Alec L. and Federal Atmospheric Trust Litigation: Conceptual and Political Gains Amidst Legal Defeat?

Abstract

In the past few years, a number of lawsuits have argued that the public trust doctrine (PTD) requires state and federal agencies to regulate greenhouse gas emissions.1 The nonprofit Our Children‘s Trust is the primary organizer of such suits, called ―atmospheric trust litigation,‖ and has organized actions in all fifty states with teenagers as plaintiffs.2 On June 5, 2014, the D.C. Circuit affirmed the dismissal of one such suit, Alec L. ex rel. Loorz v. McCarthy.3 Finding that the PTD is entirely a matter of state law, the court held it lacked federal subject matter jurisdiction.4 The plaintiffs in Alec L., a coalition of teenagers and two nonprofits, WildEarth Guardians and Kids vs. Global Warming, filed suit against the heads of various federal agencies.5 Their suit sought declaratory and injunctive relief establishing the atmosphere as a resource managed in the public trust, which would create a fiduciary duty in the federal government to reduce greenhouse gas emissions.6 The Supreme Court denied certiorari on December 8, 2014, allowing the D.C. Circuit‘s dismissal to stand.7 Still, although Alec L. failed to establish any federal PTD rights, the