All posts tagged 'Our Children's Trust'

Alaska Supreme Court Opens the Door for Alternative Theory in Public Trust Litigation

September 26, 2014 08:40
by J. Wylie Donald
Co-author: Jeffrey K. Janicke As this blog has discussed on several prior occasions, Our Children&r

Climate Change | Climate Change Litigation

New Mexico Court Refuses to Take Steps to Apply Public Trust Doctrine to the Atmosphere

August 22, 2013 06:13
by J. Wylie Donald
By J. Wylie Donald and Patrick Reilly Two years ago, we observed a potentially startling development in climate change litigation: “On Monday, May 4, [2011] in state courts across the nation lawyers representing children and young adults filed (and apparently will continue to file) suits seeking to compel State governments to recognize the application of the public trust doctrine to greenhouse gas emissions and to take action to abate those emissions.” These lawsuits were coordinated by two groups, Our Children’s Trust and Kids vs. Global Warming, and sought to apply the Public Trust Doctrine to the atmosphere. At the time, we pointed out that there were a host of issues to be resolved before these lawsuits could be successful. And so far, although the Public Trust Doctrine is now recognized in some jurisdictions as applying to the atmosphere, not one suit has been successfully concluded.  Recently, the New Mexico suit, although it survived a motion to dismiss, joined its unsuccessful brethren when the District Court granted a motion for summary judgment against the plaintiffs.  In the case, Sanders-Reed v. Martinez, seventeen-year-old Aklilah Sanders-Reed sued New Mexico and Susana Martinez in her official capacity as governor for breaching their duty to uphold the public trust with respect to greenhouse gas emissions into the atmosphere. Asserting that “courts have emphasized the flexibility of the [public trust] doctrine to meet changing societal concerns,” Sanders-Reed and her lawyers argued in their complaint that “Governor Martinez has failed to use her authority for the protection of the atmosphere, a valuable public trust resource that belongs to present and future generations of New Mexico citizens.” Plaintiffs effectively hoped that, by applying the Public Trust Doctrine to the atmosphere, the state judiciary could order stricter greenhouse gas regulations. In her June 26th, 2013 Order on Summary Judgment (attached), the Honorable Sarah M. Singleton noted the gravity of such a decision: “I think that in applying this Doctrine … the Supreme Court would allow the judicial branch to bypass the political process if there was an indication that the political process had gone astray.”  Citing an earlier case in Hawaii, Judge Singleton went on to conclude that, “the State may compromise public rights in the resource only when the decision is made with a level of openness, diligence, and foresight that is commensurate with the high priorities that the rights command under the laws of the state.” With these conclusions in mind, the Court opined that even if the Public Trust Doctrine does apply to the atmosphere, invoking it to protect the atmosphere would stand at odds with New Mexico’s record of doing so legislatively. The question is whether or not the State is ignoring its role in protecting the environment or the atmosphere. The State’s not ignoring it, it just disagrees with what the Plaintiff thinks is needed. So the State, in my opinion, has acted on this. Now, is there the possibility under the Public Trust Doctrine that the State’s action could be so wrongheaded as to invoke the Public Trust Doctrine? I  suppose that in rare circumstances, it could. But I believe that before a court should jump in to apply a doctrine like the Public Trust Doctrine, there should be some showing that the process was tainted or that the public was foreclosed from pursuing the issue. That is not the case here. Judge Singleton went on to explain that, by virtue of the state Environmental Impact Board’s public decision-making process, plaintiffs had not been denied their chance to participate in its findings on greenhouse gas emissions. She then asserted that regulation of greenhouse gas emissions is, “a political decision, not a Court decision,” before granting summary judgment.  With that decision, Sanders-Reed’s attempt to curtail New Mexico’s greenhouse gas emissions fell short at the trial court. But an appeal was filed on July 24th so it may not be over yet. (We note that Our Children’s Trust plaintiffs have a busy appellate docket.  Following losses at  the trial or intermediate appellate court, appeals are pending in Alaska, Oregon, and Washington also have pending appeals of litigation.  Losses on appeals in Arizona and Minnesota have not been further appealed.  They have appeals of regulatory petitions pending in Texas, Iowa, and Pennsylvania.) As stated in Arizona Center for Law in the Public Interest v. Hassell, and repeated earlier this spring in the Arizona OCT appeal, Butler v. Brewer, "as an attribute of federalism, each state must develop its own jurisprudence for the administration of the lands it holds in public trust."  Our Children’s Trust may have extended that rule to the “administration of the [atmospheric resources held] in public trust”, but so far that has had no effect.  20130704 Order on Summary Judgment (Sanders-Reed v. Martinez).pdf (410.72 kb)

