Natural Law

Does the public trust doctrine that protects air, water, and endangered species apply to climate? We’re going to find out.

It’s January 16, 2014, and the Duncan Campbell Auditorium at the University of Oregon law school isn’t just a classroom—it’s a battleground. On one side is the Oregon state government, on the other are two teenagers whose suit demanding the state protect the climate was dismissed by a lower court. Three Oregon Court of Appeals judges have journeyed from Salem to hear the teenagers’ appeal in UO classrooms, giving law students the opportunity to witness an appeals court hearing right on campus. TV cameras in the rear of the packed, makeshift court pan from the young plaintiffs and their mothers—coplaintiffs in the suit—to the teenagers’ dozens of friends who are skipping history class today in favor of partaking in the real thing, and finally to Eugene Mayor Kitty Piercy, in attendance to support the teens. But the UO law professor sitting quietly next to the mayor is the reason anyone is gathered here at all. It is, after all, Mary Christina Wood’s pioneering atmospheric trust litigation that enabled these kids to sue their government.

Mary Wood
UO law professor Mary Christina Wood outlined her concept of atmospheric trust litigation in her 2013 book Nature’s Trust. She walks the talk, riding her bike almost everywhere and growing much of her family’s food. Portrait by Steve Smith

The teenagers’ argument springs straight from the pages of Wood’s book Nature’s Trust, released just three months earlier in October 2013. Nature’s Trust spells out a simple enough concept: Citizens have a right to live and flourish. Therefore, a government elected by the people has a duty to protect the natural systems required for their survival; namely forests, wildlife, soil, water, and air (or atmosphere). If the executive and legislative branches both fail in that duty of protection, the resulting violation of citizens’ constitutional rights requires the third branch, the judicial, to intervene. 

In nine lawsuits or petitions currently making their way through state and federal courts as well as courts overseas, Wood’s innovative legal theory is shaping new precedent in environmental law. What’s groundbreaking in her framework is threefold: It calls upon the public trust doctrine—which holds that certain resources are owned by and available to all citizens equally—to enforce our constitutional right to a livable environment. It also adds atmosphere as an asset in that trust, citing its importance in the stability of every natural system. And it calls government, as trustee, to restorative duty, which means not just preventing future damage, but repairing past harms scientists now identify as threatening to current and future generations. Hence the relief demanded by the children: an order requiring the governor and the legislature to use the best available scientific methods to create and implement a plan to reduce carbon emissions by 6 percent per year until at least 2050. The goal of the remedy? A stable, sustainable climate, both for the teenagers and their descendants, which top climate scientists say they only have a shot at if carbon in the atmosphere is lowered immediately from its current 398 parts per million (ppm) to 350 ppm.

Though Wood’s litigation framework is new, the public trust concept is not. The idea that nature as a whole belongs to everyone and can’t be bought or destroyed was committed to paper, or probably parchment, by the Roman emperor in 535 CE in the Institutes of Justinian. Once it hit US shores centuries later, the trust concept developed more formally.  

“Since the beginning of this nation, courts have declared that government is a trustee of the natural resources we all depend on. No politician stands above the public trust.”

“Since the beginning of this nation,” Wood explains, “courts have declared that government is a trustee of the natural resources we all depend on. In a trust, certain assets are managed by one party for the benefit of another. The beneficiaries of this public trust are the present and future generations of citizens. No politician stands above the public trust. As a constitutional premise embodying the inalienable rights of the people, government quite literally cannot rid itself of the trust obligation.”

In other words, in applying the public trust concept to the climate crisis, Wood has devised nothing less than a brilliant end run around any US president, governor, senator, agency, committee, or politically deadlocked Congress. 

It began with a natural disaster. Hurricane Katrina’s fury had finally spent itself when Wood opened an e-mail from a New Orleans colleague who described a dead body floating by his house. The image haunted Wood. She imagined how it might feel to watch a corpse drift slowly by the home she shares with her husband and three sons. 

“I saw that my children’s future was full of intense storms and, ultimately, chaos. I started reading climate science.” She focused in on the work of James Hansen, then director of NASA’s Goddard Institute for Space Studies, who has been warning policymakers about the urgency of global warming since 1988. “It didn’t take long for me to realize that climate holds the potential to be more destructive than anything we have ever imagined, short of nuclear holocaust.”

