LEGAL ACTION FOR THE CLIMATE GOAL: TOWARDS EQUITY, SURVIVAL AND THE RULE OF LAW
“PRESIDENT TRUMP MAY HAVE HIS ALTERNATIVE FACTS,
BUT ALTERNATIVE FACTS DO NOT WORK IN A COURTROOM”
'The first duty of government is the protection of life, not its destruction. Abandon that, and you have abandoned all.'
Marie Miracle Andris
Challenging your government's actions on climate change
Exercising my "reasoned judgment," ... I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the "foundation of the family," a stable climate system is quite literally the foundation "of society, without which there would be neither civilization nor progress."
Judge Anne Aiken, November 2016
In the words of Thomas Jefferson:
The first duty of government is the protection of life, not its destruction. Abandon that, and you have abandoned all.
If governments fail to take appropriate action against climate change they are failing in this first duty, and may be legally accountable to their citizens.
Governments, public authorities and the rule of law
The UN General Assembly has issued a 'Declaration on the Rule of Law at the National and International Levels' which states:
We ... recognize that all persons, institutions and entities, public and private, including the State itself, are accountable to just, fair and equitable laws.
In the US, the Supreme Court confirmed the principle of the rule of law in the case of Marbury v Madison (1803) as follows:
The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.
Governments and public authorities must act within the law, and, if they fail to do so, may be challenged through the courts.
It is the first responsibility of governments to safeguard the welfare of their citizens, including by taking reasonable measures to mitigate substantial threats. Climate change is a grave threat to people around the world, jeopardising health, security and prosperity. If governments fail to take reasonable and rational measures to safeguard against it, or take actions which increase the threat, they may be called to account through the judicial process.
In the last year individuals and citizen platforms have successfully challenged government actions in the US, the Netherlands and Pakistan; and commenced similar claims in Belgium and New Zealand.
The scope of judicial review
Judicial review is the process through which the courts review the legality of public authority actions and, in some jurisdictions, of primary legislation.
In most jurisdictions the courts can review:
Many jurisdictions (including the US) allow judicial review of primary legislation, on the basis the legislation contravenes constitutional rights. Even in jurisdictions which assert 'the sovereignty of Parliament' (such as the UK) primary legislation may be challenged on the basis of inconsistency with the constitution or with fundamental human rights (under the UK's Human Rights Act 1998, for example, a court may issue a 'declaration of incompatibility' between a protected right and another Act of Parliament).
Substantive and / or procedural challenges
Judicial review may be brought on the basis that the decision of a public authority is substantively or procedurally flawed (or both).
A substantive challenge asserts that a particular decision or policy is illegal per se, e.g.:
A decision or policy may also be challenged on the basis of procedural irregularity, e.g.:
Duty of care / positive human rights obligations
It is the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens. This principle may be given legal effect in different ways in different jurisdictions. In general terms, however, where there is a foreseeable risk of substantial harm, a government will be under a duty of care to take reasonable steps to safeguard its citizens against that harm, and failing to take such steps will constitute a breach of that duty.
Governments and public authorities must also act in accordance with fundamental human rights. The Preamble to the Paris Agreement affirms this principle to the context of climate change:
Parties should, when taking action to address climate change, respect, promote and consider their ... obligations on human rights ...
Not only must governments avoid infringing human rights (such as the right to life or the right to family life), in certain circumstances they must take positive steps to safeguard those rights (i.e. even when the rights are threatened by other (private) persons or activities that are not directly connected with the State).
Many people are dying already from climate change and air pollution. If governments fail to take reasonable, proportionate action to tackle climate change they are also failing to take reasonable steps to uphold the right to life.
The public trust doctrine
The public trust doctrine defines inherent aspects of sovereignty. The Social Contract theory, which heavily influenced Thomas Jefferson and other US Founding Fathers, provides that people possess certain inalienable rights and that governments were established by consent of the governed or the purpose of securing those rights. Accordingly, the US Declaration of Independence and the Constitution did not create the rights to life, liberty, or the pursuit of happiness - the documents are, instead, vehicles for protecting and promoting those already-existing rights.
