Kids vs Global Warming lawsuit dismissed by U.S. District Court for Washington D.C.

Posted on June 5, 2012 by fjwhite

Lawsuit was filed by Alec Loorz and other young climate change activists

No 495 Posted by fw, June 5, 2012

District Court Dismisses Children’s Climate Suit Brought Under Federal Public Trust Doctrine, by Shelley Welton, June 1, 2012, Columbia University, Climate Law Blog, Center for Climate Change Law.

The lawsuit of Alec L. and several other young climate change activists was dismissed by the U.S. District Court for the District of Columbia today. In Alec L. et al. v. Lisa P. Jackson et al., 11-cv-02235 (D.D.C. 2012), five teenagers and children joined the groups Kids vs. Global Warming and WildEarth Guardians to sue several federal agency heads for failure to adequately address global warming.

The plaintiffs proceeded on the theory that the atmosphere is a commonly shared public resource that defendants, as agency heads, have a duty to protect under the public trust doctrine. As relief, plaintiffs asked for an injunction directing the named federal agencies to “take all necessary actions to enable carbon dioxide emissions to peak by 2012 and decline by at least six percent per year beginning in 2013” (Slip. Op. at 5). Defendants and intervenors argued in a motion to dismiss that plaintiffs failed to state a federal claim for relief.

The district court’s opinion rejects plaintiffs’ federal public trust doctrine claim. Relying on the recent Supreme Court decision PPL Montana, LLC v. Montana, 565 U.S. —-, 132 S. Ct. 1213 (2012), the opinion holds that the public trust doctrine is a matter of state, not federal, law. It also explains that even if the public trust doctrine were a federal common law claim, such a claim has been displaced in this case by the Clean Air Act (as was similarly held in the 2011 Supreme Court case American Electric Power Co. v. Connecticut, 131 S. Ct. 2527).

Finally, the opinion expresses what has become familiar judicial skepticism with federal courts developing new law (as opposed to applying existing statutes) in the complicated arena of regulating carbon dioxide emissions. This skepticism may be warranted, but after years of inaction by the elected branches of government, it is no wonder that these young plaintiffs are exploring all possible avenues (including, perhaps, an appeal?).

RELATED READING

Youth turn to legal action as means to power, as means to hold leaders accountable for climate change inaction, May 8, 2011. “Here, in his own words, Alec Loorz explains why he is suing the US government ‘for making decisions that threaten our right to a safe and healthy planet.’”

Mary C. Wood, creator of road map for citizens to bring lawsuits against government, May 8, 2011. “The atmospheric trust litigation part is a road map for citizens to bring suit against their government, (whether) city, state, or federal, to enforce the fiduciary obligation. We still have three branches of government in this country, last time I checked. But the courts have been passive observers to this monumental destruction that now threatens, literally, the future of human civilization and our children. The courts … must provide a check against runaway politicization by the other two branches. They have been on the sidelines in climate crisis. So this atmospheric trust litigation puts the courts as the appropriate enforcers of governments’ basic duty.”

Fair Use Notice: This blog, Citizen Action Monitor, may contain copyrighted material that may not have been specifically authorized by the copyright owner. Such material, published without profit, is made available for educational purposes, to advance understanding of human rights, democracy, scientific, moral, ethical, and social justice issues. It is published in accordance with the provisions of the 2004 Supreme Court of Canada ruling and its six principle criteria for evaluating fair dealing.

Teen perseveres after her petition for immediate action on climate change is rejected by Iowa’s natural resources protection agency

Posted on May 16, 2012 by fjwhite

Undaunted, Glori’s case is now working its way through Iowa’s courts

No 478 Posted by fw, May 16, 2012

To find out more about 13-year old Glori Dei Filippone, from Des Moines, Iowa, watch the following 7-minute video. Then read about Glori’s cause and an abiding faith that America still has judges who will enforce the Public Trust duty of the State to uphold citizens’ rights to expect protection of critical natural resources, including air and water — courageous judges of the caliber of those who enforced the rights of African Americans during the civil rights movement in the ‘50s and ‘60s.

Courage and Gratitude to those who Pursue Justice by Julia Olson, April 27, 2012

Courage. The word that comes to mind when I think of Glori Dei Filippone, a 13-year old from Des Moines, Iowa. Along with Kids vs. Global Warming, she petitioned her state’s natural resources protection agency to take immediate action on climate change, asking for annual reductions in Iowa’s carbon dioxide emissions, to protect the resources of her state.

When the time came for a public hearing on her petition, Glori wanted to testify before the Commission. In a room full of adults, Glori eloquently articulated the science of climate change, the significant impacts her state faces and the scientific solution to rebalance the state of our atmosphere and climate. With dignity and passion, she asked her government trustees to consider their children and future generations when they made their decision.

However, rather than address the substance of her presentation, the Chair of the Commission, a cattle rancher, criticized Glori for her personal choice to reduce her own carbon footprint by becoming a vegetarian and eating locally. Glori spoke of a climate crisis that has wiped out crops in Iowa from flooding and drought, that according to experts will move the corn growing belt to Canada, that ultimately threatens food and water security and the habitability of our nation. But Glori did not react to the Commissioner’s narrow focus on how she sustains herself with despair or defeatism; she left empowered because she had made an impact. Courage, in the face of adversity.

