Last week, a group of kids and teens led by 16-year-old Alec Loorz of Ventura, California, started filing lawsuits claiming that state governments and federal agencies are failing in their duty to protect the atmosphere, which they deem is a public trust, a resource to be held in safekeeping for future generations. The lawsuits are unprecedented, and bring up all sorts of questions, namely, what is a public trust, and could this legal approach possibly work to reduce greenhouse gas emissions?
The cases against California, New Mexico, New York, and many other states (eventually the group wants to sue all 50 states) rests on the public trust doctrine, an idea which dates back to the Magna Carta and even the Roman Empire. Essentially, it holds that certain natural resources belong to the public at large and cannot be exploited by any one group at the expense of the people’s interests.
Originally, the scope of the public trust doctrine related to navigable waters such as rivers and sea lanes. The English laws became part of common law of US, and were solidified in an 1892 Illinois case where the court found that the state legislature illegally gave land along the Chicago harbor to the Illinois Railroad Company which belonged in public trust. Later, the doctrine was extended to all waters regardless of their navigability.
In 1983, the National Audubon Society won its case against the Superior Court of California to protect Mono Lake, effectively expanding the public trust doctrine to include recreational and aesthetic values as well as considerations for wildlife in states’ duties to protect the common natural heritage of its residents. The doctrine now applies to any natural resource (e.g., animals, vegetation, minerals) found in the ground or water of public trust lands.
Could the idea of public trust be expanded further to include the atmosphere? Perhaps, though jurisdictions would pose a difficult issue. Every natural resource is linked in larger ecosystems to some extent, but unlike lakes and marshes, the atmosphere has no boundaries whatsoever. You cannot prove in court that the actions of one factory produced a specific amount of damage to the atmosphere over a specific state. Furthermore, other countries than the United States are also spewing greenhouse gases into the atmosphere, and there’s no way to differentiate the source of CO2 emissions or their effect.
This isn’t to say that the atmosphere cannot be considered a resource that needs to be safeguarded to future generations. If anything, studies indicate that incremental rises in temperature due to trapped greenhouse gasses could have far reaching effects in the near future such as rising sea levels. The question is whether the courtroom is the best place to deal with these issues.
Supporters of the suits say yes. A Supreme Court decision in 2007 held greenhouse gases to be a threat to human health and welfare. They are now supposed to be regulated under the Clean Air Act. Pete McKlosky, a lawyer for the kids, said the public trust theory is “the most common-sense, fundamental legal footing for the protection of our planet.” There’s a history of environmental groups winning cases based on public trust doctrine (but none so far about the atmosphere).
Opponents of the lawsuits don’t disagree that greenhouse emissions are a problem, they just don’t see the suits as the way to solve anything. For one thing, any ruling wouldn’t be easy to enforce. If a state fails to reach a certain level of CO2 by 2020, they may be legally liable, but meanwhile the atmosphere would still be absorbing gases. For another thing, the Obama administration has said that the Clean Air Act rules should pre-empt legal challenges. Finally, critics like Hans von Spakovsky of the Heritage institute think that it’s really a policy issue rather than a legal issue.
Could this lawsuit work? Probably not. At it’s best, it could bring more attention to the issue and encourage states to improve their emissions stats, at the very least out of PR efforts. At it’s worst, class action attorney Russel Jackson expressed real concern that the various organizations are “merely involving cash-strapped states that have no ability to solve the problem defendants in frivolous litigation that will cost lots of time and money to defend.”
- CLIMATE CHANGE news (conservationreport.com)
- NASA Scientist Helps Teens Sue Government over Climate Change (livescience.com)
- High Court Voices Skepticism Over States’ Global Warming Suits (blogs.wsj.com)