[GPSCC-chat] Fwd: NY Times: McCloskey et al Suing US, States Over CO2 Emissions

Fri May 6 09:14:41 PDT 2011

For those who are interested in attending Sunday's imatter protest in 
San Francisco, please read this.  It is connected to much larger efforts.

The person forwarding this to me helped in the 2006 campaign and has 
remained close to McCloskey.

Wes

-------- Original Message --------
Subject: 	NY Times: McCloskey et al Suing US, States Over CO2 Emissions
Date: 	Fri, 6 May 2011 07:19:10 -0400
From: 	
To: 	

Under the concept that the atmosphere is a "public trust" - and that the 
govt is required to protect it...

Not a bad article overall, but the NY Times lead on Pete is laughable:
_________________
Among the lawyers representing them is Pete McCloskey, a former 
Republican congressman from California who became a Democrat in 2006 
*for* an unsuccessful bid to defeat former House Natural Resources 
Chairman Richard Pombo (R-Calif.).
_________________
** added by ****** - I think they meant to say *after*...notwithstanding 
this minor typo, this sentence is certainly good for a yuk or two!!

Hope you're all doing well!
<snip>

May 5, 2011

  Young Activists Sue U.S., States Over Greenhouse Gas Emissions

            By GABRIEL NELSON

They might not be old enough to vote, but young climate activists are 
helping stage a legal campaign that seeks to force the federal 
government and all the states to curb greenhouse gas emissions because 
of their role in global warming.

Attorneys representing the children and teenagers filed yesterday, or 
are preparing to file, 52 separate lawsuits and petitions based on a 
novel legal theory: that the government has failed in its duty to 
protect the atmosphere as a "public trust" for future generations.

As a legal theory, the idea that the environment is a public trust has 
been around for centuries, and has often been used to protect water and 
wildlife. For instance, the Supreme Court ruled in 1892 that Illinois 
lawmakers couldn't hand over a large portion of the Chicago harbor to 
the Illinois Central Railroad because the government was responsible for 
safeguarding waterways.

Similarly, that's the reason people usually need government licenses to 
shoot deer or catch fish. State and federal officials manage wildlife as 
a public trust to ensure that it remains plentiful.

The idea has never before been applied to the atmosphere, said Julia 
Olson, an attorney who led the legal team as executive director of the 
Oregon-based nonprofit Our Children's Trust. But it captured the 
imagination of 16-year-old Alec Loorz of Ventura, Calif., who is helping 
run the legal campaign and has spent the past year finding teenagers 
across the country to sign onto the lawsuits.

"The legislative and executive branches of our government have failed 
us," Loorz said in an interview yesterday. "People have been trying to 
push for real change at the legislative level for a long time, and 
nothing has worked. That's why we're going after it through the judicial 
branch of government."

Among the cases is a federal *lawsuit* 
<http://www.eenews.net/assets/2011/05/05/document_gw_03.pdf> (pdf), 
filed late yesterday in district court in San Francisco, that names U.S. 
EPA and the departments of Agriculture, Commerce, Defense, Energy and 
Interior as defendants. The lawsuit asks the government to stop 
greenhouse emissions in 2012 and reduce them by 6 percent per year after 
that.

Loorz said he started focusing on climate change at age 12 after seeing 
former Vice President Al Gore's film "An Inconvenient Truth." Now, he 
and four other teenagers are the main plaintiffs in the federal case, 
which was assigned to Donna Ryu, a U.S. magistrate judge in Oakland, Calif.

Among the lawyers representing them is Pete McCloskey, a former 
Republican congressman from California who became a Democrat in 2006 for 
an unsuccessful bid to defeat former House Natural Resources Chairman 
Richard Pombo (R-Calif.). In a statement yesterday, McCloskey described 
the public trust theory as "the most common-sense, fundamental legal 
footing for the protection of our planet."

Also participating in the lawsuit are Wildearth Guardians, a 
Colorado-based group that often sues the government to protect wildlife 
and wilderness areas, and Kids vs. Global Warming, a group that Loorz 
founded with support from the nonprofit Earth Island Institute.

The first states that will face lawsuits are Alaska, Arizona, 
California, Colorado, Massachusetts, Minnesota, Montana, New Mexico, 
Oregon and Washington. Hawaii and New Jersey are going to be served with 
notices that lawsuits are coming, while the other 38 states and the 
District of Columbia will receive petitions that ask to put climate 
policies in place.

"What courts can do is, they can take the politics out of atmospheric 
protection, and they can put the science back in," Olson said. "They can 
establish the threshold of what needs to be done, and tell the 
government, you need to reduce carbon dioxide emissions by 6 percent a 
year, so we can protect the atmosphere for future generations. We're not 
trying to tell government the ins and outs of how to do it."

