[00:00:00] Speaker 04:
What we're going to do, we're going to hear argument in the first case and then we'll take a short recess after that.

[00:00:05] Speaker 04:
The first case is GB versus, everybody can sit down by the way.

[00:00:10] Speaker 04:
Thank you for your attention.

[00:00:12] Speaker 04:
You're very well behaved.

[00:00:15] Speaker 04:
GB versus United States Environmental Protection Agency case number 25-2473.

[00:00:24] Speaker 04:
And we've got 20 minutes per side.

[00:00:26] Speaker 04:
Just pay attention to your time.

[00:00:27] Speaker 04:
Let us know for the appellants whether you want to reserve any time.

[00:00:31] Speaker 04:
And then try and sum up as your time's expiring.

[00:00:35] Speaker 04:
So we'll hear first from, is it Ms.

[00:00:38] Speaker 04:
Capuique?

[00:00:41] Speaker 04:
Did I get it right?

[00:00:43] Speaker 01:
Yes, Your Honor.

[00:00:44] Speaker 04:
Close enough.

[00:00:44] Speaker 04:
You're not going to correct me.

[00:00:48] Speaker 01:
Capuique is fine.

[00:00:49] Speaker 01:
All right.

[00:00:49] Speaker 01:
Yep.

[00:00:52] Speaker 04:
Go ahead.

[00:00:53] Speaker 01:
Good morning, your honors.

[00:00:54] Speaker 01:
May it please the court.

[00:00:56] Speaker 01:
I'm Brianna Rosier-Cabuiga for the 18 young plaintiffs, many who are here today.

[00:01:01] Speaker 01:
I would like to reserve five minutes of my time for rebuttal.

[00:01:05] Speaker 01:
This case presents a controversy between children, the most politically and economically powerless group in our society, and EPA, the sole agency charged with protecting their air from harmful pollution.

[00:01:19] Speaker 01:
When Congress directs EPA to provide a public benefit of limiting pollution, EPA may not do so in a discriminatory manner.

[00:01:28] Speaker 01:
Yet it does.

[00:01:30] Speaker 01:
EPA does cost benefit analysis using discounting in every rule it promulgates.

[00:01:36] Speaker 01:
And those discounting policies create a time preference.

[00:01:40] Speaker 02:
That means- Let me ask you this, of course.

[00:01:43] Speaker 02:
There's a lot to talk about here, but I want to focus on

[00:01:47] Speaker 02:
what it is that the district court decided here.

[00:01:50] Speaker 02:
The first thing a district court said was that you failed to plead facts showing that your asserted environmental harm is not traceable to the alleged discounting practices.

[00:02:04] Speaker 02:
What is your response to that?

[00:02:07] Speaker 01:
Your Honor, the district court opinion relied on whether or not the policies were binding or not binding to determine if the injuries were traceable to the unequal treatment that was occurring here.

[00:02:19] Speaker 01:
And in this case, where it's an equal protection case, we need not prove that the binding, that the policies are binding only that they are discriminatory and that EPA has been implementing those policies

[00:02:34] Speaker 01:
in step with the direction from those policies.

[00:02:41] Speaker 02:
And that they are traceable.

[00:02:42] Speaker 02:
I think that was very important to the district court.

[00:02:47] Speaker 02:
I certainly empathize with the underlying concern.

[00:02:52] Speaker 02:
But as you very well know, I'm sure you're an expert in Louvain at this point and its progeny.

[00:02:58] Speaker 02:
And this is pretty ephemeral stuff.

[00:03:03] Speaker 02:
It's fine to say that this happened, that happened, but you've got to show it.

[00:03:09] Speaker 02:
You've got to trace it.

[00:03:10] Speaker 02:
And I'm not seeing that.

[00:03:12] Speaker 02:
Help me with that.

[00:03:13] Speaker 02:
In what way was the district court wrong in saying that you were not tracing the alleged discounting practices to the result that you claim occurs?

[00:03:27] Speaker 01:
Your Honor, in our allegations, we allege that there is a discriminatory policy.

[00:03:32] Speaker 01:
And that is where the unequal treatment begins.

[00:03:35] Speaker 02:
And let me stop you there.

[00:03:37] Speaker 02:
It's discriminatory in what way?

[00:03:41] Speaker 02:
Children are not singled out here.

[00:03:44] Speaker 02:
In what way is it discriminatory?

[00:03:47] Speaker 01:
I think it'd be helpful, Your Honor, if I first address how it's discriminatory and then I can walk you through that causal chain.

[00:03:53] Speaker 01:
Pardon me.

[00:03:54] Speaker 01:
In terms of how it's discriminatory, if you look to the language of the policies themselves, they employ this language of a time preference.

[00:04:03] Speaker 01:
And that preference is really important.

[00:04:05] Speaker 01:
That's a discriminatory word in and of itself, because what's being preferred when a discount rate is employed is

[00:04:12] Speaker 01:
a preference for adults' economic interests now over children's health, their lives, and their futures.

[00:04:21] Speaker 01:
And so that is what discounting functions to do.

[00:04:25] Speaker 01:
And not only did we allege that in our complaint, but we also had support from economists like Dr. Joe Stiglitz, Dr. Dagenova that clarified that the discounting policies can only operate

[00:04:41] Speaker 01:
to discriminate.