Carbon Dioxide | Climate Change | Climate Change Litigation | Greenhouse Gases

Climate Change Legal Theories: The Atmospheric Public Trust Doctrine Moves Another Step Forward

April 29, 2013 05:49
by J. Wylie Donald
One of the shibboleths of those following climate change litigation is the idea that new legal theories will be surfaced, fired in the furnace of litigation and then forged as the vehicle for addressing climate change in the courts.  The public trust doctrine is being hammered out in that direction. Last month in Butler v. Brewer an appellate panel in Arizona considered a claim based on the theory that the atmosphere is subject to the public trust doctrine and that, therefore, the State of Arizona was obligated to take steps to address greehnouse gases and combat climate change.  Although the court affirmed the trial court’s dismissal of the suit, before reaching that conclusion it specifically rejected Arizona’s argument that greenhouse gas issues are non-justiciable under the doctrine. Butler is one of a slew of cases and regulatory petitions against the federal and state governments orchestrated by Our Children’s Trust, a public interest organization based in Oregon.  We have commented on OCT previously.  Its success has not been overwhelming, or even any.  Not one court has concluded that a state or the federal government can be compelled to do anything. Yet, if the measure of success is whether one’s theory is more well-formed than previously, and whether one can cite more legal precedent supporting it, then OCT is moving its ball forward.  By our count, OCT has positive rulings on its atmospheric trust theory from Texas, New Mexico and now Arizona. In Butler, the appellant raised only one issue:  "[w]hether the [public trust doctrine] in Arizona includes the atmosphere.”  The State of Arizona engaged that argument head on:  “the Doctrine does not include the atmosphere.”  Arizona also raised defenses of displacement, standing, and political question, among others.  The court considered prior Arizona and federal precedent to set forth the scope of the doctrine: First, that the substance of the Doctrine, including what resources are protected by it, is from the inherent nature of Arizona's status as a sovereign state. Second, that based on separation of powers, the legislature can enact laws which might affect the resources protected by the Doctrine, but is it up the to judiciary to determine whether those laws violate the Doctrine and if there is any remedy. Third, that the constitutional dimension of the Doctrine is based on separation of powers and specific constitutional provisions which would preclude the State from violating the Doctrine, such as the gift clause. From those principles the court had no difficulty responding to Arizona’s argument that the doctrine did not apply to the atmosphere:  “we reject the Defendants' argument that the determinations of what resources are included in the Doctrine and whether the State has violated the Doctrine are non-justiciable.”  Further, “While public trust jurisprudence in Arizona has developed in the context of the state's interest in land under its waters, we reject Defendants' argument that such jurisprudence limits the Doctrine to water-related issues.” (Note, however, Presiding Judge Gemmill concurred separately and stated:  "the atmosphere is not subject to the public trust doctrine.") Thus, “For purposes of our analysis, we assume without deciding that the atmosphere is a part of the public trust subject to the Doctrine.”  Unfortunately for the appellant, this was as far as the court was willing to go.  Appellant did not point to any violation of the Arizona Constitution or statutory law.  Such a violation was mandatory for the claim to succeed.  Additionally, in 2010 Arizona’s legislature took strong steps to ensure that the regulation of greenhouse gases remained in its bailiwick, rather than any administrative agency’s.  A.R.S. 49-191 provides: A. Notwithstanding any other law, a state agency established under this title or title 41 shall not adopt or enforce a state or regional program to regulate the emission of greenhouse gas for the purposes of addressing changes in atmospheric temperature without express legislative authorization. Absent a ruling that A.R.S. 49-191 was unconstitutional, there was no order the court could issue that would be able to implement the relief appellant sought.  Accordingly, appellant had no standing. Rome wasn’t built in a day.  The atmospheric public trust doctrine hasn’t been either.  But construction continues. 

