Note to Activists: Bring Back the Polar Bears, Please
I am traveling on the Left Coast for business this week. And so it was with a certain amount of bemusement that I read this article that came across my Blackberry yesterday. It explains that an environmental activist group, "Our Children's Trust," has decided to sue a number of states, seeking to force judges into ordering state governments to mandate the reduction of greenhouse gases, with the goal of preventing global warming.
One of the activists is quoted as saying:
"We should be getting youths in front of the courts, not polar bears," Wood said, referring to a widely publicized attempt to have courts declare polar bears endangered as rising temperatures melt Arctic ice.
So how are these activists using America's youth to paint a compelling picture for judicial regulation of greenhouse gases? Read this portion of a complaint apparently filed by the organization in New Mexico:
Climate change is adversely affecting [16-year-old] Akilah Sanders-Reed now. Akilah is a skiing enthusiast and has been skiing regularly for the last 8 years. Over that time, Akilah has seen a decrease in the snowpack on the slopes of Taos and Santa Fe. The snowpack on those slopes has been thin and generally not good for skiing. Akilah plans to continue skiing and to teach her younger brother to ski. Therefore she is concerned that if the quality and amount of snowpack on the Taos and Santa Fe ski slopes continues to decline, she will have fewer opportunities to ski during the already abbreviated ski season in New Mexico.
Compl. para. 10.
Really?!!! This is the tragedy that justifies judicial exercise of Executive Branch powers? No skiing on Spring Break? Bring back the cute, cuddly Polar Bears whose very existence is threatened, please!
The group's legal strategy seems as flawed as its storytelling. It is suing the governors of various states on the so-called "public trust doctrine," which they describe as a common law theory. But it's hardly a cause of action, like public nuisance. Rather, it is simply a doctrine recognizing the sovereign's ownership interest in the land underlying navigable waters. Ironically, the whole reason for the doctrine is to preserve the ability of the public to use such waters for commerce. Our Children's Trust, of course, wants to invoke the doctrine to impede commerce and economic activity, state by state.
The fact that it can't cite in its New Mexico complaint a single New Mexico case applying the doctrine as they request gives you some idea of just what a long-shot their legal theory actually is. They do nothing in their pleadings to anticipate the defenses that typically have proven fatal to climate change cases. For example, they do nothing to establish the children's standing to assert a claim. In public nuisance -- which is an actual cause of action designed to protect interference with the public's right of enjoyment of property -- the right to sue is reserved to the sovereign unless an individual can prove that he or she suffers a special injury that is different in type and degree from that suffered by the general public. Notably, a bad ski day (if there really is such a thing) wouldn't cut it.
Similarly, defendants have argued that federal statutes and regulations preempt individual common law claims aimed at regulating greenhouse gas emissions. Notably, even the cases that Our Children's Trust cite in its complaint expressly recognize the preeminence of federal authority. For example, in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), the court observed that the state's rights and obligations under the public trust doctrine were "subject always to the paramount right of Congress to control [the] navigation [of the state's navigable waters] so far as may be necessary for the regulation of commerce with foreign nations and among the States." Id. at 435. Likewise, in Montana v. United States, 450 U.S. 544 (1981) -- also cited by plaintiffs -- the court cautioned that:
The State's power over the beds of navigable waters remains subject to only one limitation: the paramount power of the United States to ensure that such waters remain free to interstate and foreign commerce.
Id. at 551.
Moreover, the plaintiffs make no allowance in their pleading for defenses such as the political question doctrine, primary jurisdiction, or causation. Notably, courts and advocates that have considered the climate change question have acknowledged that the issue of greenhouse gas emissions is a global one; emissions from one part of the globe may travel and have effects in other parts of the globe. Thus, localized emissions caps -- like plaintiffs advocate -- have no real hope of abating the alleged nuisance locally, and local emissions cannot be deemed the substantial cause of alleged local climate change.
Ultimately, all that Our Children's Trust has achieved is making cash-strapped states that have no ability to solve the problem defendants in frivolous litigation that will cost lots of time and money to defend. And they did so without finding a more compelling mascot than fluffy polar bears.
