Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
Loorz v. Jackson, D.D.C., No. 11-CV-2235, 4/2/12
Key Holding: Federal judge allows two business groups to intervene in a lawsuit seeking to require the federal government to place an immediate cap on greenhouse gas emissions.
Potential Impact: The lawsuit asks the court to list the atmosphere as a resource under the public trust doctrine, which could affect entities that emit carbon dioxide.
By Avery Fellow
A federal judge April 2 allowed two business groups to intervene in a suit that seeks to require the federal government to set a plan for an immediate cap on greenhouse gas emissions and start lowering greenhouse gas emissions by 6 percent a year starting in 2013 (Loorz v. Jackson, D.D.C., No. 11-CV-2235, motion granted 4/2/12).
Judge Robert Wilkins of the U.S. District Court for the District of Columbia decided to allow the National Association of Manufacturers and the five California companies to intervene on behalf of the federal government in the case after hearing oral arguments April 2 (63 DER A-26, 4/3/12).
Our Children's Trust and other advocacy groups filed the lawsuit last May. The groups argued that the federal government has a duty under the public trust doctrine to reduce the emissions linked to global warming. The case asks the court to declare the atmosphere a resource protected under the public trust doctrine. The lawsuit names Environmental Protection Agency Administrator Lisa Jackson and the heads of five other federal agencies.
David Buente, the attorney representing the National Association of Manufacturers, argued April 2 that placing the atmosphere under the public trust would harm its members, many of which are in the oil, gas, and coal industries and emit carbon dioxide as part of business operations.
NAM filed a motion to intervene in the federal lawsuit Oct. 31, arguing that if successful, the lawsuit would devastate businesses. The Delta Construction Co. and four other California business and trade groups filed a motion to intervene in November, also arguing that it would have harmful economic impacts.
The public trust doctrine is a common law concept that requires governments to manage vital natural resources for the common benefit of everyone, including future generations.
Theodore Hadzi-Antich, an attorney for the California companies and associations, said April 2 that the groups have a “legally protected cognizable interest to freely emit CO2.” There are no specific prohibitions on emitting carbon dioxide, so it is permitted, he argued. He said the groups may currently freely emit carbon dioxide into the atmosphere without any reference to the public trust.
Hadzi-Antich told BNA April 3 he was very pleased with Judge Wilkins' decision to grant the motions to intervene. “Our five clients will be very heavily impacted should the court grant the relief that's been requested,”
Valerie Serrels, plaintiff and youth council coordinator for the iMatter Campaign, said April 3 the organizations filing suit were disappointed by Wilkins's decision. The decision is “essentially allowing the entire fossil fuel industry to side with the government,” she said.
“The decision was not the one the youth plaintiffs had been hoping for, but the National Association of Manufacturer's interest and now involvement in the case is evidence not only of the merit of the case, but also of its potential impact,” Julia Olson, attorney for the plaintiffs, told BNA April 3.
“The government recognized we will be taking depositions of cabinet officers and other high-level federal employees,” Olson said. “Given the stakes involved, we are optimistic the court will enforce the public trust and order the government to meaningfully address the climate crisis.”
Olson said the organizations that filed suit do not think the judge will allow more intervenors. She said Wilkins appears to want to move the case forward promptly. Hadzi-Antich also said he did not expect additional intervenors.
After the motion to intervene was granted, the five California companies and associations filed a motion to dismiss the case. The motion follows a similar motion to dismiss filed by the federal government.
A hearing on the motions to dismiss will be held May 11.
A preliminary injunction hearing and a trial on the merits of the case will follow that hearing, but no date has yet been set.
NAM and representatives for the California companies did not immediately respond to requests for comment.
By Avery Fellow
The motion to intervene in Loorz v. Jackson is available at http://op.bna.com/env.nsf/r?Open=smiy-8sztzx.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)