Scientific studies have shown that global warming is having serious ramifications, including the melting of Arctic ice and significant reductions in the winter snowpack leading to depleted surface water resources; sea level rise and the resulting loss of coastal land and property; increasing droughts, floods, and weather-related disasters such as hurricanes and tropical cyclones; and severe changes to the natural ecosystem, all with direct economic consequences. Mass., 549 U.S. at 521–522. J. Smith, Climate Change Litigation, Analysing the Law, Scientific Evidence & Impacts on the Environment, Health & Property, 6–10 (Presidian 2006).
In the United States, many harbor the belief that the federal government has failed to implement a sufficiently comprehensive and effective program of GHG regulation. Notwithstanding efforts undertaken by the federal government and the states through the enactment of specific regulatory standards and climate action targets, comprehensive GHG regulation remains incomplete, controversial, and, in many respects, inadequate to deal with the seriousness of the threat. Failure at the federal level has been driven by concerns about the economic impact of comprehensive regulation, the political influence of those who deny global warming or its anthropogenic causes, and the overriding fact that, notwithstanding efforts at international consensus toward an enforceable global program of GHG emissions reductions, an effective regime is not in place because the current frameworks exclude several major polluters from its stringent requirements, in particular China and India, who are exempt from the Kyoto Protocol.
As a result, litigation is increasingly being utilized by states and private parties as a means to tackle climate change in the hopes of pressing for changes in federal or state government policies. In the United States, states and private parties have filed numerous lawsuits against private polluters, federal agencies, or state governments, seeking to enforce a range of environmental statutes. The great majority have been Clean Air Act (CAA) suits seeking to compel the Environmental Protection Agency (EPA) to regulate activities that emit GHGs. See Mass., 549 U.S. at 497 (seeking review of EPA’s decision not to regulate GHG emissions from new motor vehicles); Ctr. for Biological Diversity v. Envtl. Prot. Agency, No. 10-cv-00985-FJS (D.D.C. filed June 11, 2010) (seeking to compel rulemaking for emissions from marine vessels, aircraft and other nonroad engines and vehicles); N.Y. v. Envtl. Prot. Agency, No. 08-1279 (D.C. Cir. filed Aug. 25, 2008) (challenging EPA’s failure to include GHG limits in NSPS for petroleum refineries). Indirect challenges have also been predicated upon plaintiffs asserting that GHGs are violating other environmental statutes by exerting an impact upon natural resources or endangered species. See, e.g., Ctr. for Biological Diversity v. Envtl. Prot. Agency, No. 2:09-cv-00670-JCC (W.D. Wash. filed May 14, 2009) (alleging EPA’s violation of the Clean Water Act by failing to identify the state’s coastal waters as impaired due to ocean acidification); Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009) (seeking to compel the Department of the Interior and the Fish and Wildlife Service to comply with the ESA timeline for final listing determination for the polar bear).
States and private parties have also asserted common law doctrines, such as nuisance, as a means to secure relief from the impacts of climate change. So far, they have been unsuccessful. See Korsinsky v. Envtl. Prot. Agency, No. 05 Civ. 859 (NRB), 2005 U.S. Dist. LEXIS 21778 (S.D.N.Y. Sept. 29, 2005) (dismissing plaintiff’s public nuisance claim because his alleged injury was insufficient to confer standing); Am. Elec. Power Co. v. Connecticut, __ U.S. __, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011) (holding that the CAA and EPA’s action authorized by it displaces any federal common law right to seek abatement of GHG emissions).
The most recent doctrine being advanced as a ground for compelling regulation of GHG emissions is an expanded view of the common law public trust doctrine, as several scholars have proposed in recent years. See, e.g., Karl S. Coplan, “Public Trust Limits on Greenhouse Gas Trading Schemes: A Sustainable Middle Ground,” 35 Colum. J. Envtl. L. 287 (2010); Mary C. Wood, “Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations (Part I)—Ecological Realism and the Need for a Paradigm Shift,” 39 Envtl. L. 43 (Winter 2009). The premise is that although the public trust originally focused on navigable waters and submerged lands, with time it has expanded to protect modern concerns and conform to changing societal needs. Public trust advocates regard the doctrine as a malleable and appropriate doctrine to compel the regulation of GHG emissions through the judiciary.
