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A new class action lawsuit was filed in California by Our Children’s Trust alleging that the EPA breached its statutory authority in allowing levels of air pollution that will harm children. Our Children’s Trust is the same organization that brought a successful climate lawsuit against the state of Montana on behalf of the children of that state. The Plaintiffs are attempting to flip the court’s Major Questions Doctrine (MQD) in their favor by arguing that the EPA was never given the statutory authority to harm children, and therefore, must adopt air quality standards that protect children. Here’s a quote from the Complaint:

“There is no statutory language in the Clean Air Act that explicitly or implicitly gives EPA the authority to allow pollution at levels that degrade the public health and welfare and the productive capacity of the national population. There is no statutory language in the Clean Air Act that explicitly or implicitly gives EPA the authority to allow pollution from the sources it regulates at levels that discriminate against and injures Children.”

The MQD was used by the court to rule a shelved Obama-era cap and trade system proposed by the EPA was unconstitutional and has serious implications for federal rule-making. Essentially, the MQD prohibits federal agencies from resolving issues of national importance when they are not specifically authorized by statute to do so.

It is interesting to see the doctrine used in this context, though its efficacy remains to be seen. This lawsuit may be a long shot, but it joins a litany of growing climate litigation and is one of several pending lawsuits from Our Children’s Trust. While this lawsuit is against a Untied States federal agency and not a corporate entity, if successful, its ramifications would reach the corporate world as the EPA would be forced to step up enforcement and set more stringent limits on GHG emissions.

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The Editor

Zachary Barlow is a licensed attorney. He earned his JD from the University of Mississippi and has a bachelor’s in Public Policy Leadership. He practiced law at a mid-size firm and handled a wide variety of cases. During this time he assisted in overseeing compliance of a public entity and litigated contract disputes, gaining experience both in and outside of the courtroom. Zachary currently assists the editorial team by providing research and creating content on a spectrum of ESG… View Profile