A group of attorneys using children and young adults as plaintiffs plans to file legal actions in every state and the District of Columbia on Wednesday in an effort to force government intervention on climate change.
The courtroom ploy is backed by high-profile activists looking for a legal soft spot to advance a cause that has stumbled in the face of stiff congressional opposition and a skeptical U.S. Supreme Court.
The goal is to have the atmosphere declared for the first time as a "public trust" deserving special protection. That's a concept previously used to clean up polluted rivers and coastlines, although legal experts said they were uncertain it could be applied successfully to climate change.
Wednesday's spate of lawsuits, led by an Oregon-based nonprofit called Our Children's Trust, are based on "common law" theories, not statutes adopted by state or federal lawmakers. Documents in the cases were provided in advance to The Associated Press.
Conservative opponents warned the effort could overload the judicial system and paralyze the economy with over-regulation.
Attorneys involved in the lawsuits said a victory in even one or two cases would give environmentalists new leverage, leading to new regulations to rein in greenhouse gas emissions that scientists say are driving global temperatures higher.
State-level lawsuits were planned in Alaska, Arizona, California, Colorado, Massachusetts, Minnesota, Montana, New Mexico, Oregon and Washington, organizers said. A federal lawsuit was to be filed in California, while regulatory petitions filed elsewhere would ask state environmental agencies to tighten restrictions on vehicle and industrial plant emissions.
"It's not just a political issue; it's a legal issue. All three branches of government have an obligation to protect that public trust," said Amy Eddy, a trial attorney from Kalispell, Mont., who helped draft litigation to be filed with the Montana Supreme Court. "You have just as much control over emissions into the atmosphere as you do pollution into water."
Getting the courts to agree could be an uphill battle, legal experts said.
Another case that relied on unconventional legal tactics to address climate change got a tepid reception during arguments last month before the U.S. Supreme Court. That matter involved several states that sought to rein in power plant emissions by declaring them a public nuisance.
A ruling is pending, but Harvard Law School professor Jody Freeman said justices had questioned whether courts were the appropriate forum for the issue.
"I am generally skeptical the plaintiffs will succeed in the courts pressing for common law remedies from judges," Freeman said.
Columbia University law professor Michael Gerrard described the public trust suits as a "bold move" by activists looking to use all available options to impose greenhouse gas restrictions. Still, he joined Freeman in saying the pending decision in the public nuisance case would heavily influence the outcome of the state-level lawsuits.
A more optimistic view came from Gus Speth, chairman of the White House Council on Environmental Quality under President Jimmy Carter.
Speth, now at the Vermont Law School, said public trust litigation over climate change could work if its backers can find a judge willing to innovate a new area of law.
Yet that outcome could only result if a judge is willing to buy into what conservative analyst Hans von Spakovsky called "a creative, made-up legal theory."
"This is a complete violation of our whole constitutional system. These kinds of public policy issues are up to either the state legislatures or Congress to determine, not judges," said von Spakovsky, a senior legal fellow at the Heritage Foundation.
Eddy and others involved in Wednesday's lawsuits credited University of Oregon law professor Mary Christina Wood as laying the legal groundwork for their litigation.
Wood said in an interview with The Associated Press that mainstream environmental groups had approached climate change with the same tactics used to combat industrial developments or protect endangered species. But she said lawsuits based on existing environmental laws had come up short.
What is needed, Wood said, is a sweeping challenge to the government's failure to address climate change. And having young people as plaintiffs in the cases gives added moral authority, she added. The plaintiffs include college students, high school activists, and children of conservationists and attorneys, along with environmental groups.
"We should be getting youths in front of the courts, not polar bears," Wood said, referring to widely publicized attempt to have courts declare polar bears endangered as rising temperatures melt Arctic ice.