“The judge’s decision is not entirely unexpected in the sense that whether or not the court can hear the case at all has been pending since the beginning,” said Peter Galvin, an attorney for Nature’s Trust RI. “But DEM has never brought it up. in fact, DEM has sort of taken the position that they the court can hear this appeal. That this is the only way to review their decision.”
After more than a year of delays, it seemed that the Nature’s Trust RI lawsuit had finally landed on the desk of a Superior Court Judge willing to actually hear the case. But on Monday morning, Judge Melissa Darigan, who Governor Gina Raimondo appointed to the bench last December, a month after the Nature’s Trust lawsuit was filed, further delayed the hearing over concerns about “subject matter jurisdiction.”
The Nature’s Trust lawsuit was brought because according to Rhode Island law, it is the responsibility of the Department of Environmental Management (DEM) to maintain a healthy environment for the citizens of the state. The climate is changing rapidly for the worse, but DEM, ignoring its legal duties, has no plan to track and reduce the state’s greenhouse gas emissions.
Nature’s Trust RI, on behalf of 13 young people and three organizations, filed a citizen’s petition with DEM in September 2018. The petition included a plan to get the DEM to live up to its responsibilities. A month later, DEM rejected the plan. According to Nature’s Trust RI, DEM provided no credible justification other than writing that the requested actions were unprecedented. Days after DEM’s denial, the Intergovernmental Panel on Climate Change issued a Special Report stating that unprecedented global action was required to avoid a climate catastrophe.The following month, November 2018, Nature’s Trust RI filed a lawsuit against DEM in Superior Court in Providence.
Counsel for Nature’s Trust RI and DEM met with Judge Darigan for about an hour Monday morning. Then the Judge entered the court where two dozen people were waiting to sit in on the hearing. Attending the hearing were some of the young people named as plaintiffs in the case, members of the Sunrise Movement, Sister Mary Pendergast from Mercy Ecology, Professor Timmons Roberts from Brown University, Amy Moses from Conservation Law Foundation, and several reporters.
Darigan acknowledged that the case has been going on a long time, but avowed that today was her first chance to review the case in detail since it had been assigned to her. Darigan said there would be no hearing or order for discovery today. Instead, she instructed the lawyers to make arguments around the court’s jurisdiction.
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Darigan seemed concerned that the case was a “square peg in a round hole,” that is, not a case properly before Superior Court. She admitted surprise that this issue hadn’t been brought up before. So both parties now have to prepare arguments as to why or why not the Superior Court has the jurisdiction to hear this case, and the timeline is such that the case will not resume until late January or February 2020.
“The judge’s decision is not entirely unexpected in the sense that whether or not the court can hear the case at all has been pending since the beginning,” said Peter Galvin, who, with Alyson Quay, is an attorney for Nature’s Trust RI. “But DEM has never brought it up. in fact, DEM has sort of taken the position that they the court can hear this appeal. That this is the only way to review their decision.”
“If the judge decides that she can not hear the case, that’s the end of this avenue,” continued Galvin. The plaintiffs will then have to decide whether or not to sue DEM under the public trust clause of the state constitution, the idea being that DEM is not satisfying its constitutional duty to protect people and the environment.
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