Co-author: Jeffrey K. Janicke
As this blog has discussed on several prior occasions, Our Children’s Trust, an Oregon public interest group, has coordinated lawsuits in numerous states seeking to apply the public trust doctrine to the atmosphere (e.g., here and here). While some jurisdictions now recognize the doctrine, OCT has yet to succeed in forcing a state to take any action on the climate. This month, however, the Alaska Supreme Court provided plaintiffs another possible route.
In Kanuk v. Alaska Department of Natural Resources, several Alaska minors alleged that the State had violated its duties under the Alaska constitution and the public trust doctrine by failing to take steps to protect the atmosphere from climate change. Among other things, the plaintiffs had asked the trial court for a declaratory judgment holding that the atmosphere is a public trust resource that the State has a fiduciary obligation to protect and preserve, and that it has failed to uphold this obligation. They also asked for affirmative relief, including an order requiring the State to “reduce the carbon dioxide emissions from Alaska by at least 6% per year from 2013 through at least 2050.”
While the Alaska high court affirmed the dismissal of the plaintiffs’ various claims – the affirmative relief on political question grounds and the declaratory relief on prudential grounds – two aspects of the ruling will likely boost OCT’s confidence.
First, the State had challenged the plaintiffs’ standing to bring the suit, but the court held that the complaint showed “direct injury to a range of recognizable interests” and that the plaintiffs therefore had standing. The court cited, among other things, plaintiff Nelson Kanuk’s allegation that he had been personally affected by climate change due to erosion from ice melt and flooding from increased temperatures, which “threaten the foundation of Nelson's home, village, native traditions, food sources, culture, and annual subsistence hunts.” The court rejected the State’s argument that standing is lost by the fact that climate change affects all Alaskans and not just the plaintiffs. In this regard, it distinguished the case from Center for Biological Diversity v. U.S. Department of the Interior on the basis that no individual harm had been alleged in that case: “Here, the plaintiffs allege individual harm; all Alaskans cannot claim the same degree of injury as Kanuk, for example, whose family is alleged to have had to evacuate its home because of climate change.”
Second, and more importantly, in ruling that the claims for declaratory relief should have been dismissed on prudential grounds (and not political question grounds), the court made the following statement:
We also observe that if the plaintiffs are able to allege claims for affirmative relief in the future that are justiciable under the political question doctrine, they appear to have a basis on which to proceed even absent a declaration that the atmosphere is subject to the public trust doctrine. In their complaint they allege that the atmosphere is inextricably linked to the entire ecosystem, and that climate change is having a detrimental impact on already-recognized public trust resources such as water, shorelines, wildlife, and fish. Allegations that the State has breached its duties with regard to the management of these resources do not depend on a declaratory judgment about the atmosphere. In short, we are not convinced that declaratory relief on the scope of the public trust doctrine, as requested in this case, will advance the plaintiffs’ interests any more than it will shape the future conduct of the State.
Hence, the court essentially held that, to succeed, the plaintiffs need not obtain a ruling that the public trust doctrine applies directly to the atmosphere. As long as the plaintiffs can allege justiciable claims for relief, they can rely on the indirect effect of climate change on the State’s other natural resources.
It will be interesting to see whether OCT advances this rationale in future litigation. While the plaintiffs will still have to overcome the political question hurdle to force a state to take action, sidestepping the public trust requirement would certainly make their overall climb easier.
After a slow start, OCT can now claim some success in at least four states (Texas, New Mexico, Arizona and Alaska). One of the central themes of governmental response to climate change is the idea of the 50 states as 50 separate laboratories investigating and testing various responses. OCT’s approach of lawsuits in multiple jurisdictions seems to be proving up the laboratory approach.