Read it and Cheer: Our Children’s Trust sues to demand US act to preserve chance of a livable future

From the Amended Complaint in Juliana v United States


131.                   As early as 1899, scientists understood that CO2 concentrations in the atmosphere cause heat retention on Earth and that a doubling or tripling of the CO2 content in 1899 would significantly elevate Earth’s surface temperature. Scientists also understood that CO2 was the determinative factor for global heating.  By the turn of the 20th Century, it was widely accepted in the scientific community that increasing the atmospheric concentration of CO2 could cause global climate change.

132.                   By 1965, the Executive Branch reported that anthropogenic pollutants, including CO2, impair our nation’s economy and its quality of life. In the 1965 Report of President Lyndon Johnson’s Scientific Advisors, “Restoring the Quality of Our Environment,” the White House confirmed that anthropogenic pollutants, including CO2, threaten “the health, longevity, livelihood, recreation, cleanliness and happiness of citizens who have no direct stake in their production, but cannot escape their influence.”

133.         For fifty years, the Executive Branch has known that “pollutants have altered on a global scale the CO2 content of the air” through “the burning of coal, oil and natural gas.” The Executive Branch predicted that CO2 “will modify the heat balance of the atmosphere to such an extent that marked changes in climate, not controllable th[r]ough local or even national efforts, could occur.” The Executive Branch warned that “carbon dioxide [gases] are accumulating in such large quantities that they may eventually produce marked climatic change.”

134.         Fifty years ago, the Executive Branch described the marked climatic changes from CO2 pollution as including the melting of the Antarctic icecap, rising sea levels, warming oceans, acidifying waters, and additional releasing of CO2 and methane due to these events. It recommended reducing the heating of the Earth because of the extraordinary economic and human importance of our climate system.

135.         Fifty years ago, the White House recommended that a tax system be implemented to tax polluters, including air pollution, “in proportion to their contribution to pollution” to incentivize pollution reduction.

136.                   In 1969, Patrick Moynihan, then-Adviser to President Nixon, wrote a letter to White House counsel John Ehrlichman stating that CO2 pollution resulting from burning fossil fuels was a problem perhaps on the scale of “apocalyptic change,” threatening the loss of cities like New York and Washington D.C. from sea level rise. The 1969 Moynihan Letter urged the Federal Government to immediately address this threat.

137.                   In 1978, Congress passed the National Climate Program Act “to establish a national climate program that will assist the Nation and the world to understand and respond to natural and man-induced climate processes and their implications.”  15 U.S.C. § 2901(3).

138.                   On June 23, 1988, Plaintiff-Guardian Dr. James Hansen, then Director of NASA’s Institute for Space Studies and a leading climate scientist in the Federal Government, testified before Congress that carbon pollution in the atmosphere was causing global warming and that impacts were already being observed.

139.         Around the time of Dr. Hansen’s testimony, Congress directed its own offices and EPA to separately prepare reports on how to stabilize the global climate system and transition our country away from the use of fossil fuels.

140.                   In response, in December 1990, EPA submitted a report to Congress on “Policy Options for Stabilizing Global Climate.”  The EPA’s 1990 Report concluded: “responses to the greenhouse problem that are undertaken now will be felt for decades in the future, and lack of action now will similarly bequeath climate change to future generations.”

141.         The EPA’s 1990 Report called for a 50% reduction in total U.S. CO2 emissions below 1990 levels by 2025.  EPA explained that such reductions were the only pathway to achieve Congress’ goal of stopping global warming and stabilizing the climate system. The EPA’s 1990 Report also called for stabilizing atmospheric CO2 concentrations at 350 ppm, the current level of that time, a response to the congressional objective that total global warming not exceed 1.5° C above the preindustrial level. In its 1990 Report, EPA confirmed the Executive Branch’s findings from 1965 that CO2 was a “dangerous” pollutant.

142.                   In 1991, promptly following EPA’s 1990 Report, the Congressional Office of Technology Assessment (“OTA”) delivered to Congress its own report, “Changing By Degrees: Steps to Reduce Greenhouse Gases.” Finding the United States was the single largest contributor to carbon pollution, the OTA’s 1991 Report developed “an energy conservation, energy-supply, and forest-management package that can achieve a 20- to 35-percent emissions reduction” through a mix of regulatory and market-based federal policies, in order to prevent global warming and climate change. OTA reported that, if its “package” was implemented, the Federal Government could lower CO2 emissions 35% from 1987 levels by 2015 and possibly
save the Federal Government $20 billion per year.  OTA determined that the 35% necessary reduction in CO2 emissions was only the beginning and further efforts in the 21st century would be required to stabilize our nation’s climate system.

143.         The OTA’s 1991 Report stated that major reductions of CO2 would require significant new initiatives by the Federal Government and must be sustained over decades, even before all the scientific certainties are resolved: “[I]t is clear that the decision to limit emissions cannot await the time when the full impacts are evident. The lag time between emission of the gases and their full impact is on the order of decades to centuries; so too is the time needed to reverse any effects.” The OTA’s 1991 Report informed Congress that the level of emission reductions needed would require the country to wean itself from fossil fuels. OTA also urged that, while global warming was a problem on a global scale, U.S. leadership was critical to solving the problem and would seriously impact what happened around the globe.

144.         Concluding that actions would be required across the federal government, both the EPA’s 1990 Report and the OTA’s 1991 Report concluded that an essential component of reducing CO2 emissions was implementing a rising carbon tax.

145.                   On October 15, 1992, following receipt of the EPA and OTA Reports, the Senate ratified the United Nations Framework Convention on Climate Change (“UNFCCC”). The UNFCCC was executed to “protect the climate system for the benefit of present and future generations of humankind.” The UNFCCC evidences an “overwhelming weight” of support for protection of the atmosphere under the norms and principles of intergenerational equity.

UNFCCC, Art. 3. The minimal objective of the UNFCCC is the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”  UNFCCC, Art. 2.

146.         The recommendations in the EPA’s 1990 Report (“Policy Options for Stabilizing Global Climate”) and the OTA’s 1991 Report (“Changing By Degrees: Steps to Reduce Greenhouse Gases”) were never implemented. U.S. fossil fuel production, consumption, and combustion all continued to accelerate at dangerous speeds for decades.