In its broadest sense, the term "public trust" refers to the fundamental understanding that no government can legitimately abdicate its core sovereign powers. See Stone v. Mississippi, 101 U.S. 814, 820 (1879) ("[T]he power of governing is a trust committed by the people to the government, no part of which can be granted away.")
The doctrine asserts that the sovereign or government holds certain natural resources in trust for the public. With respect to these core resources, the sovereign's public trust
obligations prevent it from "depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens."
Application of the public trust doctrine to natural resources predates the United States of America. Its roots are in the Institutes of Justinian, part of the Corpus Juris Civilis, the body of Roman law that is the "foundation for modern civil law systems." Timothy G. Kearley, Justice Fred Blume and the Translation of Justinian's Code, 99 Law Libr. J. 525, if 1 (2007). The Institutes of Justinian declared:
"the following things are by natural law common to all - the air, running water, the sea, and consequently the seashore."
J. Inst. 2.1.1 (J.B. Moyle trans.). The doctrine made its way to the
United States through the English common law. In Britain, this principle was reflected in the Magna Carta; in the US, the Supreme Court upheld it in the case of llinois Central Railroad Company v. Illinois, 146 U.S. 387 (1892) (the court annulling the purported transfer of a large part of Chicago Harbour to the Illinois Central Railroad Company):
"The state can no more abdicate its trust over property
in which the whole people are interested, like navigable waters and soils under them ... than it can abdicate its police powers in the administration of government and the preservation of the peace."
The natural resources trust operates according to basic trust principles, which impose upon the trustee a fiduciary duty to "protect the trust property against damage or destruction." George G.Bogett et al., Bogert's Trusts and Ttustees, § 582 (2016). The trustee owes this duty equally to both current and future beneficiaries of the trust.
The government, as trustee, has a fiduciaty duty to protect the
trust assets from damage so that current and future trust beneficiaries will be able to enjoy the benefits of the trust. Id. The public trust doctrine is generally thought to impose three types of
restrictions on governmental authority:
The public trust doctrine may be invoked to require governments to safeguard the climate generally, and to prevent damaging levels of air and ocean pollution.
Relevance of treaty / international law obligations
States have assumed commitments under the UNFCCC process, including a commitment to limiting warming to 1.5 or 'well below' 2 degrees Celsius. International law generally creates obligations only between states, but where obligations 'connect one and all' (are erga omnes) they may apply more widely (see e.g. Article 93 of the Dutch Constitution). The obligation to prevent climate change may be considered an obligation which 'connects one and all'.
In any event, it may be assumed that states wish to respect their international law obligations. This means that when applying and interpreting national-law standards and concepts, including reasonableness, the general interest or other legal principles, courts should take account of such international-law obligations. Thus international law obligations have a 'reflex effect' in national law.
Challenging your government's GHG emission reduction plans
Governments have agreed that warming must be limited to between 1.5 and 'well below' 2 degrees Celsius. No government is likely to contend that warming can safely exceed 2 degrees Celsius.
Accepting that governments are under an obligation to take reasonable steps to protect their citizens from climate change, that obligation may be further particularised as follows:
Governments are under an obligation to their citizens to take reasonable steps to keep global warming to 1.5 degrees Celsius, or at least to 'well below' 2 degrees Celsius.
Given that it is the aggregate effect of emissions from all countries which determine future warming, there is some complexity to determining what 'reasonable steps' entails for any one country. There is grave danger, however, in an approach which reasons 'because everyone is responsible no-one is responsible', and, as evidenced by the Dutch Court in the Urgenda case, courts will identify principles for determining an equitable share of the collective responsibility.
