by Anna Bortolussi

Six Alaskan children brought a complaint against the State of Alaska, alleging that the state was in violation of the Alaska Constitution and in breach of their public trust duty by failing to, among other things, reduce and limit GHGs emissions. They claimed that this breach was affecting their present and future rights and damaging  biodiversity and nature. 

Country	United States
Defendant	State of Alaska
Law Applied	Constitutional Law Tort Law
Key words	Human Rights Biodiversity and Nature Mitigation Public Trust

Case Information

Court(s): Superior Court of Alaska, Supreme Court of Alaska 
Dissenting Judgement: No
Filing Date: 2011
Last Update: 2023
Status: Decided

ISSUES 

Whether the State of Alaska has a public trust duty under the Alaska Constitution to protect the atmosphere, and whether failing to adopt an adequate climate policy could constitute a breach of that duty.[1] 

MATERIAL FACTS/BACKGROUND

In May 2011, the Plaintiffs, six Alaskan children, brought a claim to the Superior Court of Alaska against the State of Alaska, Department of Natural Resources (‘the Defendants’), seeking declaratory and equitable relief.[2] They alleged that the Defendants did not comply with their obligation under Art. VIII of the Alaska Constitution to protect and preserve the atmosphere,[3] by failing to set specific standards for CO2 emissions and implement appropriate reductions.[4] 

On March 16 2012, the Superior Court dismissed their claims under Rule 12(b)(6) of the Alaska Civil Rules,[5] on the basis that they were not justiciable as they concerned political questions, which were best answered by other branches of government.[6] 

The Plaintiffs filed an appeal with the Supreme Court of Alaska, claiming that the court erred to dismiss their claims on the grounds that they were not justiciable. The Supreme Court issued a judgement on September 12 2014 affirming the dismissal.[7]

THE ARGUMENTS OF THE PARTIES

The Plaintiffs’ Arguments

The Plaintiffs claimed that under Art. VIII of the Alaska Constitution the State has a public trust duty to manage and develop Alaskan resources in a way that is consistent with the public interest.[8] They held the view that the atmosphere forms part of the resources and that, as supported by scientific evidence, the accumulation of GHG emissions threatens its protection and preservation.[9]

In managing the resources on public trust for the citizens of Alaska, the Plaintiffs suggested that the State has an obligation to ensure that GHG emissions are limited and progressively reduced, as to allow both present and future generations the enjoyment of the resources.[10] Failure to do so, according to the Plaintiffs, would be in direct breach of the State’s duty, as a higher concentration of GHG emissions in the atmosphere leads to rising temperatures, which have increased the likelihood of flooding, forest fires and rising sea level.[11] Therefore, the Plaintiffs argued that their current and future livelihoods are directly harmed by the State’s failure to fulfil its fiduciary obligations to adequately limit GHG emissions.[12] 

On this basis, the Plaintiffs asked the Court to declare that:

• The atmosphere is a public trust resource under Art. VIII of the Alaska Constitution; and
• The State has an affirmative fiduciary obligation to protect and preserve the atmosphere; and
• The State has failed to uphold its fiduciary obligations.[13] 

In establishing the breach of duty and on the basis of the best available science, the Plaintiffs claimed that, for the State to meet its duty under the Alaska Constitution, the Court should order the State to: 

• Take action towards reducing carbon dioxide emissions by 6% per year from 2013 through at least 2050; and 
• Publish a full and accurate accounting of Alaska’s current CO2 emissions every year.[14]

On Appeal

The Plaintiffs held the view that the Superior Court wrongfully dismissed their claims on the grounds that they involved political questions that were outside the judiciary’s scope. They requested the Supreme Court to reconsider the dismissal, and asked the Court to set specific standards for CO2 reductions and order the State to comply with them.[15] 

The Defendants’ Argument

The Defendants filed a motion to dismiss the claim under Rule 12(b)(6) the Alaska Civil Rules on the grounds that the claims were non-justiciable as they involved political matters that must be decided by the State.[16] Further, they submitted that the State could not be sued for discretionary actions due to immunity and that the public trust doctrine under Art. VIII failed to support the Plaintiffs’ case.[17]

On Appeal

The State argued that the appeal should be dismissed, on the basis that the Plaintiffs did not have standing in the case and that, even if they did, the State would be protected by sovereign immunity.[18]

The Defendants highlighted how climate change affects every person in Alaska, which shows that the Plaintiffs were not different from other Alaskans and therefore failed to fulfil the standing requirement.[19] Subsequently, they submitted that the Plaintiffs did not allege that the State caused their harm, as they recognised that the effects of climate change were caused by global CO2 emissions.[20]

JUDGMENT 

Superior Court of Alaska 

The Court granted the Defendants’ motion to dismiss under Rule 12(b)(6) of the Alaska Civil Rules, finding that the claims were non-justiciable as they failed to bring a claim where relief could be granted.[21]

Reasoning

In their order to dismiss, the Court addressed the matter raised by the Defendants, namely that the claims concerned political questions that were outside of the scope of the judiciary. To answer this, first, the Court affirmed that simply because a claim is political in nature that will not automatically exclude it from judicial scrutiny.[22] Then it looked at the approach adopted in Baker v. Carr by the United States Supreme Court,[23] whereby the Supreme Court listed 6 possible factors that indicate where a claim is non-justiciable.[24] The Court ruled that it is sufficient for one of the Baker factors to be present for the claim to be non-justiciable. 