Putting those ideas to test, last year an environmental organization, on behalf of children and young men and women, brought one federal and several state lawsuits against EPA, state governments, and other agencies, seeking declaratory and injunctive relief on the basis of the public trust doctrine. Plaintiffs asked for a declaration that the atmosphere is a public trust resource, that defendants are trustees with a fiduciary duty to protect the trust asset for present and future beneficiaries, and that the fiduciary obligation is defined by the best available science regarding climate change, which requires a 6 percent reduction in global emissions every year from 2012 onward. They also sought an order requiring defendants to take action to reduce GHG emissions, in some cases with specific direction to prepare carbon accounting, budgets, and a climate recovery plan, subject to supervision by the court. See Alec L. v. Jackson, No. 3:11-cv-02203-EMC (N.D. Cal. filed May 4, 2011); Aronow v. Minn., No. 62-CV-11-3952 (Minn. Dist. Ct., Ramsey Cnty. filed May 4, 2011); Barhaugh v. Mont., No. OP 11-0258 (Mont. filed May 4, 2011); Chernaik v. Kitzhaber, No. 16-11-09273 (Or. Cir. Ct., Lane Cnty. filed May 4, 2011); Sanders-Reed v. Martinez, No. D-101-CV-2011-01514 (N.M. Super Ct., Santa Fe Cnty. filed May 4, 2011); Blades v. Cal., No. CGC-11-510725 (Cal. Super. Ct., S.F. Cnty. filed May 4, 2011); Svitak v. Wash., No. 11-2-16008-4 SEA (Wash. Super. Ct., King Cnty filed May 4, 2011); Wildearth Guardians v. Colo., No. 2011-CV-491 (Colo. Dist. Ct., Boulder Cnty filed May 4, 2011); Filippone v. Iowa Dep’t of Natural Res., No. 05771 CVCV008748 (Iowa Dist. Ct., Polk Cnty. filed July 21, 2011); Bonser-Lain v. Tex. Comm’n Envtl. Quality, No. D-1-GN-11-002194 (Tex. Dist. Ct., Travis Cnty. filed July 21, 2011); Kanuk v. Alaska, No. 3AN-11-07474 CI (Alaska Super. Ct., Anchorage filed May 6, 2011); Butler v. Brewer, No. CV-2011-010106 (Ariz. Super. Ct., Maricopa Cnty. filed Oct. 20, 2011). The federal action was transferred to the U.S. District Court for the District of Columbia and was recently dismissed with prejudice. Likewise, all of the state actions where hearings challenging the sufficiency of the complaint have taken place have been dismissed. Several state appeals have been filed, and we anticipate an appeal in the federal action as well. Below we analyze the original or amended complaints filed in those cases.
The federal complaint sought to expand the scope of the public trust to protect the atmosphere, citing Illinois v. Milwaukee, where the U.S. Supreme Court held that “[w]hen [the courts] deal with air and water in their ambient or interstate aspects, there is a federal common law.” 406 U.S. 91, 103 (1972). The state complaints utilized a variety of authorities—constitutional, statutory, and common law—to pursue the same goal. The Alaska action, for example, relied on the state constitution, which provides that fish, wildlife, and waters are reserved to the people for common use (Kanuk Compl. ¶ 25), while the Oregon action cited statutory authority providing that water resources are subject to the trust. (Chernaik Compl. ¶ 16). The Minnesota action alleged that the atmosphere necessarily affects the lakes, rivers, and groundwater. (Aronow Compl. ¶ 49). The majority of them, however, relied on the common law public trust. As discussed in detail below, these complaints cited to Roman law in the Institutes of Justinian, and also quoted language from several decisions to support their argument that “air” is a resource subject to the public trust (Queen v. Detroit, 874 F.2d 332 (6th Cir. 1989)) and that the public trust, by its nature, does not remain fixed, but rather must conform to changing needs and circumstances (In re Water Use Permit Applications, 94 Haw. 97 (2000)).
