Judge Allows Business Groups to Intervene In Public Trust Greenhouse Gases Case

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,”

Decision Shows Import of Case, Groups Say.

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.

Hearing on Motions to Dismiss.

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.