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Climate Change Hero

Climate Change Blog

  • 22
  • April
  • 2016

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Federal Public Trust Doctrine Suit May Overcome Jurisdictional Hurdles

On April 8, 2016, an Oregon Magistrate Judge issued Findings and Recommendation that may allow a controversial climate change suit to overcome procedural challenges. The suit, Kelsey Cascade Rose Juliana v. United States, was filed in August 2015 on behalf of a group of twenty-one youths from around the country. In what the judge referred to as “a novel theory somewhere between a civil rights action and NEPA/Clean Air Act/Clean Water Act suit,” the complaint alleges that the Obama Administration violated the plaintiffs’ constitutional and common law rightsby allowing atmospheric CO2 levels to reach dangerous levels and by failing to adequately address the issue. The plaintiffs seek injunctive relief requiring the government to take action to reduce atmospheric CO2 concentrations.

1. Public Trust Doctrine

    In addition to a variety of constitutional due process arguments, the plaintiffs raised common law claims based on the public trust doctrine. The public trust doctrine is the principle that the government must preserve and reasonably maintain certain resources for public use. Traditionally, it established a public right to access water for the purposes of navigation, fishing, and commerce and required the government to protect that right. Over time, many states have extended the public trust doctrine in certain limited ways. 

    In recent years, environmental groups and others have attempted to extend the public trust doctrine to encompass global climate as part of a so-called “atmospheric trust.” Such efforts have met with limited success, particularly in federal court. As described in a previous post, in December 2014, the Supreme Court declined to review a D.C. Circuit decision dismissing an atmospheric trust claim on jurisdictional grounds. As explained in greater detail here, the D.C. Circuit in that case found that the public trust doctrine is a product of state common law and thus, does not give rise to federal subject matter jurisdiction. After that opinion and the Supreme Court’s decision not to review it, it was thought that “atmospheric trust” claims would be limited to state court.

    In this case, plaintiffs argue that the federal defendants have “failed in their duty of care as trustees to manage the atmosphere in the best interests of the present and future beneficiaries of the trust property.” According to their complaint, the defendants, as sovereign trustees, have a duty to protect “the rights of present and future generations to those essential natural resources that are of public concern to the citizens of our nation,” including the “air (atmosphere), water, seas, the shores of the sea, and wildlife.” Instead, plaintiffs argue, the defendants “unconstitutionally caused, and continue to cause, substantial impairment to the essential public trust resources.” They point to the Obama Administration’s policies and practices promoting the exploitation of fossil fuels and single out the recent approval of a liquefied natural gas terminal in Oregon as one key example. As a result, the plaintiffs argue, defendants violated their duty of care as trustees.

    2. Procedural Hurdles

      In November 2015, the federal defendants and industry group intervenors both moved to dismiss the suit for lack of standing and failure to state a claim.

      The federal defendants’ Motion relies on Lujan v. Defenders of Wildlife in arguing that the plaintiffs lack Article III standing. First, they argued plaintiffs failed to allege sufficiently particularized injury but instead alleged generalized grievances shared by most citizens. They next claimed that the plaintiffs did not establish an adequate causal connection between the defendants’ actions and their alleged injury. Finally, they stated that plaintiffs cannot prove their alleged injuries “can be concretely redressed by any specific relief that is within the power of the Court to grant.”

      In addition to these Article III standing concerns, the federal defendants’ Motion argued that the complaint raises separation of powers issues that counsel against judicial intervention. They note that the task of setting CO2 emissions reduction targets would “entail a host of policy judgments that should be made by decision makers who are politically accountable, have expertise, and are able to pursue a coherent national or international strategy.”

      Setting standing aside, the federal defendants further urged that the court to dismiss the suit for failure to state a claim. Specifically with regard to the plaintiffs’ public trust doctrine arguments, the federal defendants referenced the D.C. Circuit litigation discussed above in arguing that the public trust doctrine is a matter of state and not federal law.

      3. Findings and Recommendations

        In a somewhat surprising turn, the magistrate judge rejected the defendants’ procedural arguments and recommended denial of their motions to the U.S. District Court for the District of Oregon.

        A number of the magistrate judge’s conclusions relating to standing are difficult to square with existing case law. The court rejected the argument that plaintiffs failed to allege sufficiently particularized and personal harm. In a statement that seems directly at odds with existing case law, the court noted that “[g]iven the allegations of direct or threatened direct harm, albeit shared by most of the population or future population, the court should be loath to decline standing to persons suffering an alleged concrete injury of a constitutional magnitude.” Next, the court brushed aside the defendants’ arguments that the causal link between their alleged action (and inaction) and the alleged harm was overly tenuous, stating that “[a] causal chain does not fail simply because it has several links.” Finally, and perhaps least persuasively, the court concluded that:

        Assuming plaintiffs are correct that the United States is responsible for about 25% of the global CO2 emissions, the court cannot say, without the record being developed, that it is speculation to posit that a court order to undertake regulation of greenhouse gas emissions to protect the public health will not effectively redress the alleged resulting harm.

        In support of his redressability argument, the magistrate judge cited a June 2015 opinion by a Dutch Judge sitting on the Hague District Court opinion ordering a nationwide reduction of greenhouse gas emissions in the Netherlands.

        The court further rejected arguments that the complaint raises non-justiciable political questions, reasoning that the case asks the court to consider whether the government’s action or inaction violated the plaintiffs’ constitutional rights, a question appropriately addressed by the judiciary rather than the political branches. The magistrate judge further reasoned that “[t]he court need not dictate any regulations, only direct the EPA to adopt standards that prevent the alleged constitutional harm to the youth and future generation plaintiffs, should plaintiffs prevail in demonstrating such is possible.”

        On the question of the public trust doctrine, the court disagreed with defendants that PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012) foreclosed “any argument that the public trust doctrine applies to the federal government.” In fact, the court concluded that PPL Montana did not directly address the question of whether the United States retains public trust obligations for waters over which it alone has sovereignty. Here, the magistrate judge noted, the plaintiffs’ claims did not implicate the public trust obligations of the State of Oregon and instead, were “directed against the United States and its unique sovereign interests over the territorial ocean waters and atmosphere of the nation.” The court concluded that “[a]t this stage of the proceedings, the court cannot say that the public trust doctrine does not provide at least some substantive due process protections for some plaintiffs within the navigable water areas of Oregon.” By focusing on sea level rise, ocean acidification, and other atmospheric changes, the plaintiffs may be able to side step the notion that the public trust doctrine is the domain of the states.

        The Findings and Recommendations document gives the parties 14 days to file objections and an additional 14 days to file responses to any objections, after which the district court will issue an order. It is important to note that the district court is in no way bound by these recommendations and could choose to reject them. If, however, the district court adopts the magistrate judge’s recommendations, the case could have a major impact on the trajectory of climate litigation going forward.

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