In May and July 2011, children represented by guardians ad litem and two nonprofit environmental organizations filed a Complaint and a First Amended Complaint in the United States District Court for the Northern District of California against the Environmental Protection Agency and the Departments of Interior, Agriculture, Commerce, Energy and Defense essentially seeking to compel government action to reduce greenhouse gas emissions (GHGs). Earlier this year, District Judge Robert Wilkins allowed the National Association of Manufacturers and various California businesses to intervene in the case because they have a stake in its outcome as emitters of GHGs. Oral argument on a motion to dismiss the case is scheduled for May 11.
The plaintiffs are asking the court to declare the earth’s atmosphere a public trust resource that the federal government, acting through the named federal agency defendants, has a legal duty to protect on behalf of all its citizens, including children. The Amended Complaint alleges that the atmosphere, including the air, is one of the crucial assets protected by the public trust doctrine. While the public trust doctrine has been recognized in protecting navigable waters and certain natural resources, it has never been applied to protect the air or atmosphere.
The lawsuit is based largely on the legal scholarship of University of Oregon law professor Mary Christina Wood. In addition to arguing for an expansive application of the public trust doctrine, three basic principles intergenerational justice theory underlie the plaintiff’s case:
- The principle of conserving options requires that, on balance, the diversity of the resource base be maintained so that the options available to future generations to solve their problems and satisfy their values are not unduly restricted.
- The principle of conserving quality requires, essentially, that current generations pass the planet on to future generations in no worse condition than it was received.
- The principle of conserving access requires current generations to use and enjoy the legacy provided by previous generations in ways that conserve access to this legacy for future generations.
At its core, the Amended Complaint calls out the current generations for failing to use available political and legal mechanisms to constrain our consumption of natural capital in ways that preserve reasonable environmental quality for our children and for all future generations.
Significantly, as a remedy and to preserve options for our children and for future generations, the plaintiffs are asking the court to require the defendant agencies to adopt policies to cap and reduce greenhouse gas emissions consistent with the recommendations of leading climate scientists. As these science-based recommendations take form in the Amended Complaint, the plaintiffs allege that this would require atmospheric carbon dioxide levels to peak in 2012 and to be reduced by six percent per year through 2050 and by five percent per year from 2050 to 2100. Even if directed to do so by the court at a heroic level of effort, there seems to be no practical way for the named defendants to achieve these levels of carbon dioxide reductions.
Ultimately, the lawsuit reflects growing frustration at the intractability of global environmental problems, such as climate change and ocean acidification, and the failure to date of our existing governmental institutions to address them adequately. The appeal to plaintiffs of seeking relief in court, beyond drawing attention to the very real problems of climate change and greenhouse gas emissions, is that one judge, constrained by the appellate courts of course, could conceivably cut through the politics that have prevented needed actions. However, given the magnitude of the problems and recent rulings from higher courts in somewhat similar cases, it is unlikely that the District Court will grant the plaintiffs’ requested relief and that the solutions to these problems will be developed through existing legislative and administrative processes, not by our courts.