Climate Change : The Crime of All Time
Definition of a 'crime against humanity'.

serious attack on human dignity or grave .. degradation of .. human beings-- --widespread or systematic practice--
government policy --  tolerated or condoned -- against civilian population --with knowledge 

 The Rome Statute Crimes against humanity
    Climate Crime
​  Our Children's Trust 
.And that is what is at stake, our ability to live on planet Earth, to have a future as a civilization. I believe this is a moral issue, it is our time to rise again to secure our future.  Al Gore. 
UNPRECEDENTED
​CRIME

Climate Science Denial
​ Dr. Peter Carter
​and Elizabeth Woodworth
Foreward by James E. Hansen
April 2018
Clarity Press

 Philosophy professor (emeritus) Kathleen Dean Moore says that climate change is “poised to become the most massive human-rights violation the world has ever seen.”

​​In 1988, Dr. James Hansen, famously testified to the US Congress with 99 percent confidence that global warming had begun .

​​ "I would like to draw three main conclusions. Number one, the earth is warmer in 1988 than at any time in the history of instrumental measurements. Number two, the global warming is now large enough that we can ascribe with a high degree of confidence a cause and effect relationship to the greenhouse effect. And number three, our computer climate simulations indicate that the greenhouse effect is already large enough to begin to effect the probability of extreme events such as summer heat waves." ...​ we conclude that there is evidence that the greenhouse effect increases the likelihood of heat wave drought situations in the southeast and Midwest United States even though we cannot blame a specific drought on the greenhouse effect.

​Today as deadly heat waves increase affecting most regions, we
 still have unmitigated global climate change. Emissions are record high and increasing. 


A  2​011 World Bank
Human Rights and Climate Change research paper sites Peremptory Norms (Jus Cogens) and Obligations Erga Omnes as applicable to the grossest ever injustice of global climate change.

​​The legal approach being used today with some success, is atmospheric litigation under the public trust doctrine, the most well known a case being a Our Children's Trust against the U.S. government. The evidence applies to both legal approaches. The US case asserts that, through the government's affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. 

Global climate change has been bringing about more extreme weather as confirmed by research on attribution and IPCC assessments. 

​​In most regions of the world the climate has been made episodically less safe by  global global disruption with many extraordinary examples in ​the USA, Europe, Russia China as well as the global south. For developed regions repeated weather extremes have already led to losses of property and lives, as well developing regions. For agriculture reasons must predictable with regular low degrees of climate variation and weather extremes. climate chance  is acting counter these conditions.

​​It has always been predictable that increasing the global surface temperature would increase heat waves and forest fires and most likely droughts. The IPCC has confirmed in the 2007 AR4 and 2014 AR5 that global warming is increasing heat waves world wide and increasing ​drought in some regions. 
It has long been predictably obvious that global surface warming would increase height of  summer temperatures and heat waves, which 
​ would lead to crop declines, first affecting tropical regions where temperatures are already highest. How ever at some degree of climate change these would reduce crop yields in temperate regions. Unmitigated global climate disruption due to damages to crops is therefore a threat to civilization.


John Holdren starting in 2006 has lectured to expert audiences on “climate disruption” Meeting the Climate Change Challenge.  John Holdren found the world was beyond -dangerous climate interference  as defined by the 1992 UNFCCC as safe levels of atmospheric GHGs. In 2006 atmophjeric CO2 had increased above 380 ppm, far above the 350 ppm safety limit. 

Virtually all climate scientists, said National Medal of Science recipient Lonnie Thompson, “are now convinced that global warming poses a clear and present danger to civilization.”   It may seem impossible to imagine,” wrote New Yorker writer Elizabeth Kolbert, “that a technologically advanced society could choose, in essence, to destroy itself, but that is what we are now in the process of doing.”  

 



Cimate Litigation

For Americans in particular, climate litigation is also based on our founding documents: the Declaration of Independence and the Constitution.

 It has also been widely accepted that we will be safe from dangerous climate change as long as the increase in the global temperature since the rise of the Industrial Age does not exceed a rise of 2˚C (3.6˚F). But this figure was based on political considerations, not climate science. According to James Hansen, the aim to stay only below a rise of 2˚C is a “recipe for disaster.”

The truth of Hansen’s judgment can be obvious even to laypeople: If the present global warming, which is a rise of about 1˚C, has already brought about the effects that are already evident – such as wilder weather and the melting of glaciers and even the Greenland and Antarctic ice sheets – then a rise of more than twice that amount will surely be disastrous.

 Climate change involves many harmful phenomena, most of which had been predicted by climate scientists, except that the reality has generally been even worse than the predictions. The IPCC in particular has almost always underestimated the pace at which these phenomena would appear (contrary to climate denialists, who portray the IPPC as needlessly “alarmist”). Hansen and some other climate scientists had more accurately anticipated the consequences of global warming.

One of the dimensions of climate change is the increase in heat waves, getting hotter and occurring more often. Excessive heat is the number one weather-related cause of death in many countries, including the United States. Many thousands of deaths have resulted from heat waves in Europe, Russia, and India as well as and the United States. The weather, moreover, continues to get hotter: 2014 was “the hottest year on record globally by far” and 2015 was hotter yet.  Temperatures in some places reached unprecedented heights, with India experiencing 122°F (50°C) and Iran an unbelievable 164 F (73 C).

