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By Shelley Welton, Deputy Director and Fellow

The lawsuit of Alec L. and several other young climate change activists was dismissed by the U.S. District Court for the District of Columbia today. In Alec L. et al. v. Lisa P. Jackson et al., 11-cv-02235 (D.D.C. 2012), five teenagers and children joined the groups Kids vs. Global Warming and Wildearth Guardians to sue several federal agency heads for failure to adequately address global warming.

The plaintiffs proceeded on the theory that the atmosphere is a commonly shared public resource that defendants, as agency heads, have a duty to protect under the public trust doctrine. As relief, plaintiffs asked for an injunction directing the named federal agencies to “take all necessary actions to enable carbon dioxide emissions to peak by 2012 and decline by at least six percent per year beginning in 2013” (Slip. Op. at 5). Defendants and intervenors argued in a motion to dismiss that plaintiffs failed to state a federal claim for relief.

The district court’s opinion rejects plaintiffs’ federal public trust doctrine claim. Relying on the recent Supreme Court decision PPL Montana, LLC v. Montana, 565 U.S. —-, 132 S. Ct. 1213 (2012), the opinion holds that the public trust doctrine is a matter of state, not federal, law. It also explains that even if the public trust doctrine were a federal common law claim, such a claim has been displaced in this case by the Clean Air Act (as was similarly held in the 2011 Supreme Court case American Electric Power Co. v. Connecticut, 131 S. Ct. 2527).

Finally, the opinion expresses what has become familiar judicial skepticism with federal courts developing new law (as opposed to applying existing statutes) in the complicated arena of regulating carbon dioxide emissions. This skepticism may be warranted, but after years of inaction by the elected branches of government, it is no wonder that these young plaintiffs are exploring all possible avenues (including, perhaps, an appeal?).

3 comments

  1. As editor of a Sustainable Development Media outlet and author of the Promptbook on Sustainable Development to the Johannesburg Summit of 2002, I concur with the plaintiffs as it is a clear right of their’s and our’s to breathe clean air. When such is taken away from us – this is plain robbery and the government and the judiciary should be compelled to protect our life.

    Clean Air is a Global Common Good and nobody is entitled to appropriate it to oneself and leave instead polluted air.

    In the Promptbook I dealt with this subject by claiming that Nations should not be entitled to pollute the air above territory or water that is outside their sovereignty – this so that the argument is brought to the attention of the UN and the Court of International Justice.

    When the air is being polluted within the area of National sovereignty, as it migrates outside the national sovereignty area this becomes a way to overcome levels of National courts that for whatever political business-motivated reasons might not be ready to address this subject.

  2. I’m a doctor, not a lawyer, so the legal details of this case go beyond my expertise. But as an emergency physician for 35 years I know one when I see one. The climate crisis definitely qualifies as a Code Blue, lights and sirens situation that apparently exceeds the capacity of the law to address with the urgency required. As our civilization sleepwalks off a cliff, more and more people realize that we are gripped with a kind of paralysis that must be overcome immediately if we are to survive intact. These young people get that instinctively and deserve our full support. What else are they to do as they see their futures eaten alive by rapacious greed for energy at any cost and a political system incapable of rectifying the greatest injustice humans have ever inflicted on each other and themselves?

    TAX CARBON! Use the financial system to engineer the changes needed. Take responsibility for humanity’s poop by paying for it. Potty training now!

  3. Peter,

    You said it, a Carbon Pollution Tax would do so much to re-align the incentives so we have a shot at beating global warming. You might be interested in the Carbon Tax Center at http://www.carbontax.org. We’re working with others to urge Congress to include a carbon tax in comprehensive tax reform that would tax carbon pollution and use the revenue to cut taxes on work that discourage employment. Tax what we burn, not what we earn!

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