Carbon Dioxide | Climate Change Litigation | Greenhouse Gases | Legislation

Is a Mass Filing the Right Strategy to Get Carbon Dioxide Regulation Going?

August 3, 2012 20:53
by J. Wylie Donald
After a string of defeats at the regulatory agencies and state and federal courts, Our Children's Trust finally notched two victories last month in its quest to use the public trust doctrine to implement carbon dioxide emission regulations.  Our Children's Trust, an environmental organization based in Oregon,  began its campaign in May 2011 when it oversaw the filing of nearly two score regulatory petitions and a dozen lawsuits seeking to force individual states to take action to restrict carbon dioxide emissions.   OCT's trademark feature is to include as plaintiffs "youth activists".  Up to the beginning of July it had not had any success.  But then, maybe, the tide began to turn.  First, on July 9 Texas District Court Judge Gisela Triana partially overrode the Texas Commission on Environmental Quality's decision rejecting a petition for rulemaking on the public trust doctrine.  Petitioners appealed the decision in Bonser-Lain v. TCEQ.  Petitioners had sought, relying on the public trust doctrine, to force the TCEQ to act to preserve the atmosphere by regulating carbon dioxide.  The TCEQ had concluded that in Texas the public trust doctrine applies solely to water.  Furthermore, according to the Commission, it was precluded from acting by the federal Clean Air Act, which preempted more restrictive state action.  Judge Triana made short shrift of both arguments.  Relying on Article XVI of the Texas Constitution she ruled:  "The Court will find that the Commission’s conclusion, that the public trust doctrine is exclusively limited to the conservation of water, is legally invalid. The doctrine includes all natural resources of the State.”  As to the preemption idea, the federal Clean Air Act "is a floor, not a ceiling, for the protection of air quality, and therefore the Commission's ruling on this point is not supported by law."  The court did find, however, that because of other pending litigation, the TCEQ did properly exercise its discretion in refusing to entertain the petition.  Second, on July 14, New Mexico District Court Judge Sarah Singleton refused to dismiss  a case asserting the State of New Mexico had an obligation to protect the atmosphere under the public trust doctrine.  The 18-line decision would hardly merit discussion except that this was the first decision allowing one of these cases to move forward.  Like the petitioners in Texas, the plaintiffs in New Mexico sought  to establish the public trust doctrine as a vehicle to control carbon dioxide emissions.  In a nutshell, Judge Singleton ruled that the suit, Sanders-Reed v. Martinez, could go forward insofar as it alleged that the State of New Mexico was not in compliance with laws passed by the New Mexico Legislature.  Specifically, the "Motion [to Dimiss] is DENIED to the extent that Plaintiffs have made a substantive allegation that, notwithstanding statutes enacted by the New Mexico Legislature which enable the state to set state air quality standards, the process has gone astray and the state is ignoring the atmosphere with respect to greenhouse gas emissions."  The motion was successful, however, where the court dismissed claims "based on the New Mexico Legislature's failure to act with respect to the atmosphere."  These cases may or may not be important in the climate change arena.  To be sure, they upset an unbroken stream of victories for state regulators over OCT plaintiffs and will undoubtedly serve as a rallying point for the remaining cases as well as to-be-filed cases.  But the comments in  Bonser-Lain are only dicta and that Sanders-Reed survived a motion to dismiss says nothing about the merits.  But the mass-filing strategy by Our Children's Trust bears watching because it is not unique and may surface elsewhere.  Indeed it has. Following the filing of a class action against Thomas Jefferson Law School in California over alleged misrepresentations in law school placement data, a team of lawyers coordinated by two attorneys in New York, David Anziska and Jesse Strauss, put together a mass-filing strategy similar in some respects to that followed by OCT.  Twelve apparently is the magic number.  The law school placement team brought suit against a dozen law schools in jurisdictions across the nation.  Although another twenty suits are theoretically teed up as information from prospective plaintiffs is collected, those suits were promised for Memorial Day but have not yet materialized.  A big filing day is mandatory to maximize press coverage.   As were the atmospheric trust cases, the law school placement cases were nearly all filed on the same day.  Both litigation teams have sought public exposure throughout the course of the litigation. A defendant's typical response in both sets of cases is a motion to dismiss.  Some throw in everything and the kitchen sink, others are more thoughtful.  There is a danger to the kitchen sink approach; the court may issue a ruling giving the plaintiffs a set of victories as happened with Thomas Cooley Law School in Michigan (see attached) (even though Cooley ultimately prevailed at the trial court). But this is where the mass filing paradigm falls down.  Both sets of litigation are based on state law.  In the law school placement cases, two California cases have survived demurrers because California consumer protection law includes educational services (see attached), and two have been dismissed because, among other things, Michigan consumer protection law does not reach professional schools and New York law finds law students to be sophisticated consumers.  In the atmospheric public trust cases, notwithstanding case after case rejecting the claims, courts in New Mexico and Texas find under their states' laws that the theory is well-founded.  The lesson one should take from this is that, like politics, all law is local.  Well-timed press releases and news conferences touting the ineluctable triumph of the plaintiffs, at the end of the day count for very little.  Rather, what matters is the particular law of the particular jurisdiction on the particular facts of the case.  Both plaintiffs and defendants should take note. 20120726 Filing in Florida Coastal of USF and Golden Gate decisions.pdf (366.85 kb) 20120607 Initial Thomas Cooley Law School Order re Motion to Dismissf.pdf (67.07 kb)

