October 01, 2017

Save Yourselves, Kids: The Atmospheric Trust Litigation

David S. Rubinton

“I stepped right in the middle of climate change.” Juliana v. United States, 217 F. Supp. 3d 1224, 1243 (D. Or. Nov. 10, 2016). That’s how Jayden, 13, described the morning of August 13, 2016. She stepped out of her bed into water coming up to her ankles. For weeks, heavy rains and flooding assaulted her town of Rayne, Louisiana. Rayne’s sewer system flooded, which caused a stream of sewage and water to run through her house. For weeks, Jayden and her siblings were forced to stay in their house without clean water or the ability to get fresh food as 25 percent of the town was flooded. Not surprisingly, Jayden, her family, and most of the people in the town became sick with flu-like conditions and her house sustained substantial damage.

This flood was called a “1,000-year” event notwithstanding that there had been at least eight “500-year” floods in the area over the prior two years. “My home is not supposed to be in a floodplain, but it just flooded.” Decl. of Jayden F. in support of Plfs.’ Opp’n. to Defs.’ Motions to Dismiss, Doc. 78 filed Sept. 7, 2016 (Case 6:15-cv-01517-TC).

Citing a recent study by the National Oceanic and Atmospheric Administration (NOAA), Jayden adds: “Climate change is real. These floods and how frequently and severely they are happening would not occur without global warming.” Id. at 8 (citing http://research.noaa.gov/News/NewsArchive/LatestNews/TabId/684/ArtMID/1768/ArticleID/11868/Climate-change-increased-chances-of-record-rains-in-Louisiana-by-at-least-40-percent.aspx, Sept. 7, 2016) (Case 6:15-cv-01517-TC).

Jayden is 1 of 21 people—children between the ages of 8 and 19, together with Climate Scientist Dr. James Hanson, acting as guardian for “future generations”—who, as plaintiffs in the Juliana case, have sued the federal government for violating its obligation to hold certain natural resources in trust for the people and for future generations. The harms alleged range from the inability to maintain traditional diets, exacerbation of asthma, threats to the viability of family farms, and the inability to engage in outdoor activities. The plaintiffs named the president and a number of federal agencies as defendants, including the Environmental Protection Agency; the Departments of Agriculture, Commerce, Defense, Energy, Interior, State, and Transportation; the Council on Environmental Quality; the Office of Management and Budget; and the Office of Science and Technology Policy. The children maintain that the defendants have known for more than 50 years that carbon dioxide (CO2) produced by burning fossil fuels has destabilized the climate system in ways that “significantly endanger” them “with the damage persisting for millennia.” First. Am. Compl. ¶ 1.

Born out of a sense that the current environmental law regime cannot succeed in preventing the impending climate crisis, the Juliana case is part of a global campaign launched in 2011, known as the Atmospheric Trust Litigation (ATL). Through ATL, citizens assert what they maintain are their fundamental rights as a basis for climate action.

The Juliana case invokes a new approach, using an ancient principle, to address climate change—the public trust doctrine. The idea of a public trust is that it is the government’s obligation to protect, preserve, and regulate the assets that belong to all of us together, both now and into the future. The Roman Institutes of Justinian, a sixth-century recodification of even more ancient law, provides that “[by] the law of nature, these things are common to all mankind—the air, running water, the sea, and consequently the shores of the sea.” Thomas Sandars, The Institutes of Justinian 73 (4th ed. 1867) translating the Institutes Proemium, § 4, 5, 6.

In a seminal article, noted professor of environmental law Joseph Sax wrote:

Of all the concepts known to American Law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems. If that doctrine is to provide a satisfactory tool, it must meet three criteria. It must contain some concept of a legal right in the general public; it must be enforceable against the government; and it must be capable of an interpretation consistent with contemporary concerns for environmental quality.

Joseph L. Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 474 (1970) (footnotes omitted).

The decision of the United States Supreme Court in Illinois Central Railroad Company v. Illinois, 149 U.S. 387 (1892), is key to understanding the use of the public trust doctrine in the modern era. In Illinois Central, the Court struck down a fee simple grant by the Illinois legislature of submerged lands underlying Lake Michigan (virtually the entire commercial waterfront of Chicago at the time) to the Illinois Central Railroad. The Court found that the title under which Illinois held the navigable waters of Lake Michigan is held in trust for the peoples of the state to use and enjoy free from the obstruction or interferences of private parties. Id. at 452. As Professor Sax has explained:

When the state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the self-interest of private parties.