Heat waves have been  destructive to agriculture, especially when combined with drought. During the terrible Midwest heatwave of 2012, the combination of heat and drought led a plant biologist to say that growing corn was like “farming in hell.” Losses for American agriculture that year totaled over $12 billion.

Water is, of course, necessary not only for agriculture but also for drinking and other uses, But the American Southwest, including California. has been
recently 
d​gripped by drought for several years, with the result that both reservoirs and aquifers are getting very low, and some places are already running out of water. Moreover, rather than being able to anticipate that the drought will soon be over, climate scientists are predicting that a “megadrought” will grip the Southwest for decades.

The dryness of the Southwest and the entire West Coast has also resulted in a quantum jump in the number and size of wildfires. Since 2004, wildfires have burned over 8 million acres a year, with 2015 exceeding the previous record year of 2006, when almost 10 million acres had gone up in flames.

In addition to heat and drought, there are many more dimensions of climate change:

Increasingly destructive is extreme weather, which involves – in addition to heat and drought – hurricanes tornadoes, in addition to more intense deluges and snowstorms. In 2014, the United States experienced eight extreme weather events causing damages of $1 billion or more each, for a total of $19 billion.

 Second to none in potential devastation is sea-level rise, resulting from the expansion of the ocean, because of its increasing warmth and the melting of glaciers, including the Greenland and Antarctic ice sheets. A 2015 study by James Hanson and colleagues showed that these ice sheets are melting 10 times faster than previously thought, with the result that the sea-level might rise 10 feet or more in 50 years. This rise would flood cities and farmland on the East Coast from Miami to Boston, as well as cities and crops on the coasts of countries around the world, including China. Moreover, if we continue to pump greenhouse gases into the atmosphere, paleoclimatology has shown, the sea-level will rise over 200 feet.

In addition, some of the increase of CO2 in the atmosphere goes into ocean, where it causes equally destructive effects. When combined with water, CO2 produces carbonic acid, which at increased levels makes it difficult for calcifying animals - such as crabs, clams, mussels and oysters – to form skeletons. Besides the fact that such creatures constitute one-third of the planet’s marine life, the tiniest such creatures – plankton and corals – are at the base of the marine food web. In other words, a continuation of the increase in the ocean’s carbonic acid will lead to the death of all seafood. It is for good reason that ocean acidification has been called “global warming’s evil twin.”

​​ The combination of the above phenomena, from heat to ocean acidification, will increasingly be deadly for great numbers of people by intensifying water and food shortages. With regard to food: 3.5 billion people have been relying on life from the sea as their primary source of food, and ocean acidification is already reducing seafood harvests. The rising sea level is already destroying crop lands in various places. And the same is true for heat and drought.

 With regard to water, various effects of climate change are limiting the availability of fresh water. For example the glaciers of South American have been providing water for 80 million people. And yet the glaciers of Bolivia, Peru, and Patagonia are retreating. Indeed, Bolivia’s 18,000 year-old glacier called Chacaltaya, which had the highest ski in the world, was already completely melted.

 In addition, climate change, with its multiple effects, is already evoking both climate refugees and climate wars. These two effects, which have already destroyed many lives, will eventually damage the lives and property of millions of people.

Accordingly, climate science has – by means of observations, climate models, and paleoclimate studies – shown that damages to human lives and properties, both private and public are already big and will continue to get even bigger as long as global warming continues.
Science has thereby provided the basis for climate litigation, with suits directed at fossil-fuel industries, which have caused these damages, and at government agencies and officials, who have allowed them.


The second sentence of the Declaration of Independence said: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”
According to the U.S. Constitution, the United States was formed to “establish Justice,” to “promote the general Welfare,” and to “secure the Blessings of Liberty to ourselves and our Posterity.” Although the Constitution did not speak of human rights, it was ratified only on the basis of the promise that a bill of rights would be added, and this was indeed done within a few years.

After World War II, the United States was fundamental to the creation of the United Nations, the Charter of which says that it was created to “save succeeding generations from the scourge of war,” to “reaffirm faith in fundamental human rights,” and to “establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” When it was signed and ratified by the United States and a large number of other nations in 1945, it became a binding treaty for all member states.

However, after the Charter was signed in 1948, nations around the world said that it did not sufficiently define the “fundamental human rights” of individuals. As a result, the U.N. organized the drafting of a Universal Declaration of Human Rights, which was accepted by the U.N. General Assembly in 1948. Although the Declaration is not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning in the Charter’s terms “fundamental freedoms” and “human rights,” so it is widely accepted as part of customary international law.

In any case, while the Declaration itself, not being a treaty, is not binding, it gave birth to two covenants that are binding: the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.

The first of these covenants - the International Covenant on Economic, Social and Cultural Rights – has three rights that are of obvious relevance for the threats of climate change to rights:

• the right to self-determination, through which people can pursue their economic, social and cultural development (Article 1);
• an adequate standard of living (Article 11);
• the freedom from hunger (Article 11).

The second of the two covenants – the International Covenant on Civil and Political Rights – includes five rights that are particularly relevant to damages caused by climate change:

• the right of all people to self-determination, through which people can pursue their economic, social and cultural development (Article 1);
• the inherent right to life, and to have this right protected by law (Article 6);
• the right to equality before the law (Articles 14 and 26);
• the right of families to be protected by Society and the State (Article 23);
• the right of children to be protected by the State (Article 24).

