Green All the Lawyers

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This article is part of a package brushing off the gloom and doom with good green news. Also included are:
Tomorrowland: An eco-smart urban design competition turns “what ifs” into “what is”
Hiring Mother Earth To Do Her Thing: Are capitalists the new conservationists?
In Praise Of Economic Pain: The threat of recession could lead to an environmental boon
Environmental Innovations to Give You Hope
Special Online Project: Mother Earth’s Big Comeback

A 1,500-year-old legal precept could steer us toward the next radical mind shift in the fight against climate change. Mary C. Wood, a professor at the University of Oregon School of Law, has carved out a bold new legal strategy based on the public trust doctrine, which dictates that it is the government’s duty to maintain certain natural resources for the benefit of its citizens. Through Wood’s approach, which she terms “atmospheric trust litigation,” lawsuits would establish that the atmosphere is one of those resources, and that by not taking action against climate change, the government is shirking its legal responsibility.

Because the threat and scope of climate change are now well established, scientific prescriptions could be used to enforce this governmental duty. For example, Wood suggests, the Union of Concerned Scientists has formulated a step-by-step plan to reduce emissions 80 percent by 2050. Each level of government is responsible for a share of carbon emissions, and courts could use such prescriptions to determine whether, say, a city or state is doing enough to curb its contribution to climate change.

Wood talked to High Country News about why lawyers and judges may be our last, best defense against a warming world. —The Editors

Can you summarize the legal approach that you are working on for reining in climate change?

I characterize the [earth’s] atmosphere as an asset that the people own in common. The government is a trustee of that asset. This approach has a basis in our environmental law. You can even think of it as an attribute of sovereignty, the duty of government to protect our natural resources. The atmosphere is one of those natural resources. In fact, it’s the most crucial resource in our trust, because it holds everything else together.

While courts haven’t focused on climate change so much, there are many, many cases that say clearly that government must protect our wildlife, our waters, our streambeds, and so forth. Once you characterize the atmosphere as a trust asset, the next question is, what is government’s obligation to us, the people? Well, government doesn’t have political discretion to allow our trust to be destroyed, so it has a strict fiduciary obligation [duty as trustee] that the people have forgotten about—and can enforce.

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