147.                   On December 7, 2009, nearly 17 years after the United States ratified the UNFCCC, the then-Administrator of EPA, Lisa Jackson, issued EPA’s formal endangerment finding under the Clean Air Act. The finding stated that current and projected atmospheric concentrations of greenhouse gases including, in particular, CO2, threatened the public health and welfare of current and future generations. EPA issued its endangerment determination only after being compelled to do so by the U.S. Supreme Court in Massachusetts v. EPA, 549 U.S.
497 (2007).

148.                   On January 2, 2011, EPA commenced partial regulation of greenhouse gases under the Clean Air Act from mobile and stationary sources of air pollution.

149.         More than two decades have passed since the EPA’s 1990 Report and the OTA’s 1991 Report were issued to Congress. Little has been accomplished in the way of phasing out emissions even though, as DOE admits in its strategic plan, “our responsibility to future generations is to eliminate most of our carbon emissions and transition to a sustainable energy future.”
150.         During the last decade, Defendants have repeatedly stated that allowing “business as usual” CO2 emissions will imperil future generations with dangerous and unacceptable economic, social, and environmental risks. As Defendants have acknowledged, the use of fossil fuels is a major source of these emissions, placing our nation on an increasingly costly, insecure, and environmentally dangerous path.

A.             Despite the Known Danger, Defendants Caused Climate Instability and Allowed U.S. Fossil Fuel Extraction, Production, Consumption, Transportation, and Exportation and Associated Emissions, to Dangerously Increase 

151.                   Between 1751 and 2014, the United States has been responsible for emitting 25.5% of the world’s cumulative CO2 emissions to the atmosphere from within its borders. Those emissions do not account for the embedded emissions in imported goods and materials that are consumed in the United States. Defendants enabled and permitted those cumulative emissions.

152.         In the last fifty years, total U.S. production and consumption of fossil fuels drastically increased.

153.         Acting with deliberate indifference, Defendants have not implemented, or complied with, the EPA’s 1990 Report and the OTA’s 1991 Report to reduce carbon pollution from fossil fuels, stop global warming, and protect the climate system for future generations. Had Defendants followed the EPA’s 1990 Report and the OTA’s 1991 Report, CO2 emissions today would be reduced by 35% from 1987 levels.  Instead, since 1991, Defendants have knowingly allowed at least an additional 130,466 million metric tons of CO2 emissions from fossil fuel combustion.
154.         Accordingly, instead of pursuing their own plans to slash emissions and reduce the risk of dangerous climate change, Defendants knowingly acted to exacerbate that risk and impose harm on the nation and on Plaintiffs.

155.         Total Fossil fuel production in the U.S. climbed to 65.244 Quadrillion Btu in 2014, up substantially from such consumption in 1965.

156.         Total Fossil fuel energy consumption in the U.S. climbed to 80.366 Quadrillion Btu in 2014, up substantially from such consumption in 1965.
157.         Fossil fuel emissions from energy consumption in the U.S. climbed to 5.4 billion metric tons of CO2 in 2014, up substantially from such emissions in 1965.
158.                   In 2011, fossil fuel combustion in the U.S. accounted for 94% of CO2 emissions.
159.         The above emissions figures are from U.S. Government sources and, regrettably, underreport the amount of emissions that Defendants’ actions have substantially caused. EPA uses a sector-based emission inventory, upon which the other Defendants also rely. A sector- based emission inventory accounts only for in-boundary emissions, and not those attributed to embedded emissions – emissions that account for the consumption of goods imported to the U.S. Defendants have not provided a national consumption-based inventory for CO2 emissions, which would include all embedded CO2 emissions for goods produced outside of the U.S. and consumed within the U.S.

160.                   In 2012, the U.S. was the largest producer of natural gas, producing a total that year of 24,058 billion cubic feet (Bcf).  Also in 2012, the U.S. was second in “Total Primary Coal Production,” with 1,016,458 thousand short tons; second in “Total Primary Energy Production,” producing 79.212 Quadrillion Btu; and second in “Total Primary Energy Consumption,” consuming 95.058 Quadrillion Btu.

161.                   In 2014, according to the United States Energy Information Administration (“EIA”), the U.S. was the largest producer of total petroleum and other liquids with 13,973 thousand barrels produced per day.

162.         The U.S. is by far the dominant producer of both shale gas and tight oil in the world.  Also, the U.S. is one of four countries in the world that is producing commercial volumes of either natural gas from shale formations (shale gas) or crude oil from shale formations (tight oil).

163.         The aggregate actions by Defendants in allowing fossil fuel production, consumption, and emissions to increase in the U.S. since 1965 ignored science driven considerations of climate system protection. These aggregate actions were taken with deliberate indifference to the need for a national carbon budget or a national plan that includes an analysis of the cumulative impacts of Defendants’ actions upon the climate system and with respect to the fundamental rights of the present and future generations.

B.             Defendants Have Allowed Excessive Fossil Fuel Production on Federal Public Lands. 

164.                   In 2013, 25% of all fossil fuels extracted in the U.S. originated on federal public lands.
165.                   In 2014, Defendant United States, through the President, DOI through BLM, DOD through Army Corps of Engineers, and EPA, authorized and oversaw the sale of 421 million tons of coal from federally-leased lands.

166.                   Since January 1990, DOI through BLM has leased 107 coal tracts, and associated coal production and revenues have grown. In 2015, the BLM reported that approximately 40% of all coal produced in the United States comes from federal lands. The United States has more coal deposits available than any other fossil fuel resource within its borders and, as of 2015, has
28% of the world’s coal reserves.
167.                   In 1985, there were 18,849 recorded federal producing oil and gas leases issued by DOI through BLM.  By 2014 there were 23,657 recorded federal producing oil and gas leases issued by DOI through BLM.

168.                   As of June 2014, DOI’s BLM has authorized approximately 47,000 oil and gas leases on public lands, and approximately 95,000 oil and gas wells, with an additional 3,000 wells drilled annually by the oil and gas industry. The BLM oversees approximately 700 million subsurface acres of mineral estate. There are currently 36 million acres of federal land under lease for potential fossil fuel development in 33 states, pursuant to DOI’s BLM authorization.