Wood abruptly dropped other research to turn her attention to the climate crisis. As the great-granddaughter of the famous Northwest cultural figure and conservationist C. E. S. Wood, she had been imbued since childhood with a sense of responsibility for the future. Already the founding director of the UO School of Law’s Environmental and Natural Resources Law Program and a leading scholar on Indian law, Wood decided to bring her expertise to bear on the crisis of “mind-blowing urgency.” She appraised the state of global environmental protection: There were more environmental lawyers than ever, more laws to protect the environment, and countless regulatory agencies tasked with enforcement. So how had we arrived at a hinge point in history, when scientists warned of the imminent collapse of every natural system on Earth? Why weren’t the laws working?

Wood was forced to a disturbing conclusion about the discipline she has taught for two decades: “The core of environmental law is rotting out. The system is becoming a wholesale failure to address the most crucial problems of our society.”   

The “rot,” she says, stems from the very laws designed to protect nature.

“The public trust applies to air, it applies to atmosphere, it should apply to climate. The courts need to come forth and deliver a remedy.”

Environmental statutes were the trophies of a burgeoning movement that launched the first Earth Day in 1970 with a clear message: the planet is finite, under assault by humanity, and needs protection now. Alarmed by wildlife extinctions, smog-laden cities, and oily rivers that caught fire, advocates convinced legislators on both sides of the aisle to pass a slew of statutes, including the Clean Air Act, Safe Drinking Water Act, and Endangered Species Act. Taken together, these new, sweeping statutes promised protection for water, soil, air, forests, and wildlife—pretty much everything, it seemed. But, Wood says, “the real onslaught to Earth has taken place in the 30 years since these statutes were passed. Environmental law has not prevented damage; it has hastened it.” 

Much of the problem, she says, is “agency capture,” a term coined in 1971 by Nobel laureate economist George J. Stigler. When Congress charged the newly created Environmental Protection Agency (EPA), the US Fish and Wildlife Service, and many other agencies with enforcement of the new laws in the early 1970s, it handed them tremendous dominion over nature. But the statutes often contain provisions allowing agencies to permit harm to resources they protect—they decide who can harm what, and how much.  

“Agency discretion,” Wood says, “is a magnet for industry influence, and industry groups exert relentless pressure on agencies to ease regulation. Discretion is the legal conduit used to deliver public resources into corporate hands. Captured agencies treat industry as a client they must serve.”

The ink was hardly dry on the new statutes when Stigler warned of the phenomenon of governmental gamekeepers being coopted to serve poachers: Whether aimed at banks, airlines, or drinking water, “regulation,” he wrote, “is acquired by the industry and is designed and operated primarily for its benefits.”

Many agencies established to protect natural resources followed suit, Wood says, and now use provisions embedded in statutes to issue permits for, among other things, clear-cutting, mountaintop removal, strip-mining, fracking, and deep-sea drilling. “At every level,” she says, “agencies have turned environmental law inside out and substituted an entirely new focus:  ‘How much pollution and resource scarcity can we impose on communities, citizens, and children?’” 

Wood examined agency capture against the backdrop of, on one side, increasingly dire climate reports, with their unanimous calls for aggressive carbon-reduction plans and, on the other, President Obama’s “all-of-the-above” energy strategy, with its massive new fossil-fuel extraction projects. She concluded, “Almost unbelievably, the fossil-fuel industries now possess the capability of destroying the planet’s climate balance, which is necessary for life on Earth, and they have made governments worldwide their partners in a dangerous chase of profit. It’s as if government is leading us down the plank to our destruction—and taking our children with us.”

