Green All the Lawyers

article image
image by Jude Buffum

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.

Let’s turn to the specifics of the atmospheric trust litigation.

Every single level of government has to reduce carbon [emissions from all sources within its jurisdiction]. Otherwise, it leaves its share on the table without anybody taking responsibility for it. I call that an orphan share. Virtually every city, every county, every state, every nation must accept its own responsibility for carbon reduction, and that’s not happening right now. There’s a patchwork quilt of carbon reduction, and people are treating this as a political choice. It’s not. The scientists have defined the fiduciary obligation, and now it’s up to every level of government as trustee to carry out that fiduciary obligation in a uniform manner so that all of the carbon reduction will add up to the amount we need. This is a matter of carbon math. It all must add up.

And you believe the way to do this is atmospheric trust litigation?

That’s only one piece of it. The trust approach is part of an overall paradigm shift that demands that our government, every level of it, start protecting the resources that we, the public, own. [Awareness] must happen in the communities, the agencies, the churches, the schools, all of that, and in other countries as well.

The atmospheric trust litigation part is a road map for citizens to bring suit against their government–city, state, or federal–to enforce the fiduciary obligation. We still have three branches of government in this country, last time I checked. But the courts have been passive observers to this monumental destruction that now threatens, literally, the future of human civilization and our children. The courts must provide a check against runaway politicization by the other two branches. They have been on the sidelines in climate crisis. With atmospheric trust litigation the courts become enforcers.

How would it work?

The court would declare this trust obligation, which is well-rooted in law. And then it could craft a declaratory judgment setting forth these principles. That alone would go a long way, because suddenly the public would have clarity on its own government’s responsibility.

Second, a judge can order an accounting against any level of government. An accounting is a very standard tool–it basically means the government would have to measure its carbon footprint, and it would have to show the court that it’s reducing carbon in accordance with the scientifically defined fiduciary obligation. A court would not tell the jurisdiction how to accomplish carbon reduction–that would be up to the political branches, and the citizens–but the court would enforce that carbon reduction, and have a method by which citizens can know whether their government is squandering their future or protecting their resources.

And finally there could be injunctive backstops. If officials do not perform as trustees, they would be subject to contempt of court, or to injunctions such as prohibitions on logging, road building, and other activities that contribute carbon.

You recently presented your work at the Public Interest Environmental Law Conference. What was the reaction of the attorneys there?

It was like a light going on, frankly, because it’s a totally different approach. So far, attorneys have clung to the statutory claims that are most familiar to them. And those claims, like the Clean Air Act or the National Environmental Protection Act, are fine for stopping individual actions that contribute carbon. But they are not going to reduce carbon overall in the time we have left.

That is the most urgent matter. This approach underscores, or brings to light, an organic duty on the part of virtually every level of government.

The attorneys saw the power of that. Rather than suing every single government agency, just a few lawsuits declaring this would change the paradigm by which we are approaching climate. Suddenly, the pieces fall into place. Every government has to take its share of responsibility.

What’s next?

Well, I’ve just launched the theory, and I’ve provided the road map. I’m not going to be involved in any way in litigation because I’m an academic, but I’m quite confident now that trust claims are going to be brought in the context of climate. How [practicing attorneys] bring them is up to them.

So you actually believe that this is a realistic approach and that it could help to prevent climate meltdown, as you call it?

Oh, I do. But I would never say that this is the silver bullet. Because, as [environmental activist and writer] Bill McKibben has said, if climate is to be solved, it’s going to be solved with silver buckshot, not with a silver bullet, and this is my buckshot. This is just one little buckshot, but it’s my buckshot, and it’s something people hadn’t thought of.

Carla A. Wise is an environmental writer and conservation biologist based in Corvallis, Oregon. Excerpted from High Country News(May 12, 2008), winner of the 2006 Utne Independent Press Award for Best Local/Regional coverage;

In-depth coverage of eye-opening issues that affect your life.