They might not be old enough to vote, but young climate activists are helping stage a legal campaign that seeks to force the federal government and all the states to curb greenhouse gas emissions because of their role in global warming.

Attorneys representing the children and teenagers filed yesterday, or are preparing to file, 52 separate lawsuits and petitions based on a novel legal theory: that the government has failed in its duty to protect the atmosphere as a "public trust" for future generations.

As a legal theory, the idea that the environment is a public trust has been around for centuries, and has often been used to protect water and wildlife. For instance, the Supreme Court ruled in 1892 that Illinois lawmakers couldn't hand over a large portion of the Chicago harbor to the Illinois Central Railroad because the government was responsible for safeguarding waterways.

Similarly, that's the reason people usually need government licenses to shoot deer or catch fish. State and federal officials manage wildlife as a public trust to ensure that it remains plentiful.

The idea has never before been applied to the atmosphere, said Julia Olson, an attorney who led the legal team as executive director of the Oregon-based nonprofit Our Children's Trust. But it captured the imagination of 16-year-old Alec Loorz of Ventura, Calif., who is helping run the legal campaign and has spent the past year finding teenagers across the country to sign onto the lawsuits.

"The legislative and executive branches of our government have failed us," Loorz said in an interview yesterday. "People have been trying to push for real change at the legislative level for a long time, and nothing has worked. That's why we're going after it through the judicial branch of government."

Among the cases is a federal lawsuit (pdf), filed late yesterday in district court in San Francisco, that names U.S. EPA and the departments of Agriculture, Commerce, Defense, Energy and Interior as defendants. The lawsuit asks the government to stop greenhouse emissions in 2012 and reduce them by 6 percent per year after that.

Loorz said he started focusing on climate change at age 12 after seeing former Vice President Al Gore's film "An Inconvenient Truth." Now, he and four other teenagers are the main plaintiffs in the federal case, which was assigned to Donna Ryu, a U.S. magistrate judge in Oakland, Calif.

Among the lawyers representing them is Pete McCloskey, a former Republican congressman from California who became a Democrat in 2006 for an unsuccessful bid to defeat former House Natural Resources Chairman Richard Pombo (R-Calif.). In a statement yesterday, McCloskey described the public trust theory as "the most common-sense, fundamental legal footing for the protection of our planet."

Also participating in the lawsuit are Wildearth Guardians, a Colorado-based group that often sues the government to protect wildlife and wilderness areas, and Kids vs. Global Warming, a group that Loorz founded with support from the nonprofit Earth Island Institute.

The first states that will face lawsuits are Alaska, Arizona, California, Colorado, Massachusetts, Minnesota, Montana, New Mexico, Oregon and Washington. Hawaii and New Jersey are going to be served with notices that lawsuits are coming, while the other 38 states and the District of Columbia will receive petitions that ask to put climate policies in place.

"What courts can do is, they can take the politics out of atmospheric protection, and they can put the science back in," Olson said. "They can establish the threshold of what needs to be done, and tell the government, you need to reduce carbon dioxide emissions by 6 percent a year, so we can protect the atmosphere for future generations. We're not trying to tell government the ins and outs of how to do it."

Climate and common law

Legal experts say the new legal campaign parallels another common-law case brought by states and environmental groups that was heard by the Supreme Court earlier this year.

That lawsuit, which was filed against the five largest coal-burning utilities in the country, claimed that greenhouse gas emissions from coal plants are a "public nuisance" because of their contribution to climate change. A federal appeals court had ruled that the case could proceed, ordering a district judge to decide whether specific power plants should cut their emissions.

Most of the Supreme Court seemed skeptical during oral arguments last month. Justice Ruth Bader Ginsburg, who is generally considered one of the more liberal judges on the nation's high court, asked why judges should weigh those concerns when EPA has the scientific expertise to do it (Greenwire, April 19).

Under a 2007 decision by the Supreme Court, the agency has decided that greenhouse gases are a threat to human health and welfare and must therefore be regulated under the Clean Air Act. The Obama administration has argued that the new Clean Air Act rules should pre-empt legal challenges that ask judges to limit greenhouse gas emissions.

Critics of the new lawsuits say climate change is a wide-reaching and complex "political question" that is best left to Congress and the executive branch. Even some proponents of policies to cut down on greenhouse gas emissions have doubts about the public trust strategy.

"When you're suing the government for failure to regulate, good luck," said one environmental attorney who is not involved in the new round of lawsuits. "That plays into the political question doctrine, so they've got their hands full. I don't buy into this strategy."

Hans von Spakovski, a senior legal fellow at the conservative Heritage Foundation, said the public trust doctrine doesn't make sense for climate change. While it might make some sense for public waters, where there is often a clear source of pollution, there are billions of sources of carbon dioxide, and most of them are in other countries.

Even if the United States managed to cut its emissions, there's no guarantee it would make a difference, von Spakovski said. That's what makes it a policy question that the legislative branch must answer, he said.

"If you think state government should be doing something about this, go lobby the state government," von Spakovski said. "Work on electing people to the state legislature who you think will have the right opinion on these kinds of issues. That's how you do it in a democratic system. It's a slow, complicated process, but it's the system that we have."

State lawsuits

The activists aren't sparing any states from their lawsuits -- not even California, which passed a climate change bill in 2006 and is now preparing a cap-and-trade program to limit carbon dioxide emissions in the state.

Lawyers filed suit (pdf) against the state and Gov. Jerry Brown (D) yesterday in San Francisco Superior Court. California's A.B. 32, which established a target of 1990 emissions levels by 2020 and set up a host of regulations and a market-based system to achieve it, is not enough, Oakland-based lawyer Sharon Duggan said.

Duggan said she spoke to Brown's staff about the case, but they couldn't reach an agreement. A spokesman for Brown declined to comment.

"The state of California has told us unequivocally that they will not agree that the atmosphere is a public trust resource," Duggan said. "Everyone will agree that California is a leader in trying to deal with the climate crisis, but on this particular issue they would not concede that point."

Though no one has argued in court that the atmosphere should be a public trust, the underlying concept isn't unheard of in California. One precedent could be the California Supreme Court's 1983 decision that the state should have considered the public trust before granting Los Angeles users the right to tap Mono Lake, northeast of Yosemite National Park.

"California is doing a lot, but their failure to embrace the atmosphere as a public trust resource prevents them from exercising their duty to take all action necessary to prevent the escalation of the climate crisis," Duggan said. "Whether you're at the state or federal level, the government has failed and the political arena is not getting the job done."

Click here (pdf) to read the federal lawsuit.

Click here (pdf) to read the California lawsuit.

Reporter Debra Kahn contributed.

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