So another climate change summit (Durban, South Africa) has produced no action, even in the face of mounting evidence of the deterioration of the planet's atmosphere. Climate change denial has now moved from the right-wing, wacko fringe to the pinnacles of “respectable” power as top government officials refuse to take serious action in the face of overwhelming scientific evidence (see Mark Hertsgaard's account of the Durban talks in The Nation.) Meanwhile, despite his 2008 campaign pledges to tackle global warming, President Obama has slipped into the shadows. He remains too indentured to corporatists, preferring to offer empty rhetorical feints of concern whenever the issue spikes into public consciousness.
How, then, might we save the atmospheric commons?
One of the most overlooked yet promising gambits is a series of “atmospheric trust” lawsuits that were filed in May 2011. This remarkable litigation campaign, which consists of lawsuits filed in all fifty state courts and in federal court on the same day, seek to force government to apply the venerable public trust doctrine to the atmosphere and protect it for future generations. (For more on the lawsuits, see this piece on Grist.)
As I explained in an earlier blog post, the basic claim in these landmark lawsuits is that “all governments hold natural resources in trust for their citizens and bear the fiducairy obligaiton to protest such resources for future generations,” as University of Oregon law professor Mary Wood puts it. Wood is one of the key legal thinkers behind this application of public trust doctrine. The Atmospheric Trust Litigation asks the courts to issue a declaratory judgment affirming this principle. It also wants the court to provide injunctive relief by drawing up a plan, based on authoritative scientific evidence, that would require mandatory reductions in carbon emissions.