Trust Litigation

Leading climate scientists warn that Earth is in “imminent peril,” on the verge of runaway climate heating that will impose catastrophic conditions on generations to come. In the face of government recalcitrance this article proposes atmospheric trust litigation which would force carbon reduction through judicial relief.

In the past few years, a number of lawsuits have argued that the public trust doctrine (PTD) requires state and federal agencies to regulate greenhouse gas emissions.1 The nonprofit Our Children‘s Trust is the primary organizer of such suits, called ―atmospheric trust litigation,‖ and has organized actions in all fifty states with teenagers as plaintiffs.2 On June 5, 2014, the D.C. Circuit affirmed the dismissal of one such suit, Alec L. ex rel. Loorz v. McCarthy.3 Finding that the PTD is entirely a matter of state law, the court held it lacked federal subject matter jurisdiction.4 The plaintiffs in Alec L., a coalition of teenagers and two nonprofits, WildEarth Guardians and Kids vs. Global Warming, filed suit against the heads of various federal agencies.5 Their suit sought declaratory and injunctive relief establishing the atmosphere as a resource managed in the public trust, which would create a fiduciary duty in the federal government to reduce greenhouse gas emissions.6 The Supreme Court denied certiorari on December 8, 2014, allowing the D.C. Circuit‘s dismissal to stand.7 Still, although Alec L. failed to establish any federal PTD rights, the

NISO Press News 12 Editor's Introduction: You are likely familiar with The Golden Rule: He who has the gold rules! It is much the same in standards —He who owns the Standard rules (and corners the market). The decision in the Microsoft anti-trust litigation reached April 3,2000 called for the company to be split into two parts, not dissimilar to the way the AT&T monopoly was broken up in 1984. Krechmer and Baskin argue that such action may not be necessary or desirable to control this monopoly if open standards were more a part of the picture. Microsoft maintains their very successful operating system monopoly through the use of proprietary specifications as well as aggressive marketing. Open standards offer an alternative means to allow market forces to redress any Microsoft abuses. The use of proprietary specifications were developed in the 20th century to maintain monopolies. The authors present the case that standards can be used to maintain competition and competitive advantage and can be tools for minimizing the potential for monopolistic abuse.

As climate crisis intensifies and scientists warn that the planet approaches irreversible tipping points, the need for government action is imminent. Yet, nearly across the board, legislatures and agencies continue to sit idle in face of unprecedented urgency. This keynote address urges strong judicial rulings in Atmospheric Trust Litigation (ATL), a global campaign that asserts government's fiduciary obligation to protect the functioning of the climate system needed by present and future generations for survival and welfare. ATL seeks injunctive relief requiring government actors to develop enforceable climate recovery plans that will reduce carbon emissions within their respective jurisdictions by the amount called for by best available science.

Over the past decade, climate justice litigation has exploded in U.S. courts. Although courts may be a blunt instrument to achieve proper regulation of climate change, the common law can be a powerful instrument to goad proper regulatory responses to climate change impacts. The U.S. climate justice movement began with public nuisance lawsuits that sought injunctive relief and damages for climate change impacts. The movement has now shifted its jurisprudential focus to another effective common law tool, the public trust doctrine. Atmospheric trust litigation (ATL) involves a creative expansion of the public trust doctrine in suits primarily against state governments alleging that the state has a duty to manage its atmospheric resources to protect the interests of future generations. This paper proposes that ATL is a valuable next step in the evolution of climate justice litigation. Focusing on a major recently decided case in U.S. federal circuit court, this case study paper addressing the theme of “Human Rights and Environmental Justice: Cases from Countries and the Field” will contribute to the understanding and advancement of ATL as a valuable tool in the climate justice arsenal.

Failure to address climate change or even slow the growth of carbon emissions has led to innovation in the methods activists are using to push decisionmakers away from disaster. In the United States, climate activists frustrated by decades of legislative and executive inaction have turned to the courts to force the hand of the state. In their most recent iteration, climate cases have focused on the public trust doctrine, the notion that governments hold their jurisdictions’ natural resources in trust for the public. Plaintiffs have argued that the atmosphere is part of the public trust and that governments have a duty to protect it. These types of lawsuits, known as Atmospheric Trust Litigation, have foundered on the shoals of courts wary of exceeding their powers, whether granted by Article III or state constitutions. The trouble in many cases, including Juliana v. United States, has been standing. Courts balk at declaring that any one actor has the power to affect climate change. Since they usually think one actor can’t fix the climate, redressability is out the window. Even if courts get past redressability, they believe the scale of any potential relief is just beyond the ability of a court to order. The number of lawsuits that have been filed suggests that that reasonable minds can differ, but most judges have found plaintiffs do not have standing before clearing the cases off their dockets. This Note contends that at least one state remains fertile ground for an atmospheric trust lawsuit. Michigan’s 1963 Constitution implies that the atmosphere is within the public trust, and the Michigan Environmental Protection Act, passed to carry out the state’s constitutional duties towards the natural world, does away with most, if not all, of the standing issues that have stymied climate cases across the nation. Motions, briefs, and equitable relief are not the only way to avoid the onset of what could be the greatest calamity in the history of humanity, but in Michigan, at least, Atmospheric Trust Litigation may well be what breaks and rolls back the carbon tide.