• Climate Change "Public Trust" Lawsuit Transferred to D.C. Federal Court
  • February 10, 2012 | Author: Daniella A. Einik
  • Law Firm: Jones Day - Washington Office
  • After remaining inactive for several months, there have been a number of significant developments in the federal lawsuit filed by advocacy groups in the name of minor children against a number of states and the federal government, Alec L. v. Lisa Jackson et al., C.A No. 11-2203 EMC (N.D. Ca.). In that suit, plaintiffs claim that defendants, among other things, breached their fiduciary duty under the "public trust doctrine" by not regulating greenhouse gas emissions.

    First, on September 28, 2011, plaintiffs filed a motion for issuance of a preliminary injunction, asking the district court to order defendants to submit a climate recovery plan by March 12, 2012, so reductions in greenhouse gas emissions could begin in January 2013. Plaintiffs argued that such an injunction is necessary because: (1) they have suffered irreparable harm from global warming in the form of direct health effects, damage to the natural ecosystem where they live, and psychological impacts from extreme weather events; (2) immediate emission reductions are needed to prevent permanent and devastating impacts; (3) the injunction is in the public interest; and (4) the balance of harm weighs in favor of granting the injunction.

    Second, on October 31, 2011, the National Association of Manufacturers ("NAM") moved to intervene in the litigation, arguing that NAM should be allowed to intervene because: (1) its motion was timely; (2) it has protectable interests affected by the suit, namely that the economic upheaval that will result from a cap on greenhouse gas emissions will deprive NAM members of their investments without any public input; (3) a disposition in this case will impair NAM's ability to protect these interests because the relief does not incorporate any means for NAM or other members of the public to provide input on the requested climate recovery plan; and (4) it is not adequately represented by the governmental defendants because their focus is on the broader public interest, not on the narrow interest of certain businesses, and because NAM's prior challenges to governmental greenhouse gas regulations demonstrate that the interests of NAM and defendants are not aligned.

    Defendants and NAM also filed separate motions to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted on October 31, 2011. Both motions argued that the case should be dismissed because: (1) the federal government has not waived sovereign immunity; (2) plaintiffs lack prudential standing because their complaints are more properly addressed to other branches of the federal government; (3) plaintiffs lack Article III standing because the court cannot redress their alleged injury; (4) no federal "public trust doctrine" exists, and even if one does, plaintiffs' claims do not fall within its bounds; and (5) plaintiffs have no valid federal law claim because any such claim has been displaced by the Clean Air Act.

    Third, on November 4, 2011, defendants filed, and NAM supported, a motion to transfer the case to the U.S. District Court for the District of Columbia. Defendants argued that the case should be heard in the District of Columbia because: (1) defendants and the agencies they represent are in the District of Columbia, while only some of the plaintiffs reside in the Northern District of California; (2) the District of Columbia has a stronger local interest than any other district when adjudicating agency actions, especially ones of global scope like those involving climate change; (3) the District of Columbia courts are less congested; and (4) transfer would serve the interests of justice because the case involves federal agencies headquartered in Washington, D.C.

    Fourth, on November 14, 2011, Dr. James Hansen, Director of the NASA Goddard Institute for Space Studies, moved for leave to file an amicus curiae brief in support of the plaintiffs' position. In his brief, Dr. Hansen argued that action by the federal district court is necessary because the President has not used his authority to act against climate change and any delay vastly increases the eventual impact of climate change. Dr. Hansen also argued that the relief sought by the plaintiffs is consistent with the scientific understanding of what is minimally needed to avoid a dangerous climate change.

    On December 6, 2011, the district court granted defendants' motion to transfer the case to the District of Columbia, because: (1) the operative facts did not occur in the Northern District of California, but likely occurred in the District of Columbia; (2) plaintiffs are not all located in the Northern District of California; (3) the majority of the parties reside in or have a connection to the District of Columbia; (4) the witnesses are located all over the country; (5) the relevant evidence is likely located in the District of Columbia where the agencies are located; (6) the District of Columbia has the strongest interest, because it is where the relevant government policies arose; and (7) the court has not ruled yet on any of the other pending motions.

    The transferred case has been assigned to Judge Robert L. Wilkins of the U.S. District Court for the District of Columbia and docketed under case number 1:11-cv-02235-RLW.