Public Trust Climate Litigation: On Life Support, But Still Breathing For Now

Last month, Judge Robert Wilkins dismissed the federal public trust climate change law suit, Alec L. v. Jackson. Judge Wilkins ruled on two alternative grounds. First, he held that there was no federal public trust doctrine. Second, he held that, even if there ever had been, such public trust doctrine had been displaced by the federal Clean Air Act.

However, according to E&E News, Judge Sarah Singleton has just denied a motion to dismiss a public trust law suit brought in New Mexico state court under New Mexico law, in Sanders-Reed v. Martinez. E&E News did not link to any written decision.

Obviously, the first ground for dismissal in Alec L. v. Jackson is not relevant to Sanders-Reed. Indeed, Alec L. v. Jackson makes clear that the public trust doctrine is a creature of state law, so New Mexico law should be available for suits to protect New Mexico public trust assets.

Does the availability of public trust law mean that Sanders-Reed really has legs? I’m skeptical. Strictly speaking, what will be relevant in New Mexico will be preemption, not displacement. It’s also true that the federal CAA does not necessarily preempt state air regulation, if the state regulation does not conflict with the CAA and only seeks more stringent regulation. Nonetheless, here, given the extraterritorial nature of GHG pollution, and the complexities involved in both assessing and remedying the problem, courts are going to be reluctant at best to wade into that thicket.

I will be interested to see what appellate courts in New Mexico make of this. I know no more of New Mexico procedural law than I do its substantive public trust law, but if ever there were a case for interlocutory review of a denial of a motion to dismiss, this would be the case.

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