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Atmospheric Trust Litigation

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About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

The 2015 UN Climate Change Conference (COP 21) in Paris has recently sparked global debate regarding climate change. Much of the focus of this discussion, and the yardstick by which the success of the Conference will to be judged, is the relative inaction of the United States and China in combating climate change.

It is this dissatisfaction which has given birth to a legal theory in the US, first developed by Mary Wood, of the University of Oregon Law School, called the  ‘Atmospheric Trust Litigation’ (ATL). The theory has given rise to a phenomenon both in the US and abroad, whereby cases are being brought with the aim of forcing the government to do more to mitigate climate change impact on future generations.

What is Atmospheric Trust Litigation?

Teenagers across the US, funded by various environmental action charities, are bringing ATL claims in the courts against government inaction that could have harmful consequences for them, and future generations. ATL theory is premised on three basic points:

  1. The public trust doctrine holds that certain resources are owned by and available to all citizens equally;
  2. The atmosphere is an asset in such a trust because of its importance for the stability of every natural system; and
  3. The government, as a trustee, has a restorative duty, which means not just preventing future damage, but also repairing past harms.

The concept of certain resources being available to all dates back to the ancient laws of the Roman Emperor Justinian, who said 1500 years ago that ‘the things which are naturally everybody's are: the air, flowing water, the sea, and the seashore.’ It is this idea that forms the basis of the well-established legal doctrine of public trust in the US law.

The difficulty lies in ascertaining whether the atmosphere is included in this doctrine, and thus whether the state is under a duty to protect it. Emperor Justinian thought the atmosphere to be naturally everybody’s long before the fragility of the atmosphere was known. There are difficulties, peculiar to the atmosphere, which potentially question the ability of ATL theory to force governmental action on climate change.

One key difficulty that has been encountered by the youth petitioners in ATL cases is that of legal standing. In the most recent case brought in Oregon, Juliana et al v United States et al, this issue is currently being considered by the court. The question in this case, and indeed in any ATL case, is whether the petitioners have or will suffer specific injuries than can be reasonably traced to the government’s actions affecting climate change, and whether the court is able to remedy those injuries.

This leads to another difficulty met by ATL petitioners, namely that of the courts’ jurisdiction to hear the claim. The atmosphere is not something naturally attributable to one nation; it transcends borders. The public trust doctrine has, however, been gradually expanded in recent years to include more and more. Indeed, the New Jersey Supreme Court has said in Matthews v Bay Head Improvement Association:

[We] perceive the public trust doctrine not to be “fixed or static”, but one to be molded and extended to meet changing conditions and needs of the public it was created to benefit 

Despite the public trust doctrine not being ‘fixed or static’, the status of the atmosphere as a natural resource that is covered by the public trust doctrine is uncertain. Last year, in an Oregon County Court, Judge Karsten Rasmussen ruled the atmosphere not to be a natural resource. The court quoted the Merriam-Webster definition of a ‘resource’ as ‘a natural feature or phenomenon that enhances the quality of human life.’ Given that life on Earth would not exist but for the balance of gases in our atmosphere, few people would suggest that the atmosphere is not a natural resource. Nonetheless, the judge ultimately ruled that because he believes the atmosphere is not irreplaceable and is not a ‘commodity’, the public trust doctrine cannot apply to it.

There has been success elsewhere in the US, however. In November 2015, King County Superior Court Judge Hollis R. Hill issued a groundbreaking ruling in an ATL case in Washington, where eight youth petitioners requested that the Washington Department of Ecology write a carbon emissions rule that protects the atmosphere for their generation and those to come.

Judge Hill declared, ‘[the youths’] very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming… before doing so becomes first too costly and then too late.’ Highlighting inextricable relationships between navigable waters and the atmosphere, and finding that separating the two is ‘nonsensical’, Judge Hill found the public trust doctrine creates a mandatory obligation on the state to act through its designated agency ‘to protect what it holds in trust’. The court confirmed the basic premise of ATL, namely that ‘[t]he state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people’.

Urgenda v The Netherlands

The decision in the Washington case came only months after the landmark case of Urgenda Foundation v The State of The Netherlands (Ministry of Infrastructure and The Environment), in which the Urgenda Foundation and 900 co-plaintiffs were victorious in forcing the Dutch government to adopt more stringent climate policies. The district court of The Hague granted the plaintiffs’ claims, forcing the government to take more effective climate action to reduce the Netherlands’ share in global greenhouse gas emissions. This was the first time that a judge has legally required a State to take precautions against climate change.

The Dutch government has since appealed the decision, however, with that appeal filed only weeks before the meeting of COP 21 in Paris. This shows a worrying lack of acceptance on behalf of the Netherlands government towards the urgency of the issue of climate change. Nonetheless, Marjan Minnesma, director of Urgenda and initiator of the original climate change case, has confidence in the outcome of the appeal.

Could ATL work in the UK?

The strong concept of separation of powers in the UK means that judicial activism of the kind seen in the Urgenda case is unlikely. There is evidence, however, of UK judges not accepting a position of deference to the UK government on environmental matters. The Supreme Court, for example, in R (Client Earth) v Secretary of State for Environment [2015], held that the UK government must submit air quality plans in line with the requirements of the Air Quality Directive 2008/50/EC.

That Directive required the UK government to submit air quality plans, detailing how it would comply with EU air quality standards by 1 January 2015. Where compliance would not be possible, the Directive requires the government to apply for a postponement. The government argued that it had not breached its obligations under the Directive by failing to submit air quality plans for some areas, which would not possibly comply with the standard within the specified time frame, or within the maximum postponement time. The government instead submitted plans under Article 13 of the Directive, stating that they would make every effort to ensure compliance by 2025.

Lord Carnwath, giving the judgment of the unanimous Supreme Court, said that there is no doubt as to the seriousness of the breach or the responsibility of the national court to secure compliance. He thus made an order that new plans must be delivered to the Commission by 31 December 2015.

ATL is unlikely to succeed in the UK, where emphasis is placed on the sovereignty of Parliament, and judicial activism is actively discouraged. Though the Client Earth judgment is encouraging, it certainly does not go as far as the Urgenda judgment, and is likely to prove far less revolutionary for environmental law and policy. The rise of ATL in other jurisdictions, however, may serve to indirectly impact global environmental policy.

There remain alternative courses of action in the UK, however. The Client Earth case is a judicial review case, and given the growing importance of climate change impacts, we may see more and more cases involving a judicial review of national, regional and local environmental policy. Of course, this is much easier to do when such policies fall short of European standards, as in Client Earth, so the likeliness of similar courses of action will depend largely on the outcome of the EU in/out referendum.

Barack Obama, in his 2015 State of the Union Address, said that ‘no challenge poses a greater threat to future generations than climate change’. Sustainable development and intergenerational equity are concepts of fundamental importance to the current generation, and they will continue to grow in importance for future generations. ATL goes some way to forcing the hand of governments to act on climate change, but it is clear that there is still a long way to go.

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Tagged: Environmental Law, Equity, European Union, Public Law

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