These human rights are being undermined, or are threatened to be undermined, by one or more types of climate change. For example, a shortage of water and food threaten the rights to freedom from hunger, to an adequate standard of living, to life, and of family and children. All nations that have ratified these covenants obligated to protect these human rights of their citizens.

UNFCCC
The United Nations Framework Convention on Climate Change (UNFCCC), which was accepted by the U.S. in 1992, was ratified by the United States in 1994. As a framework convention, it does not give set any
specific ​​binding limits on greenhouse gases. The UNFCCC merely provides a framework for negotiating specific international treaties (“protocols”), which are binding. However, in ratifying this framework treaty, the ratifying nations accepted the treaty’s objective, namely, to "stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system."

Indeed, the conference in Cancun in 2010 concluded that the target to remain below may need to be strengthened to 1.5˚C.


Atmospheric Trust Litigation

The attempt to use the public trust doctrine so protect the climate has been named Atmospheric Trust Litigation, which, says Wood, “simply applies the public trust doctrine to the atmosphere.” This doctrine concerns “resources that the public relies on for its very survival,” and the “atmosphere certainly qualifies.”
Atmospheric Trust Litigation (ATL) is an extension of a familiar type of suit, in which the court is asked to defend the “commons” against private companies encroaching on it. It differs only in defending the Earth’s largest commons, the atmosphere, considered as a commonly-shared public trust resource.
This extension of the public trust doctrine is legitimate, argue defenders, because the doctrine deals with matters of “public concern to the whole people” (as the Supreme Court put it in 1892), and there is no more obvious source of public concern today than “the atmosphere upon which all life depends.”
“By linking to scientific prescriptions as the measure of fiduciary responsibility,” Wood says, “the ATL approach is aimed at divesting the world’s political leaders of their assumed prerogative to take action only according to their political objectives.”
ATL refers to suits filed against governments, asking the judicial branch of government to declare the executive branch and some of its agencies guilty of a breach of trust, on the basis of which a court would force them to stop the breach-causing behavior.
By not being responsible trustees of the atmosphere, the government is failing to preserve an essential part of the trust’s life-giving endowment. Failing to preserve the trust - by allowing fossil fuel companies to spew their waste products into the atmosphere - amounts to robbing today’s children. The atmosphere also belongs to future generations, so that “failure to safeguard it amounts to generational theft.”
Politicians have gotten away with this theft because children, and future generations in general, cannot vote. So they need to rely on our politicians, policed by our courts, to be faithful trustees of the natural resources that will be needed.

ATL in America focuses on the atmosphere as “a single asset in its entirety” and “characterizes the United States as a trustee, and each of the 50 states as co-trustees, of the atmosphere.” It also “characterizes all nations on Earth as co-tenant sovereign trustees of that asset.”
The idea of “co-tenant trustees” is simply an application of the notion of co-trustees, which is common in private trust law. George T. Bogert, in an influential book called Trusts, explained that the powers of co-trustees are “held jointly by the trustees.” The idea that all nations are co-trustees of the atmosphere means that, in Wood’s words, “all nations owe duties towards all citizen beneficiaries of that asset.”
It is common to have natural resources legally owned by co-trustees. For example, eight states in the Great Lakes Basin are co-trustees of the Great Lakes Compact, in which the Lakes, being "part of a single hydrologic system," are “precious public natural resources shared and held in trust by the States." Likewise, eight mid-Western states are co-trustees of the Ogallala Aquifer.
Co-trustees at the international level are also common. For example, the United States and Canada “serve as co-tenant sovereign trustees of the Great Lakes trust” and also as co-trustees of the Columbia River trust. Likewise, “Eight co-tenant sovereign trustees manage the Amazon Forest trust.”
Accordingly, given the fact that the atmosphere is a natural resource shared by everyone, “all countries of the world,” says Wood, should be recognized as “co-trustees of the atmosphere.”


Given that point, the argument for atmospheric trust litigation begins with the fact that co-trustees, by virtue of having duties to the trust’s beneficiaries, have duties to each other.
In private trust law, Wood explains, co-trustees “have a mutual, correlative duty not to waste the common asset,” and this duty includes taking action to prevent co-trustees from wasting assets. “The trustee has a duty to take whatever steps are necessary,” said George Bogert, “to protect and preserve the trust property from loss or damage.”
Applying this principle to the atmosphere as a trust, Wood says: “ATL asserts a sovereign fiduciary obligation to prevent waste or degradation of the atmosphere from greenhouse gas pollution.” Preventing waste of the atmosphere has become especially important since we became aware of the carbon budget, which says that “little atmospheric ‘space’ remains for further carbon pollution.” In addition, the industrial world’s CO2 emissions have destroyed the ocean’s value as a “carbon sink.”
A trustee, said Bogert, is “liable for damages if he should have known of danger to the trust, could have protected the trust, but did not do so.” The governments of the world’s biggest polluters have been warned for over several decades of the danger to the atmosphere and resulting crises, such as sea-level rise. Scientists in the 1960s started predicting global warming and saying that it would cause the seas to rise. In 1988, James Hansen told the U.S. Senate that the warming had definitely begun. So the U.S. and other governments knew about the danger and could have taken actions to nip it in the bud, but “did not do so.”
In ​a book entitled Threatened Island Nations Wood and her colleagues pointed out that island nations could file ATL suits against the co-trustee nations most responsible for the threat. The monetary compensation could then be used to finance clean energy and help the island nations, when possible, adapt to the rising seas and, when necessary, build places to live in other countries.
Moreover, it is not only island nations that could and should take legal action against the big (per-capita) polluters. It follows that any of the low polluting nations could and should take action, as responsible co-trustees, against big polluters. According to Bogert, any trustee, being aware of intended malfeasance by co-trustees, should obtain injunctions against them. Becoming aware of intended malfeasance, moreover, is not difficult. We
​ need only to look to see if the big polluters are starting to make drastic reductions in their CO2 emissions. The fact they have kept increasing them.


