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Wednesday, May 11, 2011

Asking for the World

Despite the heated reaction to Eric's post on self-promotion, I'll be talking sometime soon about an article I'm writing for a symposium on the public trust doctrine.  But as luck would have it, last week came the news of a series of lawsuits to be filed in courts in several states by an environmental group Our Children's Trust.  I haven't seen the complaints, but the website for the lawsuits indicates that they're asking for significant curbs on greenhouse gases and a major reforestation effort, based on an argument that the atmosphere is a resource protected by the "public trust" doctrine.

For those who don't know it, in a nutshell the public trust doctrine is a doctrine, traceable back to Roman law, which on one reading creates a commons in certain resources, such as the air and the ocean.  It came into American law from Britain, and achieved its most notable success in an 1892  Supreme Court case in which the State of Illinois was held to have lacked the power to alienate a large part of the Chicago waterfront, on the theory that that land was held in common under the doctrine.  Joseph Sax, an environmental law scholar, is credited with having resurrected the public trust doctrine in the late 1960's, largely as a tool for ensuring that government decisionmaking affecting environmental resources was made with at least some awareness of environmental values.

So what about these lawsuits?  Based on information from the lawsuit's website, they're awfully ambitious in terms of what they're requesting.  Given that they're requesting this relief based on a doctrine that (as I'll discuss in a later post) is both of uncertain legal provenance and traditionally limited to a discrete set of resources, it's hard to bet on the plaintiffs' success.  Indeed, the courts deciding these cases may well take some guidance from the Supreme Court's likely decision in American Electric Power v. Connecticut to push difficult, large-scale environmental decision-making into the political branches and the bureaucracy, rather than having courts decide them on common law theories. 

If I had to guess, I'd speculate that the plaintiffs probably know this, and that the goal of the suits is to further publicize the climate change issue, and perhaps reframe it in terms of its effect on future generations.  The organization's focus on children, even to the point of using children as plaintiffs, suggests this reframing effort.  But who knows -- by filing in multiple states (as well as in federal court), it's possible that they'll enjoy some preliminary success.  I can't believe that a state court of last resort would uphold any serious injunctive relief, even if we assume that state common law on climate change isn't pre-empted by the Clean Air Act.  But lower court victories, even preliminary ones, could still conceivably alter the political dynamic on the issue.

Posted by Bill Araiza on May 11, 2011 at 10:05 AM | Permalink


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