[00:04:44] Speaker 02:
It seems to me what you're arguing is disparate impact, right?

[00:04:52] Speaker 02:
Isn't that the underlying basis of your claim?

[00:04:56] Speaker 01:
There's certainly disparate impact, Your Honor, but there is also explicit discrimination in discounting itself.

[00:05:03] Speaker 01:
And I think an easy way to think about this is

[00:05:08] Speaker 01:
in a case that you wrote not too long ago, Your Honor, the Borja v. Nago case.

[00:05:13] Speaker 01:
In that case, the statute that was challenged did not explicitly exclude the plaintiffs that were seeking to vote absentee.

[00:05:23] Speaker 01:
Instead, that was found in another part of the statutory provisions where it defined what the United States was.

[00:05:30] Speaker 01:
And so it was only when you understood the definitions of the words

[00:05:33] Speaker 01:
that were at issue, that you could see the discrimination.

[00:05:36] Speaker 01:
So similarly here, the court needs to understand what discounting means and how it actually functions and operates.

[00:05:45] Speaker 01:
And when you understand it operates to be discriminatory, then it's constructively discriminatory on its own.

[00:05:52] Speaker 02:
And we are, from your perspective, to understand that based upon the testimony of the doctors to whom you made reference?

[00:06:00] Speaker 01:
Your Honor, I didn't quite catch your whole question.

[00:06:02] Speaker 01:
Could you?

[00:06:03] Speaker 02:
I'm sorry.

[00:06:03] Speaker 02:
You were saying it was discriminatory, and I'm saying in order to arrive at that conclusion, we rely upon the testimony of Dr. I've forgotten his name, forgive me, and the other doctors.

[00:06:17] Speaker 02:
Is that what we're relying upon?

[00:06:18] Speaker 01:
No, Your Honor.

[00:06:19] Speaker 01:
This case should be decided.

[00:06:23] Speaker 01:
on the four corners of the case.

[00:06:26] Speaker 01:
We don't believe that it has been decided on the four corners of the case, and that factual evidence has been disputed.

[00:06:33] Speaker 01:
However, we've also alleged in our complaint that the policy operates to this favor, and the court can look to the record at 353 to 336, 396, and 402, which includes allegations about how the policy actually operates

[00:06:52] Speaker 01:
to discriminate.

[00:06:54] Speaker 01:
And so that's what we would ask the court to rely on.

[00:06:56] Speaker 01:
If the court does find there are factual disputes, then we would turn to those declarations that we submitted as well.

[00:07:04] Speaker 02:
And you believe that you have alleged sufficient facts that actually allege discrimination against actual plaintiffs, and it's directly attributable to that.

[00:07:16] Speaker 02:
That's your claim?

[00:07:18] Speaker 01:
Yes, your honor.

[00:07:19] Speaker 01:
And maybe I can walk through the causal chain to get there as well.

[00:07:23] Speaker 01:
So as I said, we've alleged that the policy itself, facially, if not constructively, facially discriminates against children as a class.

[00:07:34] Speaker 02:
But forgive me, I didn't mean to interrupt you, but we've got a lot to talk about.

[00:07:37] Speaker 02:
How are these policies facially discriminatory against children?

[00:07:45] Speaker 02:
They currently apply to everybody to the degree they apply at all, do they not?

[00:07:52] Speaker 01:
The policies themselves employ the discount rate, which is discriminatory.

[00:07:57] Speaker 01:
It creates a difference of treatment.

[00:08:00] Speaker 02:
I understand you're saying that's what happens, but on the face of them, they don't say, except children, right?

[00:08:07] Speaker 01:
They don't say that explicitly, but it's constructively discriminatory because discounting can only operate to discriminate.

[00:08:15] Speaker 01:
if we're taking the definition.

[00:08:17] Speaker 02:
It's not facially discriminatory.

[00:08:20] Speaker 01:
It's implied within the words.

[00:08:25] Speaker 01:
That's correct, Your Honor.

[00:08:26] Speaker 01:
So in terms of what happens after the policies are, the EPA takes these policies and it

[00:08:34] Speaker 01:
discounts through its regulatory programs.

[00:08:36] Speaker 01:
That's through start to finish, Your Honor.

[00:08:38] Speaker 01:
We've alleged on pages 350 to 351 that EPA is required to discount early in the regulatory design phase.

[00:08:47] Speaker 01:
So that not only informs what kind of regulatory programs they pursue, what regulatory options they consider, and how they limit the alternatives of what they consider, and then it ultimately informs the final rules that EPA issues.

[00:09:04] Speaker 01:
Those regulatory programs we've alleged have resulted in allowing climate pollution in substantial amounts.

[00:09:12] Speaker 01:
And the court can look to our allegations from 367 to 373 of the record.

[00:09:17] Speaker 01:
Those demonstrate that there are substantial amounts of pollution that is being allowed under these regulatory programs that directly impact these plaintiffs.

[00:09:26] Speaker 01:
The court can take a look at all of their direct injuries from that pollution in 320 to 346 of the record and the court can even look specifically how it's personalized to these individual plaintiffs.

