EPA May Be Regulating GHGs, But Private Litigation Still Looks to be On Shaky Ground

In a case of interesting timing, three days after EPA announced its proposed GHG rules for existing facilities, the D.C. Circuit affirmed dismissal of a case seeking an injunction against EPA and other federal defendants requiring them to reduce global CO2 levels to 350 ppm during this century (and take actions to ensure that result by imposing regulations resulting in at least a 6% annual decline in emissions). The basis for the law suit was the public trust doctrine.

As we previously discussed, the District Court dismissed the case on the grounds that: (1) there is no federal public trust doctrine and (2) if there had been a federal public trust doctrine otherwise applicable to plaintiffs’ claims, it had been displaced by the Clean Air Act.

The Court of Appeals did not even reach the second point, concluding in a per curiam opinion that “the Supreme Court recently reaffirmed that ‘the public trust doctrine remains a matter of state law.’”

Given EPA’s proposed rule, it is near certain that the second ground would also provide a basis for dismissal. There has not been much action on this front recently. It will be interesting to see, now that EPA has proposed GHG regulations on existing electric generating facilities, whether plaintiffs continue to bring similar actions under the laws of various states. It is difficult to see them getting much traction at this point.

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