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15-P-905                                            Appeals Court

 HARVARD CLIMATE JUSTICE COALITION & others1 vs. PRESIDENT AND
              FELLOWS OF HARVARD COLLEGE & others.2


                            No. 15-P-905.

           Suffolk.     June 7, 2016. - October 6, 2016.

             Present:   Cypher, Grainger, & Kinder, JJ.


Charity. Corporation, Charitable corporation.     Practice, Civil,
     Motion to dismiss, Standing.



     Civil action commenced in the Superior Court Department on
November 19, 2014.

     Motions to dismiss were heard by Paul D. Wilson, J.


     Joseph E. Hamilton, pro se.
     Benjamin A. Franta, pro se.
     Brett Blank, Assistant Attorney General, for the Attorney
General.
     Martin F. Murphy for President and Fellows of Harvard
College & another.

     1
       Benjamin A. Franta, Sidni M. Frederick, Olivia M. Kivel,
and Talia K. Rothstein in their capacity as student members of
the Harvard Climate Justice Coalition. After oral argument,
three plaintiffs who are named in the complaint as members of
the coalition withdrew from the appeal.
     2
       Harvard Management Company, Inc., and the Attorney
General.
                                                                   2


     Jeffrey D. Pierce, of California, & Piper Hoffman, for
Animal Legal Defense Fund, amicus curiae, submitted a brief.
     Daniel M. Galpern, of Oregon, & Joseph B. Simons, for James
E. Hansen, amicus curiae, submitted a brief.


     CYPHER, J.   The plaintiffs, Harvard Climate Justice

Coalition, an unincorporated association of students at Harvard

University (university), and its members, appeal from a Superior

Court judgment dismissing their action that sought a permanent

injunction requiring the President and Fellows of Harvard

College (the university's formal name) and Harvard Management

Company, Inc. (the company that manages the endowment funds)

(collectively, Harvard), to divest the university's endowment of

investments in fossil fuel companies.   In a two-count complaint,

the plaintiffs allege that those investments contribute to

climate changes (commonly known as global warming), which

adversely impact their education and in the future will

adversely impact the university's physical campus.   We affirm.3

     The students filed their complaint in November, 2014.

Almost two months later, the defendants, Harvard and the

Attorney General,4 filed motions to dismiss.   In count one of the

complaint, the plaintiffs asserted that the harms of global

     3
       We acknowledge the amicus briefs submitted by Dr. James E.
Hansen and the Animal Legal Defense Fund.
     4
       Because this case concerns investment decisions of a
charitable corporation, the plaintiffs joined the Attorney
General as a defendant as required by G. L. c. 12, §§ 8, 8G.
See Brady v. Ceaty, 349 Mass. 180, 181 (1965).
                                                                     3


warming resulting from investments in fossil fuel companies

constitute mismanagement of the charitable funds in the

university's endowment.     In count two, the plaintiffs sought to

assert the rights of "[f]uture [g]enerations" to be free of what

the plaintiffs call the "[a]bnormally [d]angerous [a]ctivities"

of those companies, and proposed a new tort of "[i]ntentional

[i]nvestment in [a]bnormally [d]angerous [a]ctivities."

    The judge allowed both motions to dismiss.      As to count

one, the judge ruled that the plaintiffs failed to show that

they had standing to maintain their claim of mismanagement of

the endowment.   As to count two, the judge declined to allow the

plaintiffs to assert the rights of future generations, and

declined to recognize the proposed new tort.

    Analysis.    1.   Count one.   The plaintiffs' complaint

asserts that the "burning of fossil fuels results in the

emission of greenhouse gases that become trapped in the

atmosphere . . . [and] accumulate . . . [resulting in] climate

change[, which causes] physical changes to the Earth's

ecosystems" and results in "deleterious geopolitical, economic,

and social consequences."    In count one of their complaint, the

plaintiffs allege that Harvard's investments in fossil fuel

companies is a breach of Harvard's fiduciary and charitable

duties to uphold the university's "special obligation and

accountability to the future, to the long view needed to
                                                                   4


anticipate and alter the trajectory and impact of climate

change."    The plaintiffs seek a permanent injunction requiring

Harvard immediately to sell their direct holdings in fossil fuel

companies and to begin divesting their indirect holdings in

those companies.

     The plaintiffs recognize that their challenge to Harvard's

investments invokes the exclusive standing of the Attorney

General under G. L. c. 12, § 8, inserted by St. 1979, § 716, to

"enforce the due application of funds given or appropriated to

public charities."5    While acknowledging that authority, the

plaintiffs note that Massachusetts law recognizes the right of

special interest plaintiffs to bring suits against charities.