[00:09:41] Speaker 01:
For example, you can look to Noah, who has been displaced from our home on multiple occasions because of wildfires from this climate pollution and has had localized impacts from both the particulate matter that results from this pollution.

[00:09:57] Speaker 01:
and from the wildfire smoke that affects her asthma.

[00:10:02] Speaker 04:
Can I ask a question about that?

[00:10:03] Speaker 04:
I guess this is just to prove causation, right?

[00:10:06] Speaker 04:
Because where she's been displaced, adults have been displaced as well.

[00:10:11] Speaker 04:
So you're not using that, you're just using that to show the causation.

[00:10:15] Speaker 04:
You're not using that to show the disparate or the discriminatory effect.

[00:10:19] Speaker 01:
Right now I'm walking through the causal chain, but I think it's important to note that children are different than adults.

[00:10:24] Speaker 01:
And so when we talk about climate pollution, that is when EPA allows climate pollution, that is unequal treatment in and of itself because children are not the same as adults.

[00:10:34] Speaker 01:
They're not just little adults.

[00:10:35] Speaker 01:
They are, we've alleged in our complaint that.

[00:10:40] Speaker 04:
Well, but it's not a pollutant in the normal sense that like carbon dioxide causes

[00:10:47] Speaker 04:
harm today.

[00:10:48] Speaker 04:
It's not like breathing in smoke inhalation, right?

[00:10:53] Speaker 04:
I mean, it's your reliances.

[00:10:55] Speaker 04:
These are these are harms that are going to materialize, you know, some sooner than later, but over a period of time.

[00:11:03] Speaker 04:
So it's going to affect them disproportionately throughout their lives, but not necessarily while their children.

[00:11:10] Speaker 01:
It will certainly affect them while their children because the pollution that is in the air right now will impact

[00:11:16] Speaker 01:
whether they develop certain health conditions, how those health conditions manifest themselves in the future, those health harms that they're experiencing, the displacement that they have.

[00:11:24] Speaker 04:
But carbon dioxide doesn't cause that.

[00:11:26] Speaker 04:
You're saying because of the downstream effects of the carbon dioxide.

[00:11:30] Speaker 04:
That's what's going to cause the harm.

[00:11:32] Speaker 04:
I'm confused.

[00:11:32] Speaker 01:
That's correct.

[00:11:33] Speaker 01:
That's correct.

[00:11:34] Speaker 01:
So the predictable effects of climate pollution.

[00:11:39] Speaker 01:
And when we talk about predictable effects, that's the standard that the Supreme Court recently articulated in diamond alternative energies.

[00:11:45] Speaker 01:
The predictable effects as we've alleged in our complaints is that pollution will result in these harms.

[00:11:51] Speaker 01:
that are happening right now to these plaintiffs.

[00:11:53] Speaker 01:
And that matters that it's right now as they are children, because when children experience these kinds of harms that are catastrophic and profound, those are harms that result in traumas, which result in health conditions that won't happen in the future.

[00:12:07] Speaker 01:
They'll carry those the rest of their lives and they will only multiply as they get older.

[00:12:12] Speaker 02:
Does that not apply to the adults as well?

[00:12:15] Speaker 02:
And this is part of what I struggle with.

[00:12:18] Speaker 02:
Facially, there's no allegation about children.

[00:12:22] Speaker 02:
If there's harm to children, there's also harm to adults, right?

[00:12:28] Speaker 01:
I would agree that there is harm to adults, but that harm is not the same.

[00:12:32] Speaker 02:
And just because a discrimination... Does it have to be the same?

[00:12:36] Speaker 01:
Does the harm have to be the same for it not to be discriminatory?

[00:12:40] Speaker 01:
Correct.

[00:12:43] Speaker 01:
I don't think it has to be the same.

[00:12:47] Speaker 01:
The harm in terms of

[00:12:49] Speaker 01:
Adults and children experience the harm differently.

[00:12:52] Speaker 01:
And just because adults may benefit from the unequal treatment being eliminated in EPA's policies and practices does not mean that it's not discriminatory towards children.

[00:13:02] Speaker 02:
And so when we talk about... But with respect to counsel, you've alleged equal protection claims and others and so on.

[00:13:12] Speaker 02:
You have to be able to carve these things out.

[00:13:14] Speaker 02:
And it seems to me that what your allegation says is

[00:13:18] Speaker 02:
This is harmful to everybody, harmful to everybody, but we imply that it's especially harmful to children, but it doesn't say that it's an implication, right?

[00:13:30] Speaker 01:
No, your honor.

[00:13:30] Speaker 01:
We, we allege that there it's specifically harmful for children.

[00:13:35] Speaker 02:
If you go to intentional, is it intentional?

[00:13:39] Speaker 02:
Is there anything in the reg or in the, I'll call it an aspiration that says we're intending

[00:13:47] Speaker 02:
to harm children more than adults.

[00:13:48] Speaker 02:
There's nothing like that, is there?

[00:13:51] Speaker 01:
Your honor, the fact that EPA uses a policy that can only operate, and they know can only operate to discriminate children, raises an inference of intent that certainly suffices for standing.

[00:14:04] Speaker 02:
Why is that?

