June 10, 2014

D.C. Circuit deflates environmentalists’ attempt to create a “public trust” in the air

By Brian T. Hodges Senior Attorney

Last week, the D.C. Circuit issued a short unpublished decision in Alec L. v. EPA, beating back a strange attempt to assert a “public trust” in the air. As previously noted, the case was part of a concerted effort by environmentalists seeking to force the federal government and every state government in the nation to reverse global warming by controlling carbon dioxide emissions under a so-called “public trust” theory. The case seems to have been brought more as a public relations stunt than to advance any serious legal argument. This, and about 50 companion suits filed in state courts and administrative bodies, were brought on behalf of a group of “children” who claimed to be concerned about their future in a world made hot via global warming.

The lawsuit claimed that there was some sort of “public trust” in the air that was being violated by carbon dioxide emissions, thus giving the courts an opportunity to order the EPA (and analogous state entities) to regulate greenhouse gas emissions more than they already are. After the case was summarily dismissed in the federal trial court, the “children” appealed. Now the D.C. Circuit has made short shrift of the argument, saying that there is no such thing as a federal public trust doctrine, in air, in water, or in anything else. As the Court noted, there have been some very recent United States Supreme Court opinions, including PPL Mont., LLC v. Montana (2012), which eschew the notion of a federal public trust doctrine, and those cases control.

Fearing the federal government would not adequately defend the lawsuit, PLF successfully intervened in the lawsuit on behalf of several California small businesses and their trade associations (you can read our appellate brief here).

While a number of the state cases remain, we strongly doubt they will give the state courts any more cause to hijack state air quality regulations than existed in this case.

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