In Urgenda the court focussed on the conclusion from the 4th Assessment Report of the IPCC, that greenhouse gas concentrations would need to stabilise at 450 parts per million (ppm) for a 50% chance of limiting warming to 2 degrees Celsius (a fact not disputed by the Parties), stating that (at 4.83):
Now that at least the 450 scenario is required to prevent hazardous climate change, the Netherlands must take reduction measures in support of this scenario.
The court referred to an IPCC assessment that to achieve such a stabilisation 'Annex 1 countries' (which include the Netherlands) would need to cut their emissions by 25-40% by 2020, compared to 1990. Since the policy of the Dutch government, at the time of the action, left it on course for reductions of a maximum of 17% by 2020, the court ruled it inadequate, and ordered it to ensure its emissions were reduced by at least 25% by 2020 (i.e. compared to the baseline of 1990).
The analysis might be simplified if the court proceeded as follows:
i) identify the global 'carbon budget' consistent with the temperature goal (IPCC AR5 suggests 1000 Gigatonnes of CO2, as from 2010 for a > 66% chance of limiting warming to 2 degrees Celsius);
(ii) identify the country's fair share of that budget;
(iii) plot a rational distribution of that budget over time.
Standing to bring claims / costs
In general terms, the test for whether a party has 'standing' (or locus) to bring a legal claim is whether they have a 'sufficient interest' in the subject of the action, i.e. whether they are specifically affected by the illegality they allege.
Everyone has an interest in a safe climate. There is a danger that this distribution of interest leads to the 'tragedy of the commons', i.e. where a common resource is shared, no one person has sufficient responsibility, motivation and resource to look after it and to compete with the vested interests that threaten it. This may be particularly so in countries which lack the resources to support effective enforcement organisations.
The danger has long been recognised in connection with environmental protection more generally, and international law encourages 'access to environmental justice'.
The Rio Declaration, Principle 10, for example states that:
Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
The Aarhus Convention 1998 requires parties to adopt a broad approach to standing in environmental cases, Article 9(2) stating that 'sufficient interest' should be determined:
... consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention.
The Convention also provides that NGOs, promoting environmental protection, and meeting national la requirements, shall be deemed to have 'sufficient interest' and 'rights capable of being impaired.'
Article 9(4) on the Convention requires that procedures should be:
fair, equitable, timely and not prohibitively expensive.
Further to the Convention, countries may introduce costs protection for citizens or organisations bringing judicial reviews in the public interest. In the UK, for example, the Court may order a 'protective costs order' where:
See: R (Corner House Research) v Secretary of State for Trade and Industry  EWCA Civ 192. Corner House is an anti-corruption NGO who were initially refused a protective costs order for a judicial review they were bringing against the Export Credits Guarantee Department. The Court of Appeal reversed that decision explaining that if they had not granted the PCO:
…issues of public importance that arose in the case would have been stifled at the outset, and the courts would have been powerless to grant this small company the relief that it sought.
26 December 2016: Major flooding in UK now likely every year, warns lead climate adviser (The Guardian)
8 November 2016: Europe at Risk of Missing 2030 Climate Goal, Researchers Say
18 October 2016: Norway faces climate lawsuit over Arctic oil exploration plans
September 2016: Challenge to Swedish Government's sale of Vattenfall
Understanding Human Rights and Climate Change, Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change
Urgenda Foundation v. Kingdom of the Netherlands, District Court of the Hague  HAZA c/09/00456689: 4.20. In AR4/2007, the IPCC has established that in order to achieve the 2°C target the greenhouse gas concentrations in the atmosphere have to be stabilised at 450 ppm, which will be referred to below as “the 450 scenario”. It is not disputed between the Parties that there is a 50% chance of achieving the climate target with the 450 scenario.
4.22. From the IPCC reports listed here, the court concludes that in view of risk management and from scientific considerations, there is a strong preference for the 450 scenario, as the risks are much higher with a 500 scenario.
