffs could hope to fairly trace their global-warming relating injuries to that subset of Defendants’ greenhouse gas emissions that exceeded some hypothetical “proper” level of emissions—as opposed to Defendants’ proper emissions, and the emissions (proper or wrongful) of everyone else in the world. See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) Case 4:08-cv-01138-SBA Document 135-2 Filed 06/30/2008 Page 6 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - [PROPOSED] ORDER GRANTING OIL CO. DEFTS.’ RULE 12(b)(1) MOT. TO DISMISS ―C-08-1138 SBA (plaintiff must plead “enough facts to state a claim to relief that is plausible on its face”). Second, Plaintiffs’ claims must be dismissed for the additional reason that “[t]he links in the chain of causation between the challenged … conduct and the asserted injury are far too weak for the chain as a whole to sustain [Plaintiffs’] standing.” Allen, 468 U.S. at 759. Indeed, Plaintiffs’ allegations epitomize an impermissibly attenuated and speculative theory of causation: the Oil Company Defendants’ exploration and production activities release greenhouse gases; those emissions have joined with all of the other emissions of people and entities worldwide over the past several centuries to increase greenhouse gas levels; those increased greenhouse gas levels, together with other factors, contribute to overall global warming; global warming (together with yet other factors) contributes to higher temperatures in the Arctic region; those warmer temperatures have resulted in melting of sea ice that has acted in the past as a barrier against the effects of coastal storms that occur in the Chukchi Sea; those storms (again, together with other factors) have subjected the barrier reef (on which the Village of Kivalina is located) to waves and surges that have resulted, over time, in the erosion of the reef; and the erosion of the reef (again, together with other factors) poses a threat to the integrity of structures that make up the village, allegedly necessitating relocation of Kivalina’s residents. See Complaint, at ¶¶ 3, 10, 16, 123, 127, 130, 131, 185, 254. Plaintiffs’ proffered causal chain, to put it mildly, is “attenuated at best.” Allen, 468 U.S. at 757; see also Prescott v. County of El Dorado, 298 F.3d 844, 846 (9th Cir. 2002) (no standing where the alleged “causal relationship is too remote” in light of the role of independent third parties). For the foregoing reasons, the Motion is GRANTED, and Plaintiffs’ Complaint is DISMISSED with prejudice. IT IS SO ORDERED. DATED: December _____, 2008 By: The Hon. Saundra B. Armstrong United States District Judge Case 4:08-cv-01138-SBA Document 135-2 Filed 06/30/2008 Page 7 of 7
