Will the Atmosphere Make it as the Public Trust Doctrine's Next Frontier?

by Alexandra Klass

May 06, 2011

On Wednesday, Our Children's Trust, an Oregon-based nonprofit, made headlines when it began filing lawsuits on behalf of children against all 50 states and several federal agencies alleging that these governmental entities have violated the common law public trust doctrine by failing to limit greenhouse gas emissions that contribute to climate change.  The claims seek judicial declaration that states have a fiduciary duty to future generations with regard to an “atmospheric trust” and that states and the federal government must take immediate action to protect and preserve that trust. Although these claims certainly are novel and may have limited or no success in many states because of lack of precedent, they rely on what has proved to be a flexible and powerful common law doctrine in some states that has pushed the legal envelope in the name of environmental protection in the past. As a result, these cases bear watching both as to their legal effect as well as the possibility that they will galvanize a broader base of grassroots support for action on climate change.

The public trust doctrine is a concept dating back to Roman Law which holds that there are certain natural resources that are forever subject to government ownership and must be held in trust for the use and benefit of the public. In the United States, plaintiffs have used the public trust doctrine successfully to prevent states and other governmental entities from conveying public trust resources such as submerged lands or municipal harbors into private ownership, to create public beach access, and to otherwise ensure public access to water-based resources. Until the 1970s, however, the doctrine had little to do with environmental protection and instead was used almost exclusively to prevent the privatization of water-based resources or to preserve public access to fishing, boating, or commerce.

The doctrine first became a force in environmental law in the early 1970s when Professor Joseph Sax, now at UC Berkeley Law School, wrote an influential law review article arguing that the doctrine could form the basis for lawsuits to compel states and other governmental entities to protect certain natural resources, particularly water-based resources, from development and other threats on grounds that the states had an obligation to protect those resources for present and future generations. Since then, some states, like California, have applied the common law doctrine to protect rivers, lakes, and other water-based resources as well as land-based resources such as birds and other wildlife. In the Mono Lake case in 1983, the California Supreme Court held that the public trust doctrine required the state to consider wildlife, scenic, and other environmental values in making water allocation decisions. That case has since formed the basis of a fairly robust public trust doctrine in California that courts in Louisiana and Hawaii have also adopted.

Other states, however, have a much more limited version of the doctrine, with courts in those states limiting its application to navigable waters and submerged lands under those waters, to the extent the doctrine is used at all. As a result, although the Supreme Court implied as early as 1892 in Illinois Central Railroad Company v. Illinois that the public trust doctrine exists in some form in all states, its application to natural resources beyond the traditional scope of navigable waters and submerged lands is limited to non-existent in a large number of states.

This brings us to the current lawsuits, brought on behalf of children, which argue that the common law public trust doctrine is broad enough to encompass an "atmospheric trust" and that states have a duty to protect and preserve this trust resource for the benefit of present and future generations.  As relief in the state court lawsuits, the plaintiffs seek only a declaration that an atmospheric trust exists and that defendants have a duty to protect and preserve it. In the federal lawsuit, the plaintiffs go further and seek an order compelling the agencies to take steps to reduce U.S. GHG emissions by six percent each year. Although there appear at first glance to be significant parallels between these lawsuits and the current common law public nuisance claim pending in the Supreme Court, Connecticut v. AEP, there are significant differences between the two sets of cases. Most importantly, the pending Supreme Court case involves federal common law nuisance, which raises a host of issues (such as federal agency displacement of federal common law) not present in the new lawsuits, which primarily involve state law claims. Moreover, at least some of the standing and federal separation of powers arguments prominent in the Supreme Court case may not arise in the state court lawsuits, even if they may be present in the federal court lawsuit. Nevertheless, to the extent the Supreme Court expresses concern in its forthcoming opinion about courts, rather than legislatures, making policy decisions regarding climate change that may well have a negative impact on the public trust lawsuits.

The lawsuits have an uphill battle for other reasons as well. As noted above, most states have not utilized the public trust doctrine for environmental protection purposes, which means that there will be very little authority for courts in those states to rely on to recognize a public trust obligation to prevent climate change, even if judges hearing those cases were inclined to be supportive. Even in California, which has one of the most expansive common law public trust doctrines with regard to environmental protection, courts have not expressly recognized an "atmospheric trust." Moreover, even if California or other states were to recognize such a trust obligation, that does not mean a court would impose limits on GHG emissions. Instead, courts that have applied the doctrine to natural resources have more often directed the governmental agencies responsible for trust resources to take protection of such resources into account in decision-making rather than requiring any particular decision with regard to such resources. This is what happened in the Mono Lake case. Particularly in California, which has been a leader on climate change issues in recent years, it may be difficult to argue that the state is ignoring its obligation to take action to preserve the atmospheric trust.

So are these lawsuits doomed to failure? It depends how one defines success or failure. If success means a declaratory judgment that the government must act immediately to reduce GHG emissions by six percent a year as plaintiffs have requested in the federal case, then success is not likely, at least not anytime soon. If success is defined, however, by at least some courts recognizing a public trust obligation to consider climate change in decision-making and requiring states to take some action to address it, then it is not inconceivable that courts in states with strong public trust precedents may recognize such an obligation. Indeed, it seems less of a dramatic move for courts in California and other states to include the atmosphere within the scope of the public trust doctrine than it did in the 1980s for courts to begin include wildlife and other environmental resources when the doctrine had never been used for environmental protection purposes at all in the past. Moreover, if these lawsuits put additional pressure on legislatures and governmental agencies to take action, that may not only serve the plaintiffs' ultimate goals as stated in their complaints but may take all of us one step further toward a national focus on the problem of climate change.

Professor Klass's scholarly work on the public trust doctrine includes Renewable Energy and the Public Trust Doctrine, UC Davis Law Review (forthcoming 2012) and Modern Public Trust Principles: Recognizing Rights and Integrating Standards, 82 Notre Dame Law Review 699 (2006).

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Also from Alexandra Klass

Alexandra Klass is a Distinguished McKnight University Professor at the University of Minnesota Law School, and a member of the board of directors of the Center for Progressive Reform.

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