June 7, 2012
In a closely watched decision (Alec. L., et al. v. Jackson,
1:11-cv-2235 (RLW) May 31, 2012), the U.S. District Court for the District of
Columbia held that the public trust doctrine provided no jurisdiction for
federal courts to require federal agencies to regulate emissions of greenhouse
gases ("GHGs"). Consistent with the Supreme Court’s decision in AEP v.
Connecticut, the court firmly rejected another attempt by environmental
groups to obtain a judicial remedy to force greenhouse gas emissions controls as
a substitute for action by the EPA. The court concluded that the district court
was a poor forum for adopting broad-scale regulatory programs with widespread
economic and social consequences.
Two environmental groups representing young people concerned with the impacts
of climate change brought this action in district court and in the courts of all
50 states. The suits alleged that under the public trust doctrine the U.S.
government and each of the state governments had a duty to preserve and protect
environmental quality for future generations, that the governments were failing
in that duty by virtue of the lack of controls on GHG emissions to combat
climate change, that young people were particularly injured by this failure of
stewardship and that the courts should order the adoption of GHG emission
control policies. A number of state courts dismissed these claims as essentially
non-justiciable, but the district court allowed several business groups to
intervene as defendants who would be affected by the controls. The business and
government defendants moved to dismiss the claims for failing to state a cause
of action and the court granted those motions with prejudice in this opinion.
The court held, first and foremost, that the “public trust doctrine” was
extremely limited and could not be applied generically to all environmental
issues. The court noted that at common law, the public trust doctrine required
state governments to hold the land beneath navigable waters for the benefit of
the public and could not sell or preclude public access to the land and the
waters. While this doctrine has been expanded to protect public interest in
other water-related and riparian uses, the court stated that it had never been
expanded to address the environment as a whole and certainly not the atmosphere.
The court further cited extensive Supreme Court precedent stating that the
enforcement of state obligations under the Public Trust Doctrine was a matter of
state and not federal jurisdiction and that the federal courts were
constitutionally precluded from hearing the case.
Finally, the court held that even if it had jurisdiction, it was constrained
by AEP v. Connecticut. In that case the Supreme Court unanimously
rejected an attempt by environmental groups to obtain judicial regulation of GHG
emissions by alleging that the emissions constituted a public nuisance that
could be abated by judicial injunction. The Supreme Court held that the Clean
Air Act displaced such claims and that courts with their limited resources and
constrained information gathering could not hope to match the EPA’s ability and
expertise to evaluate scientific, economic and social concerns in adopting
complex regulatory programs, especially such programs as would be required to
control emissions of GHGs. As a result Congress had properly assigned that role
to EPA and the courts had no business trying to do the EPA’s job. In dismissing
this complaint the district court held that AEP precluded federal common
law judicial intervention and mandated a dismissal of the complaint.
The court’s decision will certainly be appealed, but it’s hard to see the
D.C. Circuit taking a different approach. The district courts have uniformly
rejected attempts to involve them in evaluating public nuisance claims relating
to climate change (they would have to try these monsters, after all), and while
several appellate courts were willing to find courts had such authority, the
Supreme Court’s decision in AEP pretty much ended that discussion at the
federal level. There is not much reason to think that plaintiffs will be any
more successful under the public trust doctrine, which traditionally had a far
more limited application. Yet, as EPA struggles to develop a functional GHG
program under the Clean Air Act and Congress has little or no interest in
assisting, the pressure to seek a judicially mandated program will continue.
McGuireWoods LLP Clean Air Act Team
McGuireWoods LLP is a full service law firm with a focused practice in
climate change and Clean Air Act matters. For more information on the final
light duty vehicle rule or EPA's initiatives to regulate greenhouse gases,
please contact the authors, or any member of our
Clean Air Act team.