[00:14:05] Speaker 02:
Why is such an inference on, if I may say so, a highly speculative situation enough to confer standing in this case?

[00:14:16] Speaker 01:
Your Honor, we wouldn't say that the situation is speculative.

[00:14:19] Speaker 01:
But in terms of why it's permissible, the court can look to, if we're talking about intent, it's really hard in these discrimination cases, because there's not a lot of 12b1 cases, because the burden is simply to allege that there's unequal treatment.

[00:14:34] Speaker 01:
And we've alleged that there's unequal treatment and that it's intent.

[00:14:37] Speaker 04:
Well, let's go to Giuliana, which we're bound by.

[00:14:40] Speaker 04:
Can you distinguish Juliana because as I read Juliana, it says these are speculative harms and it seems to me that the harms there were even less speculative than what you have here.

[00:14:52] Speaker 04:
They were actually alleging all of the concrete harms.

[00:14:56] Speaker 04:
You're alleging a.

[00:14:58] Speaker 04:
One procedure that has to ricochet through the system that seems to be less speculative or this gives me that seems to be more speculative than what was in juliana so can you explain to me given juliana how we would rule in your favor.

[00:15:13] Speaker 01:
Yes, Your Honor.

[00:15:15] Speaker 01:
Juliana does not control here.

[00:15:17] Speaker 01:
So Juliana involved different conduct.

[00:15:19] Speaker 01:
It involved different claims and it involved different relief that was sought.

[00:15:23] Speaker 04:
I agree with you.

[00:15:23] Speaker 04:
But that's my question is it seems like it was broader claims and broader relief and broader harms that were actually more concrete than what you've alleged here.

[00:15:36] Speaker 04:
So that's what's troubling me.

[00:15:38] Speaker 01:
Your honor, the Giuliana case did not consider an unequal treatment injury.

[00:15:42] Speaker 01:
And that's important because that is when we look at Worth v. Selden, when we're talking about standing, the standing can turn on the nature of the claim, especially in equal protection claims.

[00:15:52] Speaker 01:
And that was never even considered in Giuliana.

[00:15:55] Speaker 01:
So when we're talking about unequal treatment, what we need to show in terms of

[00:15:59] Speaker 01:
causation is that there has been harm from that unequal treatment, which we've alleged, and that it can be remedied by eliminating that unequal treatment.

[00:16:09] Speaker 01:
And so we've alleged that, or we've requested in this case, a declaration that the discounting policies be held unconstitutional.

[00:16:19] Speaker 01:
and that EPA ceases treating children unequally in its cost-benefit analyses.

[00:16:25] Speaker 01:
And that is the traditional relief sought in equal protection cases.

[00:16:29] Speaker 01:
And Your Honor, I see that I'm close to my time.

[00:16:32] Speaker 02:
I'll let you have your time.

[00:16:34] Speaker 02:
But it's the speculative nature of this I'm troubled by.

[00:16:38] Speaker 02:
So when you come back, perhaps you can address that more.

[00:16:41] Speaker 00:
Okay, thank you.

[00:16:43] Speaker 00:
Also, as Judge Golden, I'd like you to give thought to a question I have.

[00:16:51] Speaker 00:
My question relates to the use of a present computing, a present counsel.

[00:17:01] Speaker 00:
I mean, a present value of either the costs that will be incurred in the futures

[00:17:11] Speaker 00:
or the benefits of taking action to avoid injuries.

[00:17:20] Speaker 00:
And I'd like you to address when you come back some discussion of that question.

[00:17:30] Speaker 01:
Thank you, Your Honor, I appreciate that.

[00:17:32] Speaker 04:
Okay, we'll give you time for rebuttal.

[00:17:34] Speaker 04:
Thank you so much.

[00:17:57] Speaker 03:
Good morning, Your Honors.

[00:17:58] Speaker 03:
May it please the Court, Christopher Anderson for EPA and OMB.

[00:18:02] Speaker 03:
Your Honors, plaintiffs lack standing to sue for the simple reason that they cannot show a causal connection between the challenged guidance on discounting and any regulatory action that would harm their personal and concrete interests.

[00:18:14] Speaker 03:
This case is materially indistinguishable from Louisiana v. Biden and Missouri v. Biden.

[00:18:19] Speaker 03:
In those cases, groups of states sued to enjoin use of estimates of the social cost of carbon in regulatory impact analyses.

[00:18:27] Speaker 03:
And both the Fifth and Eighth Circuits held that the states lacked standing to sue because agencies consider a great number of other factors in determining when, what, and how to regulate or take agency action.

[00:18:38] Speaker 03:
For that reason, any connection between the social cost of carbon and future regulatory actions that could harm the state's interests was speculative.

[00:18:47] Speaker 03:
That is equally true for this case, Your Honor.

[00:18:50] Speaker 03:
The plaintiffs allege that EPA under-regulates greenhouse gases because its regulatory impact analyses discount future benefits.

[00:19:01] Speaker 03:
The plaintiffs do not make allegations that show that EPA's future regulatory decisions will be determined by a cost-benefit analysis or that a cost-benefit analysis is even likely to be a significant factor in any future decision.

[00:19:16] Speaker 03:
Plaintiffs do not even make specific allegations that discounting has led to underregulation in the past.