Considering the Plaintiffs’ claim, the Superior Court found that two of the Baker factors were present, therefore, it allowed the motion to be dismissed.[25] The Court ruled that the claim clearly lacked in judicially discoverable and manageable standards, insofar as there was no legal authority supporting the Plaintiff’s view that the atmosphere could fall under the public trust obligation.[26] Furthermore, even if the Court was to uphold the view that the public trust doctrine applied in the Plaintiffs’ case, the claim would still not be justiciable, as it would concern questions of policy in assessing whether the State was in breach of their duty.[27] The Court submitted that the judiciary lacked the capacity to assess whether the State was fulfilling its duty, on the basis that it would need to examine more than the ‘best available science’ and consider any competing interests that may determine what policy is adopted.[28]

Supreme Court of Alaska

The Supreme Court affirmed the Superior Court’s dismissal of the claims but differed in their reasoning, holding the view that, even though some of the claims did not present political questions, they should nonetheless be dismissed, given that a declaratory judgement would not settle the matter as the Plaintiffs did not ask for specific relief.[29]

Reasoning

On the issue of standing, the Court affirmed that the Plaintiffs’ allegations sufficiently demonstrated this, by showing that their interests were directly injured by the State’s failure to fulfil its fiduciary duty, assuming that such duty existed.[30]

Further, it held that sovereign immunity was not applicable in the present case, as, even though the claims were based in tort, the Plaintiffs were not requesting damages.[31]

The Supreme Court differed from the Superior Court’s judgement in holding that some of the Plaintiffs claims were justiciable, given that they did not involve political questions.[32] With regards to the Plaintiffs’ request to order the State to limit its GHG emissions they agreed with the lower court’s decision to dismiss the claims on the basis that they involved policy questions outside the scope of the judiciary, mostly because courts lacked the resources needed to assess the State’s current policy.[33] However, the Supreme Court held that the claims for declaratory judgement on the public trust doctrine were not political in nature and could be examined by the Court, as they concerned matters of interpretation of Art. VIII of the Alaska Constitution.[34]

The Court declared that whether or not the State had breached their duty was a question that could be answered by the courts, provided that such duty could be determined by the judiciary.[35] Nonetheless, the Court highlighted that under the Alaska Declaratory Judgment Act, the Court’s power to issue declaratory judgments is dependent upon the existence of an actual controversy.[36] Even in declaring that the atmosphere fell under the public trust duty the dispute would not be settled, as it would have no impact on GHG emissions or the State’s conduct.[37] Subsequently, the Plaintiffs claim would fall short of the prospect of relief to settle the dispute and for this they confirmed the dismissal.[38]

Please find the Superior Court’s judgement here. 
Please find the Supreme Court’s judgement here. 
Last edited on 27 June 2023, with thanks to the case editor Björn Lambrenos.

REFERENCES:

[1] Kanuk et al. v. State of Alaska, Department of Natural Resources [2014] Supreme Court of Alaska, S-14776, available here, part I
[2] Kanuk et al. v. State of Alaska, Department of Natural Resources [2011] Superior Court of Alaska, First Amended Complaint for Declaratory and Equitable Relief, 3AN-11-07474, available here, p. 1 
[3] Constitution of the State of Alaska 1956, available here 
[4] Ibid (Footnote 1), part II
[5] Alaska Rules of Civil Procedure 1959, available here 
[6] Kanuk et al. v. State of Alaska, Department of Natural Resources [2012], Superior Court of Alaska, 3AN-11-07474, available here, p. 4
[7] Ibid (Footnote 1), part I
[8] Ibid (Footnote 2), para 1
[9]  Ibid, para 3
[10] Ibid, para 4
[11] Ibid, paras 35-45
[12] Ibid, para 65
[13] Ibid, section “Prayer for relief”, paras 1-3
[14] Ibid, paras 4-6
[15] Ibid (Footnote 1), part I[16] Ibid (Footnote 6), p. 1
[17] Ibid, p.1
[18] Ibid (Footnote 1), parts IV(A)(2) and IV(B)
[19] Ibid, part IV(A)(2)
[20] Ibid.
[21] Ibid (Footnote 6), pp. 3-4
[22] Ibid, p. 5
[23] Baker v. Carr (1962) 396 U.S. 186 
[24] Ibid (Footnote 6), p. 5
[25] Ibid, p. 11
[26] Ibid, pp. 8-9 
[27] Ibid, p. 10
[28] Ibid.
[29] Ibid (Footnote 1), part I
[30] Ibid, part IV(A)(2)
[31] Ibid, part IV(B)
[32] Ibid, part IV(C)
[33] Ibid, part IV(C)(1)
[34] Ibid, part IV(C)(2)
[35] Ibid, part IV(C)(2)
[36] Ibid, part IV(D)
[37] Ibid.
[38] Ibid.
[15] Ibid (Footnote 1), part I[16] Ibid (Footnote 6), p. 1
[17] Ibid, p.1
[18] Ibid (Footnote 1), parts IV(A)(2) and IV(B)
[19] Ibid, part IV(A)(2)
[20] Ibid.
[21] Ibid (Footnote 6), pp. 3-4
[22] Ibid, p. 5
[23] Baker v. Carr (1962) 396 U.S. 186 
[24] Ibid (Footnote 6), p. 5
[25] Ibid, p. 11
[26] Ibid, pp. 8-9 
[27] Ibid, p. 10
[28] Ibid.
[29] Ibid (Footnote 1), part I
[30] Ibid, part IV(A)(2)
[31] Ibid, part IV(B)
[32] Ibid, part IV(C)
[33] Ibid, part IV(C)(1)
[34] Ibid, part IV(C)(2)
[35] Ibid, part IV(C)(2)
[36] Ibid, part IV(D)
[37] Ibid.
[38] Ibid.