This spring, Professor Mary Wood of the University of Oregon School of Law spoke to the Environmental Law & Policy LLM students at Stanford Law School about “Atmospheric Trust Litigation” and the historic district court decision Juliana v. United States. Atmospheric Trust Litigation and Juliana in particular have the potential to advance climate change mitigation by applying the public trust doctrine to the maintenance of the climatic system.
To date, the legal response to the climate crisis has been insufficient. The gravity and extent of the climate crisis is something that the law has not encountered before, and the existing statutory regime and its implementation are proving to be inadequate. The traditional legal approach is a micro-approach; but, liability litigation in this context has been largely unsuccessful and relatively limited in scope. Because of the urgency of the climate crisis, however, there may not be enough time for individual litigation and uncoordinated, ad-hoc policy responses to mitigate dangerous climate change. Atmospheric Trust Litigation was conceived as a response to this gap in the current legal regime.
Atmospheric Trust Litigation is a macro-approach that considers the atmosphere to be held in trust for the public. The purpose of this litigation is not to ask courts to devise a solution to climate change, but to compel the other branches of the government to protect human health and the environment by devising a comprehensive strategy. Atmospheric Trust Litigation applies the public trust doctrine, which is a legal doctrine that limits governmental authority entity to transfer or develop natural resources that they hold in trust for the public, including future generations, except for uses that are consistent with the public trust. Public trust uses and purposes include navigation, commerce, fishing, recreation, environmental benefits, and aesthetics. Implicitly, the people would not give power to their government to eradicate resources, including a stable climate and atmospheric system, essential for their survival. For example, a Pennsylvania Supreme Court decision relied on the public trust doctrine to hold a law promoting fracking to violate a state constitutional right to a healthful environment (Robinson Township v. Commonwealth, 83 A.3d 901 (2013)).
The Atmospheric Trust Litigation approach builds upon the constitutional expression of public trust. In 2011, the organization Our Children’s Trust filed cases against the U.S. government in all 50 states and internationally as well. The basis of these claims are: (a) that the government is a trustee; (b) resources held in the public trust include air and atmosphere; (c) these resources must be maintained beneficially; and (d) the government has a duty to avoid causing a substantial impairment of the environmental system. The remedy the plaintiffs seek is for the courts to require the government to draw up a climate recovery plan that is enforceable by the court and that meets scientific standards.
While other cases filed by Our Children’s Trust have had varied levels success, the federal case Juliana v. United States stands apart. The plaintiffs alleged that the defendants have acted with deliberate indifference to the peril they knowingly allowed through policies that are favorable to the fossil fuel industry. Professor Wood described the complaint as a macro-approach against the entire fossil fuel industry and the United States’ federal fossil fuel policy. In the November 2016 decision by Judge Ann Aiken, the U.S. District Court for the District of Oregon denied a motion to dismiss the lawsuit.
Based on how Juliana proceeds, Atmospheric Trust Litigation has the potential to establish a constitutional duty of the government to take action to reduce GHG emissions from fossil fuels. In a world where climate science is doubted and the very existence of climate change bitterly disputed, Our Children’s Trust and others working to advance Atmospheric Trust Litigation and climate mitigation are determined to do whatever it takes to provide a cleaner and greener future for the next generation.