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Michael Gerrard: There were four lawsuits filed in the federal courts in the US based on the theory of public nuisance, with some of the same ideas that [show up in the Dutch case].
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There's one other theory that is being litigated now. That's the public trust doctrine. There's this group in Oregon called Our Children's Trust that has organized lawsuits in several different US states. Most of those have been dismissed, but there's one still pending in Oregon.Why were the others dismissed?
There are three principle grounds that have been used. One is that the public trust doctrine does not extend to the atmosphere. Second is that it's not the proper role of courts to be setting emissions limitations. The third is that the plaintiffs don't have standing in that they're affected by climate change the same as everyone else—under some theories in order to have standing you need to be affected differently than the public at large.
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[The remaining Oregon public trust case is] based on state law, and so it will be up to the courts of Oregon to decide. The case did survive an initial motion to dismiss, which meant that the court felt there was enough there to be worth going forward.But future cases suing for policy change in America would have to happen state-by-state?
I think it would most likely be on a state-by-state basis.Hasn't the dismissal of such cases in some states made that difficult in those areas?
But remember this was on particular grounds. If somebody came up with other grounds [the courts] might think about it differently.How do the theories US cases were built on compare to those used in the Dutch case?
As I read the Dutch complaint, it's an array of theories. Some of them overlapped with what we have in the US. I think there was some reference to the public trust issue and to nuisance. They also relied heavily on various human rights as established by the European Commission on Human Rights, which are not applicable here.Even if they're similar in spirit, does the difference in the theoretical basis and legal system at play in the Netherlands mean that there's little we can learn from that case?
I don't want to prejudge that. Who knows whether something will emerge that will inspire some US judges. But certainly the Supreme Court precedent in the Connecticut case is difficult. But on its terms it only applies to federal common law. It doesn't apply to state common law. So one could imagine a state court taking up such a case.
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In the United States, Congress is moving backward. The current Congress is dominated by those who deny the very existence of climate change and by those who would like to cut back on the EPA's authority to deal with greenhouse gases.So a judicial route would be preferable in the US?
Don't put words into my mouth [laughs].Most of the judicial effort in America is by states and industries to shut down the EPA's rule-making, and the legal effort of the environmental community is mostly to defend the EPA and upholding its current actions under the Clean Air Act.We're not close to seeking affirmative judicial action along the lines of what's being sought in the Netherlands. That was tried. It didn't succeed. And that's not the current focus.
VICE also called Professor Mary Wood of the University of Oregon, who focuses on pushing environmental policies in the courts via public trust theories. We asked her to clarify a few points on the legal grounds for bringing cases in America and to share her own views on the Dutch case.VICE: What's the big difference between nuisance and trust cases?
Mary Wood: The nuisance cases were brought against corporations for the most part. Public trust is a claim brought by citizens against a government.
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They've assumed that the other two branches of government would deal with the problem. And what the Netherlands plaintiffs are saying and what the US plaintiffs are saying is, if the courts stay passive , and the other branches don't act, it will be too late . I can only believe that judges, like everybody else, are starting to wake up to the urgency of climate change and will view their role a little differently once they truly appreciate the gravity of the situation.[Plaintiffs in America and the Netherlands] are simply asking the courts to require a plan of action, requiring the other branches to do their jobs. In the United States, courts have done that many times in history. They've done that in land use cases, education funding cases, treaty rights cases, and so forth. The only thing that makes it difficult here is that courts have become very passive in environmental law.Even if courts can play a role in determining climate policies, it seems like they're just too reticent to do so. Is there any hope for the remaining cases in the US court system?
Two courts have found that there is a public trust in the atmosphere… and the cases are moving forward and more are being brought.How would you compare the basis of the Dutch case to America's cases? They're part of the same thought. Each country has a different legal system, but both of them proceed from the same basis: that government is in control of the atmospheric property and has control over actions that affect the climate. So government should be held responsible when we're facing climate catastrophe.What do you think the chances are of the Dutch plaintiffs winning their case?
At some point, the chances of success are moved from the realm of law to the realm of judicial courage.