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Yesterday, the District Court for the District of Columbia
dismissed the so-called "public trust" climate change
law suit. I will certainly give the plaintiffs in these cases
credit for both originality and persistence. Legal merit and
good public policy are another matter.
In any case, the plaintiffs sued EPA and various other federal
agencies, seeking a finding that the agencies have failed
adequately to protect a public trust asset, also known as the
atmosphere, from climate change. The plaintiffs requested an
injunction requiring that the agencies take actions necessary to
reduce CO2 emissions by 6% yearly, beginning in
2013.
It did not take the Court long to dismiss plaintiffs'
arguments – and the case. The Court's opinion
has two critical holdings. First, since there can be no
diversity action against the United States, the plaintiffs do not
have access to federal courts unless there is a federal
question. However, as the Court noted, the public trust
doctrine is a creature of state law; there is no federal public
trust doctrine.
Secondly, the Court concluded that, even if there ever had been
a federal public trust doctrine, any such doctrine has been
displaced by the federal Clean Air Act. Here, the Court relied
squarely on the Supreme Court's recent decision in American Electric Power v. Connecticut. The
plaintiffs here tried to limit AEP to displacement of
public nuisance claims, but the Court was having none of it,
pointing out that AEP clearly stated that it was not
federal public nuisance claims that were displaced by the CAA, but
federal common law claims generally that were displaced.
Moreover, notwithstanding the plaintiffs' creativity, the
Court noted that:
"the question at issue in the Amer. Elec. Power
Co. case is not appreciably different from the question
presented here—whether a federal court may make
determinations regarding to what extent carbon-dioxide emissions
should be reduced, and thereafter order federal agencies to
effectuate a policy of its own making. The Amer. Elec. Power.
Co. opinion expressed concern that the plaintiffs in that case
were seeking to have federal courts, in the first instance,
determine what amount of carbon-dioxide emissions is unreasonable
and what level of reduction is practical, feasible and economically
viable."
And that really is the issue. Even if one believes that the
government should be taking more aggressive action on climate
change – and I certainly am among those who think it
should be doing so – having the courts decide what level
of reductions is necessary, and by when, is nuts. It's
just not a way to make public policy on the most complex
environmental issue of our time.
Back to the drawing board for citizen plaintiffs. I
can't wait to see what they come up with next.
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