“We conclude that the courts cannot independently intervene to impose a common law public trust duty upon the State to regulate greenhouse gases in the atmosphere,” says a March 12 ruling written by Judge Timothy Garcia, part of three-judge panel of the appeals court that considered the case.
The court panel said the plaintiffs in the case can propose regulations to the state Environmental Improvement Board and appeal the board’s decisions; they can participate in the legislative process; and voters “can exercise their desire for political change” on environmental issues at the ballot box.
But the courts “cannot independently regulate greenhouse gas emissions,” the ruling states.
The lawsuit was filed in May 2011 by Akilah Sanders-Reed of Sandia Park, 16 at the time, with the support of the WildEarth Guardians environmental group.
As amended as the case proceeded under state District Judge Sarah Singleton of Santa Fe, the teen’s suit maintained the state has a “public trust duty” to protect the atmosphere. The state’s “failure to investigate the threat posed by unlimited greenhouse gas emissions” and to mitigate the effects of climate change was a breach of that duty, the suit maintained.
The suit sought an order that state government assess greenhouse gas levels in New Mexico “based on current climate change science” and then produce plans to redress or prevent impairment of the atmosphere.
The litigation proceeded amid a 2012 fight over the Environmental Improvement Board. In February 2012, the EIB repealed a cap-and-trade regulation to reduce greenhouse gas emissions that had been adopted under former Gov. Bill Richardson, a Democrat. The next month, the EIB repealed another Richardson-era rule mandating reductions in carbon emissions by large utilities in the gas, oil and electric sectors. Gov. Martinez, a Republican, had criticized the measures and replaced the EIB members before the repeals.
In contesting Sanders-Reed’s lawsuit, lawyers for the state and for Martinez said the EIB actions showed “that elections have consequences and the political process is alive and well in New Mexico.” And they argued that the plaintiffs were trying to “bypass and override” that political process.
Judge Singleton rejected an initial state request to dismiss the suit, but ruled in favor of the state and the governor in 2013. According to the appeals court’s narrative, Singleton, among other findings, concluded that the EIB’s repeal of greenhouse gas regulations was “a political decision, not a (court) decision” and that the remedy was to “elect people who believe greenhouse gases are a problem.”
Similar legal actions – called atmospheric trust litigation – was filed in at least 10 other states. The Oregon-based nonprofit Our Children’s Trust coordinated the campaign.