​ The Roman law background of the Justinian code is strongly relevant to atmospheric litigation 

​  “By the law of nature these things are common to all mankind — the air, running water, the sea, and consequently the shore of the sea.”

The lower atmosphere ​​

Several states have included air along with water. In addition to the constitutions of Pennsylvania and Hawaii,  Louisiana’s constitution says: “The natural resources of the state, including air and water, . . . shall be protected.” And Virginia’s constitution says: “To the end that the people have clean air, pure water. . . .”

The same is true of other countries. For example, India’s Supreme Court said that the public trust includes “sea-shore, running waters, [and] airs.”
So there is plenty of precedent for including air in the public trust. Indeed, given the fact that air is the one natural resource that is larger than the planet’s water and equally essential, it would be hard to explain why water should be included but not air.
In addition, after the water-only view was stated in Texas, a District Court judge, referring to the state’s constitution, said that the PTD “includes all natural resources of the State,” so that ATL could not be ruled out in principle. Also, after Arizona Governor Jan Brewer argued that the PDT was limited to “water-related” issues, the Arizona Court of Appeals rejected this claim, saying that the atmosphere could be considered a public trust asset. Likewise, Judge Doyle of Iowa’s Court of Appeals stated that there was “a sound public policy basis” for including the atmosphere in the public trust doctrine.

State Court as Ill-Equipped to Resolve Factual Issues. MONTANA SUPREME CT
The Montana Supreme Court denied an ATL petition on the grounds that the “court is ill-equipped to resolve the factual assertions presented by the petitioners.”
However, Wood answered, it is common for courts to call on experts, including scientists, to help the courts make decisions about factual matters. In such cases, both sides typically bring their own experts, resulting in a “battle of the experts.” But this provides no insuperable problem: ”Judges are hardly new to the task of choosing between conflicting experts. They have developed rigorous methods of reviewing science.”

Atmosphere as Responsibility of No Single Entity
According to one environmental law expert, extending the public trust doctrine to the atmosphere, for which no single government entity has responsibility, "is way more complicated" than “talking about a discrete resource within the boundaries of one jurisdiction."
However, although it is more complicated, it is not unprecedented. As mentioned above, co-trustees for natural resources are commonplace. No single entity is responsible for either the Great Lakes or the Amazon forest: Eight US states are co-trustees of the Great Lakes and eight countries in South America are co-trustees of the Amazon Forest trust.

PTD as Futile against Global Warming A Kansas District Court
A legal brief called on a Kansas court in 2012 to dismiss an ATL suit on the grounds that the court could do little about global warming: “No order issued by the District Court of Shawnee County can hold back global warming, any more than King Canute could order the tide to recede.” This argument is sometimes bolstered by statement that any U.S. reductions will be overwhelmed by the emissions in other countries, especially China and India.
However, “It is no requirement,” U.S. Supreme Court had said in 1949, “that all evils of the same genus be eradicated or none at all.” So, although it is true that a Kansas county’s reduction in greenhouse emissions will by itself do little to stop global warming, it should follow the law requiring the reduction. Moreover, the idea behind ATL is that “trial attorneys and community lawyers across the world should unite in a . . . revolutionary global legal movement,” which would need to begin somewhere.
However, replied the U.S. Supreme Court, a “reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.” Moreover, China and India will be more likely to reduce their own emissions if they see the U.S. doing this.
Furthermore, one of the main features of ATL is that it is international, and the 2011 U.S. Supreme Court ruling would, Wood argues, “have no direct bearing on ATL suits brought against sovereign governments for failure to regulate greenhouse gas emissions.” This is the case, she explained, because such suits are “based on an international norm (duties arising from co-tenant trusteeship),” whereas the Court’s 2011 ruling was “decidedly domestic.” If the United States starts reducing its emissions drastically, it would be fully appropriate for it (as well as island nations and other low-polluting countries) to engage in atmospheric trust litigation against high-polluting countries, if they refuse to reduce their own emissions.

PTD as a State, not a Federal, Matter DC DISTRICT COURT
In April 2012, Judge Robert Wilkins of the Federal District Court in Washington D.C. dismissed an ATL suit on the grounds that the PDT is a matter of state, but not federal, law, so the federal government has no responsibility to protect the atmosphere. This decision was based in part on a 2012 U.S. Supreme Court ruling - in a PDT case involving water in Montana - that “the public trust doctrine remains a matter of state law.” On May 23, 2013, Wilkins maintained his previous opinion. However, there are several reasons to consider the PTD a federal, as well as a state, doctrine.

• First, although the PTD has generally been considered a state rather than a federal doctrine, it has undergone evolution since the formulation in the Illinois Central decision, as stated by the New Jersey Supreme Court, which said that the PTD is “molded and extended to meet changing conditions and needs of the public it was created to benefit.” Today, the public needs to have the federal government apply the PTD to its own policies. Indeed, given the need for the United States to cooperate with other nations to prevent climate collapse, the public needs to have the PTD, as embodied in ATL, applied especially at the federal level.