Bolstered by her family’s legacy—C. E. S. Wood and other progressive ancestors had advocated bold solutions to the issues of their day—Wood decided to propose something no one else had: application of the public trust doctrine to the climate crisis. Few lawyers were aware of the doctrine and its quiet assertion that systems for citizen survival belong to the people as a basic attribute of sovereignty. “Once the environmental statutes were issued in the 1970s,” Wood explains, “all attention turned to them and law schools began to teach almost exclusively statutory law.” But the public trust doctrine was always there underlying the statutes. If the trust traditionally applied to waterways and wildlife, Wood thought, it could also include atmosphere. Gerald Torres, the Bryant Smith Chair in Law at the University of Texas, at Austin, had already written about including atmosphere in the public trust. Such inclusion would open the door for Wood to mastermind the groundbreaking legal framework she called atmospheric trust litigation (ATL). “I took the concepts from the leading public trust cases and wove them together so they could be useful as a full paradigm shift.”

Her litigation roadmap conceives of government officials as public trustees, rather than as arbitrary political actors, and nature as a priceless endowment, rather than a vague “environment.”  She wrote a chapter titled “Atmospheric Trust Litigation” for the book Adjudicating Climate Change, published by Cambridge University Press in 2009. Then she hit the road, giving about 60 speeches a year. She told audiences, “The international treaty process will probably fail, the legislature will not act, and the president will do too little too late.” As her predictions proved accurate, fellow law professors began to take notice.

But Wood faced another challenge: What would potential lawsuits specifically demand as a remedy? What could stabilize the atmosphere? Wood called Hansen, the NASA director, and asked him to write a prescription for the planet. After an hour of conversation with the lawyer he’d never met, the world-renowned climate expert agreed, and 11 months later, handed Wood her prescription. Written by 18 of the world’s top climate scientists, “Scientific Case for Avoiding Dangerous Climate Change to Protect Young People and Nature” warns that our situation is dire, but it still may be possible to prevent runaway greenhouse gases—if action is taken immediately. The document then prescribes measures necessary to avoid the worst effects of climate disruption: emissions cuts of at least 6 percent a year, starting in 2013, along with massive global reforestation and soil sequestration.

Wood had her planetary diagnosis. She had her prescription. She had created a new legal roadmap. Everything was lined up for a plaintiff to file a suit compelling government, as trustee, to protect the atmosphere. But because she’s a scholar, not a litigator, another lawyer would have to take it forward. That’s when Julia Olson knocked on Wood’s door.

“Atmospheric trust litigation is the only thing teed up on the legal front to meaningfully tackle climate change.”

A public interest environmental attorney and adjunct instructor teaching wildlife law at the UO, Olson had a mission of her own. She envisioned a broad, coordinated legal effort across the country—or the world— to target fossil fuel emissions. “So much of the litigation addressing climate change was still trying to stop more pollution coming online,” she says, “rather than dealing with the pollution that’s already happening.” Wood had been delivering speeches about atmospheric trust litigation to lawyers nationwide for three years when Olson heard her speak at the UO’s Public Interest Environmental Law Conference (PIELC). After one meeting with Wood, Olson announced, “I want to bring an ATL legal action in every state.”

Alec Loorz, the 15-year-old founder of the national group Kids vs. Global Warming, got wind of the suits. “He told me, ‘I want to do more than march. I want to take legal action,’” says Olson. “‘And I know lots of other kids who would, too.’” The children-as-plaintiffs idea was born, and youths nationwide stepped forward, including Eugene students Olivia Chernaik, 11, and Kelsey Juliana, 15. 

“The power of this lawsuit is that we’re not of the same generation as the decision-makers,” says Juliana, now 18. “We’re of the younger generation, telling them, ‘Hey, listen, we know our future is already going to be more drastic and more unstable than yours is currently, so it’s really your responsibility to fix it, because you made this mess and we’re kids and we can’t.’”

Olson created the nonprofit organization Our Children’s Trust to support the plaintiffs and, armed with the new prescription giving them a remedy to demand, 340 youths filed 50 lawsuits or petitions in all 50 states on Mother’s Day 2011. It was the first such “hatch” of suits filed in both state and federal courts on the same day, alleging the same harm and demanding the same remedy. Olson emphasizes it doesn’t ask courts to prepare the carbon reduction plan, but to “simply enforce a legal right and order compliance with the law.”

Hansen and 32 law professors, including leading constitutional law scholars, submitted an amicus brief (a letter from experts) on behalf of the young plaintiffs, warning the courts, “Failure to act [now] becomes a decision to eliminate the option of preserving a habitable climate system.”  

