Climate Activists Target States With Lawsuits

BILLINGS, Mont. (AP) — A group of attorneys using children and young adults as plaintiffs plans to file legal actions in every state and the District of Columbia on Wednesday in an effort to force government intervention on climate change.

The courtroom ploy is backed by high-profile activists looking for a legal soft spot to advance a cause that has stumbled in the face of stiff congressional opposition and a skeptical U.S. Supreme Court.

The goal is to have the atmosphere declared for the first time as a “public trust” deserving special protection. That’s a concept previously used to clean up polluted rivers and coastlines, although legal experts said they were uncertain it could be applied successfully to climate change.

Wednesday’s spate of lawsuits, led by an Oregon-based nonprofit called Our Children’s Trust, are based on “common law” theories, not statutes adopted by state or federal lawmakers. Documents in the cases were provided in advance to The Associated Press.

Conservative opponents warned the effort could overload the judicial system and paralyze the economy with over-regulation.

Attorneys involved in the lawsuits said a victory in even one or two cases would give environmentalists new leverage, leading to new regulations to rein in greenhouse gas emissions that scientists say are driving global temperatures higher.

State-level lawsuits were planned in Alaska, Arizona, California, Colorado, Massachusetts, Minnesota, Montana, New Mexico, Oregon and Washington, organizers said. A federal lawsuit was to be filed in California, while regulatory petitions filed elsewhere would ask state environmental agencies to tighten restrictions on vehicle and industrial plant emissions.

“It’s not just a political issue; it’s a legal issue. All three branches of government have an obligation to protect that public trust,” said Amy Eddy, a trial attorney from Kalispell, Mont., who helped draft litigation to be filed with the Montana Supreme Court. “You have just as much control over emissions into the atmosphere as you do pollution into water.”

Getting the courts to agree could be an uphill battle, legal experts said.

Another case that relied on unconventional legal tactics to address climate change got a tepid reception during arguments last month before the U.S. Supreme Court. That matter involved several states that sought to rein in power plant emissions by declaring them a public nuisance.

A ruling is pending, but Harvard Law School professor Jody Freeman said justices had questioned whether courts were the appropriate forum for the issue.

“I am generally skeptical the plaintiffs will succeed in the courts pressing for common law remedies from judges,” Freeman said.

Columbia University law professor Michael Gerrard described the public trust suits as a “bold move” by activists looking to use all available options to impose greenhouse gas restrictions. Still, he joined Freeman in saying the pending decision in the public nuisance case would heavily influence the outcome of the state-level lawsuits.

A more optimistic view came from Gus Speth, chairman of the White House Council on Environmental Quality under President Jimmy Carter.

Speth, now at the Vermont Law School, said public trust litigation over climate change could work if its backers can find a judge willing to innovate a new area of law.

Yet that outcome could only result if a judge is willing to buy into what conservative analyst Hans von Spakovsky called “a creative, made-up legal theory.”

“This is a complete violation of our whole constitutional system. These kinds of public policy issues are up to either the state legislatures or Congress to determine, not judges,” said von Spakovsky, a senior legal fellow at the Heritage Foundation.

Eddy and others involved in Wednesday’s lawsuits credited University of Oregon law professor Mary Christina Wood as laying the legal groundwork for their litigation.

Wood said in an interview with The Associated Press that mainstream environmental groups had approached climate change with the same tactics used to combat industrial developments or protect endangered species. But she said lawsuits based on existing environmental laws had come up short.

What is needed, Wood said, is a sweeping challenge to the government’s failure to address climate change. And having young people as plaintiffs in the cases gives added moral authority, she added. The plaintiffs include college students, high school activists, and children of conservationists and attorneys, along with environmental groups.

“We should be getting youths in front of the courts, not polar bears,” Wood said, referring to widely publicized attempt to have courts declare polar bears endangered as rising temperatures melt Arctic ice.

(© Copyright 2011 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)

  • Bruce

    Oh this is choice. With this approach, thinnk of the money we could save and create a debt free society: elliminate the executive and legislative branches of government – they’re too slow moving, too clstly, too ineffective. Create a super court system which could both create and enforce law. And following this change for the better, no, best, we could have the kids dragged befoe the bench now put behind the bench to administer these newly interpreted, simple, common laws. Oh, yes, this is choice.

  • Fred Magyar

    My son turned 16 today. That’s his future climate that is at stake!

    • Bill

      Keep giving in to the environmental wackos and you will guarantee that your 16 year olds economic future is dismal at best. If we are looking out for the future generations, we should be suing the “green” wackos for loss of future earning potential!

  • Matt

    When are we going to have a lawsuit over the ridiculous legislation and activists suffocating the jobs out of this country. My son is going to grow up in a bankrupt country, with so much government that business can’t survive because of these environmental wacko’s and social redistributionists. It’s so annoying that these people would tie up our economy in the name of “green” everything.

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  • Sara

    Ok anyone who denies climate change is either ignorant or just choosing to ignore facts. If you look at how much temperatures have risen in the past few decades compared to thousands of years before that you will see that this is dangerous and the arctic is in trouble because the melting ice is affecting the wildlife there and global warming is affecting all of us!

    • dan

      No one denies the fact that the average temperature is rising in the artic. The argument lies in what can and should be done about it. Is this just another Mother nature hiccup? 30 years ago we thought we were going to have another Ice Age because average Temps were falling.
      Nobody wants to waste money on over-reacting.
      Lets spend our time on conservation of all resources rather than pushing energy sources that cost more to produce than the sale price at the pump, ie. ethanol or Wind Power that is a limited power supply.

  • Victim Du Jour

    Judges rank pretty low on the democracy scale, most of them are appointed.

    Lawyers who think we live in a Judicial dictatorship are suppose to be disbarred when they conspire against the constitution.

  • Why are we putting up with this?

    Hello? Have you been awake for the last 5 years? Global warming my a$$. Where? It’s cold outside. Just because a politican says it, does not make it real. Come on think, people.

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