Written By Mary Christina Wood & Daniel M Galpern
Originally Published in Environmental Law Review (Journal of Lewis & Clark School of Law) (2015)
At its core, the public trust principle encompasses the reserved and inalienable rights of citizens to a healthy environment. The principle imposes a sovereign duty on government to protect crucial natural resources for the benefit of present and future generations of citizens. The climate system and atmosphere support all life on Earth, yet governments worldwide continue to allow carbon dioxide pollution that propels climate disruption. Scientists have made clear that such pollution imperils the habitability of Earth and jeopardizes the stability of human civilization, yet governments do vanishingly little to force major carbon polluters to change their ways. Irreversible tipping points loom dangerously ahead. The public trust commands governments to protect a viable climate system and authorizes citizens to turn to the courts when government fails.
Leading scientists have developed a climate stabilization strategy consisting of two parts: 1) aggressive emissions reduction, and 2) natural removal of carbon dioxide from the atmosphere. Global public trust litigation called Atmospheric Trust Litigation is underway to force governments to lower carbon emissions within their jurisdictions. Spearheaded by the organization Our Children’s Trust, Atmospheric Trust Litigation seeks judicial remedies in domestic courts requiring governments to develop and implement climate recovery plans that accomplish necessary emissions reduction.
This Article focuses on the second part of the climate stabilization strategy, which calls for the drawdown of atmospheric carbon dioxide through natural methods. Projects aimed toward reforestation, soil sequestration, mangrove restoration, and regenerative grazing can be planned in targeted areas throughout the world to achieve the necessary drawdown, but such projects require significant funding. Invoking the public trust principle, this Article proposes a legal strategy of Atmospheric Recovery Litigation to hold the major fossil fuel corporations liable for funding such natural sequestration. Public trust law traditionally holds polluters liable for natural resource damages to public trust assets. Sovereign trustees are obligated to seek recovery of such damages and apply them toward restoration of the asset. While ecosystem recovery on a global scale is unprecedented, the underlying legal principles and approach bear striking similarity to those traditionally applied to discrete resources. With respect to both parts of the climate stabilization strategy, domestic courts in nations throughout the world may prove indispensable to forcing effective action before it is too late.