The Blind Spots in Atmospheric Trust Litigation

An international relief operation is picking up momentum after Hurricane Dorian flattened communities in the Bahamas [Gonzalo Gaudenzi/AP Photo]

Intergenerational equity is a guiding principle for climate change adaptation measures and sustainable development. The fear is that those who contribute most to carbon pollution will not be around to face its dire impacts. As a result of this concern of intergenerational equity, atmospheric trust litigation has arisen through the innovative use of the centuries old concept of the public trust doctrine. A plethora of lawsuits related to atmospheric trust litigation (ATL) have been filed with increased levels of success.

In my next law review article, I caution against the use of ATL because of its indirect impact on energy production, generation, and consumption. The indirect impact of ATL cases could heighten the burden on Third World nations in energy production for the benefit of the block nations in the Organisation for Economic Co-operation and Development (OECD), including the United States i.e. the First World.

The underexplored issue is how ATL would burden already stressed ecosystems in poor, marginalized, indigenous, and minority communities in the United States and indigent and improverished Third World Nations. The public trust doctrine is powerful in its use, but it can also dangerous in its application. ATL’s selection of the public trust doctrine ignores global environmental racism. Applications of the public trust doctrine lead to greater levels of income inequality and poverty for the marginalized, shifting the burden of oil and gas production to parts of the world where the rule of law is weak and where more protections are given for international investment for investor nations instead of host nations. The less oil and gas production conducted in the United States leads to greater reliance on energy resource for parts of the world where human rights, labor rights, and the rule of law are weak.

In other words, ATL is the Hail Mary for climate change adaption in the United States and the substitute for international environmental-rulemaking. President Donald Trump announced the withdrawal of the historic multilateral compact of the Paris Agreement. As such, ATL perpetuates U.S. insolence in the international environmental rule-making process.

Update: The Ninth Circuit issued its ruling dismissing the Juliana case.

It’s not the end of the world. The world is already ending with the devastating impacts of climate change. We only have a finite amount of time until the planet becomes unlivable.

Don’t forget the Green New Deal, which is concerned with the transformative social potential of a clean energy economy, putting people and planet ahead and not just profits.

Bloomberg is reporting in “U.S. Wins Ruling Derailing Trial of Teens’ Climate Change Suit:”

The U.S. Court of Appeals in San Francisco in a split decision on Friday agreed with the government that climate policy is the purview of Congress and the president, not judges. Attorneys for the 21 youths may still ask the U.S. Supreme Court to let the trial go ahead in Eugene, Oregon.

“The panel held that it was beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan where any effective plan would necessarily require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches,” the majority said.

“The panel reluctantly concluded that the plaintiffs’ case must be made to the political branches or to the electorate at large.”

The case isn’t about whether climate change is real, but whether the government should have taken stronger action to curb its impact. The teens argue the U.S. Constitution confers a right to a climate system capable of sustaining human life. The government calls that “a previously unimagined constitutional right.”

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Nadia Ahmad

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