169.                   From 2009-2011, the President and DOI through BLM processed more applications for permits to drill oil and gas, despite receiving far fewer applications, than the prior administration from 2006-2008.

170.                   Since 1985, DOI through BLM has issued between 1,486 to 6,617 permits annually to drill on federal lands. BLM has approved approximately 99% of all received applications for permits to drill, without taking into consideration that such permits would endanger Plaintiffs or increase Plaintiffs’ susceptibility to harm.

C.            Defendants Subsidize the Fossil Fuel Industry 

171.         In addition to leasing federal public lands for fossil fuel exploitation, the United States subsidizes, funds, and subsidizes fossil fuel production and consumption.

172.         The United States subsidizes the fossil fuel industry by undervaluing royalty rates for federal public leasing, as well as through royalty relief resulting in the loss of billions of dollars of foregone revenue. U.S. royalty rates are consistently less than state royalty rates. For example, Texas’s royalty rate for leasing is double the federal percentage.

173.         Through eleven federal fossil fuel production tax provisions, the United States incurs approximately $4.7 billion in annual revenue costs. Through a fossil fuel consumption subsidy, the United States annually forgoes approximately $3.4 billion in revenue.
174.         The United States provides approximately $5.1 billion per year in tax provision subsidies to support fossil-fuel exploration.

175.         Two tax code provisions for the benefit of the fossil fuel enterprise were introduced in the early 1900s.  These provisions are still in place today, resulting in substantial
revenue losses.  The “intangible drilling costs” provision was introduced in 1916, 26 U.S.C. § 263(c); in 1926 the “percentage depletion allowance” provision was introduced, 26 U.S.C. § 613.
176.         According to the International Monetary Fund (“IMF”), the United States is the world’s top subsidizer of fossil fuels, in absolute terms, in the amount of $502 billion per year, which includes the IMF’s accounting of negative externalities.

177.         The United States has supported fossil fuel development through overseas public financing, primarily through the Export-Import Bank of the United States, an agency of the Office of the President. For example, through the Export-Import Bank of the United States, the Office of the President provided $14.8 billion in commitments for 78 transactions or projects in the petroleum sector, including 49 transactions in Latin American, 14 in Africa, six in Russia/FSU, five in the Middle East, and four in Asia.  In fiscal year 2010, the Export-Import Bank of the United States provided approximately $3 billion in financing for the Papua New Guinea LNG Project or Papua New Guinea Liquefied Natural Gas Project and $18 million for the Sangatta Surface Coal Mine in Indonesia. The Export-Import Bank of the United States also supported numerous coal and gas power plants.

178.         The United States supports fossil fuel development by allowing the fossil fuel industry to avoid the true social cost of CO2 emissions from fossil fuels. Based on EPA’s social cost of carbon estimates, CO2 emissions from fossil fuels have the potential to cause trillions of dollars in damages.

D.            Defendants Recklessly Allow Interstate and International Transport of Fossil Fuels 

179.         Despite knowledge of the harm to Plaintiffs caused by the CO2 emissions from fossil fuels, Defendants recklessly allow all interstate transport of fossil fuels. Despite knowledge of the harm to Plaintiffs caused by the CO2 emissions from fossil fuels, Defendants recklessly authorize and/or permit the exportation and importation of fossil fuels and/or the facilities allowing the exports and imports of fossil fuels.

180.         The Office of the President exercises permitting authority over the construction and operation of “pipelines, conveyor belts, and similar facilities for the exportation or importation of petroleum, [and] petroleum products.” President Obama has failed to dismantle the U.S. fossil fuel edifice, adding an additional 100,000 miles to the 2.5 million miles of oil and gas pipelines within the nation.

181.         A presidential exemption or federal license is required for all exports of crude oil to all destinations.  In 2014, DOE oversaw the importation of 2,677,911 thousand barrels of crude oil, and Commerce through BIS authorized the exportation of 126,152 thousand barrels of crude oil, both increases from 2013.

182.         No natural gas can be exported or imported without DOE authorization through FERC. FERC permits all LNG export terminals, including Jordan Cove LNG Terminal. Since 1995, the U.S. has imported 71,730 Bcf of natural gas and exported 14,623 Bcf.  In 2014, through DOE’s authorization, 51,824 thousand barrels of natural gas plant liquids and liquefied refinery gases were imported and 257,948 thousand barrels of natural gas plant liquids and liquefied refinery gases were exported.

183.                   Although in 1975 Congress authorized the Office of the President to restrict coal exports under the Energy Policy and Conservation Act of 1975, 42 U.S.C. § 6212(a), the President has not exercised this authority to impose any significant export restrictions on coal. In fact, since 1990, the United States has promoted expanding coal exports.  Coastal facilities
through which coal may be exported are subject to federal approvals. In the Pacific Northwest alone, three new marine coal terminal projects are under various stages of federal permitting and review.

184.                   In 2011, the U.S. exported 107 million short tons of coal. In 2012, U.S. coal exports totaled 125 million short tons, the highest level of coal exports in over twenty years. Most recently, in 2014 the EIA reported that the U.S. imported 11 million short tons of coal and exported 97 million short tons of coal.
E.             Defendants Recklessly Allow CO2 Pollution From Combustion of Fossil Fuels 

185.                   Either directly or through the control of the Federal Government, Defendants authorize the combustion of all fossil fuels in the U.S., including coal, oil, and gas. Such combustion occurs primarily in the energy and refineries sector, the transportation sector, and the manufacturing sector.

186.                   In 2012, petroleum accounted for 36.5% of the total primary energy consumption in the U.S., the single largest source of energy consumption. All U.S. petroleum refineries are permitted and regulated by EPA.

187.                   In 2013, fossil fuel combustion from various industrial processes accounted for approximately 15% of total CO2 emissions in the U.S. The EPA regulates these industrial processes.

188.                   The DOE establishes efficiency standards in buildings and appliances. These standards affect levels of energy consumption and combustion.

189.                   Since 1975, through the Corporate Average Fuel Economy (“CAFE”) program, the United States has required manufacturers of vehicles sold in the U.S. to comply with fuel economy standards set by DOT. By controlling the fuel economy standards, Defendants have exercised control over CO2 emissions in the transportation sector.