     In his memorandum and order, the judge noted that on "rare

occasions," the Supreme Judicial Court has permitted persons

other than the attorney general to challenge the management of

charitable funds.     The judge's noting of "rare occasions"

appears to be a reference to a limited exception to the Attorney

General's exclusive standing known as the "special standing"

doctrine.    Special standing applies only where "the claim has

     5
       "The power and duty delegated to the Attorney General to
enforce the proper application of charitable funds are a
recognition by the Legislature not only of his [or her] fitness
as a representative of the public in cases of this kind, but of
the necessity of protecting public charities from being called
upon to answer to proceedings instituted by individuals, with or
without just cause, who have a private interests distinct from
those of the public." Dillaway v. Burton, 256 Mass. 568, 575
(1926).
                                                                    5


arisen from a personal right that directly affects the

individual member" of a charitable organization.   Weaver v.

Wood, 425 Mass. 270, 276 (1997).

     On appeal, the Attorney General cites to cases in which our

courts have determined that the special standing doctrine is

applicable because the plaintiffs have been accorded a personal

right in the administration or management of a public charity

and, as such, may enforce that right against the charitable

organization.6   While the plaintiffs recognize that courts have

acted on personal rights in such cases, they do not assert any

of the personal rights identified in those cases, or any other

personal right in the management or administration of Harvard's

endowment.   Instead, the plaintiffs assert that they satisfy the

criteria for special standing because as student members of the

university, they are to receive the benefits of Harvard's

charitable authority and therefore enjoy benefits that are

distinct from the general benefits enjoyed by members of the

public.

     6
       The cases cited by the Attorney General include Jessie v.
Boynton, 372 Mass. 293, 302-305 (1977) (members had standing to
challenge elimination of voting rights in charitable
corporation); Lopez v. Medford Community Center, Inc., 384 Mass.
163, 166-168 (1981) (individuals had standing to litigate claim
that they were unlawfully denied membership in charitable
corporation but could not litigate claim of mismanagement);
Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235,
245 (2007) (plaintiffs alleged personal rights that entitled
them to standing to litigate claim of equitable reversion of
land conditionally gifted to church).
                                                                    6


    "[M]embership in a public charity, alone, is [in]sufficient

to give standing to pursue claims that a charitable organization

has been mismanaged or that its officials have acted ultra

vires."   Id. at 277.   The plaintiffs, moreover, fail to show

that they have been accorded a personal right in the management

or administration of Harvard's endowment that is individual to

them or distinct from the student body or public at large.

    The plaintiffs further assert that the fossil fuel

investments have a chilling effect on academic freedom and have

other negative impacts on their education at the university.

The judge understood that argument as an attempt by the

plaintiffs to obtain standing on the theory that the investments

had impacts that interfered with their personal rights.     After

lengthy consideration, the judge concluded that those arguments

were too speculative, too conclusory, and not sufficiently

personal to establish standing.

    As the students failed to demonstrate special standing,

count one fails to state a claim upon which relief may be

granted, and was properly dismissed.    See Doe v. The Governor,

381 Mass 702, 705 (1980); Iannacchino v. Ford Motor Co., 451

Mass. 623, 635-636 (2008).

    2.    Count two.    With regard to their second count, the

judge stated that the plaintiffs assert the rights of future

generations to be free of what they call "[i]ntentional
                                                                   7


[i]nvestment in [a]bnormally [d]angerous [a]ctivities,"

referring to that count as a tort claim.   The judge noted that

no court in any jurisdiction has ever recognized that tort, and

in any event creating a new tort in the Commonwealth is the

function of the Supreme Judicial Court or the Legislature.

     The judge also stated that the plaintiffs had not provided

any recognized legal principle in support of their unilateral

assertion to represent the interests of future generations.

"[I]f the individual plaintiffs may not maintain the action on

their own behalf, they may not seek relief on behalf of a

class."   Doe v. The Governor, supra at 704-705.   The judge

therefore properly dismissed the second count.

     Conclusion.   We conclude, as did the judge below, that the

plaintiffs "have brought their advocacy, fervent and articulate

and admirable as it is, to a forum that cannot grant the relief

they seek."7

                                   Judgment affirmed.




     7
       The plaintiffs also represented their cause before this
court with a commendable degree of skill, passion, and
ingenuity.
