Is the Atmosphere a Public Trust?

It's June in Oregon's Willamette Valley. Here's hoping that summer is finally en route and that the "bug" I brought back from the South Caucasus seems to be exiting my system. It was not a smart idea to watch The Andromeda Strain on A&E last night.

Back to the question posed in the title. In this country we treat the nation's air and waters as public trusts. What that means is that no one owns them, but the government holds them in trust for the public and acts to protect them. The public trust concept apparently goes back a few thousand years and is the basis for the Clean Water Act and the Clean Water Act. The government, acting in behalf of the public's interests, passes and enforces laws to keep the air and water clean.

Many states administer their waters, in terms of allocation and quality, as a public trust.

So could the atmosphere be treated as a public trust to the extent that we could force the government to act in the public's interest and reduce GHG (greenhouse gas) emissions?

Mary Wood, a professor at the University of Oregon School of Law, thinks that the public trust doctrine can be used in just that fashion: the force the government to protect the climate natural resource.

She's been developing that concept for over a year, and even has a forthcoming book (with Heather A. Brinton), The Dawn of Planetary Patriotism: A Citizens' Call to Climate Defense, describing the approach.

Here is an interview from the High Country News last month:

Download hcn12may2008_climate_revolutionary.pdf

Read this story about Professor Wood in the 1 June 2008 issue of the Corvallis Gazette-Times.

Again, the public trust doctrine as applied to the atmosphere has not yet been used in a lawsuit. Some feel this will be a real useful approach; others feel that it will produce a spate of frivolous and nuisance lawsuits.

My take: I applaud Professor Wood for her brilliance and creativity and hope that the mere threat of many lawsuits will "encourage" the Federal government to take decisive action to mitigate global warming. But there is also the risk that courts will wind up formulating climate policy, a dismal approach at best. 

As trial lawyers will tell you, sometimes the best path to mediation or arbitration is the threat of litigation. 

“He lives in L.A., which stands for 'Limited Attention.' ” – Mitch Albom, referring to Kobe Bryant

Comments

[David Zetland]

Public Trust is also being invoked wrt water in CA: http://aguanomics.com/2008/03/water-and-public-trust.html