[00:19:21] Speaker 03:
It is remarkable that in a 423 paragraph amended complaint, one that expressly relies on past conduct as evidence of future harm, plaintiffs do not cite a single instance in which EPA rested a regulatory decision, even in part, on a discounted estimate of future benefits.

[00:19:37] Speaker 03:
We pointed out that omission in our brief at page 40.

[00:19:40] Speaker 04:
Council, can I ask you, what is the purpose then?

[00:19:42] Speaker 04:
Why?

[00:19:43] Speaker 04:
I mean, you agree that they have to go through the process or the OMB regulation says that you have to go through the process.

[00:19:52] Speaker 04:
If it's never used, what's the point of it?

[00:19:55] Speaker 03:
So I want to be very clear.

[00:19:56] Speaker 03:
We are not saying we've never claimed that regulatory impact analyses don't play some role in an agency's decision making process, but for purposes of standing,

[00:20:05] Speaker 04:
We have to, it's only for the high level regulations, right?

[00:20:09] Speaker 04:
It only kicks in for regulations above a hundred million dollars in impact.

[00:20:13] Speaker 04:
Or am I wrong about that?

[00:20:14] Speaker 03:
It's only for significant regulatory actions.

[00:20:16] Speaker 03:
I don't have the dollar threshold at the tip of my tongue, but yes, it's only for significant regulatory, but many EPA cleaner act actions are significant regulatory actions for sure.

[00:20:25] Speaker 03:
We have never claimed contrary to what the plane was said in the reply brief that EPA does not consider regulatory impact analysis.

[00:20:32] Speaker 03:
What we've said for standing purposes is that there must be a relatively close fit between the conduct complained of and the action that's going to harm their interests.

[00:20:41] Speaker 03:
And because this is a prospective relief case, they have to show that that fit applies to future regulatory actions that the agency hasn't taken or even at this point proposed.

[00:20:54] Speaker 03:
While it is possible that in the future, EPA may rely on a regulatory impact analysis and some regulatory decision making, until we have a concrete action to look at, to understand how that analysis applies to its decision making, the plaintiffs can't show standing.

[00:21:08] Speaker 03:
And there's not an Article III case or controversy for the court to adjudicate.

[00:21:12] Speaker 02:
This gets back to the, Julianna, the speculative nature, right?

[00:21:16] Speaker 03:
Yes.

[00:21:17] Speaker 03:
Yes, Your Honor.

[00:21:18] Speaker 03:
It does.

[00:21:20] Speaker 03:
Also, Your Honors, it does not change the analysis in any way of the plaintiff's attempt to frame their case as a discrimination case.

[00:21:28] Speaker 03:
As the Supreme Court explained in Allen v. Wright, to show standing based on discrimination, a plaintiff must allege both discriminatory conduct and that the plaintiff's personal interests have been harmed as a result of that conduct.

[00:21:40] Speaker 03:
In other words, the asserted injury must meet the ordinary test for traceability.

[00:21:43] Speaker 04:
Yeah.

[00:21:44] Speaker 04:
So this comes up in a lot of these standing cases where traceability, I mean, at some point that starts to look more like a failure to state a claim as opposed to a standing issue.

[00:21:53] Speaker 04:
So how do we grapple with that?

[00:21:55] Speaker 04:
Because I mean, you know, where's the fine line between saying, well, you know, you don't have any claim here because you can't state an equal protection claim based on these facts versus you don't have any standing.

[00:22:09] Speaker 03:
Right.

[00:22:09] Speaker 03:
I think, Your Honor, in this case, the easy way to look at it is this.

[00:22:14] Speaker 03:
Putting aside whether they've adequately alleged a discriminatory harm, what plaintiffs say is the EPA discriminates when it discounts future effects in regulatory impact analysis.

[00:22:26] Speaker 03:
And it says that they are personally harmed by the effects of climate change.

[00:22:29] Speaker 03:
So in order for them to have standing under Allen, they have to show that there's a reasonably close causal connection between that conduct and those effects.

[00:22:39] Speaker 03:
And for the same reasons that their environmental harms don't suffice to give them standing, their discrimination harm doesn't suffice to give them standing, because they have to show not just that the impact analysis is discriminatory, but that that analysis is then going to lead through to a concrete regulatory action that's going to have effects in the world, that's going to contribute to climate change, that's going to harm their personal interests.

[00:22:58] Speaker 03:
And all of those steps are just too many.

[00:23:00] Speaker 03:
And that's the entire rationale of the Louisiana and Missouri v. Biden, is that the chain is just too long.

[00:23:07] Speaker 03:
But in any event, Your Honor, the plaintiffs have failed to plead discriminatory treatment.

[00:23:12] Speaker 03:
The challenge guidance is neutral on its face, as Judge Smith observed.

[00:23:15] Speaker 03:
And plaintiffs make only conclusory allegations of discriminatory intent, unsupported by any allegations of specific facts.

[00:23:23] Speaker 04:
One of the curious things, and maybe I should have asked the appellants this, but they seem to be focused on the youth.

[00:23:32] Speaker 04:
But it seems to me, if there is any impact, it's really just that the younger you are, I mean, you could be 20, not a youth, but under their theory, the longer that you're here, the

[00:23:46] Speaker 04:
you know, the impact is going to be greater.