Sax, supra, at 490 (emphasis in original). Professor Sax also noted that “certain interests are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than of serfs.” Id. at 484 (citing Martin v. Waddell, 41 U.S. 367, 414 (1842)).

While the public trust doctrine provides a basis for protecting natural resources for current and future generations, “air” has not historically been thought of as a natural resource, particularly in the public trust context. However, as “air” is specifically referenced in the original language of the Institutes of Justinian, J. Inst., 2.1.1. (T. Sandars trans., 4th ed. 1867), it is likely that the lack of jurisprudence concerning the inclusion of a public trust in air resources is more a function of the fact that until modern times it was inconceivable that clean air had been placed in any kind of jeopardy by human activities, as opposed to it being a natural resource that was not meant to be included in the bundle of natural resources to be held in trust. The Supreme Court decision in Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907), supports this understanding. In Tennessee Copper, the State of Georgia sued copper companies for transboundary air pollution. In finding for the State, the Court affirmed a public property interest in air: “the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain.” Id. at 237.

The ATL plaintiffs hope to use the public trust doctrine to decarbonize the atmosphere and achieve a more balanced and sustainable ecosystem. Credit for originating the ATL approach to climate crisis can be attributed to Professor Mary Christina Wood, Faculty Director of the Environmental and Natural Resources Law Center, University of Oregon School of Law. As Professor Wood has written:

[The] climate crisis demands broad system-changing solutions. ATL presents a macro-scope litigation approach to climate crisis focused on the atmosphere as a single asset in its entirety. It characterizes all nations on Earth as co-tenant sovereign trustees of that atmosphere, bound together in a property-based framework of corollary and mutual responsibilities. As trustees, all nations owe a primary fiduciary obligation toward their citizen beneficiaries to restore atmospheric health. In addition, as nations joined in co-tenancy, each has a duty to the others to prevent waste of the common asset. ATL seeks to accomplish through decentralized domestic litigation, in countries across the globe, what has thus far eluded the international diplomatic treaty-making process: concrete requirements for emissions reduction.

Mary Christina Wood, Nature’s Trust: Environmental Law for a New Ecological Age 221 (2013). See also Michael C. Blumm and Mary Christina Wood, “No Ordinary Lawsuit”: Climate Change, Due Process, and the Public Trust Doctrine, 67 Am. U.L. Rev. 1 (2017).

Of the lawsuits and regulatory efforts undertaken throughout the United States, the Juliana case may be the most promising, if only because of the plaintiffs’ ability to withstand the defendants’ and fossil fuel intervenors’ efforts to have the matter dismissed. Lead counsel Julia Olson has said, “[T]his lawsuit asks whether our government has a constitutional responsibility to leave a viable climate system for future generations?” Press Release, Our Children’s Trust (Aug. 12, 2015) (on file with author). So far, the Juliana court has found that the children at least have standing to raise the question.

The Juliana plaintiffs allege that, for over 50 years,

[b]y their exercise of sovereign authority over our country’s atmosphere and fossil fuel resources . . . defendants permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, and so, by and through their aggregate actions and omissions . . . deliberately allow[ing] atmospheric CO2 concentrations to escalate to levels unprecedented in human history, resulting in a dangerous destabilizing climate system for our country and . . . Plaintiffs.”

First Am. Compl. ¶ 5.

The plaintiffs argue that “[t]hrough its policies and practices, the Federal Government bears a higher degree of responsibility than any other individual, entity, or country for exposing Plaintiffs to the present dangerous atmospheric CO2 concentration.” First Am. Compl. ¶ 7. In so doing, the plaintiffs maintain that defendants’ actions violated their substantive due process rights to life, liberty, and property and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations and seek a declaration that their rights have been violated as well as injunctive relief to require a plan to reduce CO2 emissions so as to stabilize the climate system, “before it is too late.” First Am. Compl. ¶12.

The defendants moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. The National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute intervened in support of the federal defendants and moved to dismiss on the same grounds.

