As reported last month, the Oregon activist judge invited the plaintiffs in Juliana vs US to reopen that case even after the Ninth Circuit shot it down.  Now we have a complete and thorough Motion from the defendant (US government) to dismiss this newest amended complaint.  Most interesting is the section under the heading starting on page 30.  Excerpts in italics with my bolds and added images.

Plaintiffs’ Claims Fail on the Merits

Because Plaintiffs’ action fails at the jurisdictional threshold, the Ninth Circuit never reached—and this Court need not reach—the merits of the claims. . . Plaintiffs’ second amended complaint, which supersedes the first amended complaint, asserts the same claims that were brought in the first amended complaint, which this Court addressed in orders that the Ninth Circuit reversed. Defendants thus renew their objection that Plaintiffs’ claims fail on the merits and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

A. There is no constitutional right to a stable climate system.

The Supreme Court has repeatedly instructed courts considering novel due process claims
to “‘exercise the utmost care whenever . . . asked to break new ground in this field,’… lest the liberty protected by the Due Process Clause be subtly transformed” into judicial policy preferences. More specifically, the Supreme Court has “regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’”  Plaintiffs’ request that this Court recognize an implied fundamental right to a stable climate system contradicts that directive, because such a purported right is without basis in the Nation’s history or tradition.

The proposed right to a “stable climate system” is nothing like any fundamental right ever recognized by the Supreme Court. The state of the climate is a public and generalized issue, and so interests in the climate are unlike the particularized personal liberty or personal privacy interests of individuals the Supreme Court has previously recognized as being protected by fundamental rights.  “[W]henever federal courts have faced assertions of fundamental rights to a ‘healthful environment’ or to freedom from harmful contaminants, they have invariably rejected those claims.”. Plaintiffs’ First Claim for Relief must be dismissed.

B.  Plaintiffs fail to allege a cognizable state-created danger claim.

The First Claim for Relief must also be dismissed because the Constitution does not impose an affirmative duty to protect individuals, and Plaintiffs have failed to allege a cognizable claim under the “state-created danger” exception to that rule.
As a general matter:

[The Due Process Clause] is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

Thus, the Due Process Clause imposes no duty on the government to protect persons from harm inflicted by third parties that would violate due process if inflicted by the government.

Plaintiffs contend that the government’s “deliberate actions” and “deliberate indifference” with regard to the dangers of climate change amount to a due process violation under the state-created danger exception.

First, Plaintiffs have identified no harms to their “personal security or bodily integrity” of the kind and immediacy that qualify for the state-created danger exception. . . But here, Plaintiffs allege that general degradation of the global climate has harmed their “dignity, including their capacity to provide for their basic human needs, safely raise families, practice their religious and spiritual beliefs, [and] maintain their bodily integrity” and has prevented them from “lead[ing] lives with access to clean air, water, shelter, and food.”  Those types of harm are unlike the immediate, direct, physical, and personal harms at issue in the above-cited cases.

Second, Plaintiffs identify no specific government actions—much less government actors—that put them in such danger. Instead, Plaintiffs contend that a number of (mostly unspecified) agency actions and inactions spanning the last several decades have exposed them to harm. This allegation of slowly-recognized, long-incubating, and generalized harm by itself conclusively distinguishes their claim from all other state-created danger cases recognized by the Ninth Circuit.

Third, Plaintiffs do not allege that government actions endangered Plaintiffs in particular. . . As explained above, Plaintiffs’ asserted injuries arise from a diffuse, global phenomenon that affects every other person in their communities, in the United States, and throughout the world.

For all these reasons, there is no basis for finding a violation of Plaintiffs’ due process right under the state-created danger doctrine, and Plaintiffs’ corresponding claim must be dismissed.

C. No federal public trust doctrine creates a right to a stable climate system.

Plaintiffs’ Fourth Claim for Relief, asserting public trust claims, should be dismissed for two independent reasons. First, any public trust doctrine is a creature of state law that applies narrowly and exclusively to particular types of state-owned property not at issue here. That doctrine has no application to federal property, the use and management of which is entrusted exclusively to Congress. . .Consequently, there is no basis for Plaintiffs’ public trust claim against the federal government under federal law.

Second, the “climate system” or atmosphere is not within any conceivable federal public trust.

1. No public trust doctrine binds the federal government.

Plaintiffs rely on an asserted public trust doctrine for the proposition that the federal government must “take affirmative steps to protect” “our country’s life-sustaining climate system,” which they assert the government holds in trust for their benefit.  But because any public trust doctrine is a matter of state law only, public trust claims may not be asserted against the federal government under federal law. . . The Supreme Court has without exception treated public trust doctrine as a matter of state law with no basis in the United States Constitution.

2. Any public trust doctrine would not apply to the “climate system” or the atmosphere.

Independently, any asserted public trust doctrine does not help Plaintiffs here. Public trust cases have historically involved state ownership of specific types of natural resources, usually limited to submerged and submersible lands, tidelands, and waterways. . . The climate system or atmosphere is unlike any resource previously deemed subject to a public trust. It cannot be owned and, due to its ephemeral nature, cannot remain within the jurisdiction of any single government. No court has held that the climate system or atmosphere is protected by a public trust doctrine. Indeed, the concept has been widely rejected.

For all these reasons, the Court should dismiss Plaintiffs’ Fourth Claim for Relief.

Background Post Update on Zombie Kids Climate Lawsuits: (Juliana vs. US) (Held vs Montana)