Carbon Dioxide | Climate Change Litigation | Legislation | Regulation

The Top 6 at 6: A Review of the Most Important Climate Change Legal Stories in the First Half of 2012

June 30, 2012 21:01
by J. Wylie Donald
Arbitrary and capricious.  Familiar words to anyone involved in regulatory activity.  But also applicable to calendars, which willy-nilly cut off a series of events and ascribe them to one solar cycle, as if the sun gave two hoots.  As we perused the various "Climate Change: Year in Review" reviews that crossed our desk last January, we concluded 365 days are arbitrary and one year capricious in assessing what is important to resurrect and re-discuss.  We further concluded that a 12-month look-back is too long.  So, for what it is worth, here is one of six months. 1.  Cap-and-Trade in the U.S. - On January 1 the Western Climate Initiative (WCI) (or what remains of it) initiated its long-anticipated cap-and-trade program for greenhouse gas emissions.  Notwithstanding the lack of support from other WCI members, California and Quebec are moving forward with a cap-and-trade program.  California's and Quebec's mandated reporting rules applied to stationary sources emitting at or above 25,000 metric tons of CO2e per year.  On May 9 coordination between the two programs was announced  initiating the 45-day public comment period.  The first auction will be held in November and then, on January 1, 2013, enforcement begins when covered entities must participate. It is obviously too soon to tell how successful the California program will be, but when the world's eighth largest economy takes an initiative, it is likely to have impact elsewhere, particularly when it is the only program in the nation. 2.  Greenhouse Gas Liabilities and Insurance Coverage - We didn't think there would be anything to say this year about coverage for GHG liabilities.  After all, in the only case in litigation the Virginia Supreme Court issued its opinion in AES Corp. v. Steadfast Insurance Co. in September 2011 and concluded that there was no "occurrence" triggering coverage made in the allegations pleaded by the Native Village of Kivalina against AES Corporation.  But then the Court granted a motion for reconsideration in January and many puzzled as to what was going on.  Apparently nothing as the Court reiterated its previous conclusions in an April 20, 2012 opinion.  The decision will be significant in Virginia because it may have upset coverage in more conventional cases, as the concurring opinion of Justice Mims suggests.  As for the rest of the nation, it is one decision, on one issue, on one set of facts.  The case is important because it is the first, but we will be surprised if it provides guidance anywhere else. As for greenhouse gas liability that is a story unto itself.  Like something out of a Steven King novel, the Comer v. Murphy Oil case refuses to pass quietly into the night.  This is the case that was dismissed by the Southern District of Mississippi, reversed by the 5th Circuit, vacated by the 5th Circuit en banc when it accepted rehearing and then reinstated as dismissed when the 5th Circuit's quorum dissolved.  Following a denial of a request for a writ of mandamus from the U.S. Supreme Court, the Comer plaintiffs re-filed their complaint against over 100 electric utilities, oil companies, chemical companies and coal companies alleging their GHG emissions were responsible for the ferocity of Hurricane Katrina.  And the Southern District of Mississippi dismissed the plaintiffs again on March 20.  And plaintiffs appealed again.  We don't expect the case to be finally at rest until the Supreme Court denies certiorari, or accepts it (perhaps in order to address the Ninth Circuit's much-anticipated decision in Native Village of Kivalina v. ExxonMobil, which has been pending for over six months since oral argument). 3.  Natural Gas:  The Bridge Fuel - With the combining of two technologies, hydraulic fracturing and horizontal drilling, a resource of unprecedented volume is "changing the game" of energy.  "Annual shale gas production in the US increased almost fivefold, from 1.0 to 4.8 trillion cubic feet between 2006 and 2010. The percentage of contribution to the total natural gas supply grew to 23% in 2010; it is expected to increase to 46% by 2035."  