• Second, some judges have said that ATL, as a specific development of the PDT, cannot be considered applicable to the federal government, because there is no official textual basis for it. But the U.S. Supreme Court in 1892 gave its ruling with regard to the return of the Chicago shoreline while admitting that it was not based on a precedent.

• In addition, there is a textual basis provided by the NEPA, which spoke of the “responsibility of the Federal Government” to assure Americans of a beneficial use of the environment “without degradation.” Surely there is no stronger responsibility of the Federal Government than that of assuring Americans of the atmosphere, and hence the climate, “without degradation,” so that it will be available for today’s children, grandchildren, and future generations in general.

• Third, it would be historically inaccurate to say that the PTD in America has always been solely a state doctrine, Wood argues, because the “origins of the American PTD lie in bilateral federal-state agreements admitting states to the Union.”

• Finally, the PDT is an inherent attribute of sovereignty, and ever since the transition from 13 colonies to the United States of America, the federal government has had many features of sovereignty – such as the right to print money, to form a military, and to go to war – that the states do not. Accordingly sovereignty, thereby the PDT, belongs to the U.S. government more fully than it does to the states.

In sum, the PTD and hence ATL should clearly be regarded as applicable to the U.S. Government.

ATL as Displaced by EPA’s Clean Air Act US SUPREME CT
Some states have claimed that courts cannot deal with ATL because of the Supreme Court’s 2011 decision in American Electric Power Co. v. Connecticut. The Court there dealt with a suit attempting to reduce fossil fuel emissions by means of a nuisance claim (a claim that people’s enjoyment of their own property was being disturbed). Bringing this claim to the judiciary was improper, the Court said, because “every such claim is displaced by the federal legislation [the Clean Air Act] authorizing EPA to regulate carbon-dioxide emissions.”
This ruling was used by U.S. District Judge Robert Wilkins, who said that, even if the PTD were a federal matter, ATL suits involve "determinations that are best left to the federal agencies that are better equipped and have a congressional mandate."
However, Wood argues, the Supreme Court decision in 2011 should not be interpreted as ruling out ATL suits. The claim in the American Electric Power suit was a claim about a nuisance claim, and a “public nuisance claim,” Wood says, “focuses exclusively on individual parties causing ‘substantial and unreasonable interference with public rights’ enjoyed by the present generation alone.”
But a trust claim, as made in an ATL suit, by contrast, is dealing with “the question of whether the sovereign has fully met its fiduciary duty to the public beneficiaries.” Even when a government ruling protects a trust, she adds, “the basic trust question remains whether such regulation is adequate to protect the asset for present and future generations.”

Therefore, atmospheric trust controversies should be dealt with by means of judicial review. The Court’s ruling in American Electric Power was proper, explained Marten Law, because it would be improper for courts to initiate policies about emissions. The reason is that it is “EPA’s job to fashion regulations.”
But after these regulations have been formulated, continued Marten Law, it is then “the courts’ responsibility to review them.” On this point, Wood quoted the Supreme Court of Arizona, which in 1991 said: "The check and balance of judicial review provides a level of protection against improvident dissipation of an irreplaceable res."

Conclusion

It seems that all of the objections to the PTD in general, and to ATL in particular, can be overcome. If the various perceived problems are indeed overcome, law will become a means by which moral principles could be made efficacious, and through which the trajectory toward the extinction of human civilization might be overcome.

What description of governments, lawyers, and judges would enable law to have these consequences?

• Governments honor the PTD, with officials understanding themselves as nature’s trustees, who as such are to be loyal to the trust’s beneficiaries – both present and future.

• In order to fulfill their fiduciary duties, governments give special attention to the rapid elimination of fossil fuel energy, according to schedules demanded by carbon math.

• Insofar as the legislative and executive branches fail to fulfill their fiduciary duties, judges make them to do so. Rather than being deferential to the other branches, judges rigorously employ judicial review to force them to pass and enforce legislation that is sufficient to stay within the carbon budget.

• Within the United States, ATL is necessary because, without judicial insistence, it is unlikely that the executive and/or legislative branches will eliminate U.S. fossil emissions as quickly as required for this nation to do its fair share in the effort to save civilization.

• Internationally, in light of the realization that the world’s governments, using the present treaty system, will most likely not sign an adequate agreement, lawyers and judges around the world use the PTD to force governments to pass the needed legislation.

• Responsible governments, recognizing that they are trustees of the world’s natural resources, use ATL to launch suits against co-trustees who are violating the trust.

• Lawyers and judges in all countries “unite in a world-wide legal movement to hold recalcitrant governments responsible for reducing greenhouse gas emissions.”

Accordingly, the Public Trust Doctrine, in particular its Atmospheric Trust litigation, is one of the ways through which lawyers and courts can fulfill their duties with regard to preserving the public trusts, including the atmosphere and the ocean.


Public Trust Doctrine

The public trust doctrine says that government holds in trust all vital natural resources. According to this principle, “some natural resources remain so vital to public welfare and human survival that they should not fall exclusively to private property ownership and control,” Therefore, said Professor Charles Wilkinson in 1980, these resources “must be protected by distinctive, judge-made principles.”

By virtue of being in the public trust, these natural resources are trust assets, which cannot legally be sold or given to people or companies to be used for profit, because these assets are public property.

