On May 4, 2011 a group of five teenager plaintiffs, together with two non-profit environmental groups, filed suit against the federal government in the Federal District Court for the Northern District of California, in San Francisco. The complaint (PDF), seeking declaratory and injunctive relief, contains only one cause of action: violation of the Public Trust Doctrine.
The Public Trust Doctrine, dating back to ancient Rome, imposes a common law duty on a sovereign trustee, in this case the U.S. Government, to “hold vital natural resources in ‘trust’ for present and future generations. . . . to protect [. . .] trust assets from damage or loss, and not to use [. . .] trust assets in a manner that causes injury to the trust beneficiaries, present and future.” Complaint at para. 63.
Plaintiffs maintain that the “atmosphere, including the air, is one of the crucial assets protected by the Public Trust Doctrine,” id., and that the defendant federal agencies “have allowed, facilitated, and contributed to the waste of trust assets, [. . .] including the atmosphere, by allowing it to become polluted with high levels of human-caused CO2.” Complaint at para. 139.
While this particular complaint was filed in federal court and alleges violations of the federal common law Public Trust Doctrine, the non-profit coalition Our Children’s Trust is filing similar suits against states around the country, alleging violations of state common law. Notably, federal and state common law on the doctrine are not coextensive.
Of course, as CCCL Director Professor Michael Gerrard explained in a recent New York Times article on the topic, “courts that hear these cases will be heavily influenced by the Supreme Court’s opinion” in the pending case of American Electric Power v. Connecticut. But, Professor Gerrard added, “by filing such lawsuits, environmentalists were ‘trying to use all available options in view of the failure of Congress’ to act on greenhouse gas emissions.”
Even in light of the likely decision in AEP, all it takes to keep the issue alive is for one state court to recognize a new climate change-related cause of action under the Public Trust Doctrine. In filing cases in states around the country, the plaintiffs are hoping to find a judge willing to do just that.