Glori has persevered and her case is working its way through the courts. On May 1, 2012, Glori’s attorney, Channing Dutton, will file their brief to the Iowa Supreme Court asking the Court to recognize the Public Trust duty of the State to protect Glori’s, and other trust beneficiaries’ rights to a stable atmosphere and protection of other critical state resources, like water and wildlife. In TRUST Iowa, Glori asks judges to “think about their children or their children’s children and about how this decision is going to affect them.”

Like Glori, I believe there are judges with the courage that is needed today. It’s in the historic DNA of our judiciary.

Judge Elbert Tuttle. Judge John Minor Wisdom. Judge John Robert Brown. Judge Richard Taylor Rives.

These names might not mean much to you. But for two decades beginning in the late 1950s, these four men meant the world to the civil rights movement. Serving on the Fifth Circuit Court of Appeals in the South, in case after case, they enforced the rights of African Americans. As Claude Sitton, former National Editor of the New York Times and civil rights reporter said, “[t]hose who think Martin Luther King desegregated the South don’t know Elbert Tuttle and the record of the Fifth Circuit Court of Appeals.” (quoted in Unlikely Heroes by Jack Bass, p. 15). These judges enforced the law by integrating schools and buses, by rejecting unfair voting districting, by mandating reapportionment. They ordered justice and equality. And they did so in communities still deeply entrenched in discrimination. They lost friends. They answered their phones nightly at home to verbal assaults. But they drew the line. They moved our nation forward on its journey to a just society. They never retreated. Courage in the face of adversity.

These judges, during the civil rights era, would never have had the opportunity to issue those historic decisions if young people had not stood up in the face of injustice and discrimination and held their own line against segregation.

I believe in the courage of our youth and the courage of judges to move our nation, once again, to a just society for this generation and the ones to come after us; a society free from the tyranny of fossil fuels and destruction of our natural life-giving systems. We must all be active instruments of justice. In Glori’s words, “what can the community do, what can we all do, what can the government do?”

Courage. Thank you, Glori Dei. Thank you, Judges Tuttle, Wisdom, Brown and Rives.

-Julia Olson, Executive Director

RELATED LINK

Mary C. Wood, creator of road map for citizens to bring lawsuits against government — “The atmospheric trust litigation part is a road map for citizens to bring suit against their government, (whether) city, state, or federal, to enforce the fiduciary obligation… But the courts have been passive observers to this monumental destruction that now threatens, literally, the future of human civilization and our children. The courts… must provide a check against runaway politicization by the other two branches. They have been on the sidelines in climate crisis. So this atmospheric trust litigation puts the courts as the appropriate enforcers of governments’ basic duty.”

Fair Use Notice: This blog, Citizen Action Monitor, may contain copyrighted material that may not have been specifically authorized by the copyright owner. Such material, published without profit, is made available for educational purposes, to advance understanding of human rights, democracy, scientific, moral, ethical, and social justice issues. It is published in accordance with the provisions of the 2004 Supreme Court of Canada ruling and its six principle criteria for evaluating fair dealing.

Town wins fracking ban lawsuit. Possible company claim for “lost future profits” is mind-boggling

Posted on February 28, 2012 by fjwhite

“Nowhere in the legislative history (of the state oil and gas law) is there any suggestion that the legislature intended…to preempt local zoning authority.” —Judge Rumsey

No 423 Posted by fw, February 28, 2012

The citizens of Dryden [pop. 14,000], New York are no doubt delighted with a judge’s decision to uphold the legality of their local ordinance that bans fracking. Round 1 to Dryden. But the fight isn’t over yet. Find out what legal and compensation challenges remain in this brief report by Treehugger.com. A possible claim for “future compensation” boggles the mind –

New York Towns Can Ban Fracking Even If State Doesn’t, Judge Rules, Mat McDermott, February 22, 2012

In an undeniable victory for opponents of hydraulic fracturing, Tompkins County, New York judge Philip Rumsey has ruled that the town of Dryden’s ban on fracking is legal.

Dryden is one of about 20 towns in New York which have banned fracking within their limits, as the state government deliberates on how to proceed with the increasingly controversial natural gas extraction technique.

Judge Rumsey said, “Nowhere in the legislative history (of the state oil and gas law) is there any suggestion that the legislature intended…to encourage the maximum ultimate recovery of oil and gas…or to preempt local zoning authority.”

The suit that brought Dryden’s ban into court was initiated by Anschutz Exploration Corporation, which has leases on over 22,000 acres of land in the town, investing $5.1 million in drilling operations.

Which brings us to the part of all this worth commenting on and not just reporting –

New York Times reports that a lawyer representing Anschutz says the company may appeal the ruling or initiate a claim against the town for the money it has invested in securing leases and “could claim the lost value of its assets, including any profits it would have derived from exploiting the mineral rights under the land. [New York Judge Rules Town Can Ban Gas Hydrofracking]

I can see the logic and justice in compensating Anschutz for money already invested prior to the ban taking place. However, compensation for future profits just boggles my mind. Compensating a company for money it might have made by engaging in a now banned activity? It’d be like compensating slave ship owners for lost revenue after slavery was banned.

MY COMMENT – What about Canadian provincial law? Is there any legislation that would preempt local zoning authority? If not, then presumably communities could pass local ordinances to protect their natural resources. Moreover, is it not the duty of all levels of government to protect our natural resources?