Another Judicial Assault On GHG Emissions

by Akin Gump Strauss Hauer & Feld LLP
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The federal courts barred federal common law nuisance actions to obtain money damages or injunctive relief. American Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011)(holding nuisance claims seeking injunctive relief displaced by the Clean Air Act); Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012)(holding nuisance claims seeking damages displaced by the Clean Air Act). While such actions based on state law remain at least theoretically viable, plaintiffs have recently begun trying to revive and expand an ancient common law theory of relief – the “public trust doctrine.”

The Public Trust Doctrine

The public trust doctrine, a common law cause of action designed to protect natural resources, provides the government the power and the obligation to manage natural resources that move across property lines and boundaries. Most of the earliest cases focused on protection of water resources. Common law courts gradually expanded the doctrine, ruling that it covered groundwater, submerged lands, dry sand beaches and other ecological resources.

Plaintiffs in a number of states have filed suit seeking to expand the doctrine to cover alleged loss of resources caused by GHG emissions. Plaintiffs in these cases argue that the atmosphere is an asset held in trust for the public and that state officials must preserve the atmosphere for future generations. While courts have dismissed the cases on grounds similar to those relied upon to dismiss nuisance-based claims, at least two courts have acknowledged, in dicta, that air quality could qualify as an asset protected under the public trust doctrine.

The Alaska Supreme Court heard argument last month in an action brought by several children and their parents against the State of Alaska seeking a declaration that the atmosphere is a public trust resource under Article VIII of the Alaska Constitution and that the State, as trustee, has an affirmative fiduciary obligation to protect and preserve the atmosphere as a public trust resource. Kanuk v. State of Alaska, No. S-14776 (S. Ct. Alaska) (oral argument, Oct. 3. 2013). Kanuk is premised on the proposition that the atmosphere is a commonly-shared public trust resource, and that the state failed to fulfill its fiduciary duties to protect that resource by requiring reductions in greenhouse gas emissions.

A decision in the case is expected by early 2014.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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