Tuesday, 17 May 2011

US government sued on climate - Teenagers argue agencies failed to protect planet

6 May 2011, Page: 14

ADVOCATES of stringent curbs on greenhouse gas emissions have sued the US government, arguing that key agencies had failed in their duty to protect the atmosphere as a public trust to be guarded for future generations. Similar lawsuits are to be filed against states around the country, according to the plaintiffs, a coalition of groups concerned about climate change called Our Children's Trust.

Most of the individual plaintiffs in the suit, filed in US District Court in San Francisco, are teenagers, a decision apparently made to underscore the intergenerational nature of the public trust that the atmosphere represents. More novel, however, is the suit's reliance on the public trust doctrine, which dates to Roman times. In some ways the suit parallels a current case, brought by several states against the five largest energy companies in the country, that frames greenhouse gas emissions as a public nuisance, legal experts noted.

Last month, the Supreme Court heard arguments on issues in that case, including the standing of the states to bring such lawsuits. Several justices expressed scepticism: Justice Ruth Bader Ginsberg, for example, questioned whether the courts were being asked to intervene in an arena in which the executive branch specifically the Environmental Protection Agency has the expertise to act.

The EPA has determined that greenhouse gases pose a danger to the public health and welfare and are therefore subject to regulation under the Clean Air Act. It has argued that this regulatory process, which is already under way, should not be preempted by the courts. Legal experts on Wednesday said they were unsure whether the new lawsuit could gain legal traction, given that it presents issues that overlap in some ways with the public nuisance case. The Supreme Court is expected to issue an opinion on that case in the next few months.

Courts that hear these cases will be heavily influenced by the Supreme Court's opinion, said Michael Gerrard, director of Columbia University's Centre for Climate Change Law. Mr Gerrard said that by filing such lawsuits, environmentalists were "trying to use all available options in view of the failure of Congress" to act on greenhouse gas emissions. The House approved a sweeping bill to limit such emissions in 2009, but a more cautious effort died in the Senate last year. And the recently elected Republican majority in the House is threatening to strip the EPA of regulatory powers related to global warming.