This week, an organization called Our Children's Trust filed a suit in San Francisco's U.S District Court arguing that by not regulating carbon, government agencies have violated the public trust doctrine, which says that the government must maintain certain resources (like lakes, forests, and, you know, the Earth's atmosphere) for public use. They filed suit on behalf of a bunch of teenagers. Get it? The future generation. Does Our Children's Trust have a chance at succeeding? Past court cases can provide some hints.
Comer V. Murphy Oil
In this 2007 case, Mississippi property owners living on the coast claimed that greenhouse gas emissions from over 100 oil and gas industry defendants increased Hurricane Katrina's intensity--and that this seriously damaged the plaintiff's property. The case was ultimately dismissed because of a local rule that went into effect when eight out of 16 5th Circuit judges recused themselves because they had conflicts of interest. Inside Counsel explains, "Given the number of defendants that climate change suits similar to Comer have named, any judge with energy company stocks in his portfolio will have to consider potential recusal." That's right--they couldn't find enough judges without any ties or stock in the oil industry to take the case, and that killed it.
This case is effectively finished unless the Supreme Court takes it up. And it provides a valuable lesson: it's difficult to push climate change cases through courts when the courts are filled with conflicting interests--and sometimes cases fall flat for seemingly no good reason.
State of Connecticut v. American Electric Power et al.
This 2009 case pitted a number of states, including California, Connecticut, Iowa, New York, Rhode Island and Vermont, against five large power companies, including American Electric Power. The states aimed to use the federal common law of nuisance (nuisance is defined as an "activity or condition that is harmful or annoying to others") to wring CO2 emissions reductions out of the power companies, which are responsible for a quarter of all emissions from utilities in the U.S. Essentially, the states wanted the courts to protect them from the public nuisance of CO2 emissions.
The case eventually found its way to the Supreme Court, where Chief Justice John G. Roberts commented, "The whole problem of dealing with global warming is that there are costs and benefits on both sides, and you have to determine how much you want to readjust the world economy. That’s a pretty big burden to impose on a district court judge." (hat tip, New York Times). Can we really expect a judge to fundamentally alter the business landscape of the country in one decision? Probably not. It's an important stumbling block to think about when considering these cases.
National Audubon Society v. Superior Court
The public trust doctrine, which is being invoked in the Our Children's Trust case, has been used before. One example comes from this 1983 case, in which plaintiffs claimed that water diversion from the City of Los Angeles Department of Water and Power were triggering water level declines (and environmental damages) at Mono Lake, a popular recreational spot in California. Ultimately, the Supreme Court of California ruled that the public trust doctrine applied to Mono Lake--and in 1994, the state's Water Resources Control Board mandated a water level of 6,392 feet above sea level, according to Mono Basin Research.
This doesn't guarantee that the public trust doctrine will work for greenhouse gas emissions--a lake is different from the planet's atmosphere. But it does offer a glimmer of hope for an otherwise far-fetched case that will, at the very least, keep people talking about climate change.