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.