Resort to the public trust argument to pursue environmental concerns is nothing new. Ever since Professor Joseph Sax published his seminal article, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” 68 Mich. L. Rev. 471 (1970), commentators have favored the doctrine when other theories fail. Professor Sax, however, wrote his article before the federal government, in the exercise of its commerce power, and the states, exercising their police powers, adopted the principal statutes that govern the regulation of the environment today, such as the CAA, the Clean Water Act, the National Environmental Policy Act (NEPA), the ESA, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Marine Mammal Protection Act, and their state equivalents. This remarkable change in the role of both the federal and state governments has led some to argue that an expanded public trust doctrine as a basis for resource protection is no longer required. Richard J. Lazarus, “Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine,” 71 Iowa L. Rev. 631 (1986). We agree.
Besides a general argument that the environment today is highly regulated, there are very specific reasons why the common law public trust doctrine, even in its most expansive application, should not apply to the atmosphere. First, an historical examination of the common law public trust doctrine, as interpreted by American courts and, most recently, by the U.S. Supreme Court in PPL Montana, LLC v. Mont., 132 S. Ct. 1215 (2012), reveals that the rule protects only against environmental impacts to navigable waters, broadly defined. Second, a national GHG emissions policy is primarily the responsibility of Congress, and its regulation is EPA’s task under its delegated authority pursuant to the CAA. Third, there are serious procedural and practical impediments to utilizing the common law public trust and the judicial system as a vehicle for regulating GHG emissions. We now review these arguments in detail.
Background of the Public Trust Doctrine
The public trust in this country is grounded upon the English common law and is limited to navigable waters. It has often been argued, however, that the public trust concept can be traced back to Roman law. The Institutes of Justinian provided that “[b]y the law of nature, these things are common to mankind: the air, running water, the sea, and consequently the shores of the sea.” Justinian Institutes § 2.1.1 at 55 (Paul Birks & Grant McLeod tran. 1987). This oft-quoted statement has been used in support of an argument that in Roman times common resources were not susceptible to private ownership because they were subject to their use and enjoyment by the public. See Coplan, supra, at 317–318; Aronow Compl. ¶ 43; Barhaugh Compl. ¶ 2(a); Martinez Compl. ¶ 80; Bonser-Lain Compl. ¶ 23. The argument proceeds by assuming that the concept of sovereign ownership of the beds of navigable waters and the obligation of the sovereign to protect their navigability for public use is derived from the Justinian Institutes, which provide a theoretical foundation for expanding the resource to air.
This argument ignores that it is the English common law, not Roman law, which provides the basis for the public trust. The public trust was a limitation upon the power of the king to impair the public means of navigation and fishing in navigable waters. PPL Montana, 132 S. Ct. at 1226–27; Ill. Cent. R.R. Co. v. Ill., 146 U.S. 387, 468 (1892). The king held title to the soil beneath the sea and arms of the sea (navigable waters) in his sovereign capacity and could grant the beds of navigable waters into private ownership, but the navigable waterways were considered common highways for the public, to be protected for navigation and fishing.
Navigable waters in the American colonies were held in the same capacity. After the American Revolutionary War, each state became sovereign and, in that character, held absolute right to the navigable waters and the soils beneath them for common use, subject only to the rights surrendered to the federal government in accordance with the Constitution. Martin v. Waddell, 41 U.S. 367, 410 (1842); Shively v. Bowlby, 152 U.S. 1, 15 (1894); Ill. Cent., 146 U.S. at 468. By virtue of the equal footing doctrine, each subsequently admitted state acquired the beds of navigable waters in its sovereign capacity at statehood. Under federal law, the navigable waters that passed to the states under the equal footing doctrine are those that are navigable-in-fact or are susceptible to being used, in their ordinary condition, as highways for commerce over which trade and travel are, or may be, conducted at the time of statehood. PPL Montana, 132 S. Ct. at 1228 (citing The Daniel Ball, 10 Wall. 557, 563 (1871)).
