Last month, Judge Robert Wilkins dismissed the federal public
trust climate change law suit, Alec L. v. Jackson. Judge Wilkins
ruled on two alternative grounds. First, he held that there
was no federal public trust doctrine. Second, he held that,
even if there ever had been, such public trust doctrine had been
displaced by the federal Clean Air Act.
However, according to E&E News, Judge Sarah Singleton has just
denied a motion to dismiss a public trust law suit brought in New
Mexico state court under New Mexico law, in Sanders-Reed v.
Martinez. E&E News did not link to any written
decision.
Obviously, the first ground for dismissal in Alec L. v.
Jackson is not relevant to Sanders-Reed. Indeed, Alec
L. v. Jackson makes clear that the public trust doctrine is a
creature of state law, so New Mexico law should be available for
suits to protect New Mexico public trust assets.
Does the availability of public trust law mean that
Sanders-Reed really has legs? I'm
skeptical. Strictly speaking, what will be relevant in New
Mexico will be preemption, not displacement. It's also
true that the federal CAA does not necessarily preempt state air
regulation, if the state regulation does not conflict with the CAA
and only seeks more stringent regulation. Nonetheless, here,
given the extraterritorial nature of GHG pollution, and the
complexities involved in both assessing and remedying the problem,
courts are going to be reluctant at best to wade into that
thicket.
I will be interested to see what appellate courts in New Mexico
make of this. I know no more of New Mexico procedural law than
I do its substantive public trust law, but if ever there were a
case for interlocutory review of a denial of a motion to dismiss,
this would be the case.
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