[00:23:48] Speaker 04:
So it's it's just that you're going to experience greater impacts over a longer period of time.

[00:23:53] Speaker 04:
Am I wrong about that?

[00:23:55] Speaker 04:
Or is there something specific to the, you know, to minors under 18?

[00:24:00] Speaker 04:
I mean, I don't I don't understand this magical number.

[00:24:02] Speaker 04:
Right.

[00:24:02] Speaker 03:
Well, so as far as I think you're right, Your Honor, it is the short answer.

[00:24:07] Speaker 03:
I mean, as far as the discounting goes, that that is absolutely correct.

[00:24:10] Speaker 03:
I know the plaintiffs have made certain allegations that

[00:24:13] Speaker 03:
Children are especially susceptible to climate harms.

[00:24:16] Speaker 03:
But as you pointed out, those harms are going to occur in the future from any future regulatory action long after these plaintiffs are no longer children.

[00:24:24] Speaker 03:
But I'd like to say, if I could go back to discounting and why OMB and EPA discount.

[00:24:30] Speaker 03:
So discounting, as the agencies explain in their guidance, the purpose of it is to treat future and present effects equally.

[00:24:38] Speaker 03:
It is not to treat future effects as less important.

[00:24:42] Speaker 03:
It is based on empirical observations about behavior in the economic marketplace, saving behavior, investing behavior, and economic theory that suggests that in order to treat present and future effects equally, you have to discount the monetary value of future effects.

[00:24:59] Speaker 03:
Now, plaintiffs allege that that's wrong.

[00:25:01] Speaker 03:
They have expert declarations that point out well-known limitations to that analysis.

[00:25:07] Speaker 03:
But that is a facially plausible, well-supported, nondiscriminatory,

[00:25:11] Speaker 03:
justification for the use of discounting.

[00:25:13] Speaker 03:
And plaintiffs haven't made any allegations in their complaint that under the ICBAL standard or this court's decision in would-be city of San Diego, that would suggest that that plainly plausible non-discriminatory justification is protectual or that would otherwise support an inference of intentional discrimination.

[00:25:32] Speaker 03:
And so for that reason, we don't think that the plaintiffs adequately state equal treatment.

[00:25:38] Speaker 03:
But the entire case can be decided.

[00:25:39] Speaker 03:
Both the equal protection and the environmental harms can be decided simply on traceability grounds following the fifth and eighth circuits analyses.

[00:25:46] Speaker 02:
From a pleading perspective, can I ask you this question?

[00:25:49] Speaker 02:
Do we have to assume the truth of their allegations that the government maintains a de facto policy of discounting future costs and benefits just because they allege it

[00:26:01] Speaker 03:
So I don't think so, Your Honor.

[00:26:03] Speaker 03:
I mean, they allege that there are these policies which we don't dispute and that EPA follows these policies, which again, I don't think we really dispute.

[00:26:11] Speaker 03:
But then they go on to make claims like at paragraph 162 of their complaint, they say that the discounted cost benefit analysis controls EPA's decision making.

[00:26:22] Speaker 03:
Well, that's not an allegation that the court needs to accept.

[00:26:25] Speaker 03:
And the court doesn't need to accept it for three reasons.

[00:26:27] Speaker 03:
First, it's either a conclusory allegation of fact or a conclusion of law dressed up as an assertion of fact, which the court does not assume the truth of.

[00:26:35] Speaker 03:
Secondly, the court, as this court held in Sprewell v. Golden State Warriors, is entitled to consider the contents of documents referenced in the complaint or attached to the complaint.

[00:26:44] Speaker 03:
And as we pointed out in our brief, the contents of circular A4 and the EPA guidelines go into great detail about why that allegation of control is not true.

[00:26:54] Speaker 03:
And then finally,

[00:26:55] Speaker 03:
Putting all that aside, the allegation still has to be plausible.

[00:26:58] Speaker 03:
And as the Supreme Court said in Iqbal, plausibility requires the court to exercise judicial experience and common sense.

[00:27:05] Speaker 03:
And judicial experience and common sense tell us that when EPA is making a complex regulatory decision, it is not doing so solely on the basis, or even in most cases at least, predominantly on the basis of a single regulatory impact analysis.

[00:27:18] Speaker 03:
It's considering statutory factors.

[00:27:20] Speaker 03:
It's considering scientific factors.

[00:27:22] Speaker 03:
It's considering policy factors.

[00:27:23] Speaker 03:
And yes, it's considering economic factors.

[00:27:25] Speaker 03:
But these are all just components of a decision.

[00:27:27] Speaker 03:
And for that reason, the traceability is just not establishable.

[00:27:32] Speaker 02:
And in none of those that I'm aware of, is there any allegation that there is an intentional discrimination against young people, right?

[00:27:42] Speaker 03:
They do say at certain points in their brief that the guidelines purposely discriminate against young people.

[00:27:50] Speaker 03:
But that, again, is a conclusory allegation, Your Honor, that is belied.

[00:27:55] Speaker 03:
The court doesn't have to accept and is belied for the reasons that I said.