The public trust extends to navigable waterways because its fundamental purpose is to preserve them for common use for transportation. It is the susceptibility of the navigable waters for use as highways of commerce that gives sanction to the public right of control over navigation. PPL Montana, 132 S. Ct. at 1227 (quoting Packer v. Bird, 137 U.S. 661, 667 (1891)). Although states may commit public trust waterways to uses other than transportation, such as fishing or land reclamation, this exercise of sovereign discretion does not enlarge the scope of the public trust. Phillips Petroleum v. Miss., 484 U.S. 469, 487-488 (1988) (O’Connor, J., dissenting). The common law principle adopted in all states is that the state’s sovereign title is a title held in trust for the people so that they may enjoy navigation of the waters, carry on commerce over them, and have the liberty of fishing free from obstruction or interference by private parties. Id. The public trust cannot be relinquished by the state, except as to parcels used in promoting the interest of the public and without the substantial impairment of the public interest in the remaining lands and waters. Ill. Cent., 146 U.S. at 453. In this regard, the public trust is a limitation upon the powers of the government.
The principles enunciated in Illinois Central have been adopted in virtually every state jurisdiction as a matter of state common law. Although predicated upon common law principles emanating from England and passing to the original American Colonies, Illinois Central enunciates the law of Illinois. Appleby v. City of New York, 271 U.S. 364 (1926); PPL Montana LLC, 132 S. Ct. at 1235. It is not an expression of “federal common law.” Indeed, the U.S. District Court for the District of Columbia dismissed the federal action on the ground that plaintiffs failed to raise a federal question to invoke its jurisdiction because the public trust doctrine is a matter of state law. Alec L. v. Jackson, No. 1:11-cv-02235, 2012 WL 1951969, at *3–4 (D.D.C. May 31, 2012). Federal law only determines which navigable waters passed to the states under the equal footing doctrine; the states retain residual power to determine the scope of the public trust over waters within their borders after statehood. Id. It is also important to note that the federal navigational servitude, which is an exercise of the federal government’s Commerce Clause powers over navigable waters, is not the common law public trust. Kaiser Aetna v. United States, 444 U.S. 164, 171–72 (1979). Because the public trust doctrine is not federal common law, its application to air must look to state law.
How the states have treated the navigable waters they received by reason of their sovereignty under the equal footing doctrine differs from state to state. As noted, every state recognizes the public trust for commerce, navigation, and fishing in navigable waters, either in the state’s common law or a constitutional provision, or both. Generally speaking, whatever the mechanism used, the public trust doctrine applies to water bodies. Robin K. Craig, “A Comparative Guide to the Eastern Public Trust Doctrine: Classifications of States, Property Rights, and State Summaries,” 16 Penn. State Envtl. L. Rev. 1 (Fall 2007) and “A Comparative Guide to the Western States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust,” 37 Ecology L.Q. 53 (2010) (discussing the status of the public trust in each state). A number of state court decisions have expanded the reach of the public trust doctrine to expand the scope of protected purposes. However, this judicial expansion has not been one to impose the common law public trust to resources other than navigable waters. Marks v. Whitney, 6 Cal. 3d 251 (1971). The state that has led the charge has been California. The California Supreme Court, for example, has held that activities such as the diversion of nonnavigable tributary streams that affect navigability or habitat can be regulated by the state under the public trust doctrine. Nat’l Audubon Soc’y v. Super. Ct., 33 Cal. 3d 419 (1983).
Several states also have constitutional provisions and statutes that provide that the public has inviolable rights in other natural resources and that the state has a trust obligation to protect them. Several of the state climate change actions have supported their arguments on this basis. These provisions are the product of a legislative exercise of the state’s police powers. They are not extensions of the common law public trust.
