Public Trust Doctrine No Basis for Judicial GHG Controls

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.