Thus reported the Energy Institute at the University of Texas in February in a 400+ page tome entitled Fact-Based Regulation for Environmental Protection in Shale Gas Development.  Momentously, the UT researchers report "there is at present little or no evidence of groundwater contamination from hydraulic fracturing of shales at normal depths."  The reference to "normal depths" acknowledged that in December 2011 the EPA linked contamination in Pavilion, Wyoming to shallow fracking operations. In March 2012, however, EPA agreed to conduct further testing.  And then in May, a personal injury tort case, Strudley v. Antero Resources Corp. et al., No. 2011-CV-2218 (2d Jud. Dist. Ct. Col. May 9, 2012), brought against fracking operators in Colorado was thrown out because plaintiffs could not muster adequate proofs of specific causation. Despite some intense opposition, fracking is moving forward.  What does all of this have to do with climate change?  Natural gas when burned emits half the carbon dioxide of coal.  Accordingly, some argue that natural gas is the bridge to a low-carbon future.  If so, then fracking builds that bridge. 4.  Innovative Climate Change Legal Theories - Last spring the sound and the fury were intense as the environmental organization Our Children's Trust unleashed several dozen regulatory petitions and a dozen lawsuits across the nation.  The goal:  establish the public trust doctrine as applicable to the atmosphere and use it to implement greenhouse gas regulation.  It appears that all of that is signifying nothing. Over two dozen petitions were denied in 2011 and two lawsuits were dismissed (Montana and Colorado).  It did not get any better in 2012.  The first six months of this year delivered only bad news to OCT.  State courts dismissed lawsuits in Alaska, Arizona, Minnesota, Oregon, and Washington.  The federal court in the District of Columbia did the same.   Plaintiffs took a voluntary dismissal in California.  To be sure, OCT has filed appeals (the one in Minnesota is scheduled to be argued on July 18).  Having failed to convince a single court so far, we think we are safe in predicting an uphill battle. 5.  Power Plant Performance Standards - On April 13, 2012, a scant seven months before the presidential election, the EPA published in the Federal Register standards of performance for all new fossil fuel-fired electricity-generating units requiring them to meet an electricity-output-based emission rate of 1,000 lb of carbon dioxide for every megawatt-hour of electricity generated.  The only plants that can meet this standard without implementing costly carbon capture and storage technology are natural gas plants.  Thus, the administration took a strong stand against coal-based generation.  Or it is all smoke and mirrors.  As EPA notes in the proposed rule, because of the glut of natural gas made available by fracking, there is little likelihood of a new coal-powered plant before 2030.  Notwithstanding, industry groups have filed a half-dozen lawsuits seeking to derail the rule. 6.  EPA's Greenhouse Gas Regulatory Program - Less than a week ago USEPA and its GHG program got a firm "thumbs up" from the D.C. Circuit.  Inundated with over two dozen appeals of various USEPA GHG regulations, the Endangerment Finding, the Tailpipe Rule, the Tailoring Rule and the Timing Rule (for citations see The DC Circuit Locks in USEPAs GHG Regulations Sort Of). The court turned away every challenge, sometimes on the merits and sometimes on procedural grounds such as standing.  There is much that deserves comment not the least of which are the differences between the states with California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington, lining up on one side, and Alabama, Florida, Indiana, Kansas, Kentucky, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Virginia lining up on the other.  To focus more on legal matters, several challenges were turned away on standing.  For example, neither states nor industry groups could challenge the Tailoring Rule as they did not allege the requisite injury.  Because the Tailoring Rule benefits small businesses (who are not required to comply with certain GHG emission requirements), it would appear that the door may remain open for parties who allege competitive injury (i.e., non-regulated entities gain a competitive advantage). In the meantime, do not expect Congress this election year to touch the issue.    

