After a string of defeats at the regulatory agencies and state and federal courts, Our Children's Trust finally notched two victories last month in its quest to use the public trust doctrine to implement carbon dioxide emission regulations. Our Children's Trust, an environmental organization based in Oregon, began its campaign in May 2011 when it oversaw the filing of nearly two score regulatory petitions and a dozen lawsuits seeking to force individual states to take action to restrict carbon dioxide emissions. OCT's trademark feature is to include as plaintiffs "youth activists". Up to the beginning of July it had not had any success. But then, maybe, the tide began to turn.
First, on July 9 Texas District Court Judge Gisela Triana partially overrode the Texas Commission on Environmental Quality's decision rejecting a petition for rulemaking on the public trust doctrine. Petitioners appealed the decision in Bonser-Lain v. TCEQ. Petitioners had sought, relying on the public trust doctrine, to force the TCEQ to act to preserve the atmosphere by regulating carbon dioxide. The TCEQ had concluded that in Texas the public trust doctrine applies solely to water. Furthermore, according to the Commission, it was precluded from acting by the federal Clean Air Act, which preempted more restrictive state action.
Judge Triana made short shrift of both arguments. Relying on Article XVI of the Texas Constitution she ruled: "The Court will find that the Commission’s conclusion, that the public trust doctrine is exclusively limited to the conservation of water, is legally invalid. The doctrine includes all natural resources of the State.” As to the preemption idea, the federal Clean Air Act "is a floor, not a ceiling, for the protection of air quality, and therefore the Commission's ruling on this point is not supported by law." The court did find, however, that because of other pending litigation, the TCEQ did properly exercise its discretion in refusing to entertain the petition.
Second, on July 14, New Mexico District Court Judge Sarah Singleton refused to dismiss a case asserting the State of New Mexico had an obligation to protect the atmosphere under the public trust doctrine. The 18-line decision would hardly merit discussion except that this was the first decision allowing one of these cases to move forward. Like the petitioners in Texas, the plaintiffs in New Mexico sought to establish the public trust doctrine as a vehicle to control carbon dioxide emissions. In a nutshell, Judge Singleton ruled that the suit, Sanders-Reed v. Martinez, could go forward insofar as it alleged that the State of New Mexico was not in compliance with laws passed by the New Mexico Legislature. Specifically, the "Motion [to Dimiss] is DENIED to the extent that Plaintiffs have made a substantive allegation that, notwithstanding statutes enacted by the New Mexico Legislature which enable the state to set state air quality standards, the process has gone astray and the state is ignoring the atmosphere with respect to greenhouse gas emissions." The motion was successful, however, where the court dismissed claims "based on the New Mexico Legislature's failure to act with respect to the atmosphere."
These cases may or may not be important in the climate change arena. To be sure, they upset an unbroken stream of victories for state regulators over OCT plaintiffs and will undoubtedly serve as a rallying point for the remaining cases as well as to-be-filed cases. But the comments in Bonser-Lain are only dicta and that Sanders-Reed survived a motion to dismiss says nothing about the merits. But the mass-filing strategy by Our Children's Trust bears watching because it is not unique and may surface elsewhere. Indeed it has.
Following the filing of a class action against Thomas Jefferson Law School in California over alleged misrepresentations in law school placement data, a team of lawyers coordinated by two attorneys in New York, David Anziska and Jesse Strauss, put together a mass-filing strategy similar in some respects to that followed by OCT. Twelve apparently is the magic number. The law school placement team brought suit against a dozen law schools in jurisdictions across the nation. Although another twenty suits are theoretically teed up as information from prospective plaintiffs is collected, those suits were promised for Memorial Day but have not yet materialized.
A big filing day is mandatory to maximize press coverage. As were the atmospheric trust cases, the law school placement cases were nearly all filed on the same day. Both litigation teams have sought public exposure throughout the course of the litigation.
A defendant's typical response in both sets of cases is a motion to dismiss. Some throw in everything and the kitchen sink, others are more thoughtful. There is a danger to the kitchen sink approach; the court may issue a ruling giving the plaintiffs a set of victories as happened with Thomas Cooley Law School in Michigan (see attached) (even though Cooley ultimately prevailed at the trial court).
But this is where the mass filing paradigm falls down. Both sets of litigation are based on state law. In the law school placement cases, two California cases have survived demurrers because California consumer protection law includes educational services (see attached), and two have been dismissed because, among other things, Michigan consumer protection law does not reach professional schools and New York law finds law students to be sophisticated consumers. In the atmospheric public trust cases, notwithstanding case after case rejecting the claims, courts in New Mexico and Texas find under their states' laws that the theory is well-founded.
The lesson one should take from this is that, like politics, all law is local. Well-timed press releases and news conferences touting the ineluctable triumph of the plaintiffs, at the end of the day count for very little. Rather, what matters is the particular law of the particular jurisdiction on the particular facts of the case. Both plaintiffs and defendants should take note.