The Fight for Climate Reform in the Courts: The Public Trust Doctrine and Climate Change

By: Natalie Kilker

The clock is ticking on meaningful climate change action. Earth’s land has already reached a critical warming of more than 1.5 degrees Celsius, and should fossil fuel burning continue business-as-usual, the IPCC warns of the future consequences—and the ones that are already here.[1] From the increased frequency and intensity of heat-related events, shifts of climate zones, animal extinctions, increased rainfall and severe flooding events, decreased food security, to ongoing coastal erosion and quicker-than-anticipated sea level rise, the Earth’s future is precariously insecure, and private and governmental entities are looking to the courts for assistance. Climate change is no longer only an environmental issue, and this is being more heavily recognized in the law.

This year, more than 70 medical and public health organizations issued a call to action on climate change, labeling it the “greatest public health challenge of the 21^st century”. [2] Underrepresented communities and individuals are disproportionately impacted by the health impacts of climate change and are at greater risk of illness from emissions, heat, contaminated water, and vector-borne illnesses.[3] Climate change is a public health issue.

Furthermore, nature is experiencing unprecedented declines, with climate change having the largest global impact.[4] A 2019 report from the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services found that a global warming from 1.5 to 2 degrees Celsius will cause a majority of terrestrial species populations to profoundly decline.[5] Around 1 million animal and plant species are currently threatened with extinction, and climate change has already claimed its first victim, the Bramble Cay melomys that disappeared from their island in the Great Barrier Reef three years ago.[6] Climate change is an ecological issue.

Declining biodiversity and ecological health are vitally tied to human well-being, as people have fundamentally relied upon contributions derived from nature. This interconnection between ecological health and human well-being assures impacts upon poverty, hunger, health, water, cities, climate, oceans, and land due to declining biodiversity. The United Nations Human Rights Council released a report this year finding that climate change will have devastating consequences for people in poverty, with hundreds of millions facing food insecurity, forced migration, disease, and death.[7] Climate change is a human rights issue.

With the devastating impacts and widespread reach of climate change becoming better understood, there’s a major social push toward litigation as an environmental activism strategy. Individuals and municipalities are seeking recourse from the major fossil fuel corporations, which have purportedly made more than $1 trillion in profits collectively.[8] Arguments presented allege that fossil fuel companies have known for years that their operations harm the public interest and that their activities make them responsible for paying damages caused by their public harm. Traditional methods of addressing and managing global environmental problems, such as diplomatic treaty talks, international conventions, and political actions have proven ineffective. Absent international agreement on levels of obligation and global consensus on the anthropogenic cause of climate change, we are experiencing an impasse on critical climate reform. Continued inaction solidifies the need for judicial intervention at the domestic level.

Environmental legal scholars have proposed a global litigation strategy called Atmospheric Trust Litigation (ATL), an approach drawing on the public trust doctrine.[9] The public trust doctrine is well established in common law and, in fact, has deep connections to natural resources. It most frequently applies to bodies of water and is based on the idea that sovereigns act as trustees for the public towards crucial natural resources to protect those life-sustaining resources from depletion and impairment. The Supreme Court has relied on the public trust doctrine in finding that the state has no power to abdicate its trust over property in which the whole people are interested.[10] This idea of maintaining an inalienable right in certain public property is the cornerstone of public trust. The ATL strategy draws upon the public trust doctrine and applies it to the atmosphere, setting the atmosphere aside as a common resource in which the public has a right to in an undiminished capacity. When brought into domestic courts, the ATL characterizes climate change as a matter of sovereign constitutional obligation seeking apparent rules that promote a common plan for global action.[11] It requires governments to develop climate recovery plans which reduce emissions within their jurisdictions. In presenting the burning of fossil fuels as an activity harming interest in a resource held in trust for the public, the onus is placed on polluters for funding atmospheric restoration efforts and on sovereign trustees to seek that recovery of monetary damages from those entities.[12]

One of the most famous ATL suits was filed by 21 youth plaintiffs against the federal government of the United States, Juliana v. U.S. The suit alleged the defendants had known for more than 50 years that carbon dioxide produced by the burning of fossil fuels was destabilizing the climate system in a way that would significantly endanger plaintiffs, and that the defendants’ actions violated their substantive due process rights to life, liberty, and property.[13]  Furthermore, the plaintiffs alleged the government violated their obligation to hold certain natural resources in trust for the people and for future generations, citing that the plaintiffs are beneficiaries of these rights under the public trust doctrine.[14] The case underwent a groundbreaking decision in 2016 when a U.S. District Court Judge denied the U.S. government’s motions to dismiss and cleared the way for trial.[15] In December of 2018, the U.S. Court of Appeals for the Ninth Circuit accepted the case as an interlocutory appeal under 28 U.S.C. § 1292(b)—authorized when there is a controlling question of law as to which there is substantial ground for difference of opinion.[16] In June of 2019, three judges of the Ninth Circuit heard oral arguments on Juliana. The future implications of the Ninth Circuit’s decision are widespread, and if the Court expresses a view about the proper role of the courts in addressing climate change, it could substantially change the future of ATL as a proper method of achieving climate reform. Juliana’s success in the Federal District Court was legally unprecedented in concluding that the right to a climate system capable of sustaining human life is protected against interference from the federal government by constitutional due process and the public trust doctrine, implicit in sovereignty.[17]

We are seeing a shift towards domestic climate litigation as a means of environmental activism resulting from widespread climate inaction and consensus. As the devastating impacts of climate change are realized, individuals are looking to the courts for recourse and a public trust doctrine approach such as atmospheric trust litigation may create a pathway for climate litigation, but only time will tell.

[1] Intergovernmental Panel on Climate Change, Climate Change and Land 5 (2019)

[2] Maya Earls, Medical Groups Release Call to Action on Climate Change, Scientific American (June 25, 2019), https://www.scientificamerican.com/article/major-medical-groups-release-call-to-action-on-climate-change/.

[3] Id.

[4] IPBES: Climate Change is a Key Driver for Species Extinction, IPBES (May 6, 2019), https://unfccc.int/news/ipbes-climate-change-is-a-key-driver-for-species-extinction.

[5] Id.

[6] Brian Clark Howard, First mammal species recognized as extinct due to climate change, National Geographic (February 20, 2019), https://www.nationalgeographic.com/news/2016/06/first-mammal-extinct-climate-change-bramble-cay-melomys/.

[7] Human Rights Council, Rep. of the Special Rapporteur on extreme poverty and human rights on Its Forty-First Session, U.N. Doc. A/HRC/41/39 (2019).

[8] Mary Christina Wood, Atmospheric Trust Litigation: Defining Sovereign Obligations in Climate Recover, The Fletcher Forum of World Affairs, The Fletcher Forum of World Affairs (2014).

[9] Id.

[10] Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 453 (1892).

[11] Wood, supra note 8.

[12] Id.

[13] Juliana v. United States, 217 F. Supp. 3d 1224, 1233 (D. Or. 2016).

[14] Id. at 1253.

[15] Grace Nosek, Climate Change Litigation and Narrative: How to Use Litigation to tell Compelling Climate Stories, 42 Wm. & Mary Envtl. L. & Pol’y Rev. 733, 787 (2018).

[16] Order Granting Interlocutory Appeal at 3, Juliana v. United States, No. 18-80176 (9th Cir. Dec. 26, 2018).

[17] Michael Blumm & Mary Chrisina Wood, No Ordinary Lawsuit: Climate Change, Due Process, and the Public Trust Doctrine, 67 Am. Univ. L. Rev. 8 (2017).