We blogged last May and again in December about the tidal wave of litigation set loose by Our Children's Trust (OCT), an Oregon environmental group that had orchestrated the filing of a dozen suits asserting the defendant States and the United States had an obligation under the public trust doctrine to restrain carbon dioxide emissions, as well as regulatory petitions in about 40 jurisdictions. One can find OCT on Facebook, Flickr, YouTube and Vimeo. It prepares "backgrounders" for the press (attached). It has even coined its own acronym, ATL (atmospheric trust litigation) for its legal assault. OCT is media savvy. It has still not established that it is litigation savvy.
The petitions have not fared well. OCT's website is not up-to-date but petitions have been denied in at least 27 jurisdictions (Arkansas, Connecticut, Florida, Georgia. Hawaii, Idaho, Illinois, Iowa, Louisiana, Maine, Maryland, Michigan, Missouri, Nevada, New Hampshire, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming and Washington, DC). The denials have prompted two more lawsuits (appeals) in Iowa and Texas.
On the litigation side, motions to dismiss have been the defendants' responses of choice. The lawsuit against Montana filed in the Montana Supreme Court was dismissed almost immediately. Montana has a rule permitting an original action before the Montana Supreme Court where there are no factual issues and the matter is urgent. The court rejected that position: "This Court is ill equipped to resolve the factual assertions presented by Petitioners. We further conclude that Petitioners have not established urgency or emergency factors that would preclude litigation in a trial court followed by the normal appeal process." Accordingly, the petition for original jurisdiction was denied.
Fast forward to today, the tidal wave is starting to break. New Mexico and Oregon had oral argument on their motions in January. Decisions have not been issued. In the Oregon suit it was reported that, after argument, the judge remained undecided about whether to dismiss the case. This month there are hearings in Alaska, Arizona and Washington.
And last Monday the first merits decision was handed down. In Aronow v. Minnesota the Minnesota District Court dismissed the case with prejudice.
Plaintiff's complaint (attached) lays out the threats posed by climate change in great detail. It then explains the public trust doctrine, including legal authority for extending it to the atmosphere. "The Public Trust Doctrine is a foundational aspect of sovereignty; it holds government responsible, as perpetual trustee, for the protection and preservation of resources necessary for the common welfare of all citizens, those living and those yet to be born. ... The atmosphere, because of the climate stability it makes possible, is a necessary resource protected by the public trust." The doctrine is, according to the complaint, partially codified in the Minnesota Environmental Rights Act (MERA) (Minn. Stat. §§ 116B.01 - 13).
Plaintiff coffered two theories as the basis for relief: one under the public trust doctrine and the other under MERA. He sought a declaration that the atmosphere was protected by the public trust doctrine and that the defendants were in violation of the doctrine. He also sought a declaration that defendants had violated MERA (without identifying what part of MERA was violated). Last, plaintiff asked the court to "Compel Defendants to take the necessary steps to reduce the State's carbon dioxide output by at least 6% per year, from 2013 to 2050, in order to help stabilize and eventually reduce the amount of carbon dioxide in the atmosphere."
The defendants, Minnesota, the governor and the Minnesota Pollution Control Agency, filed a motion to dismiss. They succeeded. In dismissing the claims, the court set down its opinion (attached) in three parts: 1. can the governor be sued (no); 2. does the public trust doctrine apply to the atmosphere (no); and 3) are there viable causes of action under MERA (no).
As to the governor, he had no legislative authority or funding "to implement the policies sought by plaintiff." Accordingly, he was not a proper party to the suit.
