As previously reported in this blog, two nonprofit organizations and children represented by guardians ad litem filed a lawsuit in federal district court to compel the federal government to adopt policies that would reduce greenhouse gas emissions consistent with the recommendations of leading climate scientists. The plaintiffs sought a declaration that the earth’s atmosphere is 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. While the public trust doctrine has been recognized in protecting navigable waters and certain natural resources, it has never been applied to protect the atmosphere. Not surprisingly, on May 31, 2012, United States District Judge Robert L. Wilkins granted the defendants’ and defendant-intervenors’ motions to dismiss the case.

Based on the Supreme Court’s recent ruling in PLL Montana, LLC v. Montana, 565 U.S. ---, 132 S. Ct. 1213, 1235 (2012), Judge Wilkins found that the public trust doctrine remains a matter of state law, and is not grounded in federal common law. Absent a federal question, the Court found that it did not have subject matter jurisdiction to hear the case.

Alternatively, even if the public trust doctrine had been a federal common law claim at one time, Judge Wilkins found that it had been displaced by the Clean Air Act, again relying on a recent Supreme Court ruling. In Amer. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2537 (2011), the Supreme Court held that: “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” Given the nature of the remedies needed to address the problems associated with excessive greenhouse gas emissions, Judge Wilkins concluded that the federal agencies with the expertise and a Congressional mandate to act should serve as the primary regulators of greenhouse gas emissions.

Judge Wilkins rejected the plaintiffs’ arguments that Amer. Elect. Power Co.’s holdings should not be deemed controlling because they are limited to common law nuisance claims and the claims were brought against private companies rather than federal agency defendants. The court dismissed these arguments as distinctions without a difference.

Going forward, if the plaintiffs continue with a litigation strategy, they are more likely to pursue appeals in state court cases (most of the companion state court lawsuits have also been dismissed) based on state common law public trust doctrine given the Supreme Court rulings cited by Judge Wilkins. Of perhaps equal importance, plaintiffs are likely to continue their education and advocacy efforts outside of the courts entirely, working both outside and within existing legislative and administrative structures to find solutions. As Judge Wilkins concluded in his opinion: “All of the parties seem to agree that protecting and preserving the environment is a more than laudable goal, and the court urges everyone involved to seek (and perhaps even seize) as much common ground as courage, goodwill and wisdom might allow to be discovered.”