Law professor's novel advocacy of public trust doctrine in climate litigation faces hurdles
A University of Oregon law professor has urged the use of the public trust doctrine to address climate change issues. Professor Mary C. Wood, speaking at the March 2008 Public Interest Environmental Law Conference, advanced what she refers to as “atmospheric trust litigation” as a new legal strategy in climate change litigation. She asserted that the atmosphere is an asset owned in common by the people and the government is the trustee of that asset. Her theory is “part of a roadmap for citizens to bring suit against their government.” Professor Wood says relief would come through declaratory judgments and “injunctive backstops” in which a court would require the government to show that “it’s reducing carbon in accordance with the scientifically defined fiduciary obligation.
While undeniably creative, the case for atmospheric trust litigation faces some significant hurdles. First, the public trust doctrine means different things in different states. Robin Kundis Craig’s “Quick and Dirty Guide to Eastern Public Trust Doctrines” gives a flavor for the variety of state public trust doctrines. Some refer to waters – and there the references vary from navigable waters to surface waters to groundwater. Others – like Massachusetts and Minnesota – refer to the air. And Virginia’s constitution references the atmosphere: “it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.”
In other words, a key first question will be whether a state has a property interest in the atmosphere. At common law, courts have been unwilling to award states remedies or damages over resources which states do not own.
Second, in most states, the public trust doctrine provides standing only to the sovereign; making the public trust doctrine a poor tool for citizens to employ. Further, in some states like Wisconsin the courts even refuse to recognize an affirmative cause of action based on the public trust doctrine.
Third, injunctive relief – indeed any relief – in an atmospheric public trust case would be difficult to fashion given that actions within a state are not directly linked to the purported effects of climate change within the state. In other words, relief fashioned by the court in a state climate-based public trust case would not rectify the alleged harms.
Finally, public trust litigation would walk squarely into the political question doctrine and, possibly, issues like preemption issues under the Clean Air Act or CERCLA for natural resource damages.
While Professor Wood has lit the fire of creativity in suggesting this new direction for climate change plaintiffs, in reality it would be another branch of regulation-forcing litigation that would attempt to put a judge in the position of regulator (litigation which – as shown in the public nuisance context – has been unsuccessful). As Professor Wood noted in an interview about her theory:
Lawsuits often take decades, but judges have the power to structure their lawsuits to provide expeditious or even emergency relief. Every judge has the power to organize his or her docket to address climate crisis with the urgency that it demands. And my own feeling is that there will be judges out there who recognize that they are part of the third branch of government and that our government is sending the entire world into disaster by not dealing with climate. So there will be judges there that will accept this responsibility.
The question is whether it is the proper responsibility of judges to formulate climate policy. Michael Campana, Director of the Oregon State University’s Institute for Water and Watersheds, applauded Professor Wood’s creativity, but aptly described “the risk that courts will wind up formulating climate policy,” as a “dismal approach at best.
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