As to the public trust doctrine, this ruling is arguably the most important part of the decision. A ruling in OCT's favor would provide it ammunition in the imminent battles in other jurisdictions. A ruling against it would supplement the arsenals of the defendants in those other cases. Further, the court's decision was the first merits decision on the central tenet of OCT's raft of cases: the public trust doctrine applies to the atmosphere. The court's analysis is brief so we provide it in full:
Minnesota Courts have recognized the Public Trust Doctrine only as it applies to navigable waters. "Navigability and nonnavigability [sic] mark the distinction between public and private waters. The state, in its sovereign capacity, as trustee for the people, holds all navigable waters and the lands under them for public use." Nelson v DeLong, 7 N.W.2d 342, 346 (Minn. 1942) (emphasis added). The Nelson court ultimately held that a private citizen's riparian rights are subordinate to the State's needs as it manages the navigable waters that are held in the public trust. See also Pratt v. State, Dep't of Natural Resources, 309 N.W.2d 767, 771 (Minn. 1981). In Larson v Sando, 508 N.W.2d 782 (Minn. Ct. App. 1993), rev. denied (Jan. 21, 1994), the court declined to extend the public trust doctrine beyond the state's management of waterways, partly because the cases cited by the parties applied only to waterways. Id. at 787 (declining to extend the doctrine to land). Similarly, this Court cannot locate, nor did counsel for either party supply, a Minnesota case supporting broadening the Public Trust Doctrine to include the atmosphere. This Court has no authority to recognize an entirely new common law cause of action through plaintiff's proposed extension of the Public Trust Doctrine.
That is it. There is no analysis of whether the public trust doctrine should or should not apply to the atmosphere. Instead, the court simply ruled it has not been done before in Minnesota and it will not be done by this district court here.
Last, are the MERA claims. The court went out of its way to consider a variety of ways that a MERA suit might be justified. We want to focus on the simplest: the statutory requirements. Under § 116B.03 a resident of Minnesota could bring suit in the name of the State "for the protection of the air ... from pollution impairment or destruction." A problem was that plaintiffs had not complied with the statutory requirements of giving notice, which was "fatal." Another problem was that plaintiff was required to sue on behalf of the State, which he did not. A final problem was that the required "pollution, impairment or destruction" was defined by statute, and the statutory requirement, according to the court, was not met. We have trouble with this conclusion, however. To be sure the statutory definition required "conduct by any person which violates, or is likely to violate, any environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit," but it also alternatively permitted a claimant to challenge "conduct which materially adversely affects or is likely to materially adversely affect the environment." Minn. Stat. § 116B.02(5). Plaintiff expansively alleged how carbon dioxide emissions lead to climate change which is causing numerous deleterious effects on humans and the environment. And he alleged how Minnesota's state government's conduct (inaction) was materially adversely affecting the environment. These allegations just don't seem to square with the court's conclusion that "the Complaint does not allege anything falling within the definition of 'pollution, impairment or destruction.'" We wonder why the court ventured into this area when it had established the procedural bars.
Alternatively, under Minn. Stat. § 116B.10 a Minnesota resident could "maintain a civil action .... for declaratory or equitable relief against the state ...where the nature of the action is a challenge to an environmental quality standard, limitation, rule, order, license, stipulation, agreement or permit promulgated or issued by the state ... for which the applicable statutory appeal period has lapsed." Plaintiff's fundamental problem was that his complaint failed to "refer to or challenge a single environmental quality standard, limitation, [etc.]" In other words, by its terms plaintiff's claim did not meet the statutory requirements.
OCT is 0-27 in the regulatory arena. It is now 0-2 in litigation. Notwithstanding, we cannot see the future here. Regulatory agencies cannot move into new areas without legislative authority. We will not be surprised if OCT is 0-40 in the not too distant future. But in the courts it may be a different story. Montana's dismissal simply set the stage for re-filing in the trial court. In Minnesota the court did not reject the concept of applying the public trust doctrine to the atmosphere; it simply was unwilling to plow new ground. And the Oregon trial court is reportedly on the fence. We still await thoughtful jurisprudence on whether the public trust doctrine applies to the atmosphere. We note, however, that we expect a long wait for this to settle down; whatever happens in the immediate future, there are certain to be appeals.
20120130 Order of Dismissal, Aronow v. Minnesota (Our Children's Trust).pdf (960.57 kb)
Aronow v. Minnesota Complaint (Our Children's Trust).pdf (247.79 kb)
Our Children's Trust, National Backgrounder (ATL) 12-1-191.pdf (316.65 kb)