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A lawsuit in which youth plaintiffs want the court to order the federal government to take more action on climate change may not be an appropriate matter for the courts, a federal judge said May 11 during a hearing on motions to dismiss the case (Loorz v. Jackson,D.D.C., No. 11-CV-2235, hearing on motions to dismiss 5/11/12).
Judge Robert Wilkins of the U.S. District Court for the District of Columbia said the case is “fundamentally about the nature of our government and our constitutional system in addition to, and just as much as, our environment. Both need to be considered.”
The lawsuit was filed in May 2011 by Kids vs. Global Warming, other advocacy groups, and several young plaintiffs seeking to require the federal government to adopt a plan for an immediate cap on greenhouse gas emissions and to lower emissions 6 percent a year starting in 2013 (87 DER A-30, 5/5/11).
The groups argued that the 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.
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.
On April 2, Wilkins allowed the National Association of Manufacturers and five California companies and trade groups to intervene in the case on behalf of the federal government (64 DER A-13, 4/4/12).
The federal government and the intervenors filed separate motions to dismiss the lawsuit.
Joseph Guerra, arguing for the National Association of Manufacturers at the May 11 hearing, said the case would bring up numerous public policy issues related to greenhouse gas emissions and require Wilkins to resolve them, which is not his role as a judge. The courts are not designed to pass judgment on the actions of the elected branches of government, Guerra said.
Martin McDermott, a Justice Department attorney arguing for the government, agreed that it is not a proper function of the courts to override Congress and federal agencies regarding public policy issues. Granting the groups' request would result in a massive reorganization of agency priorities, he said.
Also, McDermott argued, the public trust doctrine is primarily an issue of state law.
The attorneys also said the case is “displaced” by the Clean Air Act, which allows parties to challenge the federal government on emissions regulations.
Julia Olson, attorney for the plaintiffs, argued that the groups were not asking federal agencies to reorganize their priorities. The groups want the court to declare the atmosphere a resource under the public trust doctrine and establish that the government has a duty to protect that resource.
By declaring the atmosphere a public trust resource, the court would be acting in a legislative and executive capacity, which it is not permitted to do, Theodore Hadzi-Antich, attorney for the five California companies and trade groups that intervened, said at the hearing.
The federal government acknowledges the seriousness of greenhouse gas emissions, and the intervenors also recognize the need to protect the environment, Wilkins said.
“This case is a good lesson for all. First, to look at where we agree, not just where we disagree,” he said. Then to “work together outside of lawsuits to do something positive” to solve environmental problems.
“It behooves all of us, regardless of the resolution of this case, to really think about what we can do to resolve this very serious problem,” Wilkins said.
Addressing the youth plaintiffs and dozens of other youths at the hearing, the judge said he wanted them “to understand how this works, what is at stake.”
Courts are designed to offer a remedy if rights are violated, but “that does not mean that every problem is one for the courts to resolve,” the judge said.
Wilkins said he would issue a decision soon on the motions to dismiss, adding that he would work to decide where this case fits into the structure and roles of the three branches of government.
By Avery Fellow
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