Climate and common law

Legal experts say the new legal campaign parallels another common-law 
case brought by states and environmental groups that was heard by the 
Supreme Court earlier this year.

That lawsuit, which was filed against the five largest coal-burning 
utilities in the country, claimed that greenhouse gas emissions from 
coal plants are a "public nuisance" because of their contribution to 
climate change. A federal appeals court had ruled that the case could 
proceed, ordering a district judge to decide whether specific power 
plants should cut their emissions.

Most of the Supreme Court seemed skeptical during oral arguments last 
month. Justice Ruth Bader Ginsburg, who is generally considered one of 
the more liberal judges on the nation's high court, asked why judges 
should weigh those concerns when EPA has the scientific expertise to do 
it (/Greenwire <http://www.eenews.net/public/Greenwire/2011/04/19/1>/, 
April 19).

Under a 2007 decision by the Supreme Court, the agency has decided that 
greenhouse gases are a threat to human health and welfare and must 
therefore be regulated under the Clean Air Act. The Obama administration 
has argued that the new Clean Air Act rules should pre-empt legal 
challenges that ask judges to limit greenhouse gas emissions.

Critics of the new lawsuits say climate change is a wide-reaching and 
complex "political question" that is best left to Congress and the 
executive branch. Even some proponents of policies to cut down on 
greenhouse gas emissions have doubts about the public trust strategy.

"When you're suing the government for failure to regulate, good luck," 
said one environmental attorney who is not involved in the new round of 
lawsuits. "That plays into the political question doctrine, so they've 
got their hands full. I don't buy into this strategy."

Hans von Spakovski, a senior legal fellow at the conservative Heritage 
Foundation, said the public trust doctrine doesn't make sense for 
climate change. While it might make some sense for public waters, where 
there is often a clear source of pollution, there are billions of 
sources of carbon dioxide, and most of them are in other countries.

Even if the United States managed to cut its emissions, there's no 
guarantee it would make a difference, von Spakovski said. That's what 
makes it a policy question that the legislative branch must answer, he said.

"If you think state government should be doing something about this, go 
lobby the state government," von Spakovski said. "Work on electing 
people to the state legislature who you think will have the right 
opinion on these kinds of issues. That's how you do it in a democratic 
system. It's a slow, complicated process, but it's the system that we have."

State lawsuits

The activists aren't sparing any states from their lawsuits -- not even 
California, which passed a climate change bill in 2006 and is now 
preparing a cap-and-trade program to limit carbon dioxide emissions in 
the state.

Lawyers *filed suit* 
<http://www.eenews.net/assets/2011/05/05/document_gw_04.pdf> (pdf) 
against the state and Gov. Jerry Brown (D) yesterday in San Francisco 
Superior Court. California's A.B. 32, which established a target of 1990 
emissions levels by 2020 and set up a host of regulations and a 
market-based system to achieve it, is not enough, Oakland-based lawyer 
Sharon Duggan said.

Duggan said she spoke to Brown's staff about the case, but they couldn't 
reach an agreement. A spokesman for Brown declined to comment.

"The state of California has told us unequivocally that they will not 
agree that the atmosphere is a public trust resource," Duggan said. 
"Everyone will agree that California is a leader in trying to deal with 
the climate crisis, but on this particular issue they would not concede 
that point."

Though no one has argued in court that the atmosphere should be a public 
trust, the underlying concept isn't unheard of in California. One 
precedent could be the California Supreme Court's 1983 decision that the 
state should have considered the public trust before granting Los 
Angeles users the right to tap Mono Lake, northeast of Yosemite National 
Park.

"California is doing a lot, but their failure to embrace the atmosphere 
as a public trust resource prevents them from exercising their duty to 
take all action necessary to prevent the escalation of the climate 
crisis," Duggan said. "Whether you're at the state or federal level, the 
government has failed and the political arena is not getting the job done."

*Click here* 
<http://www.eenews.net/assets/2011/05/05/document_gw_03.pdf> (pdf) to 
read the federal lawsuit.

*Click here* 
<http://www.eenews.net/assets/2011/05/05/document_gw_04.pdf> (pdf) to 
read the California lawsuit.

/Reporter Debra Kahn contributed./

For more news on energy and the environment, visit www.greenwire.com 
<http://www.greenwire.com/>.
Greenwire is published by Environment & Energy Publishing. Read More » 
<http://www.nytimes.com/ref/membercenter/supplemental-content.html>
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