Carbon Dioxide | Climate Change | Climate Change Litigation | Greenhouse Gases | Insurance | Legislation | Regulation | Year in Review

2011: Notwithstanding Extreme Weather, US Climate Policy Does Not Move Forward

December 30, 2011 22:01
by J. Wylie Donald
NOAA reported that 2011 was one for the record books:  12 weather and climate-related disasters each causing over $1 billion in damage.  One might expect (or hope) that a national climate change policy would be coming into place to prevent repeating or setting a new record.  One would be disappointed.  U.S. climate policy is "uncertain," to quote Michael Morris, CEO of American Electric Power, "dysfunctional" is the word applied by Resources for the Future, "hamstrung" is how the chief UN climate change negotiator and Executive Secretary of the UNFCCC, Christiana Figueres, calls it.   We don't disagree with these viewpoints; they are accurate.  But if a response to climate change is the goal, it is worse than these commenters are acknowledging because not only has Congress shown that it is incapable of getting anything done, other avenues are not delivering either.  As the year expires we thought it might be helpful to sift through the year's detritus and assess  the status of attempts to reduce carbon dioxide emissions, distinct from overt attempts like passing laws and adopting regulations. 1. Tax emissions - Some will remember our blog on the federal lawsuit brought by Mirant Corp. against Montgomery County challenging the County's tax on carbon emissions which fell only on Mirant. The County challenged the federal court's jurisdiction and won before the federal district court. In June, however, the Fourth Circuit reversed.  With that Montgomery County folded its tent and abandoned its carbon tax. 2. Favor renewable energy - The inexorable scrutiny of the markets has proved the undoing of several former high-flying renewable energy ventures. Most well-known is the debacle with Solyndra LLC, whose well-publicized collapse generated scrutiny by the FBI and Congress. Others that have failed with less limelight in 2011 include numerous solar companies (Solar Millennium, Stirling Energy Systems, Evergreen Solar, Spectrawatt), as well as ventures in wind (Skycon), energy storage (Beacon Power), and biofulels (Range Fuels). 3. Impose liability for emissions of carbon dioxide - The results here are mixed.  Everyone points to American Electric Power v Connecticut for the principle that for greenhouse gas liability claims the federal common law of nuisance has been displaced by federal regulation. They could equally point to Connecticut v AEP before the Second Circuit for the principle that the political question doctrine does not bar these types of claims or to the Fifth Circuit panel in Comer v Murphy Oil USA that held similarly.  However, even if the cases are permitted to move forward, they face daunting problems in proof of causation. 4. Force state action to regulate carbon dioxide - We blogged last May and just this month about the tidal wave of litigation unleashed by Our Children's Trust, an Oregon environmental group that had orchestrated a dozen suits asserting the defendant States had an obligation under the public trust doctrine to restrain carbon dioxide emissions, as well as regulatory petitions in about 40 jurisdictions.  Time has not been good to OCT. First, its petitions have been denied by at least 23 agencies (Arkansas, Connecticut, Georgia. Hawaii, Idaho, Illinois, Iowa, Louisiana, Maine, Maryland, Michigan, Nevada, New Hampshire, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming).  Where OCT filed lawsuits, three states (Arkansas, Minnesota and New Mexico) responded with motions to dismiss.  The lawsuit against Montana was dismissed. In the federal lawsuit, the plaintiffs lost a motion to transfer. 5. Reach regional agreements - With great fanfare the Regional Greenhouse Gas Initiative was launched in 2005. Despite a recent study that claims significant economic benefit to the states in RGGI, its future success is unclear. New Jersey pulled out, New Hampshire tried to leave but the governor vetoed the bill. In New York, there is a court challenge.  6. Voluntarily trade carbon dioxide emissions credits - The only carbon exchange in North America came to an end in 2010 when the Chicago Climate Exchange closed its doors.  A shadow of its former self, the CCX now registers verified emission reductions based on a comprehensive set of established protocols. 7. Develop carbon capture and storage - The most prominent project in the US came to a halt in July when American Electric Power concluded not to build a full-scale CCS plant at its Mountaineer, West Virginia plant. As noted above, AEP explained its decision as based on the uncertainty of US climate policy.  The lack of direction in American climate change response hurts business. AEP walked away from a $300 million Department of Energy match.  It didn't help that the Virginia consumer advocate, in successfully arguing against including CCS costs in the rate base, asserted:  “Any potential benefit is speculative and outweighed by the enormous cost of the pilot project.” Some may think no policy is the best policy.  We think otherwise.  Climate change is happening.  There will be a response.  All will benefit if that response is choreographed over time, rather than rushed into when political consensus ultimately concludes that something must be done NOW.  Maybe in 2012?  Happy New Year. 