On November 10, 2016, Judge Aiken denied the motions to dismiss, deciding that the Juliana children have standing to attempt to prove their claim that the federal government has an affirmative obligation to address climate change. While the case is in the early stages and the new administration can be described as reluctant, if not openly hostile, to the concept of addressing or even acknowledging climate change, no one will dispute Judge Aiken’s statement that “[t]his is no ordinary lawsuit.” 217 F. Supp. 3d at 1234. To further set the stage, Judge Aiken made clear that “[t]his lawsuit is not about proving that climate change is happening nor that human activity is driving it. For purposes of this motion, these facts are undisputed.” Id. Judge Aiken pointed to statements by the defendants, then-President Barack Obama, as well as the effective silence of industry intervenors to the question at oral argument, to support this conclusion.

Judge Aiken set forth the issues as follows: “The questions before the Court are whether defendants are responsible for some of the harm caused by climate change, whether plaintiffs may challenge defendants’ climate change policy in court, and whether this Court can direct defendants to change the policy without running afoul of the separation of powers doctrine.” Id.

The Political Question Issue

Judge Aiken first addressed the issue of whether the plaintiffs’ claim that the federal defendants violated the children’s constitutional rights was properly raised in court or whether it is a political question over which federal courts lack subject-matter jurisdiction due to the separation of powers doctrine. Noting that the plaintiffs seek injunctive relief in the form of a court-supervised plan to draw down and decarbonize the atmosphere, and not damages for themselves, the judge analyzed the six criteria set out in Baker v. Carr, 369 U.S. 186, 210 (1962), to determine whether the plaintiffs raised a political question. Finding none of the Baker factors inextricable from the merits of the case, Judge Aiken determined that the political question doctrine is not a barrier to the children’s claims. “At its heart, this lawsuit asks this Court to determine whether Defendant’s have violated Plaintiff’s constitutional rights” and “[t]hat question is squarely within the purview of the judiciary.” 217 F. Supp. 3d at 1241.

The Issue of Standing

Judge Aiken then moved on to a traditional standing analysis to determine whether the children’s allegations were sufficient to establish standing. The judge was clearly moved by the children’s allegations that algae blooms were harming one’s drinking water; that low water levels caused by drought killed the salmon that one eats; and that increased wildfires and extreme flooding had jeopardized another’s safety. Id. at 1242–43. While noting that, at the motion to dismiss stage, “general allegations” suffice, Judge Aiken ruled that by alleging injuries that are concrete, particularized, and actual or imminent, plaintiffs satisfied the injury in fact prong of the standing requirement. Id. at 1244.

For the causation prong of the standing requirement, the plaintiffs allege both that affirmative actions by defendants and failures to act in areas where they have the authority to do so satisfied standing. Judge Aiken summarized the affirmative act argument as:

[F]ossil fuel combustion accounts for the lion’s share of greenhouse gas emissions produced in the United States; defendants have the power to increase or decrease those emissions; and, defendants use that power to engage in a variety of activities that actively cause and promote higher levels of fossil fuel combustion.

Id. at 1246. Likewise, Judge Aiken summarized the plaintiffs’ causation theory regarding the defendants’ failure to act in areas in which they have the authority to do so as: “DOT and EPA have jurisdiction over sectors producing sixty-four percent of United States emissions, which in turn constitute roughly fourteen percent of emissions worldwide; they allow high emission levels by failing to set demanding standards; high emission levels cause climate change; and climate change causes plaintiffs’ injuries.” Id. In finding that the plaintiffs had adequately alleged a causal link between defendants’ conduct and the asserted injuries, Judge Aiken noted that “[e]ach link in these causal chains may be difficult to prove, but the ‘spectre of difficulty down the road does not inform [the] justiciability determination at this early stage of the proceedings.’” Id., quoting Alperin v. Vatican Bank, 410 F.3d 532, 539 (9th Cir. 2005).

As for the redressability prong of the standing analysis, Judge Aiken found that the declaratory and injunctive relief requested meets this standard. The plaintiffs ask the court to order defendants to

cease their permitting, authorizing, and subsidizing of fossil fuels and, instead, move to swiftly phase out CO2 emissions, as well as take other actions necessary to ensure that atmospheric CO2 is no more concentrated than 350 ppm by 2100, including to develop a national plan to restore Earth’s energy balance, and implement that national plan so as to stabilize the climate system.