4.83. Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the court concludes that the State has a duty of care to take mitigation measures. The circumstance that the Dutch contribution to the present global greenhouse gas emissions is currently small does not affect this. Now that at least the 450 scenario is required to prevent hazardous climate change, the Netherlands must take reduction measures in support of this scenario.
4.42. From an international-law perspective, the State is bound to UN Climate Change Convention, the Kyoto Protocol (with the associated Doha Amendment as soon as it enters into force) and the “no harm” principle. However, this international-law binding force only involves obligations towards other states. When the State fails one of its obligations towards one or more other states, it does not imply that the State is acting unlawfully towards Urgenda. It is different when the written or unwritten rule of international law concerns a decree that “connects one and all”. After all, Article 93 of the Dutch Constitution determines that citizens can derive a right from it if its contents can connect one and all. The court – and the Parties – states first and foremost that the stipulations included in the convention, the protocol and the “no harm” principle do not have a binding force towards citizens (private individuals and legal persons). Urgenda therefore cannot directly rely on this principle, the convention and the protocol (see, among other things, HR 6 February 2004, ECLI:NL: HR:2004:AN8071, NJ 2004, 329, Vrede et al./State).
4.43. This does not affect the the fact that a state can be supposed to want to meet its international-law obligations. From this it follows that an international-law standard – a statutory provision or an unwritten legal standard – may not be explained or applied in a manner which would mean that the state in question has violated an international-law obligation, unless no other interpretation or application is possible. This is a generally acknowledged rule in the legal system. This means that when applying and interpreting national-law open standards and concepts, including social proprietary, reasonableness and propriety, the general interest or certain legal principles, the court takes account of such international-law obligations. This way, these obligations have a “reflex effect” in national law.
4.54. Urgenda has relied on the “Kelderluik” ruling of the Supreme Court (HR 5 November 1965, ECLI:NL:HR:1965:AB7079, NJ 1966, 136) and on jurisprudence on the doctrine of hazardous negligence developed later to detail the requirement of acting with due care towards society. Understandably, the State has pointed out the relevant differences between this juridprudence and this case. This case is different in that the central focus is on dealing with a hazardous global development, of which it is uncertain when, where and to what extent exactly this hazard will materialise. Nevertheless, the doctrine of hazardous negligence, as explained in the literature, bears a resemblance to the theme of hazardous climate change, so that several criteria stated below can be derived from hazardous negligence jurisprudence in order to detail the concept of acting negligently towards society.
4.56. The objectives and principles of the international climate policy have been formulated in Articles 2 and 3 of the UN Climate Change Convention ... The court finds the principles under (i), (ii), (iii) and (iv) particularly relevant for establishing the scope for policymaking and the duty of care. These read as follows, in brief:
(i) protection of the climate system, for the benefit of current and future generations, based on fairness;
(iii) the precautionary principle;
(iv) the sustainability principle.
4.63. In determining the scope of the duty of care of the State, the court will therefore take account of:
( i) the nature and extent of the damage ensuing from climate change;
(ii) the knowledge and foreseeability of this damage;
(iii) the chance that hazardous climate change will occur;
(iv) the nature of the acts (or omissions) of the State;
(v) the onerousness of taking precautionary measures;
(vi) the discretion of the State to execute its public duties – with due regard for the public-law principles, all this in light of:
- the latest scientific knowledge;
- the available (technical) option to take security measures, and
- the cost-benefit ratio of the security measures to be taken.
4.72 The State has also referred to new technologies such as CO2 capture and storage. The court deems the State’s viewpoint that a high level of CO2 reduction can be expected to be achieved in the future through CO2 capture and storage insufficiently supported.
4.73. Based on its considerations here, the court concludes that in view of the latest scientific and technical knowledge it is the most efficient to mitigate and it is more cost-effective to take adequate action than to postpone measures in order to prevent hazardous climate change. The court is therefore of the opinion that the State has a duty of care to mitigate as quickly and as much as possible.