190.                   From 1996-2014, through tax breaks, the United States subsidized the purchase, and thus increased demand for, vehicles weighing more than 6,000 pounds (“SUVs”). SUVs are less fuel-efficient and emit greater quantities of CO2 per mile than lighter-weight vehicles, other factors held equal.

191.                     In 2012, U.S. CO2 equivalent emissions from transportation were 1,837 million metric tons.  In 2012, CO2 equivalent emissions from transportation of all vehicles in the U.S.,
including aviation, passenger cars, SUVs, heavy-duty trucks, freight rail, ships, and boats, were responsible for 28% of total U.S. greenhouse gas emissions.

192.                   Enacted in 1992, Section 201 of the Energy Policy Act mandates the authorization of natural gas imports from, or exports to, a nation with which the United States has a free trade agreement, without modification or delay, to any person applying for such authorization.
Accordingly, under the Energy Policy Act, such natural gas imports and exports are automatically deemed consistent with the public interest.  15 U.S.C. § 717b(c).

193.                   Pursuant to Section 201 of the Energy Policy Act, on December 7, 2011, DOE, through the Office of Fossil Energy, issued DOE/FE Order No. 3041, granting long-term multi- contract authorization to Jordan Cove Energy Project, L.P. to export liquefied natural gas from Jordan Cove LNG Terminal in Coos Bay, Oregon, to free trade agreement nations. The DOE/FE Order authorizes the export of up to 13,140 Bcf of natural gas over 30 years.  That quantity of natural gas would result in approximately 716.2 million metric tons of CO2 emissions, more than all of the CO2 emitted in 2012 by our nation’s largest emitter, Texas.

194.                   Jordan Cove will be operational in the first quarter of 2018, according to the Vice President of the Jordan Cove Energy Project, LLC, seven years after receiving its export authorization from DOE.

195.         Pursuant to its authorization, the Jordan Cove LNG L.P. has given notice to DOE that, by the end of 2015, even before it has all final approvals from other agencies, it will enter
into “binding long-term liquefaction tolling service agreements” for the full liquefaction capacity of the export terminal.

196.         The sources of natural gas for Jordan Cove LNG’s exports authorized by DOE include suppliers operating in the Rocky Mountain region of the U.S., western Wyoming, northwestern Colorado, northern Utah, northern Nevada, and northern California.

197.         In a letter of support for Jordan Cove LNG Terminal exports, Governor John Hickenlooper of Colorado wrote to DOE and FERC: “Jordan Cove is of specific interest to Colorado . . . The project terminal is the only LNG facility on the west coast that would directly link Colorado to new energy markets via the Ruby Pipeline which originates in northwest Colorado and carries natural gas from that region to states further west of Colorado.”

198.         Jordan Cove LNG will liquefy this natural gas for export at its proposed LNG export terminal in Coos Bay, Oregon. Jordan Cove plans to build a new power plant to provide the additional electricity needed to liquefy the natural gas for export. The proposed 420-MW South Dunes Power Plant would be the second-largest single source of greenhouse gas emissions in Oregon and would be the largest single source of CO2 emissions in Oregon in 2020 if it were built. The Jordan Cove South Dunes Power Plant would emit 51.6 million tons of CO2 over 30 years, or 1.72 million tons of CO2 per year.

199.         According to the EIA, liquefying natural gas requires the energy equivalent of 10% of the gas being exported.

200.         The CO2 emissions resulting from the Jordan Cove LNG Terminal exports and the South Dunes Power Plant emissions will harm Youth Plaintiffs who live in and around Oregon, as well as Future Generation Plaintiffs, by further endangering the climate system.

201.         Youth Plaintiffs who live in Colorado are also adversely impacted by the opening up of an international market for the export of natural gas being extracted through hydraulic fracturing in the State of Colorado, and in the Rocky Mountain region of the U.S. generally, and then shipped by pipeline to Oregon for liquefaction and export abroad, ultimately to be burned, thereby causing additional CO2 emissions. The Youth Plaintiffs from Colorado and Oregon are harmed by the fossil fuel exploitation in and running through their states, which will be connected by the Pacific Connector Natural Gas Pipeline and 3,900 mile gas transmission system crossing the states of Washington, Oregon, Idaho, Wyoming, Utah, and Colorado.

202.         There is a scientific consensus that climate change endangers humanity and nature. Present climate change is a consequence of anthropogenic GHGs, primarily CO2, derived from the combustion of fossil fuels. The fossil fuel emissions have led to an energy imbalance and consequent dangerous disruption of the climate system upon which our nation and Plaintiffs depend.

203.         Atmospheric CO2 levels greater than 350 ppm cause this energy imbalance. That energy imbalance is now approximately 0.6 Watts/m2 averaged over the entire planet, equivalent to exploding more than 400,000 Hiroshima atomic bombs per day, 365 days per year, throughout our planet.

204.         The 2014 National Climate Assessment acknowledged that “[t]he cumulative weight of the scientific evidence . . . confirms that climate change is affecting the American people now, and that choices we make will affect our future and that of future generations.”

205.         Greenhouse gases in the atmosphere act like a blanket over the Earth, trapping energy received from the sun. More GHG emissions in the atmosphere means that more energy is retained on Earth, with less being radiated back into space.

206.         A substantial portion of every ton of CO2 emitted by humans persists in the atmosphere for as long as a millennium or more. Therefore, the impacts associated with past and current CO2 emissions will be borne by our children and future generations. Our nation will continue to warm in response to concentrations of CO2 from past emissions, as well as future emissions.

207.         The current level of atmospheric CO2 concentration caused by human-made climate change has already taken our country into the danger zone.

208.                   In 2013, the atmospheric CO2 concentration exceeded 400 ppm for the first time in recorded history. The pre-industrial concentration was 280 ppm. Emissions must be rapidly and systematically reduced to well below the natural rate of draw-down into Earth’s forests, soils, and crust in order to restore energy balance and avoid crossing tipping points that set in motion disastrous impacts to human civilization and nature.

209.                   March 2015 was the first month that the monthly global average concentration of CO2 was 400 ppm for an entire month, reaching levels that have not been seen for about three million years. CO2 concentrations have risen more than 120 ppm since pre-industrial times, with half of that rise occurring since 1980.