217 F. Supp. 3d at 1247–48, quoting First Am. Cmpl. ¶ 12. As such, Judge Aiken found that the plaintiffs had adequately alleged standing to sue.

The Due Process Issues

Next, Judge Aiken reviewed the due process claims. The Fifth Amendment to the U.S. Constitution provides that: “No person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The plaintiffs allege that the defendants violated their due process rights by

directly caus[ing] atmospheric CO2 to rise to levels that dangerously interfere with a stable climate system . . . knowing[ly] endanger[ing] Plaintiffs’ health and welfare by approving and promoting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion . . . [and] [a]fter knowingly creating this situation . . . continu[ing] to knowingly enhance that danger by allowing fossil fuel production, consumption and combustion at dangerous levels.

217 F. Supp. 3d at 1248, quoting First Am. Cmpl. ¶¶ 279, 280, and 284.

The defendants and industry intervenors challenge the plaintiff’s claims on the grounds that (1) the plaintiffs failed to identify infringement of a fundamental right or discrimination against a suspect class of persons and (2) the defendants’ inactions cannot be challenged by the plaintiffs because the defendants have no affirmative duty to protect the plaintiffs from climate change. 217 F. Supp. 3d at 1248.

In finding that the plaintiffs adequately alleged the infringement of a fundamental right, Judge Aiken opined, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” Id. at 1250. Further, and contrary to the defendants’ and intervenors’ contention that the plaintiffs are asserting a right to be free from any pollution or any climate change, plaintiffs assert that “the government has caused pollution and climate change on a catastrophic level, and that if the government’s actions continue unchecked, they will permanently and irreversibly damage plaintiffs’ property . . . their health and ultimately their (and their children’s) ability to live long, healthy lives.” Id. The judge concluded:

Where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, results in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breath or the water its citizens drink.

Id. No ordinary lawsuit indeed.

The plaintiffs assert that, in the context of the climate crisis, the due process clause imposes on the government an affirmative duty to act to protect life, liberty, and property interests. Specifically, the plaintiffs argue that when government action has placed persons in peril in deliberate indifference to their safety, the so-called “danger creation” exception overrides the general rule that the due process clause does not impose affirmative governmental obligations. Id. at 1250–51 (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989), and L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992)). The court explained that to prevail on such a claim, a plaintiff must establish that “(1) the government’s acts created danger to the plaintiff; (2) the government knew its acts caused that danger; and (3) the government with deliberate indifference failed to act to prevent the alleged harm.” 217 F. Supp. 3d at 1251. While acknowledging the difficulty of proving such a claim, the court found the plaintiffs’ allegations sufficient to withstand a motion to dismiss.

At the motion to dismiss stage, Judge Aiken also held that the plaintiffs may assert their public trust claims in federal court as they rest directly on the due process clause of the Fifth Amendment. 217 F. Supp. 3d at 1261 (citing Davis v. Passman, 442 U.S. 228, 243 (1979)). Judge Aiken then quoted the Supreme Court for the proposition that “[T]he victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980).

Juliana’s Impact

Whether the “trial of the century” or an incomplete Hail Mary pass, Juliana does raise the novel theory of children being able to sue the government to better preserve our shared natural resources for the benefit of their own, and future, generations. Further, Juliana is one of several similar suits moving forward around the world. For example, nine-year old Ridhima Pandey recently filed a petition with India’s environmental court, the National Green Tribunal, to “take effective science-based action to reduce and minimize the adverse impacts of climate change.” Applicant’s Petition at 2, Pandey v. Union of India, National Green Tribunal (2017). As these cases raise issues at the outer bounds of traditional jurisprudence, they have an uncertain future in the courts. However, by advancing the cases and putting governments on the defensive over their actions, their supporters hope to at least change perceptions regarding governments’ obligations to address the climate crisis. With Juliana scheduled to go to trial in February, soon we will begin to see if this is so.

David S. Rubinton

Mr. Rubinton is senior attorney with the New York State Department of Environmental Conservation in Stony Brook, New York. He may be reached at davidrubinton@yahoo.com.