This Public Trust Doctrine has been endorsed by the highest court in the United States. In 1896, for example, the U.S. Supreme Court said:

[T]he power or control lodged in the state, resulting from this common ownership, is [not] to be exercised . . . for the benefit of private individuals as distinguished from the public good.

The right of the United States government to protect natural resources for the public resides in its sovereignty. In words of Professor Karl Coplan, “Public trust principles have been described as an essential attribute of sovereignty across cultures and across millennia.”

Besides being a power inherent in the nation, the use of the Public Trust Doctrine to protect natural resources is an obligation. For example, the U.S. Supreme Court said in 1892:

The state can no more abdicate its trust over property in which the whole people are interested than it can abdicate its police powers in the administration of government and the preservation of the peace.

As the Court indicated, the PTD is about property, and hence property rights. “At its core, the doctrine is a declaration of public property rights,” wrote Professor Mary Wood, “as originally and inherently reserved through the peoples’ social contract with their sovereign governments.”

Besides being a right and an obligation of the U.S. government, the Public Trust Doctrine (PTD) is also a power and obligation of every state government of the nation. For example, in a 2012 “friend of the court brief” for the Supreme Court of Alaska, a group of law professors wrote:

The public trust doctrine is an inalienable attribute of sovereignty that requires government to act to prevent irrevocable harm to crucial natural resources owned in trust on behalf of the people.

The supreme courts of several states have explicitly endorsed PTD. For example, the Hawaii Supreme Court said that “history and precedent have established the public trust as an inherent attribute of sovereignty.”


An Ancient Doctrine

The idea that governments, by virtue of their sovereignty, have the responsibility to protect natural resources has a long history in the West. In a 1994 book entitled Restoring the Public Trust, Peter Brown wrote that the Public Trust Doctrine “needs to be understood not as a new one,” but as “the rediscovery of an old one that has been lost to political consciousness.” As an old doctrine, it goes back to Roman law and then medieval law.

Roman Law spoke of many things as common properties (res communis). The Institutes of Justinian – a compilation of Roman law commissioned by Emperor Justinian in the 6th century A.D. - said: “By the law of nature these things are common to all mankind — the air, running water, the sea, and consequently the shore of the sea.” A French law in the 11th century said:

[T]he public highways and byways, running water and springs, meadows, pastures, forests, heaths and rocks . ..are not to be held by lords . . . , nor are they to be maintained . . . in any other way than that their people may always be able to use them.

The most immediate influence on American thinking about public rights was English common law (in distinction from canon law and local customary law), which began in the Middle Ages. The best-known statement of it was the 1215 Magna Carta Libertatum (Great Charter of the Liberties of England), which was forced onto King John. This charter forced the king, among other things, to relinquish private fishing and hunting rights he had given to his cronies: Although the king was rightfully the owner of wildlife and marine resources, he was supposed to hold them for the benefit of the public.

As a result, subsequent monarchs provided access to resources needed by the public - a tradition that provided the basis for Gandhi’s 1930 Salt March in protest of Great Britain’s decision to tax people for salt.


American Statements of Nature as Public Trust

American law has been influenced by Roman law directly. Thomas Jefferson owned several editions of the Institutes of Justinian and praised the first American edition, which appeared in 1812, “for its usefulness to American lawyers.”

American history contains several official statements referring to nature, at least some part of it, as belonging in a public trust. For example, in a dispute about the killing of seals, U.S. officials said in 1895:

The earth was designed as a permanent abode of man through ceaseless generations. Each generation . . . is entitled only to use the fair inheritance. It is against the law of nature that any waste should be committed to the disadvantage of the succeeding tenants.

Likewise, in 1903, Theodore Roosevelt said:

[W]e are [not] to be pardoned if we treat any part of our country as something to be skinned for two or three years for the use of the present generation, whether it is the forest, the water, the scenery. Whatever it is, handle it so that your children’s children will get the benefit of it.

U.S. Supreme Court
The idea that the government should serve as people’s trustee of the country’s natural resources has been asserted by the U.S. Supreme Court in many statements beyond those already quoted.

• In 1892, the U.S. Supreme Court made a ruling that became the “lodestar” for American public trust law. The Illinois legislature had given the Illinois Central Railway a grant for a mile of the shoreline in Chicago’s business district, extending a mile out under Lake Michigan. Later, realizing that this had been a mistake, the legislature repealed the grant. In the ensuing suit, the U.S. Supreme Court supported this repeal, saying that such lands are “held in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interferences of private parties.”

• In justifying this decision, the Supreme Court said that “the decisions are numerous which declare that such property is held by the state by virtue of its sovereignty, in trust for the public. The ownership of the navigable waters of the harbor, and of the lands under them, is a subject of public concern to the whole people of the state. The trust with which they are held, therefore, is governmental, and cannot be alienated, except in [rare instances].”

• In 1896, in a case involving the State of Connecticut, the Supreme Court said: “[I]t is the duty of the legislature to enact such laws as will best preserve the subject of the trust, and secure its beneficial use in the future to the people of the State.”

• In 1911, the Supreme Court declared: “All the public lands of the nation are held in trust for the people of the whole country.”

• In 1954, the Court said: “The United States holds resources and territory in trust for its citizens. . . . The responsibility of Congress is to utilize the assets that come into its hands as sovereign in the way that it decides is best for the future of the Nation.”