Some also argue that expansion of the public trust to include air can be accomplished by analogizing to cases that hold that wildlife is owned by the state in its sovereign capacity. Geer v. Conn., 161 U.S. 519 (1896), overruled on other grounds by Hughes v. Okla., 441 U.S. 322 (1979). James L. Huffman, “Speaking of Inconvenient Truths—A History of the Public Trust Doctrine,” 18 Duke Envtl. L. & Pol’y 7 F. 1, 80-93 (2007). This theory, in its modern form, is reflected in state statutes regulating wildlife, which often refer to this manifestation of sovereignty as being a public trust. See, e.g., Cal. Fish & Game Code § 711.7. California itself makes the distinction between the common law public trust applicable to navigable waters and a public trust that arises from a statute that specifically provides that fish or wildlife are held in trust for the people and are regulated by a state agency pursuant to a specific statute. Envtl. Prot. Info. Ctr. v. Cal. Dep’t of Forestry & Fire Prot., 44 Cal. 4th 459, 515 (2008); Ctr. for Biological Diversity, Inc. v. FPL Grp., Inc., 166 Cal. App. 4th 1349 (2008).
In this context, the state’s exercise of its police powers in the name of the public trust does not derive from the common law public trust. Rather, it is an exercise by the legislature that the legislature itself can reverse or modify. The common law public trust, on the other hand, is not susceptible to that abdication. Regulation of GHG emissions in relation to the “public trust” could only be done, if at all, through an explicit exercise of state police powers and not through an open-ended expansion of the common law public trust. As discussed below, however, use of state police powers to compel regulation of the atmosphere is burdened with major obstacles.
It would seem to be settled that to the extent GHGs are to be regulated by the federal government, it is to be through the existing statutory scheme contained in the CAA or other legislative action and not by the federal courts based upon some common law theory. See Am. Elec. Power Co., 131 S. Ct. at 2527; Mass., 549 U.S. at 497. In Massachusetts v. EPA, the Supreme Court held that GHG emissions are covered within the sweeping definition of “air pollutant” under the CAA. 42 U.S.C. § 7602(g); 549 U.S. at 528. On that basis, it further held that the Act requires EPA to regulate those emissions that, in the judgment of the agency “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1). In light of this requirement, the Court reasoned that EPA can avoid promulgating regulations “only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” Mass., 549 U.S. at 533.
Pursuant to the Court’s holding in Massachusetts, in 2009 EPA determined that GHG emissions threaten public health and welfare and commenced rulemaking to set limits on GHG emissions from fossil-fuel power plants. EPA committed to issue a final rule by May 2012. Am. Elec. Power Co., 131 S. Ct. at 2529. The agency proposed the first CAA carbon standard for new fossil-fuel fired power plants on March 27, 2012. The proposed rule, currently open for public comment, would set a limit of 1,000 pounds of C02 per megawatt hour for future power plants, in particular coal-fired power plants, which will be required to incorporate technologies such as carbon capture and storage. See http://epa.gov/carbonpollutionstandard/actions.html (last visited June 17, 2012).
The Supreme Court acknowledged in American Electric Power that although there is federal common law when dealing “with air and water in their ambient or interstate aspects” in light of the existence of the CAA, its application is very limited. 131 S. Ct. at 2535 (citing Ill. v. City of Milwaukee, 406 U.S. at 103). The Court placed environmental regulation of air within the national legislative power, with the federal courts able to fill in statutory interstices only to the extent necessary. Id. at 2535.
Because the CAA speaks directly to emissions of GHGs, the Court has determined that the statute and EPA actions authorized under it “displace any federal common law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants.” Id. at 2537. In short, the Court has held that it is “primarily the office of Congress, not the federal courts, to prescribe national policy” governing GHG emissions. Id. EPA is authorized to regulate pursuant to such policy. Just as efforts to employ the federal courts to compel further regulation of GHGs under a nuisance theory have failed to compel federal courts, efforts to do the same via the common law public trust have already failed. In the federal action, the District of Columbia also reasoned that, even accepting that the public trust had been a federal common law claim, it has been displaced by the CAA. Alec L. v. Jackson, 2012 WL 1951969, at *4.
Future of the Public Trust Argument
Setting aside the very real problems inherent in stretching the common law public trust to include the atmosphere, there are serious procedural and practical problems with seeking to utilize the judicial system and the common law public trust as a vehicle for regulating GHGs. Although the suits grounded upon a state statute or constitutional provision may appear to be viable, serious limitations exist. We have discussed the barrier that is presented by the Supreme Court’s rulings at the federal level. These include: who has standing; whether the issue is a political question not amenable to judicial resolution and other issues of separation of powers; federal and state matters of comity; and the inappropriateness of a court undertaking to regulate in a complex scientific area where it has neither the expertise nor the facilities to implement a solution.