210.         Earth has now warmed about 0.9°C above pre-industrial temperatures. That temperature is equivalent to the maximum temperatures of the Holocene era, the period of climate stability over the last 10,000 years that enabled human civilization to develop. Warming is expected to hit 1°C in 2015-16.

211.         Civilization and the water sources, crops, foods, wildlife, marine life, and coastlines on which people depend have developed within a very narrow set of climatic conditions. It will be nearly impossible for Plaintiff to adapt to all of the current climate change impacts in the quick time-frame in which they will occur. The survival and well-being of Plaintiffs is significantly threatened by climate destabilization.

212.         Cessation of Defendants’ actions in permitting, authorizing, or otherwise subsidizing new fossil fuel projects, along with cessation of government actions that limit carbon sequestration in soils and forests, could reduce the earth’s energy imbalance, the severity of our disruption of the climate system, and the severity and pace of ocean acidification, within the lifetimes of Youth Plaintiffs.

213.         Climate change already damaging human and natural systems, causing loss of life and pressing species to extinction. Unless arrested by government action informed by science, climate change will impose increasingly severe impacts on our nation and others, potentially to the point of collapse.

214.         Recent scientific reports, for example, warn of the disintegration of both the West Antarctic ice sheet and the East Antarctic ice sheet, causing multi-meter sea-level rise.  Such will devastate coastal regions, including much of the eastern seaboard. Millions of Americans and trillions of dollars in property damage will result. The risk of this devastation approaches certainty, unless fossil fuel emissions are rapidly phased out. The recent studies more fully than prior studies account for the potential for non-linear ice sheet melting, which could raise the sea level by 10 feet (or more) by mid-century.

215.         If carbon pollution is not quickly abated, there is near scientific certainty that humanity will suffer sea level rise of several meters, submerging much of the eastern seaboard of the U.S., including Florida, as well as other low lying areas of Europe, the Far-East, and the Indian sub-continent.

216.         Well-documented and observable impacts from the changes in Earth’s climate system highlight that the current level of atmospheric CO2 concentration has already taken our nation into a danger zone.  Increased CO2 emissions are already resulting not only in the warming of land surfaces, but also in the warming of oceans, increasing atmospheric moisture levels, rising global sea levels, and changing rainfall and atmospheric air circulation patterns that affect water and heat distribution.

217.                   One key observable change is the rapid increase in recorded surface temperatures. As a result of increased atmospheric CO2 from human activities, our nation has been warming as scientists predicted as early as 1965.  The increased concentrations of greenhouse gases in our
atmosphere have raised global surface temperature by approximately 0.9° Celsius. In the last thirty years, Earth has been warming at a rate three times faster than that over the previous one hundred years. 2014 was the hottest on record, according to the National Aeronautics and Space
Administration (“NASA”).

218.         As expected, our country’s sea levels have also risen from glacial and ice cap melting, as well as from the thermal expansion of the ocean itself. Based on measurements taken from 1993 to 2010, sea levels have been rising at an average rate of 3.2 millimeters per year.
Though sea levels rose about 170.18 millimeters (0.2 meters) over the last century, within the last decade, the rate of sea-level rise has nearly doubled. Rising seas have caused and will cause flooding in coastal and low-lying areas. The combination of rising sea levels and more severe storms creates conditions conducive to severe storm surges during high tides. In coastal communities this can overwhelm levees and sea walls, as witnessed during Hurricane Katrina, Hurricane Sandy, and other major storms.

219.         Today, rising sea levels are submerging low-lying lands, eroding beaches, converting wetlands to open water, exacerbating coastal flooding, and increasing the salinity of estuaries and freshwater aquifers.  Between 1996 and 2011, twenty square miles of land were
inundated by rising sea levels along the Atlantic coast. Coastal states, such as Maryland and Louisiana, are experiencing wetland loss due to rising sea levels. Scientists have predicted that wetlands in the mid-Atlantic region of the U.S. cannot withstand a seven-millimeter per year rise in sea levels.

220.         Similarly, climate change is already causing, and will continue to result in, more frequent, extreme, and costly weather events, such as floods and hurricanes. The annual number of major tropical storms and hurricanes has increased over the past 100 years in North America, coinciding with increasing temperatures in the Atlantic sea surface. Across the U.S., nine of the top ten years for extreme one-day precipitation events have occurred since 1990.

221.         Changes in our country’s water cycle as a result of climate change also increase the potential for, and severity of, droughts.  Even in arid regions, increased precipitation is likely to cause flash flooding, and will be followed by drought. These changes are already occurring. Droughts in parts of the Midwestern, Southeastern, and Southwestern U.S. have increased in frequency and severity within the last fifty years, coinciding with rising temperatures. Most of the recent heat waves can be attributed to human-caused climate disruption.

222.         In higher altitude and latitude regions, including in mountainous areas, more precipitation is falling as rain rather than snow. With early snow melt occurring because of climate change, the reduction in snowpack can aggravate water supply problems. The snow cover extent of North America in June 2015 was 0.75 million square miles, the second lowest
ever recorded behind June 2012, with 0.68 million square miles.  The average area of North America covered by snow decreased by about 3,500 square miles per year between 1972 and 2013.
223.         Arctic sea ice is declining precipitously and is expected to disappear completely in the coming decades.  In 2013, Arctic sea ice extent for September was 700,000 square miles
below the 1981-2010 average for the same period.  In 2014, the Arctic sea ice extent for September was 463,000 square miles below average.  In 2015, the maximum extent of the Arctic sea ice was the lowest in the satellite record. With less sea ice, less solar radiation is reflected back to space, a positive feedback loop serving to amplify regional and global warming.

224.                 Similarly, there has been an increase in permafrost temperatures and melting in Alaska. Substantial methane releases from thawing permafrost have already been observed in Alaska. Because much of the Alaskan permafrost overlays old peat bogs that sequester methane, permafrost melting ill release methane that will further increase global warming to even more dangerous levels. CO2 and methane released from thawing permafrost could contribute as much as 0.4°F to 0.6°F of warming by 2100.

