Climate Activism's Daring New Approach: Atmospheric Trust Litigation

The fight to stop global warming just got more interesting.  A newly formed activist group iMatter and its litigation partner, Our Children’s Trust, have launched an ingenious new strategy to use the public trust doctrine to protect the atmosphere in conjunction with a mass mobilization of young people.

The project seeks to rally young people around the world to protect their futures, quite literally, by organizing street protests and other citizen action.  But the project also casts young people as the lead plaintiffs in simultaneous common-law lawsuits against all fifty states as well as several federal agencies (EPA, USDA, Commerce, Defense, Energy and Interior) for failing to curb carbon emissions into the atmosphere.

It’s been 23 years since James Hansen, the eminent NASA climatologist, first raised alarms about global warming in testimony to Congress.  Since then, the U.S. government and international bodies have done precious little to take action even as the evidence of an impending planetary disaster continues to mount.  Bottom line:  the government has been grossly negligent in protecting our atmospheric commons, and must be held to account. 

One way to do so has been a series of marches in cities around the country, including Russia, Brazil, New Zealand, Great Britain and more than a dozen other countries. The iMatter campaign was launched on Mother’s Day (May 10) and will continue throughout the summer.  But a key tie-in to the protests is a litigation strategy based on the often-overlooked “public trust doctrine.”  The public trust doctrine is an ancient legal principle that declares that government must exercise the highest duty of care in managing property that is necessarily held in common by all – such as the atmosphere.

Historically, the public trust doctrine has been applied mostly to navigable waterways and beachfront land to assure public access to those resources and prevent government-sanctioned privatization of them.  But there is no jurisprudential reason why the public trust doctrine should not also apply to the atmosphere, a shared natural resource of even greater significance to our collective well-being.   

The basic claim in public trust cases is that government is a trustee of crucial natural resources owned by the people in common.  To protect the interests of both present and future beneficiaries, trustees must act according to strict fiduciary standards, and cannot simply choose to make political, self-serving decisions.  This means that government must affirmatively protect the public trust asset.

The Atmospheric Trust Litigation argues that if the public trust doctrine prohibits the government from squandering public resources directly, it also prohibits their indirect destruction through neglect or inaction.  The lawsuits therefore ask the courts to issue a declaratory judgment affirming this principle and providing injunctive relief by forcing reductions in carbon emissions based on specific scientific evidence.  Although this would be an unprecedented application of public trust principles, the legal circumstances and remedies fit the classic patterns of public trust case law. 

The courts are not being asked to order specific types of corrective action, but they are being asked to require defendants (governments) to take all necessary actions to reduce CO2 emissions in the U.S. by at least 6%, beginning in 2013.  Dr. Hansen and other leading climate scientists regard this amount as a scientifically conservative, incremental reduction needed to assure that emissions would peak in 2012 and decline thereafter, and so avoid reaching a catastrophic atmospheric tipping point.  The amounts of carbon in the atmosphere, now at 390 parts per million, need to be reduced to 350 ppm by the end of the century.

The recently filed lawsuits make the argument that the public trust doctrine requires government to make quantitative reductions of carbon dioxide emissions in order to meet its fiduciary obligations to protect a common asset.  This obligation exists independent of statutory law, as a creature of common law.

The lawsuits also ask the courts to issue injunctive relief requiring federal and state governments to compile an inventory of greenhouse gases, prepare annual carbon budgets consistent with 6% annual reductions, and prepare a climate recovery plan.  The political branches of government would still have control over howto achieve the reductions, but the courts could order the reductions and oversee the implementation of plans. 

Again, this scenario is entirely familiar to public trust cases.  In disputes over migratory fish in the Pacific Northwest, for example, the courts have ordered allocations of the catch and overseen the implementation of plans for decades.  The courts in effect have acted as the trustee for protecting the endangered fish, which belong to all of us and to future generations. 

What’s ingenious about the Atmospheric Trust Litigation (ATL) is, first, the spectacle of young people suing their own government to assure their future well-being on this planet.  That’s a powerful statement.  The litigation is also remarkable for being waged simultaneously in all fifty states and the federal courts.  “Never before has there been a hatch of actions on the same day, alleging the same harm, and seeking the same relief,” according to an iMatter handout.  “Never before have youth around the country and world stepped up in a concerted way to hold their governments accountable for protecting their future.”

What’s also intriguing about this litigation strategy is its potential worldwide application.  Public trust principles lie at the heart of most legal systems around the world.  They may take different forms (i.e., in the constitution, statutes or common law), but there are clearly legal grounds for waging additional lawsuits around the world.  The public trust litigation may therefore be a feasible new strategy for forcing governments to get off the dime and take action. 

Invoking the public trust doctrine may be our best, last-ditch effort to force governments to take action to stop global warming.  As the ATL project notes, “Climate has been relegated to politics, and agencies and legislators alike claim political discretion to sit idle, or do less than what is needed.  This trust changes the frame.  Protecting the people’s natural assets is a matter of firm fiduciary obligation rather than political discretion.  Even apart from any judicial relief, by appealing to a basic understanding of governmental obligation, ATL suits may awaken the citizens to demand action from their government and assess whether the sovereign response is adequate.”

If not, it’s time for the commoners to mobilize.  There is no other way, and time is short.