State Supreme Courts
As illustrated above by Hawaii, state supreme courts have stated that the states must abide by the PTD.

• In 1916, the Ohio Supreme Court declared: “The state as trustee for the public cannot by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created. . . . [T]he state is merely the custodian of the legal title, charged with the specific duty of protecting the trust estate and regulating its use. . . . An individual may abandon his private property, but a public trustee cannot abandon public property.”

• In 1919, the Supreme Court of Florida said: “The trust in which the title to the lands under navigable waters is held is governmental in its nature and cannot be wholly alienated by the States. . . . {T]he States may by appropriate means grant to individuals limited privileges in the lands under navigable waters, but not so as to divert them or the waters thereon from their proper uses for the public welfare.”

• In 1983, the California Supreme Court made a historic ruling in response to a charge by the National Audubon Society. It said that the PTD was being violated, because the water level of Mono Lake was declining due to the fact that too much water was being diverted by the Los Angeles Department of Water and Power. DWP said that their practice was allowable because it had permits. But California’s Supreme Court, having examined the state water law in light of the PTD, said that the state had “an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.”

• In the same year (1983), the Idaho Supreme Court declared: “[T]he public trust doctrine at all times forms the outer boundaries of permissible government action with respect to public trust resources.”

• In 2001, building on the Mono Lake ruling, Hawaii’s Supreme Court said that the “right of water was specifically and definitely reserved for the people of Hawaii for their common good.” Moreover, it said, “All public natural resources are held in trust by the State for the benefit of the people.” Also, rejecting the view that “the public interest advanced by the trust is the sum of competing private interests," the Court said that the State “must recognize enduring public rights in trust resources separate from, and superior to, the prevailing private interests in the resources.” Finally, the Court reaffirmed its earlier judgment that “the State as trustee has the duty to protect and maintain the trust and regulate its use.”

State Constitutions
Various state constitutions express the commitment of the state to preserve the natural resources as a public trust for its people, although in some cases the term is not used.

• According to Pennsylvania’s constitution: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”

• Hawaii’s constitution says: “For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people.”

• Similar statements are made in the constitutions of Alaska, Louisiana, and Virginia.


The American Government’s Breach of Trust

Given the rulings of the U.S. Supreme Court, reinforced by the constitutions and supreme court rulings of various states, one must wonder how America came to consider legal the pollution of the atmosphere so severely as to change the climate and acidify the ocean.

This development seems especially strange in light of the fact that the environmental movement of the 1960s and ‘70s resulted in the Environmental Protection Agency (EPA), which was preceded by National Environmental Policy Act (NEPA). Although NEPA did not use the term “trust,” it did express the doctrine’s substance, speaking of the “responsibility of the Federal Government” to assure Americans of a beneficial use of the environment “without degradation, risk to health or safety, or other undesirable and unintended consequences.”

The environmental movement of that era resulted in laws dealing with various matters, including air pollution, water pollution, toxic substances, and endangered species. As a result, much good has been done. For example, the bald eagle is thriving and rivers can no longer be set on fire. However, writes Mary Wood, “while rivers aren’t catching fire, Appalachian mountaintops are being blown up, toxic chemicals are accumulating in our bodies, [and] extinction rates from habitat loss are soaring.”

These consequences occurred because, Wood suggests, the burst of lawmaking in the 1970s was followed by a regression in the government’s understanding of itself as responsible to protect nature as a trust for the people. This regression was partly because the judiciary withdrew from the field, treating the administrative application of environmental laws passed by Congress with great deference. Rather than making independent judgments, the courts rarely questioned the policies of the EPA and other executive-branch agencies dealing with the environment.

This was a failing, because the courts should, by means of judicial rule, do what courts do in relation to financial trusts: By examining the possibility of political factors inappropriately determining outcomes, “courts enforce fiduciary duties with rigor. They root out bias and demand loyalty to the beneficiaries.”

Another reason for the regression was that Republican lawmakers became increasingly opposed to having pollution regulated, especially carbon dioxide – an opposition signaled most dramatically by President George W. Bush’s breaking of his campaign promise to regulate CO2.

A third reason is that Congress did not prevent polluting industries from putting their people on the agencies that are supposed to regulate them; even former lobbyists have even been allowed to be put in charge of such agencies. “Typically,” said Robert F. Kennedy Jr. - speaking primarily about the Bush-Cheney administration - “political operatives come from the private industrial sector and oversee the very regulatory programs that they spent their former careers fighting.” As a result, the various executive branch agencies, including the EPA, became facilitators of the wishes of polluting companies more than protectors of the country’s natural resources.

The statutes written by Congress said that industries could not do anything that might pollute nature without a permit from the relevant agency. But the statutes gave the agencies great discretion in giving permits. As a result, Wood says, “U.S. agencies have turned environmental law inside out. Whereas Congress passed environmental statutes with the overriding goal of protecting the environment, the environmental agencies now use the statues to legalize destruction of the environment.” As a result, “Agency discretion drives the demise of Nature.”

Congress had designed the permit system as a “transition tool.” For example, the Clean Water Act said that “the discharge of pollution into navigable waters [is to] be eliminated by 1985.” The name of the act was, in fact, the National Pollution Discharge Elimination System. Permits were to last five years, to give industries time to employ new technology to become pollution free. But there were not to last more than five years. Instead, “EPA enshrined the permits and now routinely extends them administratively,” with virtually all applications for permits being granted. “Where permit denial rates have been studied, they only amount to about 1 percent.”