4.76. Due to this principle of fairness, the State, in choosing measures, will also have to take account of the fact that the costs are to be distributed reasonably between the current and future generations. If according to the current insights it turns out to be cheaper on balance to act now, the State has a serious obligation, arising from due care, towards future generations to act accordingly. Moreover, the State cannot postpone taking precautionary measures based on the sole reason that there is no scientific certainty yet about the precise effect of the measures. However, a cost-benefit ratio is allowed here. Finally, the State will have to base its actions on the principle of “prevention is better than cure”.
4.79. The fact that the amount of the Dutch emissions is small compared to other countries does not affect the obligation to take precautionary measures in view of the State’s obligation to exercise care. After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change. Emission reduction therefore concerns both a joint and individual responsibility of the signatories to the UN Climate Change Convention. In view of the fact that the Dutch emission reduction is determined by the State, it may not reject possible liability by stating that its contribution is minor, as also adjudicated mutatis mutandis in the Potash mines ruling of the Dutch Supreme Court (HR 23 September 1988, NJ 1989, 743). The rules given in that ruling also apply, by analogy, to the obligation to take precautionary measures in order to avert a danger which is also the subject of this case. Therefore, the court arrives at the opinion that the single circumstance that the Dutch emissions only constitute a minor contribution to global emissions does not alter the State’s obligation to exercise care towards third parties. Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionte contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world.
4.87. From the aforementioned considerations regarding the nature of the act (which includes the omission) of the government it ensues that the excess greenhouse gas emission in the Netherlands that will occur between the present time and 2020 without further measures, can be attributed to the State. After all, the State has the power to issue rules or other measures, including community information, to promote the transition to a sustainable society and to reduce greenhouse gas emission in the Netherlands.
4.92. No decision needs to be made on whether Urgenda’s reduction claim can als be successful in so far as it also promotes the rights and interests of current and future generations from other countries. After all, Urgenda is not required to actually serve that wide “support base” to be successful in that claim, as the State’s unlawful acts towards the current or future population of the Netherlands is sufficient.
4.93. Based on the foregoing, the court concludes that the State – apart from the defence to be discussed below – has acted negligently and therefore unlawfully towards Urgenda by starting from a reduction target for 2020 of less than 25% compared to the year 1990.
Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide ("CO;') produced by burning fossil fuels was destabilizing the climate system in a way that would "significantly endanger plaintiffs, with the damage persisting for millenia."
Despite that knowledge, plaintiffs assert defendants, "[b]y their exercise of sovereign authority over our country's atmosphere and fossil fuel resources, ... permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, ... deliberately allow[ing] atmospheric C02 concentrations to escalate to levels unprecedented in human history[.]"
Plaintiffs argue defendants' actions violate 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.
For the purposes ofthis motion, I proceed on the understanding that climate change exists, is caused by humans, and poses a serious threat to our planet. Defendants open their Objections to Judge Coffin's F&R by stating that "[c]limate change poses a monumental threat to Americans' health and welfare by driving long-lasting changes in our climate, leading to an array of severe negative effects, which will worsen over time." Fed. Defs.' Obj. to F&R 1 (doc. 78).
But plaintiffs do not ask this Court to pinpoint the "best" emissions level; they ask this Court to determine what emissions level would be sufficient to redress their injuries. That question can be answered without any consideration of competing interests.
The science may well be complex, but logistical difficulties are immaterial to the political question analysis. See Alperin, 410 F.3d at 552, 555 ("[T]he crux of th[e political question] inquiry is . . . not whether the case is unmanageable in the sense of being large, complicated, or otherwise difficult to tackle from a logistical standpoint," but rather whether "a legal framework exists by which comts can evaluate ... claims in a reasoned manner.").
Intervenors would have this Court hold the political question doctrine prevents a court from determining whether the federal government has violated a plaintiffs constitutional rights so long as the government has taken some steps to mitigate the damage. However, intervenors cite no cases - and this Court is aware of none - to support such a broad application of the fourth Baker factor.
