On May 4, 2011, a coalition of youth-oriented climate change advocacy and other groups filed suit in federal and state court against federal and state officials, and filed petitions for administrative rulemaking in all 50 states, seeking to use the so-called "public trust doctrine" as a means to address climate change. The plaintiffs/petitioners argue that the atmosphere is a public trust resource and the governments in question therefore have a fiduciary duty to protect the atmosphere from greenhouse gas pollution for the benefit of current and future generations, and they have breached this duty by not regulating such emissions. In the lawsuits, the plaintiffs ask the courts to order the governmental defendants to reduce carbon dioxide emissions, such that such global emissions will peak by the end of 2012 and decline by at least 6 percent per year beginning in 2013. In the administrative petitions, the petitioners ask state environmental bodies to initiate rulemakings to accomplish the same reductions.
According to the plaintiffs/petitioners, the U.S. Supreme Court, in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), recognized the doctrine as applicable to governmental protection of navigable waterways as a public trust. They also claim that many states have since adopted similar doctrines for other natural resources.
So far, the public trust strategy has not fared well. On June 15, 2011, the Montana Supreme Court agreed with the State of Montana that it did not have original jurisdiction over such a claim and dismissed the case. On June 16, 2011, the Nevada State Environmental Commission was the first state agency to act on one of the administrative petitions. After a full public hearing, the Commission denied the petition. A number of other states have recently held or have scheduled public hearings on the rulemaking petitions. Given the Supreme Court's displacement holding in American Electronic Power Co. v. Connecticut, it will be interesting to see how far the public trust lawsuits proceed and what, if any, regulatory action results from the petitions.