A lawsuit filed in April on behalf of citizens too young to vote takes a novel approach in seeking to force the United States government to mitigate the most serious impacts of human-induced climate change. The petitioners argue that, in failing to address climate change, the federal government has abandoned its fiduciary responsibility to affirmatively protect the natural resources vital to the health and prosperity of future generations, represented by the plaintiffs. The argument is based on a reading of the Public Trust Doctrine, a common law principal asserting that the natural resources of a nation are held in trust by the government on behalf of the citizenry, “…present and future”.
Coincidentally, the US Supreme Court also recently heard arguments in a challenge to a lower court ruling in State of Connecticut et al vs. American Electric Power et al (CT vs. AEP). In that case, a number of states and organizations asked a federal district court to compel 5 utility companies to reduce their greenhouse gas emissions, arguing that those emissions contribute to global warming, and therefore constitute a public nuisance under federal common law. The case was dismissed in 2005, and the dismissal was reversed in 2009. The current case is an appeal of the 2009 reversal.
The appellants presented two basic arguments:
1. There is no federal law regarding greenhouse gas emissions from stationary sources. As such, the courts- whose function is to interpret existing law- have no role to play;
2. The appropriate agency is already moving to regulate, obviating the need for any extraordinary intervention by the courts. In 2007, in a ruling in Mass. v. EPA, the Supreme Court affirmed EPA’s responsibility under the Clean Air Act to study the impacts of greenhouse gas emissions from vehicles, determine whether they pose a danger to society and issue regulations accordingly. Pursuant to that ruling, in 2009 EPA issued an endangerment finding, which obligates it to act.
Even while the Supreme Court cites the EPA’s authority in response to those seeking to address climate change through the justice system, Republican politicians are making an end run around a regulatory remedy, proposing legislation to bar the EPA from regulating greenhouse gases. Senate Republicans have also proposed to combine EPA and DOE, which would reduce their funding and personnel.
In spite of these efforts, EPA is moving, albeit slowly, to regulate greenhouse gases under the Clean Air Act. The first ever national standard for greenhouse gas emissions, for emissions from light duty vehicles, were issued in 2010. Under a settlement agreement with states and environmental groups, and pursuant to Mass v. EPA, the agency has also agreed to propose new source performance standards for fossil-fuel fired electrical generation units by July 26, 2011.
Clearly, the courts have been crucial to the development of a federal response to climate change in the face of complete legislative paralysis. Whether they can find cause to compel the government to protect the atmosphere as a matter of intergenerational equity is another question, but it certainly seems like an interesting gambit.