In what could be a groundbreaking approach to using the legal system to prompt action on climate change, attorneys are in the process of filing lawsuits in every state in the US, on behalf of young people whose futures will be affected by global warming. The effort, which is moving forward in courts in all fifty states as well as the District of Columbia, is a project of the youth-focused climate action group iMatter and its partner organizations. If attorneys fighting on behalf of their young plaintiffs are successful, they could establish the atmosphere as a legally recognized “public trust” that cannot be overloaded with greenhouse gases by one generation at the expense of all future generations.
According to the public trust doctrine—a legal concept that dates back to the days of the Roman Empire and which was recognized in England under the charter of the Magna Carta—certain public resources must be left accessible to everyone and can not be privatized for use by only a relatively small segment of the population. The US Supreme Court validated the public trust concept in the United States in an 1892 case, involving use of the Chicago harbor.
In the late 1850s the Illinois Central Railroad had been given a large section of the harbor by the state legislature, precluding the waterway’s use for other purposes. Eventually the tide of opinion turned against the giveaway, and the state government attempted to undo its own decision by arguing that privatization of such a huge resource was illegal. In the 1892 court case Illinois Central Railroad v. Illinois, the Supreme Court ruled that a public trust like the navigable waters of the Chicago harbor could not be given away by the state government to a single company.
This enshrined the public trust doctrine in US law, and opened the door to applying the concept to other public resources. In more recent times public trust doctrine has been used to force industry to clean up water pollution, and many states refer to it as a guideline in regulating the use of natural resources. Legal and environmental scholars have also suggested the doctrine could be used to guarantee protections for fisheries and other marine resources. But trying to designate the entire atmosphere as a public trust is perhaps the most ambitious application of the concept so far.
By calling attention to the atmosphere’s role as a public resource which all people have a right to enjoy, and by using high school students and college-age young people as plaintiffs, iMatter and its partner organizations hope to underline the moral issues surrounding pollution of the atmosphere. “No individual or corporation has the right to put as much carbon into the atmosphere as they want,” says a statement on the iMatter web site. “And yet, that’s exactly what’s happening. The public trust law…says that common resources like water and air are held in trust by the government for the people and for future generations.”
Today’s young people stand to lose more than any other generation alive today in the face of continued climate change. Rising sea levels, droughts that affect the productivity of agricultural lands, loss of global biodiversity, and increasingly frequent and severe storms will impact the youngest generation more than any other. Environmental groups argue older generations have effectively commandeered the atmosphere for their own use at the expense of those will come after, just as the Illinois Central Railroad once attempted to appropriate the Chicago harbor to the exclusion of all other uses.
Now lawsuits being filed all over the country will attempt to force polluters to clean up carbon emissions and leave a healthy atmosphere intact. Though it is unlikely all these legal challenges will be successful, winning even a few would be a major victory and could mark the beginning of a new chapter in the fight to stop climate change. It would establish a precedent for environmental groups to be able to sue companies and government entities for not doing enough to protect the global atmosphere.
“We [young people] don’t have the money to compete with corporate lobbyists,” says the iMatter web site, “and we may not yet be able to vote, but we DO have a legal right to insist that the planet is protected for our future and for generations to come.”
Photo credit: flickr.com/photos/walkn/3314689725/