The Oregon plaintiffs waited months for a decision, both in their state suit and in the case against the federal government. The children and their lawyers looked to one case in particular for hope: Robinson v. Pennsylvania, in which that state’s 2011 Supreme Court plurality opinion overturned the state’s pro-fracking regulatory statute based on public trust. By affirming trust as an inalienable right, the judges delivered the most comprehensive affirmation of the public trust doctrine to date. “[Robinson] in itself represents a major victory,” says Wood, “because it gives courts case law to build on.”

During the waiting period, environmental lawyers from all over the globe gathered at the UO’s 2014 PIELC, focused on “Running into Running Out.” Hansen, in his co-keynote with Wood, told listeners that climate stabilization requires leaving oil, coal, and gas reserves in the ground. When Wood took the stage, she issued a challenge that earned her a standing ovation, but would have been unthinkable even a few years ago in a land that enshrines private property rights: “Don’t we have to rethink whether corporations actually have property rights to exploit these remaining reserves? We should not assume that they have vested property rights to resources that, if fully exploited, would cook the planet. Maybe the law has more logic than that.”

 

JUNE 2014 FINALLY brought decisions on the dismissals of both the federal and the state suits. First, a thumbs-down from the US Court of Appeals, which “clearly wanted to punt this difficult question,” says Wood. But on June 11, the Oregon Court of Appeals handed a victory to the children—and the public trust doctrine: The lower court dismissal of the case was reversed. 

Within minutes of the announcement, things were abuzz at Wood’s house. The phone kept ringing as e-mails flew in. “We had 33 law professors just jumping on this, seeing what it amounts to,” she said. “This decision makes it quite obvious that the court is taking trust arguments seriously and wants the lower court to as well. The state wanted to disregard public trust rights that are embedded in the Constitution. The court is basically saying, ‘You can’t do that. It’s the judiciary’s job to determine what those rights are.’ It’s indicating that the legislature is not the last word on the rights of citizens.” 

After three years, Oregon plaintiffs will finally get their day in Lane County’s Circuit Court. On September 3, the group will petition the U.S. Supreme Court requesting a clear ruling on the government’s trust obligation. One of their attorneys, Liam Sherlock, JD ’90, hopes the judiciary will provide what he calls a “backstop for the failures of the executive and legislative branches” in the climate crisis. 

That vision may become a reality. The legal team says there is Supreme Court case law that helps position the right to a stable climate system as a fundamental “preservative right” of all other rights. “We start losing our liberties as the climate system deteriorates,” Olson explains. “You can only protect a right today, even though the full violation of liberties happens decades from now.” 

She adds, “It’s exciting to work on this incredible legal effort that, to me, is on par with the great civil rights efforts, from desegregation to affirming LGBT rights. It’s the side of history I want to be on when future generations look back at our time.”  And though she is confident that recognition of citizens’ fundamental constitutional rights by the highest courts is inevitable, “time,” she says, “is of the essence.”

Wood concurs, noting that “ATL is the only thing teed up on the legal front to meaningfully tackle climate change by addressing the full scope of carbon emissions.”

Not one to wait around and see how things turn out, she is currently researching other litigation models, such as government suits against oil companies for natural resource damages to the atmosphere, reminiscent of suits against tobacco companies for knowingly harming human health. Her ATL theory, meanwhile, is spreading. “More and more law professors worldwide are coming out and saying, ‘The public trust applies to air, it applies to atmosphere, it should apply to climate. The courts need to come forth and deliver a remedy. The trust obligation is an attribute of sovereignty.’” 

No matter what happens in these particular lawsuits, she says, “ATL is not going away for two reasons. First, climate crisis is intensifying; courts are going to change their view of their role as more heat waves strike and the legislature sits idle. And second, public trust isn’t going away. It’s been around since Roman times. And it is really too deep for any one opinion—even a Supreme Court opinion—to wipe out.”

Mary DeMocker ’92 teaches the harp and writes about climates of all sorts and is cofounder of the climate recovery group 350 Eugene. For more of her work, visit www.marydemocker.com