No 171 Posted by fw, May 8, 2011
“The atmospheric trust litigation part is a road map for citizens to bring suit against their government, (whether) 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. So this atmospheric trust litigation puts the courts as the appropriate enforcers of governments’ basic duty.” Mary Christina Wood, environmental law professor at the University of Oregon.
The above passage was pulled from a May 12, 2008 interview with Professor Wood, published in High Country News under the title, Climate Revolutionary.
Prominent among the early adopters of Professor Wood’s novel “atmospheric trust litigation” framework are attorneys representing children and teens in 52 separate lawsuits against the U.S. government. Why children? It’s an astute tactical move because, as Brook Meakins frames it so well in her blog post, We should be getting youths in front of the courts, not polar bears, “. . . people care about climate change because deep down, we care about people. And deep down, we care about little people a lot. And we should. Little people are cute, they provide a deeper sense of meaning and purpose to many of us on the planet, and they will inherit this world from their predecessors — us.” (See also, for example, my previous post, Youth turn to legal action as means to power, as means to hold leaders accountable for climate change inaction,
What follows are selected sections of the Wood interview, including an introductory lead-in by the interviewer, Carla A. Wise, an environmental writer and conservation biologist based in Corvallis, Oregon.
Mary C. Wood, an environmental law professor at the University of Oregon, has developed a novel legal framework to confront the global warming crisis in the courts.
Wood’s work begins with the public trust doctrine, an ancient legal principle laying out the duty of government to protect natural resources for present and future generations. Wood’s premise is that the atmosphere, like all natural resources, belongs to the people as a natural trust administered by the government. She argues that government is failing in its obligation as trustee of our atmosphere, using scientific evidence to prove her point. She proposes using the public trust doctrine to bring “atmospheric trust litigation” in court.
Successful lawsuits would require that the federal government act immediately to curb global warming. On March 6, she presented her work at the 2008 Public Interest Environmental Law Conference in Eugene, Ore. The response “was like a light going on,” says Wood, with 30 attorneys forming a committee to use her work to bring atmospheric trust lawsuits nationwide.
High Country News (HCN): Can you summarize the legal approach that you are working on for reining in climate change?
Mary Wood: I characterize the 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 … that is, 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.
So while courts haven’t focused on climate change so much … there are many, many cases which 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 government has a strict fiduciary obligation (duty as trustee) that the people have forgotten about. And that obligation now, thanks to the scientists, can be translated into specific terms that the people can enforce.
HCN: Let’s turn now to the specifics of the atmospheric trust litigation.
Wood: The other piece the public needs to understand is the concept of orphan shares. That is, 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. If we have any significant orphan shares left out there, we can’t reduce the carbon in time to prevent catastrophic climate heating … because no other government is going to take a deadbeat sovereign’s orphan share.
So virtually every city, 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. So this is a matter of carbon math. It all must add up, and if there is a piece missing it won’t add up.
HCN: And you believe the way to do this is atmospheric trust litigation?
Wood: Well, that’s only one piece of it. The trust approach … is part of an overall paradigm shift which demands that our government, every level of it, start protecting the resources that we, the public, own. … (This 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, (whether) 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. So this atmospheric trust litigation puts the courts as the appropriate enforcers of governments’ basic duty.
HCN: So how would it work?
Wood: 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 ways, because suddenly the public would have clarity on its own government’s responsibility.
But second, a judge can order an accounting against any level of government. An accounting is a very standard tool … and it basically means the government would have to measure its carbon footprint, which is very feasible these days, and it would have to show the court that it’s reducing carbon in accordance with the scientifically defined fiduciary obligation. So 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 the citizens can know whether their government is squandering their future … or protecting their resources, through this accounting.
And finally there could be injunctive backstops. If the officials do not perform as trustees, they would be subject to contempt of court, or injunctions such as prohibitions on logging, road building, and other activities that contribute carbon.
HCN: You just presented your work at the annual Environmental Law conference here (at the University of Oregon). What was the reaction of the attorneys there?
Wood: It was like a light going on, frankly, because it’s a totally different approach. It’s a macro approach to the problem. 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. So 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.
HCN: So, what’s next?
Wood: 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 they (practicing attorneys) bring them is up to them.
HCN: Any sense of when lawsuits will be brought?
Wood: No, because I’m not strategizing actual litigation … my thinking is that these lawsuits would have to happen soon in order to prevent society from crossing that final threshold. And I think attorneys understand that now. In other words, we are so close to a climate threshold whereby there will be runaway climate heating, according to the scientists, that we can’t control.
HCN: Given the science that says we have to be acting right now, is there really time for this legal strategy to bear fruit in two years or less? Don’t lawsuits sometimes take decades?
Wood: 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.
HCN: So you actually believe this is a realistic approach and that this could help to prevent climate meltdown as you call it?
Wood: Oh, I do. But I would never say that this is the silver bullet. Because, as 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.
Professor Wood is currently working on a book entitled, Nature’s Trust: Environmental Law for a New Ecological Age. Visit Mary Wood’s Web site at: http://www.law.uoregon.edu/faculty/mwood/
- Atmospheric Trust Litigation by Professor Wood. A chapter in a forthcoming book, Climate Change: A Reader, Carolina Academic Press, June 2011. A must read for anyone seriously interested in Wood’s theoretical framework. This 42-page, double-spaced, PDF version is posted on the University of Oregon website. I prefer this version* because the format is more structured and it includes a discussion of climate change evidence. (*Note: There are at least two versions of Wood’s paper under the same title, this one and the following one).
- Atmospheric Trust Litigation, by Professor Wood. A 24-page, single-spaced, Word document that focuses primarily on the legal issues.
- Public Trust Doctrine — Potential in Canadian Water and Environmental Management by Ralph Pentland, POLIS Discussion Paper 09-03, June 2009
- The Public Trust Doctrine: Ensuring the Public’s Natural Right of (Perpetual) Access to Common Resources by Matthew Aragorn Park, A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of MASTER OF LAWS, in the Faculty of Law, University of Victoria, 2007
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