A pioneering litigation model called “Atmospheric Trust Litigation” is gaining traction in the United States and further afield, with lawsuits and administrative petitions being permitted to go forward in some state courts, as well as in a federal district court. Atmospheric Trust Litigation is a tool being used by members of the public which claims that the government owes a positive duty as a trustee of natural resources.
It has been described as “ground-breaking” on three fronts: firstly, it seeks to enforce a constitutional right to a liveable environment by using the public trust doctrine, which holds that certain resources are owned by and available to all citizens equally; secondly, those protected resources include the atmosphere which it identifies as key to the stability of every natural system; and thirdly, it asserts that government, as trustee, has not only a preventative but also a restorative duty to repair past harms now identified by scientists as dangerous for current and future generations.
340 youths and their lawyers filed 50 law suits or petitions in 50 States of America, at both State and Federal level, all alleging that the government is a trustee of the natural resources on which its citizens rely. The constitutional guarantee of a right to “live and flourish” is said to demand that forests, wildlife, soil, water, and air be protected so that citizens are able to live, be free and pursue happiness. The reliefs sought are orders requiring state officials and the legislature to use top scientific methods to devise and implement a plan to reduce carbon emissions by 6 percent per year until at least 2050. James Hansen, former director of NASA’s Goddard Institute for Space Studies and expert on climate, and 32 law professors submitted an amicus brief to the litigation, that is, an expert opinion to inform judicial reasoning, stating that “failure to act [now] becomes a decision to eliminate the option of preserving a habitable climate system”.
The young litigants and their lawyers are relying in particular on a case called Robinson v Pennsylvania, a Supreme Court decision which overturned the State’s pro-fracking regulatory statute on the grounds of public trust.
An Irish based charity Feasta, the Foundation for the Economics of Sustainability is working on setting up a mock trial in Portsmouth, England, which it sees as “an initial step towards a real court action”, which would draw on initiatives such as that atmospheric trust litigation in forwarding the climate cause through the courts. Options for such litigation may be limited in Ireland as it is currently not possible to bring class actions in this jurisdiction.