225.                    Mountain glaciers are receding nationwide because of warming temperatures. In 2010, Glacier National Park in Montana had only twenty-five glaciers larger than twenty-five acres, as opposed to 150 such glaciers in 1850.  In the Brooks Range of northern Alaska, all of the glaciers are in retreat and in southeastern Alaska, 98% are in retreat.
226.                  The melting of mountain glaciers is particularly serious in areas that rely on snow melt for irrigation and drinking water supply. In effect, a large snow pack or glacier acts as a supplemental reservoir or water tower, holding a great deal of water in the form of ice and snow through the winter and spring and releasing it in the summer when rainfall is lower or absent. The water systems of the western U.S., particularly in California and Oregon, heavily rely on this natural water storage. Yet as temperatures warm, not only will these areas lose this supplemental form of water storage, but severe flooding is also likely to increase as rainfall accelerates the melting of glaciers and snow packs.

227.                   Changes in water supply and water quality will also impact agriculture in the U.S. Increased heat and associated issues such as pests, crop diseases, and weather extremes, will all impact crop and livestock production and quality. For example, anthropogenic climate change in the U.S. has produced warmer summers, enabling the mountain pine beetle to produce two generations of beetles in a single summer season, where it had previously only been able to produce one. In Alaska, the spruce beetle is maturing in one year when it had previously taken two years. The expansion of the forest beetle population has killed millions of hectares of trees across the U.S. and resulted in millions of dollars lost from decreased tourism revenues.

228.                   Agriculture is extremely susceptible to climate change, threatening food security. Higher temperatures generally reduce yields of desirable crops while promoting pest and weed proliferation. Climate change is predicted to decrease crop yields, increase crop prices, decrease nationwide calorie availability, and increase malnutrition.

229.                   Increased wildfires, shifting precipitation patterns, higher temperatures, and drought conditions also threaten forest industries and private property. In the U.S., 72,000 wildfires have been recorded, on average, each year since 1983.  Nine of the ten years with the
largest acreage burned have occurred in the fourteen years since 2000.
230.                   Increased CO2 emissions are having a severe negative impact on the health of our oceans. The oceans absorb approximately 25-30% of global CO2 emissions, resulting in a 30% increase in surface ocean acidity.

231.                   Ocean acidification has been rising at a geologically unprecedented rate. Currently, acidity is rising at least 100 times faster than at any other period during the last 100,000 years, threatening marine life, including human food sources. Organisms at risk include: corals, oysters, clams, scallops, mussels, abalone, crabs, geoducks, barnacles, sea urchins, sand dollars, sea stars, sea cucumbers, many common single-celled organisms and protists that act as prey, and various forms of seaweed. The loss of some of these species can cause entire food webs to collapse.

232.                   By 2100, the surface waters of the ocean could be nearly 150% more acidic, resulting in a pH that the oceans have not experienced for more than 20 million years. In recent years, ocean acidification has already contributed to oyster reproductive failures impacting the Pacific Northwest’s shellfish industry, including oyster harvests in Coos Bay, Oregon. In addition, warmer water in regional estuaries, such as Puget Sound, may contribute to a higher incidence of harmful blooms of algae linked to paralytic shellfish poisoning and may result in adverse economic impacts from beach closures affecting recreational harvesting of shellfish, such as razor clams.

233.               The rise in ocean acidity places coral reefs at considerable risk. Given that coral reefs are among the most biologically diverse and economically important ecosystems, the impact of their loss cannot be overstated. Coral reefs provide shelter to a quarter of all marine species.

234.                 For major U.S. coral reefs, projections show extensive bleaching and dramatic loss of shallow coral cover occurring by 2050, and near complete loss by 2100.  In Hawai‘i, coral
cover is projected to decline from 38% (current coral cover) to approximately 5% by 2050, with further declines thereafter. In Florida and Puerto Rico, where present-day temperatures are already close to bleaching thresholds, coral is projected to disappear even faster. Given the severity of these impacts, it is inevitable that these effects would be felt across our country, and by future generations.

235.                Climate change and ocean acidification are threatening the survival and wellbeing of plants, fish, wildlife, and biodiversity. As many as one in six species are threatened with extinction due to climate change. Many more species that do not face extinction will face changes in abundance, distributions, and species interactions that cause adverse impacts for ecosystems and humans.

236.               Salmon have historically been associated with human society and been a major contributor to the economy. Due to physical changes to freshwater ecosystems resulting from climate change, salmon populations have declined significantly across the country. The optimum water temperature for salmonids is 55° to 64° Fahrenheit; massive fish kills have occurred at or above 71° Fahrenheit.  As of 2015, four salmon species in eighteen locations are on NOAA’s Endangered and Threatened Marine Species list; in five locales they are extinct. Scientists from the Salmon 2100 Project, housed in an EPA research laboratory in Oregon, have predicted that, despite current recovery efforts, salmon runs are not likely to sustain themselves through 2100 and other recovery strategies must be adopted to combat climatic shifts.

237.                 Fossil fuel extraction and combustion, and the resulting climate change, is already contributing to an increase in allergies, asthma, cancer, cardiovascular disease, stroke, heat- related morbidity and mortality, food-borne diseases, injuries, toxic exposures, mental health and stress disorders, and neurological diseases and disorders. Climate change threatens the basic requirements for maintaining health like clean air, pure water, sufficient food, and adequate shelter.  It also increases occurrence of infectious diseases.

238.                   In the U.S., 8,000 Americans have died from heat-related illnesses over the last three decades.  There are now twice as many Lyme disease cases than were reported in 1991.  In
the past three decades, the percentage of Americans with asthma has more than doubled, and climate change is putting those Americans at greater risk of requiring hospitalization. Longer growing seasons allow for ragweed to produce pollen for a longer period, resulting in aggravated and prolonged allergies for millions of Americans.

239.                  Climate change also harms our national security, adding tension even in stable regions of the world. The DOD acknowledged the severity of climate change and its connections to national security when, in its 2014 Quadrennial Defense Review, climate change was classified as a “threat multiplier”: “Pentagon leaders have identified three main ways that climate change will affect security; accelerating instability in parts of the world wracked by drought, famine, and climate-related migrations; threatening U.S. military bases in arid Western states or on vulnerable coastlines; and increasing the need for U.S. forces to respond to major humanitarian disasters.”