Although the United States has made international commitments regarding climate change, granting the relief requested here would be fully consistent with those commitments. There is no contradiction between promising other nations the United States will reduce C02 emissions and a judicial order directing the United States to go beyond its international commitments to more aggressively reduce C02 emissions.
At its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs' constitutional rights. That question is squarely within the purview of the judiciary.
By alleging injuries that are concrete, particularized, and actual or imminent, plaintiffs have satisfied the first prong of the standing test.
At the pleading stage, plaintiffs have adequately alleged a causal link between defendants' conduct and the asserted injuries.
If plaintiffs can show, as they have alleged, that defendants have control over a quarter of the planet's greenhouse gas emissions, and that a reduction in those emissions would reduce atmospheric C02 and slow climate change, then plaintiffs' requested relief would redress their injuries.
Defendants and intervenors essentially argue that because many entities contribute to global watming, an injunction operating on one entity - even a major player - would offer no guarantee of an overall reduction in greenhouse gas emissions. But whether the Court could guarantee an overall reduction in greenhouse gas emissions is the wrong inquity for at least two reasons. First, redressability does not require certainty, it requires only a substantial likelihood that the Court could provide meaningful relief. Second, the possibility that some other individual or entity might later cause the same injury does not defeat standing - the question is whether the injury caused by the defendant can be redressed.
The Due Process Clause of the Fifth Amendment to the United States Constitution bars the federal government from depriving a person of "life, liberty, or property" without "due process of law."
When the government infringes a "fundamental right," ... a reviewing court applies strict scrutiny ... Substantive due process "forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest."
In determining whether a right is fundamental, courts must exercise "reasoned judgment," keeping in mind that "[h]istory and tradition guide and discipline this inquity but do not set its outer boundaries." ... The genius of the Constitution is that its text allows "future generations [to] protect ... the right of all persons to enjoy libetty as we learn its meaning."
Exercising my "reasoned judgment," ... I have no doubt that the right to a climate
system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the "foundation of the family," a stable climate system is quite literally the foundation "of society, without which there would be neither civilization nor progress."
Plaintiffs do not object to the government's role in producing any pollution or in causing any climate change; rather, they assert 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' propetty, their economic livelihood, their recreational opportunities, their health, and ultimately their (and their children's) ability to live long, healthy lives. Echoing Obergefell's reasoning, plaintiffs allege a stable climate system is a necessaty condition to exercising other rights to life, liberty, and property.
In framing the fundamental right at issue as the right to a climate system capable of
sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims. On the one hand, the phrase "capable of sustaining human life" should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species. On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into
a constitutional violation. In this opinion, this Court simply holds that 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, result 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 breathe or the water its citizens drink. Plaintiffs have adequately alleged infringement of a fundamental right.
With limited exceptions, the Due Process Clause does not impose on the government an
affirmative obligation to act, even when "such aid may be necessary to secure life, liberty, or
property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago Cnty. Dep 't of Soc. Servs., 489 U.S. 189, 196 (1989). This rule is subject to two
exceptions: "(1) the 'special relationship' exception; and (2) the 'danger creation' exception." ... The "danger creation" exception permits a substantive due process claim when government conduct "places a person in peril in deliberate indifference to their safety[.]"
Plaintiffs allege that "[a]cting with full appreciation of the consequences of their acts,
Defendants knowingly caused, and continue to cause, dangerous interference with our atmosphere and climate system."
In sum: plaintiffs allege defendants played a unique and central role in the creation of our current climate crisis; that they contributed to the crisis with full knowledge of the significant and unreasonable risks posed by climate change; and that the Due Process Clause
therefore imposes a special duty on defendants to use their statutory and regulatory authority to reduce greenhouse gas emissions. Accepting the allegations of the complaint as true, plaintiffs have adequately alleged a danger creation claim.
A plaintiff asserting a danger-creation due process claim must show (1) the government's acts created the 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.
