There is such a thing as being too late.” This famous admonition from Martin Luther King, Jr. is especially applicable given our planet’s worsening state. As per the 2023 Annual Climate Report published by the National Oceanic and Atmospheric Administration, since 1850, global temperatures have risen about 2°F, with the rate tripling since 1982 to 0.36°F per decade. Moreover, the constant failure of government leaders to even acknowledge that climate change is a growing issue actively harming present and future generations, as well as the lack of adequate responses emerging from international climate negotiations concerning climate disruption, presents an increasingly unsettling backdrop against the constant urges from the scientific community urging strong, prompt action. It is under this very backdrop that a macro litigation campaign known as Atmospheric Trust Litigation has found its origins. This piece intends to look into the workings of Atmospheric Trust Litigations, what it entails, and how it has developed thus far.
Atmospheric trust litigation
Atmospheric Trust Litigation (ATL) is a global campaign launched in 2011 with the aim to deliver a legal structure directed towards imposing immediate reduction in emissions around the world. It comprises of three stages: first, courts must recognise their key role in protecting plaintiffs’ rights; second, they must issue guiding principles for government officials; and third, they must monitor remedies to ensure practical enforcement of plaintiffs’ rights. The very approach utilised by Atmospheric Trust Litigation acknowledges that although there exists no cure-all to a climate negotiation deadlock, domestic courts have the weight to command the various political branches to take prompt and decisive action in response to the climate issue.
Legal inception
Legal procedures based on ATL were initiated in the first week of May 2011 by the non-profit organisation Our Children’s Trust in every state in the U.S. The Public Trust Doctrine was cited in all legal processes, declaring a uniform sovereign trust obligation to protect the atmosphere crucial for the long-term survival of the youth and future generations. The Public Trust Doctrine mandates that the government protect essential natural resources in trust for the benefit of the general public, present, and future generations. ATL is an extension of this doctrine asserting that the atmosphere is part of the class of resources coming under the purview of the doctrine, and such an extension has been established in cases such as that of Juliana v. U.S.
All petitions and lawsuits demanded Climate Recovery Plans from government trustees be implemented to decrease carbon emissions and that the same be formulated at the rate so required by the scientific prescription recommended by the Hansen team of scientists or the best available science. ATL differs from prior climate litigations brought under statutory law by presenting for the first time a worldwide methodology by placing its focus upon the atmosphere as a single asset of public trust in toto. This approach puts forth the idea that all nations of Earth are sovereign co-trustees of the atmosphere bound together by collective responsibilities to reinstate the atmospheric energy balance and climate system.
Domestic and international legal efforts
In the initial stages, environmental agencies denied the petitions for rulemaking in nearly every state, and appeals were filed only in a few select state courts, out of which two outright declined to broaden the ambit of public trust doctrine to the atmosphere, while others dismissed on cases procedural grounds. Meanwhile, in the international arena, Our Children’s Trust partnered with attorneys to file cases in Uganda, Ukraine, and Pakistan, while the organisation also worked with attorneys on citizen actions in the Netherlands, India, Canada, France, England, Norway, and Belgium.
Noteworthy cases
ATL cases were backed by more than a dozen renowned scientists and law professors who submitted amicus briefs for the same. In September 2015, a group of 21 youths from all across the United States initiated a federal lawsuit against several agencies in the Obama administration that were to be held accountable for the U.S. fossil fuel process. This case of Juliana v. U.S argued that the federal government had been infringing the constitutional rights of younger generations and failed to protect essential natural resources held in public trust by actively promoting the development of fossil fuels. The plaintiffs, in this case, achieved a judgment in their favour when Magistrate Judge Thomas Coffin, on April 8, 2016, stated: “Given the allegations of direct or threatened direct harm, albeit shared by most of the population or future population, the court should be loath to decline standing to persons suffering an alleged concrete injury of a constitutional magnitude. In late 2023, the case appeared to be moving toward trial, succeeding U.S. District Court Judge Ann Aiken’s ruling favouring the youth plaintiffs. However, in early 2024, the Department of Justice under the Biden administration filed another motion to further delay the case. Despite Judge Aiken’s support for the plaintiffs, the Ninth Circuit Court granted the DOJ’s petition, curbing further progress on the case. Despite additional filings by the youth plaintiffs and an outpour of support from congressmen and climate experts, the Ninth Circuit denied their requests for rehearing and reconsideration en banc on July 12, 2024.
Foster v. Washington Department of Ecology was yet another groundbreaking ATL case wherein the court recognised climate change as an urgent threat and declared the atmosphere a public trust asset, obligating the state to protect it based on constitutional rights.
Future prospects
The threat posed by Climate change is not one that will resolve itself overnight. It is our ignorance that has led to the contamination of our ecosystem and in turn ourselves. Atmospheric Trust Litigations are one significant way in which the Judiciary can help combat the poison that we have contributed to. Jurists may just save Earth by upholding youth rights before climate tipping points occur. The above-mentioned cases set a strong precedent for the success of such litigations and inspire hope that in time, we can provide our future generations with a healthier atmosphere.
Author: Devika Pradeepan, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
References
- National Centers for Environmental Information, Annual 2023 Global Climate Report, available at https://www.ncei.noaa.gov/access/monitoring/monthly-report/global/202313.
- Matthew Brown (2011), Climate Activists Target States With Lawsuits; Atmosphere As a ‘Public Trust’, available at http://www.cnsnews.com/news/article/climate activists-target-states-lawsuits-atmosphere-public-trust.
- Geer v. Connecticut, 161 U.S. 519, 525–29 (1896).
- Juliana v. United States, No. 6:15-CV-01517-TC, 2016 WL 6661146 (D. Or. Nov. 10, 2016).
- MARY CHRISTINA WOOD, NATURE’S TRUST: ENVIRONMENTAL LAW FOR A NEW ECOLOGICAL AGE [221] (2013).
- Our Children’s Trust (2013), Kansas, available at https://www.ourchildrenstrust.org/kansas.
- Our Children’s Trust (2016), Global Legal Actions, available at https://www.ourchildrenstrust.org/global-legal-actions.
- James Conca (2016), Federal Court Rules on Climate Change In Favor of Today’s Children, available at http://www. forbes.com/sites/jamesconca/2016/04/10/federal-court-rules-on-climate-change-in-favor of-todays-children/#273936b06219.
- Our Children’s Trust, Juliana v. United States (2024), available at https://www.ourchildrenstrust.org/juliana-v-us.
- Foster v. Wash. Dep’t of Ecology, No. 75374-6-I (Wash. Ct. App. Sep. 5, 2017).