240.                   By 2025, 40% of the world’s population will be living in countries experiencing significant water shortages, while sea-level rise could cause displacement of tens, or even hundreds, of millions of people. As a result, the U.S. will experience an additional need to accept immigrant and refugee populations as droughts increase and food production declines in other countries. Increased extreme weather events (such as hurricanes) will also present an increased strain on foreign aid provided by the U.S. and materially increased deployment of our country’s military forces.

241.                   Our nation is already observing significant impacts from the relatively small amount of warming that has occurred.  These impacts constitute harbingers of far more dangerous changes to come. If unabated, continued GHG emissions, especially CO2, will initiate dynamic climate change and effects that spin out of control for Plaintiffs and future generations as the planet’s energy imbalance triggers amplifying feedbacks and the climate system and biological system pass critical tipping points. Such changes would be irreversible on any time scale relevant to Plaintiffs and threaten their survival.

242.                   By 2050, Youth Plaintiffs will range in age from 43 to 55.
243.                   By 2100, global mean sea level rise is projected to be at 56 inches, if sea level rise occurs linearly. Based on that global projection, it is predicted that the U.S. will experience a 56-65 inch sea level rise on the East Coast, up to a 76-87 inch sea level rise in areas surrounding the Gulf of Mexico, and a 47-65 inch sea level rise along the West Coast. Sea level rise could be even more catastrophic depending upon the rate of disintegration of the Antarctic ice sheets. Sea level rise will result in increased erosion and the loss of land. In Washington and Oregon, more than 140,000 acres of coastal lands lie within 40 inches in elevation of high tide. Among the most vulnerable parts of the coast is the heavily populated south Puget Sound region, which includes Olympia, Tacoma, and Seattle, Washington.

244.                  New scientific evidence demonstrates that a non-linear process could trigger much greater sea level rise in a time frame of 50 to 200 years.

245.                   Global temperature increases are projected to increase by 9° Fahrenheit by 2100. In the U.S., the largest temperature increases are expected in the Mountain West and Northern regions consisting of 14° and 12° Fahrenheit, respectively.

246.                  In an EPA-funded study, “Ensemble Projections of Wildfire Activity and Carbonaceous Aerosol Concentrations Over the Western United States in the Mid-21st Century,” scientists estimated that, by 2050, wildfire activity is expected to double in the Southwest,
Pacific Northwest, Rocky Mountains Forest, and the Eastern Rockies/Great Plains regions. In the western U.S., increases in temperature are projected to cause an increase of 54% in annual mean area burned by 2050 relative to the present day.  Changes in area burned are ecosystem
dependent, with the forests of the Pacific Northwest and Rocky Mountains experiencing the greatest increases of 78% and 175%, respectively. Increased area burned results in near doubling of wildfire carbonaceous aerosol emissions by midcentury. The increase in wildfires and the associated emissions will have harmful impacts on health. Polar bears are just one of the species listed as endangered due to the impacts of a changing climate on their habitat. If emissions continue to rise at current rates throughout the 21st century, polar bears will likely be extirpated from much of their present-day range, including Alaska’s North Slope Borough. Sea ice, which polar bears depend upon to access their prey, is projected to disappear by 2100.  Experts project there will be massive species extinction this century.
247.                    Human-induced warming, if business continues as usual, is projected to raise average temperatures by about 6° to 11° Fahrenheit in this century. Heat waves would then increase in frequency, severity, and duration. For example, by the end of this century, if Defendants do not dramatically reduce emissions, the number of heat-wave days in Los Angeles is projected to double, and the number of heat-wave days in Chicago to quadruple, resulting in many more deaths.

248.                   While potential climate change impacts on water resources vary between regions, the western states will be particularly impacted by drought, reduced precipitation, increased evaporation, and increased water loss from plants.

249.                   Warmer temperatures particularly impact the Pacific Northwest because reduced snowpack and earlier snowmelt alter the timing and amount of water supplies.  By 2050,
snowmelt is projected to shift three to four weeks earlier than the 20th century average. Since earlier snowmelt will result in warmer and shallower rivers and streams in summer and fall, diseases and parasites that tend to flourish in warmer water threaten to eliminate up to 40% of remaining Northwest salmon populations by 2050.

250.                   By 2050, biologists conservatively expect decreases in salmon populations will lead to 11% to 14% less annual carcass biomass available to bald eagles, our country’s national bird.

251.                    Defendants, through the Department of Homeland Security, have acknowledged mass human migrations are a potential impact of climate change, and have developed a mass migration plan. Estimates put the number of climate-induced migrants worldwide at 200 million by 2050.

252.                    Climate change projections estimate an increase in monetary damages associated with inland flooding across most of the contiguous U.S. Approximately 190,000 of our nation’s bridges are vulnerable to increased inland flooding caused by climate change, with adaptation costs estimated at $170 billion for the period from 2010 to 2050.  In the Northwest, a region
including Washington and parts of Oregon and Idaho, 56% of inland bridges are identified as vulnerable in the second half of the 21st Century.

253.                   In 2100 alone, adaptation costs associated with the 50-year, 24-hour storm moniker in 50 U.S. cities are estimated to range from $1.1 to $12 billion. Further, climate change is projected to result in $5.0 trillion in damage to coastal properties in the contiguous
U.S. through 2100.
254.                   Due to extreme temperature increases and unsuitable working conditions, our nation’s labor force may experience a drastic decline in labor hours and lost wages.  In 2100, a
projected 1.8 billion labor hours will be lost along with approximately $170 billion in lost wages.
255.                   By 2050, climate change is expected to add thousands of additional premature deaths per year nationally from combined ozone and particle health effects. Higher surface temperatures, especially in urban areas, promote the formation of ground–level ozone, which has adverse impacts on human health by irritating the respiratory system, reducing lung function, aggravating asthma, and inflaming and damaging cells that line the airways. Climate change is expected to increase the frequency of high ozone pollution events by 50% to 100% by 2050.

256.                   An urgent and critical undertaking is required to protect the climate system and cause a cessation of Defendants’ infringement of Plaintiffs’ constitutional rights. Defendants must act rapidly and effectively to phase out CO2 emissions so as to restore Earth’s energy balance. Absent such immediate action, the Federal Government must cease permitting and authorizing fossil fuel projects so as not to exacerbate the climate crisis and further infringe on Plaintiffs’ constitutional rights.