[00:27:57] Speaker 03:
I would point you to Chief Justice Roberts' opinion on the DC Circuit in HedgePeth, HedgePeth versus WMATA, that talks about this idea, the plausibility of children as a powerless political class and the plausibility of actions taken for the purpose of purposely discriminating against children.

[00:28:18] Speaker 03:
Without more, they haven't shown that.

[00:28:20] Speaker 04:
I wanted to focus on Dr. Stiglitz.

[00:28:24] Speaker 04:
He declared that the discounting policies have a disproportionate effect on children and future generations because they attach a lower value to a person born later.

[00:28:33] Speaker 04:
That's in his declaration.

[00:28:34] Speaker 04:
Can you explain why that?

[00:28:36] Speaker 04:
I mean, as a factual matter, do you disagree with that or you accept that but say legally it doesn't get you standing?

[00:28:45] Speaker 03:
So as a factual matter, we disagree with that.

[00:28:48] Speaker 03:
And, uh, as, as explained in circular a four in particular, the purpose of discounting is to, as I said, it's not to treat people at all.

[00:28:57] Speaker 03:
It's to treat effects of regulation in the first place.

[00:28:59] Speaker 03:
Right.

[00:28:59] Speaker 04:
But, and he doesn't even seem to say that it's, he just is talking about, you know, it has a disproportionate effect on children.

[00:29:09] Speaker 04:
I mean, that doesn't seem implausible to me in the sense that.

[00:29:13] Speaker 04:
Again, statistically, they're going to be on the earth longer.

[00:29:19] Speaker 04:
So that's why I'm wondering whether it's a factual dispute or whether you're like, hey, take that as is.

[00:29:27] Speaker 04:
It doesn't matter.

[00:29:28] Speaker 04:
It doesn't get you there legally.

[00:29:29] Speaker 03:
So I think the factual question is complicated.

[00:29:32] Speaker 03:
And we certainly don't concede that the way Dr. Sticklitz characterizes it is correct.

[00:29:37] Speaker 03:
But I think the easier way for this court to address this case is to assume that that is correct.

[00:29:41] Speaker 03:
Assume that the regulatory impact analysis the EPA prepares are flawed in that they don't accurately account for future effects in a way that is going to burden people alive 50 years from now.

[00:29:56] Speaker 03:
Assume that that's correct.

[00:29:58] Speaker 03:
They still can't show traceability because they can't, again, getting back to the Fifth and Eighth Circuit decisions about the social cost of carbon, they can't show the connection that the Supreme Court requires between the preparation of a cost benefit analysis

[00:30:11] Speaker 03:
and an actual regulatory action that's going to cause them harm.

[00:30:15] Speaker 03:
And I think in this regard, there's the famous line from Allen and Wright when Justice O'Connor is talking about traceability.

[00:30:23] Speaker 03:
And she points out that the purpose of the requirement is rooted in the separation of powers.

[00:30:27] Speaker 03:
It's to keep the courts away from abstract questions of regulatory policy and focused on adjudicating allegations of individuals, specifically identifiable government violations of law.

[00:30:40] Speaker 03:
At this point,

[00:30:41] Speaker 03:
Without even a proposed regulatory action to analyze, it's impossible to know, will EPA apply these guidelines for any particular case?

[00:30:50] Speaker 03:
How will they apply them?

[00:30:51] Speaker 03:
As we pointed out in our briefs since the court is entitled to consider, the guidelines explicitly state that agencies must use judgment in how discounting is applied and give agencies a wide range of discretion to deal with the problems with discounting and future effects.

[00:31:09] Speaker 03:
So we have to know how the agency is going to do that.

[00:31:11] Speaker 03:
Then we have to know how the agency is going to incorporate it into its decision-making processes.

[00:31:16] Speaker 03:
And then we have to know what the actual action is and whether it would have made any difference.

[00:31:20] Speaker 03:
None of those things are knowable when we're looking at a guidance document in the absence of any concrete regulatory action.

[00:31:28] Speaker 03:
And so for that reason, we think that the cases, whether it's analyzed understanding or rightness, the core problem here is the case just isn't justiciable.

[00:31:35] Speaker 03:
It's just not an Article III case or controversy until we have some government action for the court to review.

[00:31:45] Speaker 03:
If there are no further questions, Your Honor, we would ask that the judgment of the district court be affirmed.

[00:31:50] Speaker 04:
Thank you so much.

[00:31:51] Speaker 04:
Thank you.

[00:32:12] Speaker 01:
Your honors, I want to start with your question about the speculation, Judge Smith.

[00:32:18] Speaker 01:
And I think it's really important that the speculation that the court may be sensing is because we do not have a full record of evidence before it.

[00:32:28] Speaker 01:
This is a 12b1 motion.

[00:32:30] Speaker 04:
Did you ask for jurisdictional discovery?

[00:32:37] Speaker 01:
Your honor, no, we did not ask for a jurisdictional.

[00:32:39] Speaker 04:
Because you can get limited jurisdictional discovery.

[00:32:41] Speaker 04:
So, I mean, I agree that you don't have a full record before you, but I mean, that, I don't know, you still either have to put it in the complaint or you have to at least get some limited jurisdictional discovery that would support it.