This lawsuit is part of a wave of recent environmental cases assetting state and national governments have abdicated their responsibilities under the public trust doctrine. See, e.g., Alec L. v. Jackson, 863 F. Supp. 2d 11(D.D.C.2012); Sanders-Reed ex rel. Sanders-Reedv. Martinez, 350 P.3d 1221 (N.M. Ct. App. 2015); Kanukex rel. Kanukv. State, Dep 't of Natural Res., 335 P.3d 1088(Alaska 2014); Chernaik v. Kitzhaber, 328 P.3d 799 (Or. Ct. App. 2014). These lawsuits depart from the "traditional" public trust litigation model, which generally centers on the second restriction,
the prohibition against alienation of a public trust asset. Instead, plaintiffs assert defendants have violated their duties as trustees by nominally retaining control over trust assets while actually allowing their depletion and destruction, effectively violating the first and third restrictions by excluding the public from use and enjoyment of public resources.
Defendants and intervenors argue plaintiffs' public trust claims fail because the complaint focuses on harm to the atmosphere, which is not a public trust asset. I conclude that it is not necessary at this stage to determine whether the atmosphere is a public trust asset because plaintiffs have alleged violations of the public trust doctrine in connection with the territorial sea ... Because a number of plaintiffs' injuries relate to the effects of ocean acidification and rising ocean temperatures,' they have adequately alleged harm to public trust
I can think of no reason why the public trust doctrine, which came to this country
through the Roman and English roots of our civil law system, would apply to the states but not to
the federal government.
The federal government, like the states, holds public assets - at a minimum, the territorial
seas - in trust for the people. Plaintiffs' federal public trust claims are cognizable in federal court.
I am not persuaded by the Alec L. comt's reasoning regarding displacement. In AEP, the
Court did not have public trust claims before it and so it had no cause to consider the differences between public trust claims and other types of claims. Public trust claims are unique because they concern inherent attributes of sovereignty. The public trust imposes on the government an obligation
to protect the res of the trust. A defining feature of that obligation is that it cannot be legislated
away. Because of the nature of public trust claims, a displacement analysis simply does not apply.
I agree with Judge Coffin that plaintiffs' public trust claims are properly categorized as substantive due process claims ...Because the public trust is not enumerated in the Constitution, substantive due process protection also derives from the Ninth Amendment ... But it is the Fifth Amendment that provides the right of action.
A deep resistance to change runs through defendants' and intervenors' arguments for
dismissal: they contend a decision recognizing plaintiffs' standing to sue, deeming the controversy justiciable, and recognizing a federal public trust and a fundamental right to climate system capable of sustaining human life would be unprecedented, as though that alone requires its dismissal. This lawsuit may be groundbreaking, but that fact does not alter the legal standards governing the motions to dismiss. Indeed, the seriousness of plaintiffs' allegations underscores how vitally important it is for this Court to apply those standards carefully and correctly.
Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it. As Judge Goodwin recently wrote,
The current state of affairs ... reveals a wholesale failure of the legal system to protect humanity from the collapse of finite natural resources by the uncontrolled pursuit of short-term profits .... [T]he modern judiciary has enfeebled itself to the point that law enforcement can rarely be accomplished by taking environmental predators to court. ...
The third branch can, and should, take another long and careful look at the barriers to litigation created by modern doctrines of subject-matter jurisdiction and deference to the legislative and administrative branches of government.
"A strong and independent judiciary is the cornerstone of our liberties." These words, spoken by Oregon Senator Mark O. Hatfield, are etched into the walls of the Portland United States courthouse for the District of Oregon. The words appear on the first floor, a daily reminder that it is "emphatically the province and duty of the judicial department to say what the law is." Marbury, 5 U.S. at 177. Even when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government.
'The debate about climate change and its impact has been before various political bodies for sometime now ... But the intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government.'
Magistrate Judge Coffin, April 2016