257.                   Global atmospheric CO2 concentrations must be reduced to below 350 ppm by the end of the century in order to limit the period of CO2 overshoot and stabilize our climate system.

258.                   To reduce global atmospheric CO2 concentrations to 350 ppm by the end of this century would require a near-term peak in CO2 emissions and a global reduction in CO2 emissions of at least 6% per year, alongside approximately 100 gigatons of carbon drawdown this century from global reforestation and improved agriculture. If emissions had peaked and reductions had begun in 2005, only a 3.5% per year global reduction would have been necessary
to reach 350 ppm by 2100.  If significant annual emission reductions are delayed until 2020, a 15% per year reduction rate will be required to reach 350 ppm by 2100.  If such reductions are delayed beyond 2020, it might not be possible to return to 350 ppm until 2500 Or beyond.
259.                   Reducing the global atmospheric CO2 concentration to 350 ppm by the end of the century is also necessary in order to protect oceans and marine life. As a result of CO2 emissions, of which approximately 25% are absorbed by the oceans, humans, marine organisms, and ecosystems are already harmed and will increasingly be harmed by ocean acidification. To prevent the further impairment or depletion of the oceans and oceanic resources, it is imperative that Defendants take immediate measures to return atmospheric CO2 concentrations to below 350 ppm by the end of this century.

260.         Targets that aim to limit atmospheric CO2 concentrations at or below 450 ppm are insufficient to avoid severe, irreversible damage as a result of ocean acidification and ocean warming. For example, the weight of recent evidence establishes that, at a prolonged 450 ppm level, coral reefs will become extremely rare, if not extinct, and at least half of coral-associated wildlife will become either rare or extinct. As a result, coral reef ecosystems will likely be reduced to crumbling frameworks with few calcareous corals remaining.

261.         Current actions by Defendants will not yield atmospheric CO2 levels of 350 ppm by the end of the century, are not based on any scientific standard, and are not adequate to prevent and remedy the degradation, diminution, or depletion of our country’s public trust resources.

262.         The actions and omissions of Defendants make it extremely difficult for Plaintiffs to protect their vital natural systems and a livable world. Defendants must act immediately to restore energy balance and implement a plan to put the nation on a trajectory that, if adhered to by other major emitters, will reduce the atmospheric CO2 concentrations to no more than 350 ppm by 2100.


263.         Defendants are trustees of national public natural resources. The national public natural resources include the air (atmosphere), seas, shores of the sea, water, and wildlife.

264.                   In 1968, Congress declared that the Federal Government has “continuing responsibility” to “use all practicable means” so as to “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.”  42 U.S.C. § 4331(b)(1).

265.         Congress also declared that the Federal Government is among the “trustees for natural resources” and directed Defendants to act as trustees, on behalf of the public beneficiaries, of all natural resources under their management and control. 42 U.S.C. § 9607 (f)(1); see also 33 U.S.C. § 2706 (Oil Pollution Act).

266.         Pursuant to Congressional direction, the President designated the following federal agencies to act on behalf of the public as trustees for natural resources: the USDA, Commerce, DOD, DOE, and DOI. In this context, the term natural resources “means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled (referred to as ‘managed or controlled’) by the United States (including the resources of the exclusive economic zone).”  40 C.F.R. § 300.600(a); see 42 U.S.C. § 9607 (f)(2)(A).

267.         According to the National Research Council, “fisheries within federal waters are held in public trust for the people of the United States.”

268.         According to the U.S. Commission on Ocean Policy, “the U.S. government holds ocean and coastal resources in the public trust – a special responsibility that necessitates balancing different uses of those resources for the continued benefit of all Americans.”

269.         According to NOAA, it “has an obligation to conserve, protect, and manage living marine resources in a way that ensures their continuation as functioning components of marine ecosystems, affords economic opportunities, and enhances the quality of life for the American public.”  Further, NOAA affirmed that air is a natural resource under the public trust doctrine, and that the Federal Government shares jurisdiction with states over such public trust resources.

270.         NOAA admits that one principle of the public trust doctrine is: “The public has fundamental rights and interests in natural resources such as the sea, the shore, and the air.”

271.         The DOI admits that the public trust doctrine “now encompasses all natural resources,” and that natural resources include “land, fish, wildlife, biota, air, water, ground water, drinking water supplies and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the U.S.” The DOI admits that the “Department of the Interior, Department of Commerce (delegated to NOAA), Department of Energy, Department of Agriculture, Department of Defense, and any other Federal Land Managing Agency” are “Federal Trustees.”

272.         The State Department admitted “an obligation to current and future generations to take action” on climate change.

273.         The United States has taken the position before federal courts that the Federal Government is a trustee over important national natural resources, including wildlife, and has both rights and obligations under the public trust doctrine.

274.                   By way of example, in a 2010 complaint filed against British Petroleum, the United States alleged: “Natural resources under the trusteeship of the United States and other sovereigns have been injured, destroyed, or lost as a result of discharged oil and associated removal efforts. The discharged oil is harmful to natural resources exposed to the oil, including aquatic organisms, birds, wildlife, vegetation, and habitats.”

275.                   Since 1965, Defendants have known they each have mandatory duties to abate CO2 pollution from fossil fuels in order to stop global climate change: “The pervasive nature of pollution, its disregard of political boundaries including state lines, the national character of the technical, economic and political problems involved, and the recognized Federal responsibilities for administering vast public lands which can be changed by pollution, for carrying out large enterprises which can produce pollutants, for preserving and improving the nation’s natural resources, all make it mandatory that the Federal Government assume leadership and exert its influence in pollution abatement on a national scale.”

276.         Defendants have exerted their influence, control, custodianship, and sovereignty over the polluted atmosphere and the exploitation of fossil fuels, but they have not abated the harm. Because Defendants have put Plaintiffs in danger and increased Plaintiffs’ susceptibility to harm, Defendants are responsible for taking action to protect Plaintiffs. In fact, Defendants have exacerbated the harm to our atmosphere in violation of Plaintiffs’ constitutional rights.

For more information about Our Children’s Trust suit to require the United States to act on the climate disruption threat posed by fossil fuel emissions, see Our Children’s Trust website here.