Carbon Dioxide | Carbon Emissions | Climate Change | Climate Change Litigation | Legislation | Regulation | Renewable Energy | Weather | Year in Review

Our Children's Trust Unleashes Wave of Climate Change Litigation

May 5, 2011 10:40
by J. Wylie Donald
When we wrote last month concerning the implications of the upcoming decision by the Supreme Court in American Electric Power v. Connecticut, we were fully expecting to wait for the decision to test our powers of prognostication.  We were very wrong.  In a collection of lawsuits and regulatory filings across the nation, environmentalists have joined the climate change litigation fray in a very big way.  Here is what we wrote:  "[A dismissal of Connecticut] says nothing about state law nuisance claims, nor new theories that have not yet been tested, nor even thought up. We strongly believe that carbon dioxide liability suits will be with us for a while yet. Our reason: climate change is ongoing and those whose interests are harmed will look for succor. So theories of liability will be spun and suits will be brought. And such suits will require a defense." Here is what has happened:  On Monday, May 4, in state courts across the nation lawyers representing children and young adults filed (and apparently will continue to file) suits seeking to compel State governments to recognize the application of the public trust doctrine to greenhouse gas emissions and to take action to abate those emissions.  The environmental group coordinating these actions is Our Children's Trust, based in Eugene, Oregon.  Its mission:  "Protecting Earth's Climate for Future Generations."  It is joined by Kids vs. Global Warming, whose "youth activists" are named plaintiffs in a number of the actions.  So far (according to the Associated Press), cases have been filed in California, Colorado, Minnesota, Montana, New Mexico, Oregon, and Washington, and also in federal court in California.  Our perception is that these jurisdictions are friendlier to environmental issues than other places.  In those other places regulatory petitions are being filed. We won't go into the details of all of these filings but here is the gist of the claims brought in New Mexico: Sanders-Reed v. Martinez.  New Mexico is at risk from the effects of climate change.  From loss of snowpack to drought to extreme heat waves, as temperatures rise life in New Mexico is being degraded.  Enter the State.  Before the current administration of Governor Martinez, New Mexico was taking steps to limit the discharge of greenhouse gases within New Mexico.  State agencies studied the problem and made recommendations.  The governor issued executive orders.  The Environmental Improvement Board promulgated greenhouse gas regulations.  New Mexico joined the Western Climate Initiative.  Id. ¶¶ 61-73, 76.  Then Governor Martinez took office at the beginning of this year.  According to the complaint, she attempted to block the publication of the greenhouse gas rules and announced that she would keep New Mexico from joining a regional cap-and-trade program. She also removed all of the members of the Environmental Improvement Board because she believed the Board was anti-business.  The Small Business-Friendly Task Force, created by the Governor, has recommended that New Mexico shift to “observer” status in the Western Climate Initiative. Id. ¶¶ 74-76.  