Protecting the Atmosphere for Future Generations through Atmospheric Trust Litigation

Mary C. Wood, an environmental law professor at the University of Oregon argues that the atmosphere is a natural resource that should be protected in trust by the government, making the government trustee of the atmosphere and obligating the government to reduce carbon emissions to protect the atmosphere and combat climate change. This theory is based on the public trust doctrine which is a legal principle that requires the government to protect natural resources that belong to the people, for present and future generations. Under this theory every level of government from federal to state to local governments could be held accountable for protecting the atmosphere as a public trust.

Wood argues that “atmospheric trust litigation” is a way for citizens to bring lawsuits against their governments in order to force governments to meet their obligations to protect the atmosphere. So how does atmospheric trust litigation work? First courts must declare that the atmosphere is in the public trust. Then courts could make a judgment that sets the trust obligations that governments have to comply with. Courts could also order an accounting against governments, which requires governments to measure their carbon footprint and then show courts that they are reducing carbon emissions based on scientific findings. Through this accounting, citizens would be able to see if their governments are really reducing carbon emissions. In addition, if courts find that government officials are not meeting their obligations courts could hold officials in contempt of court or make rulings prohibiting activities that contribute to carbon emissions. In May, 2011, Our Children’s Trust, a nonprofit organization based in Oregon filed suit in all 50 states on behalf of children, alleging that government entities violated the public trust doctrine because they failed to limit greenhouse gas emissions that contribute to climate change. Our Children’s Trust asked courts to find that states have a duty to future generations to protect the atmosphere in trust immediately.

The public trust doctrine has usually been used to protect public access to navigable waterways and beaches. Therefore, getting courts to agree to declare the atmosphere within the public trust may be very difficult because this would require courts to accept an untraditional legal argument. Atmospheric trust litigations are currently being litigated, so the public will have to wait and see whether or not courts will find that the atmosphere should be protected in trust. Perhaps if one court agrees that the atmosphere should be protected in trust then other courts will follow suit, but so far no court has made a decision finding the atmosphere to be a resource held in trust by the people. Our Children’s Trust has upcoming hearings in several states with regard to their requests for courts to declare the atmosphere a public trust. The dates and times of those hearings can be found at http://ourchildrenstrust.org/legal-action.

-Antionette Vanterpool, Legal Intern