[00:32:57] Speaker 01:
Well, what we've alleged in this complaint is that there is unequal treatment and that the court must take as true the facts in the complaint that there is unequal treatment, that children are different from adults, and that they've been harmed differently.

[00:33:09] Speaker 01:
The court can look to the record 374 to 397, that there was intention, which the other side already pointed to, that we've alleged, but also we described that the policy operates to disfavor

[00:33:27] Speaker 01:
353 through 336, 396 to 402.

[00:33:31] Speaker 01:
And so the court cannot ignore those allegations.

[00:33:35] Speaker 01:
And I think it illustrates how this case is really intertwined with the merits, as is discussed in Bowen.

[00:33:42] Speaker 01:
And it makes it very difficult to be able to, it makes it, what seems speculative would be fleshed out when the merits are fleshed out in the case.

[00:33:54] Speaker 02:
But counsel, and this is what I was hoping to get from you.

[00:33:57] Speaker 02:
The reality is this is all perspective.

[00:34:02] Speaker 02:
You just don't know.

[00:34:03] Speaker 02:
Uh, you can suppose you can allege, but these are conclusory allegations.

[00:34:10] Speaker 02:
And under Julian, I just, I struggle with how you get past that.

[00:34:16] Speaker 02:
How can you show causation if something doesn't even exist?

[00:34:19] Speaker 02:
I'm sorry.

[00:34:20] Speaker 02:
I apologize.

[00:34:21] Speaker 01:
I didn't mean to interrupt you, your honor.

[00:34:23] Speaker 02:
Go ahead.

[00:34:24] Speaker 01:
I would turn the court's attention to the village of Arlington Heights, where the court makes clear there's an equal protection cases to be able to prove intentional discrimination, a pattern of discrimination.

[00:34:35] Speaker 01:
It's a highly evidentiary issue.

[00:34:37] Speaker 01:
And the court can look to past actions by a discriminating party to determine if there's discrimination.

[00:34:43] Speaker 01:
And we've alleged past discrimination in the record at 356.

[00:34:48] Speaker 04:
The problem with Village of Arlington Heights is it requires showing of discriminatory intent or purpose.

[00:34:59] Speaker 04:
Even if we accepted the view that this has a disproportionate impact, that's different.

[00:35:08] Speaker 04:
I think Village of Arlington Heights makes it clear that's different than actual intent or purpose.

[00:35:16] Speaker 01:
That's correct, Your Honor.

[00:35:17] Speaker 01:
But we've also alleged that the policies operate to discriminate.

[00:35:23] Speaker 01:
And I think the court below really just didn't take into account those factual allegations that show that there is intention.

[00:35:35] Speaker 01:
Because discriminatory parties don't usually admit to it.

[00:35:38] Speaker 01:
Government parties don't usually admit that they're discriminating.

[00:35:40] Speaker 01:
These are harms that are happening

[00:35:41] Speaker 01:
right now to these young people that will are ongoing harms to the future and they can be traced to EPA's unequal treatment to them in the law and they deserve equal protection in the law your honor.

[00:35:52] Speaker 01:
I see I'm out of time and so.

[00:35:56] Speaker 04:
Judge Gould I wanted to ask you you asked a question before do you feel like you've been addressed or do you want to

[00:36:04] Speaker 00:
Well, I don't think my question has been addressed here by Appellant.

[00:36:12] Speaker 00:
So let me just frame it.

[00:36:14] Speaker 00:
I'll try to take a different slant on it.

[00:36:18] Speaker 00:
What I'm trying to hear is the Appellant's view on the significance of cost-benefit analysis.

[00:36:35] Speaker 00:
What is the significance of an agency discounting both costs and benefits to a present value?

[00:36:46] Speaker 00:
So as a prelude, if you were going to get a benefit of a $10 payment,

[00:36:56] Speaker 00:
And you could either get that $10 benefit tomorrow, get it one day, or you could get it 100 years from today.

[00:37:11] Speaker 00:
Are those benefits equal or do you have to discount the value of that benefit 100 years from now to a present value?

[00:37:25] Speaker 01:
Your honor, I think you're really getting to the heart of the discrimination here because when there is discounting, it assumes that we are taking the preferences of consumers now, but we've alleged in our complaint that

[00:37:38] Speaker 01:
Children are not consumers.

[00:37:39] Speaker 01:
They have no political or economic power.

[00:37:41] Speaker 01:
And so when we're talking about consumers now, we're talking about adults and their interest in having a buck today rather than having benefits in the future and rather than thinking about the immediate health benefits to children today.

[00:37:56] Speaker 01:
And so that illustrates why this is an adult-centric policy that discounts the immediate cost to children and the long-term cost of children.

[00:38:07] Speaker 01:
Hopefully that answers your question in terms of if it's necessary.

[00:38:10] Speaker 00:
That's sufficient for me.

[00:38:13] Speaker 00:
Thank you, counsel.

[00:38:15] Speaker 01:
Thank you.

[00:38:15] Speaker 04:
All right.

[00:38:16] Speaker 04:
Thank you.

[00:38:17] Speaker 04:
Thank you to both counsel for your arguments in the case.

[00:38:19] Speaker 04:
The case is now submitted and the court will take a brief recess.