It’s been decades since we have known about climate change. In 1988, the Intergovernmental Panel on Climate Change was established, and the American public bore witness to scientist James Hansen’s congressional testimony that anthropogenic global warming was already happening and that it was our fault. This isn’t news.
What is news, is that despite all the marches, COPs, IPCC reports, and extreme weather events since 1988, what we’ve been doing to fight humankind’s greatest threat in history hasn’t been working enough. Just this month, we hit a record high in atmospheric CO2 levels despite the pandemic’s effect of temporarily reducing emissions.
The reason that we are losing this fight isn’t because not enough people are listening. Rather, it’s because the people that hold decision-making power are ignoring the world’s pleas for climate action. As a result, some have reasoned that the only option is to use force—legal force, that is.
The United States doesn’t have any comprehensive legislation on the federal level that addresses climate change; that’s despite the fact that we are, by far, the biggest historical emitter. What lawyers are then left with to indirectly redress climate issues are laws like the Clean Air Act, Clean Water Act, Endangered Species Act, and National Environmental Policy Act. These acts were passed at a time when environmental protection was not a partisan issue in American politics. Three out of four of these laws were passed under the Republican Nixon administration. Nonetheless, all these acts haven’t been able to significantly reduce the United States’ national greenhouse gas emissions.
Don’t be mistaken; these laws are indeed powerful and necessary for environmental protection. However, they do not allow for emissions reductions on the scale necessary to avoid the worst of a climate breakdown.
Faced with this simultaneous reality of political inaction and judicial incapacity for adequate remedy, the plaintiffs in the Juliana v. United States chose a new approach. The twenty-one Juliana youth plaintiffs—ranging from ages eight to nineteen at the case’s debut—sought to force the government to protect their right to a liveable planet. To be clear, it wasn’t just a high-profile lawsuit at stake; it was their and future generations’ entire livelihoods. With the backing of Our Children’s Trust, the Juliana plaintiffs argued that the government’s failure to effectively and meaningfully regulate greenhouse gas emissions amount to violations of their constitutional rights and the public trust doctrine.
University of Oregon law professor Mary Wood, the originator of atmospheric trust litigation, explains the time-honored common law doctrine as the idea that “the natural resources that we rely upon for our very survival and wellbeing are held in trust by our governments, and need to be protected for present and also future generations.” The new concept that Professor Wood pioneers, though, is the application of this doctrine to the atmosphere, which would render the government liable for greenhouse gas emissions. She explains that “where the two political branches are doing nothing…[public trust cases] simply force the other branches to do their job in protecting the natural resources we rely on.”
The current landmark decision in U.S. climate law concerning atmospheric greenhouse gases is the 2007 Massachusetts v. EPA case. This decision forced the federal environmental agency to regulate CO2 and other greenhouse gases as pollutants under its Clean Air Act mandate. However, this groundbreaking ruling has not had the effect of keeping atmospheric greenhouse gas concentrations at a safe level. As we now know very clearly, climate change poses an existential threat to the entire planet and cannot be addressed without massive reductions in greenhouse gas emissions. That’s where Juliana v. United States comes in and demands the government regulate emissions vis-à-vis Professor Wood’s idea of an atmospheric public trust.
In their initial complaint, the plaintiffs assert that “the overarching public trust resource is our country’s life-sustaining climate system, which encompassses our atmosphere, waters, oceans, and biosphere. [The federal government] must take affirmative steps to protect those resources.” The plaintiffs allege the government “[had] known for decades that carbon dioxide pollution was causing catastrophic climate change,” yet “[had] allowed excessive fossil fuel production on public lands” and more broadly, bolstered the fossil fuel industry. In light of these purported violations, the plaintiffs demand that the government phase out fossil fuels among other efforts to counter climate change.
This approach to forcing climate action has been successful in other legal systems—notably in the Philippines and the Netherlands. In 2008, the Supreme Court of the Philippines issued a decision which forced 13 government agencies to restore Manila Bay which had deteriorated due to the agencies’ negligence of preventing pollution in the bay. The Manila Bay plaintiffs made their case based on alleged violations of statutes and the public trust doctrine. As for the Dutch case, 900 citizens along with the climate-focused Urgenda Foundation sued the government for failing to protect its citizens from the dangers of climate change by decreasing its annual emissions under the Paris Agreement.
In the U.S., the legal force of atmospheric trust litigation is yet to be seen. The once-promising Juliana case has faced countless obstacles, and just this past January a Ninth Circuit panel dismissed the case. That doesn’t mean the case is over. The plaintiffs quickly appealed the dismissal with the backing of dozens of activist, political, and scientific organizations, as well as thousands of citizens.
Even if the case was to ultimately be dismissed, the potential of the public trust doctrine in fighting climate change is still to be seen. As one expert said of the Juliana case, “sometimes, the failure of a legal claim in court shows just how the law needs to change. When enough people demand that change, it happens.” Moreover, courts at the state level have shown promise in interpreting the public trust doctrine to serve as a tool against climate change. For example, a Texas trial court determined that “the scope of the Texas public trust doctrine would be expanded to include the atmosphere.” Lastly, the results of November 2020 elections may have a strong influence on the handling of such cases, especially in the case of a new Democratic administration with a congressional majority.
Climate change is by far the greatest challenge that humankind and this planet have ever faced. As uphill of a battle we have before us, defeat is simply not just an option when everything we have is at stake. Tackling climate change with any and all means is not just wise; it is imperative. Efforts from industries, politicians, and citizens are important, but they cannot bring about legally binding change as lawyers can. Nonetheless, existing environmental statutes don’t leave lawyers much to work with to fight climate change. Thus, while still in its embryonic stages, public trust doctrine as a climate strategy seeks to further the potential of law to reduce emissions and consequently save our future.