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Environmental Law

New Climate Change Suits Take Unusual ‘Public Trust’ Approach

Posted May 5, 2011 10:57 AM CDT
By Debra Cassens Weiss

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A series of climate change lawsuits being filed across the country rely on a novel approach—the public trust doctrine—but the litigation’s success could turn on pre-emption doctrine rather than tort law.

The suit filed by a coalition group called Our Children’s Trust argues that key agencies have failed to protect the earth’s atmosphere as a public trust for future generations, the New York Times reports. The first suit was filed in federal court in San Francisco; more were expected to be filed against states around the country.

According to the Times, the public trust suit is similar to a pending U.S. Supreme Court case claiming greenhouse gases are a public nuisance. At issue is whether the courts can decide the issue, given the Environmental Protection Agency's authority to regulate pollution. Justice Ruth Bader Ginsburg was among those expressing skepticism, the New York Times reported at the time. Speaking to a lawyer for the states, Ginsburg said, “The relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super-EPA.”

Harvard Law School professor Jody Freeman wasn’t optimistic about the public trust suits. “I am generally skeptical the plaintiffs will succeed in the courts pressing for common-law remedies from judges," Freeman told the Associated Press.

Additional coverage:

HuffPost Green: "Defending the Atmosphere"

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