In Massachusetts, the Supreme Court rejected EPA’s argument that plaintiffs had no standing to sue because GHG emissions inflict widespread harm and climate change risks are widely shared. The Court reasoned that the Commonwealth of Massachusetts properly asserted an injury: the loss of its coastal land from sea level rise caused by climate change. The injury in this case was concrete and particularized. In addition, we must not lose from sight that it was “of considerable relevance that the party seeking review . . . [was] a sovereign State and not . . . a private individual.” 549 U.S. at 518. As a result, it is conceivable that a state court may find that a state has standing in state court under state law. It is, however, questionable whether a private individual does.
Federal courts have dismissed a private individual’s public nuisance claim because his alleged injury—that he was more vulnerable to pollution than the general population and that he developed mental sickness from learning of the dangers of climate change—was insufficient to confer standing. Korsinsky, 2005 U.S. Dist. LEXIS 21778, at *6–9. Courts in state cases may well follow suit and refuse to grant standing to private plaintiffs in public trust cases, who so far are alleging generalized injuries on behalf of the public as opposed to concrete injuries to those individual plaintiffs.
Establishing causation will continue to be a significant challenge for climate change litigation due to the facts of climate change and the nature of the science. It is clear that increases in GHG emissions are a global phenomenon and that reductions in one geographic area do not necessarily translate into a measurable positive impact on a worldwide, national, or even local basis, because of the significant and increasing contributions from other sources. Emissions, as airborne pollutants, know no boundaries.
In Massachusetts, the U.S. Supreme Court rejected EPA’s argument that its refusal to regulate GHG emissions contributed insignificantly to plaintiffs’ injuries and that there was no realistic possibility that the relief sought would mitigate global climate change, especially because emissions from China, India, and other developing countries would offset any decrease in GHG emissions resulting from the agency’s regulation. The Court held that EPA’s refusal to regulate GHG emissions “contribute[d] to” rather than “caused” Massachusetts’ injuries and the relief sought would reduce that risk to some extent. 549 U.S. at 523. However, it reached this conclusion by reading the express language of the statute, which requires EPA to regulate emissions from air pollutants that, in the judgment of the agency, “cause, or contribute to, air pollution.” Id. This statutory basis for federal regulatory authority does not create a federal or state common law remedy.
In the context of public trust and other common law actions, establishing causation will continue to be a formidable undertaking because U.S. common law tests are not flexible enough to accommodate the complexities of scientific evidence with respect to global warming. While the growing consensus today is that global warming is primarily caused by human activities, defendants will argue that this phenomenon is not solely anthropogenic (as, indeed, is the case) and that it is difficult—if not impossible—to establish causation by connecting the scientific evidence of regional and local emissions with the claimed injury. See Smith, Climate Change Litigation, at 107.
The appropriate remedy to deal with climate change is through federal and state environmental legislation and corresponding regulations dealing with the source of emissions. In the United States, at the federal level EPA has been charged with the task of regulating GHG emissions under the CAA. To the extent that courts are involved in dealing with global warming, it would only be through the judicial review of administrative action, as Massachusetts teaches us.
Private plaintiffs are likely to continue to try to use the common law public trust doctrine (and other common law claims) to compel government action, but these claims will likely fail if the doctrine is properly analyzed. At the federal level, there is no federal public trust doctrine, and at the state level the common law public trust even in its most expansive application, is tied to bodies of water. At the state level, the only way to seek to apply a notion of public trust to the air would be through the passage of legislation providing that the state has a duty to protect such resource for the benefit of its peoples. This, however, is different from the common law public trust doctrine. In any event, there are insurmountable procedural obstacles, such as standing and causation, which will determine the fate of claims related to GHGs. It is thus more appropriate for courts to defer to EPA, which is now seeking to put in place a regulatory regime under the CAA aimed at reducing GHGs over time.