Plaintiffs, one teen-ager (a member of Kids vs. Global Warming) and one environmental group, sued under the public trust doctrine, which has not yet been applied to the atmosphere.  In a nutshell, plaintiffs assert that "Defendant State of New Mexico has failed in its fiduciary duty to recognize and protect our atmospheric public trust resource, thereby injuring these Plaintiffs."  Id. ¶ 19.  In more detail, plaintiffs desire a declaration by the New Mexico court that "(1) the public trust doctrine is operative in New Mexico and, pursuant to this doctrine, the State holds the atmosphere in trust for the public; (2) the State has an affirmative fiduciary duty to establish and enforce limitations on the levels of greenhouse gas emissions as necessary to protect and preserve the public trust in the atmosphere; (3) the State’s fiduciary duty to protect the atmospheric trust is defined by the best available science; and (4) the State has breached its fiduciary duty to protect the public trust in the atmosphere by failing to exercise its right of control over the atmosphere in a manner that promotes the public’s interest in the atmosphere and does not substantially impair this resource."  One will note that the claim is for declaratory relief, but not damages.  Plaintiffs' goal is to stabilize before 2100 the earth's atmosphere at 350 ppm carbon dioxide.  Id. ¶¶ 51-53.  Today it is at 390 ppm and increasing.  Id. ¶¶ 43, 45.  Failure to achieve such stabilization will lead to catastrophe.  Id. ¶ 46. (If you wish to read other complaints and petitions, visit Our Children's Trust's website.) There are a host of issues before these lawsuits are successful.  First, is the atmosphere subject to the public trust doctrine?  Second, can private parties require the State to act to preserve that trust?  Third, what are the elements of standing for those parties?  Fourth, what is the "best available science"?  Fifth, could federal preemption apply?  And probably many more.  But plaintiffs have a lot of opportunities to address these questions and will undoubtedly learn from one case so as to improve the others. In the meantime, the battle for control of the public dialog will continue.  Environmentalists have chosen a broad-based attack and will certainly make the most out of any successes they have.  Further, although we will not link the Tuscaloosa tornadoes and this year's record Mississippi flooding to climate change, some certainly will because more extreme weather is a central prediction of the climate change story.   Those kinds of extreme weather events may be all that is necessary to push climate change back onto the federal agenda.   Perhaps the most interesting facet of this set of cases is how it juxtaposes with Connecticut.  In that case, States are suing private parties to compel them to abate carbon dioxide emissions.  Commentary on the Supreme Court argument suggests that the Court may have some sympathy to States who are trying to remedy a problem that the federal government is ignoring.  Now private parties are suing those same State governments asserting that they are not doing enough either. And where does all this leave our prediction.  We are right about new theories, right about claims of ongoing injuries and right that more suits would be brought.  We are wrong that those suits would be suits for liability.  We are wrong today, anyway.

Carbon Dioxide | Climate Change | Climate Change Litigation | Greenhouse Gases | Supreme Court

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