Public Trust Doctrine

Article: "Atmospheric Trust Litigation Across the World" by Mary Christina Wood

  • Atmospheric Trust Litigation (ATL) is "...a legal strategy ... that calls upon the judicial branches of governments world-wide to force carbon reduction on the basis of their fiduciary responsibility to protect the public trust. ... consistent with, and (giving) meaning to, the principles declared in the United Nations Framework Convention on Climate Change (UNFCCC) agreed to in 1992 by 192 nations representing 'near universal' international membership." (p 4)
  • "The legal foothold for ATL is the ancient public trust doctrine, which imposes a strict fiduciary obligation on government to protect natural resources in trust for the citizens." (p 7)
  • "The trust principle provides explicit protection (for) future beneficiaries." (p 12)
  • "As a legal doctrine, the public trust compels protection of those ecological assets necessary for public survival and community welfare." (p 13)
  • "The common thread in all public trust iterations is a public property right and corollary sovereign obligation." (p 16)
  • "In Australia, a country that has common law routes, one would expect the public trust to be a pillar of environmental jurisprudence. Instead, however, the idea of government trust obligation is just beginning to crystallize, perhaps because the nation finds itself still shackled by assumptions deriving from an oppressive colonial history that suppressed fiduciary expectations in governance." (p 20)
  • "... the UNFCCC, negotiated in 1992 and signed by most nations of the world, provides an umbrella legal framework for applying the public trust concept to climate change by calling upon nations to 'protect the climate system for the benefit of present and future generations of humankind'." (p 23 - 24)
  • "Within a sovereign property framework, all nations on earth are co-tenant trustees of the global atmosphere." (p 25)
  • "... global carbon reduction (to) ... return the atmosphere to equilibrium at 350 ppm ... (assume) a corresponding major effort to extract roughly 100 Gigatons of CO2 (GtC) from the atmosphere through reforestation and improved forestry and agricultural practices ..." (p 28)
  • "The trust framework presents two causes of action, available to different classes of parties, to enforce the atmospheric fiduciary obligation. The first is an action by citizen beneficiaries against their governmental trustees for failing to protect their natural trust ... The second is an action brought by one sovereign trustee against another for committing waste to common property." (p 30)
  • "Litigants must navigate potential barriers such as standing, sovereign immunity, pre-emption, political question doctrine, ripeness, jurisdiction, and intervention ... At its core, the unparalleled force of the public trust doctrine is its mandate to preserve resources for future generations." (p 31)
  • "... the essential legal starting point in atmospheric trust litigation is the fiduciary obligation to protect and prevent 'waste' to the asset." (p 31)
  • "Because so little atmospheric 'space' remains for further carbon pollution (that space having been largely consumed by industrialized countries) even the highest conceivable amounts of reduction by an industrialized country (most notably, the US) will not fully compensate for its total contribution to the pollution." (p 32)
  • "At least five factors inform a judicially-imposed carbon reduction path ... The first factor is the country's global share of carbon emissions ... The second factor is historical emissions ... A third factor is the countries' [sic] 'per capita emissions' ... A fourth factor ... is directly relevant to the waste doctrine ... The fifth factor is the recalcitrance of the sovereign in taking responsibility for its carbon pollution ...
    By way of summary, in order to save the planet, judicial decisions world-wide must set the various nations on a course of aggregate carbon reduction that meets the planetary prescription set by climate scientists." (p 33 - 36 emphasis in original)
  • "The broad realm of environmental and land use litigation provides precedent for many measures ... (including) for example, injunctions prohibiting new coal-fired plants, large-scale logging, recreational vehicle use on public lands, airport expansions, sewer hook-ups (and) issuance of air pollution permits ..." (p 43)
  • "It is a settled principle of trust law that trustees have the affirmative duty to recoup monetary damages against third parties that destroy trust assets. These funds, gained from the private fossil-fuel industry polluters, could substantially help finance the zero-carbon economic transition in the developing world." (p 44)
  • "... an ATL suit is not just aimed at reducing existing pollution levels in the industrialized nations, but it is also aimed at thwarting investment decisions that would send future pollution rates soaring in the developing world. ... for nations with significant deforestation pressures, the ATL suits are crucial to enjoin further logging." (p 44 - 45)
  • ATL "suits and petitions (have) declared a sovereign atmospheric trust duty and called upon government to produce carbon accountings and plans for annual emissions reductions of at least six percent (as well as to embark on reforestation and improved soil practices to achieve carbon drawdown from the atmosphere)." (p 47 - 48)

Forests

Guardian Article Reference:

Jim Robbins, 'We must act now to protect our life-savers', The Guardian Weekly (London), 12 July 2013, 20. (awaiting publishing approval)

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