As a result, the EPA and the other agencies “issue permits to allow the very damage that the statutes were designed to prevent.” This reversal means “a de facto repeal of the statutes that captured the public’s imagination and hearts in the 1970s.” This de facto repeal has come about for five reasons:

• The unending pressure on government agencies by industries, especially the fossil fuel industries, to grant permits (as well as to weaken their already inadequate policies).

• “[T]he bureaucratic mindset of most agencies today,” which “aligns all too closely with the industries they regulate.” Rather than doing everything they can to protect nature, they ask: “How much pollution and resource scarcity can we impose?” - with the result that they “allow damage until the natural resources stand at the brink of collapse.”

• The judiciary’s deference to the policies of the agencies (rather than subjecting nature-destroying policies to judicial review).

• The present practices of the permit system, which treat the preservation of natural resources is a matter of discretion, not obligation.

• The tendency to reverse the precautionary principle: In the face of scientific uncertainty, the agencies should prohibit new chemicals and practices unless their safety to people and the environment has been conclusively established. Instead, they avoid regulations that would threaten corporate profits unless “the harm from their activities has been conclusively established.”

The government is, as a result, serving industry, rather than protecting the environment and thereby serving people, present and future.

When the legislature, the president, and the executive branch behave in these ways, the people need to remind them that they are violating their - the people’s - property rights. The land and all of its resources belong to the people, especially in democracies, in which it is explicitly said that sovereignty rests with the people. So the people need to overcome the view of nature as “an amorphous milieu, not really owned by anyone, that corporations can lawfully plunder with government’s blessing.”

The best remedy, Wood suggests, is to reinvigorate the trust framework, according to which executive and legislative branches understand themselves as nature’s trustees, who are obligated to preserve it for present and future generations, and according to which the judiciary branch understands itself as “the ultimate guardian of the public trust,” responsible for making sure that the other two branches are loyal to the trust’s beneficiaries.


The Resurgence of the PTD: Sax, Weiss, and Wood

After several decades in which the PTD was largely dormant, its recovery began in the 1970s with the writings of Joseph Sax of the University of Michigan Law School. In response to the desire of lawyers and other citizens to have a legal basis for the rights of the general public – a basis that could be enforceable against the government – Sax in 1970 wrote an article entitled ”The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention.”

In 1983, this article was the main basis used by the California Supreme Court in its above-mentioned Mono Lake ruling. According to scholars, this ruling initiated the modern era of public trust law.

In that same decade, Sax wrote another major article, “Liberating the Public Trust Doctrine from Its Historical Shackles.” Stating that the “essence of property law is respect to reasonable expectations,” Sax said:

The central idea of the public trust is preventing the destabilizing disappointment of expectations held in common but without formal recognition such as title.

Accordingly, trustees should be “insulating those expectations that support social, economic and ecological systems from avoidable destabilization and disruption.”

However, because the government has not been insulating our expectations about the climate from “destabilizing disappointment of expectations.” Accordingly, such disappointments have been multiply exemplified - by increasing drought, heat, storms, and sea-level rise, resulting in climate refugees, climate wars, and disappearing glaciers, aquifers, and snowpack.

The next person to reinvigorate PTD was Edith Brown Weiss, a professor of international law at Georgetown University. In 1984, Weiss published a long article entitled “The Planetary Trust,” a term that she used as shorthand for the “[natural] resources of the planet [held] in trust for all generations of the human species.”

In defining “the planetary trust,“ Weiss said: “[T]he human species holds the natural. . . resources of the planet in trust for all generations of the human species.” To do this, this generation will need “to preserve the diversity of the resource base and to pass the planet to future generations in no worse condition than it receives it.”

In 2014, University of Oregon law professor Mary Christina Wood, who has already been quoted, published a major book entitled Nature’s Trust: Environmental Law for a New Ecological Age. Wood coined the term “nature’s trust” as shorthand for a trust having nature as its res – its subject matter, its assets. Wood’s hope is that the PTD, according to which vital natural resources are to be held in sovereign trust, will come to be recognized as the law of the land and, in fact, of the planet.

To understand what it would mean for members of the government to become nature’s trustees, an understanding of trusts and trustees in general is needed.


Trusts and Trustees

A trust’s assets (its res) are owned by two parties: the beneficiaries, who have beneficial ownership of the assets, and the trustees, who are the legal owners of these assets. As legal owners, the trustees have control of the assets, but they have this control entirely for the sake of the beneficiaries.
“The essence of a trust,” said Edith Weiss, “is a fiduciary relationship. This relationship imposes on trustees a duty to act for the benefit of beneficiaries with respect to trust matters.”

Financial Trusts
In short-term financial trusts, the beneficiaries are usually limited to particular people, such as the children of the person who set up the trust. These children can use the trust’s yield (interest, bonds, and dividends) and, if they wish, also the capital assets.
But in a permanent trust, such as a charitable trust, the beneficiaries of the present generation may not use up, or even diminish, the capital assets. Rather, the beneficiaries can receive only the yield, such as the interest.
The crucial factor in the success of a permanent trust is whether the trustees fulfill their fiduciary duty - to be absolutely loyal to the trust and thereby the beneficiaries of this and all future generations. With regard to financial trusts, courts enforce this duty rigorously. Trustees subject themselves, said 1930s’ Supreme Court Justice Benjamin Cardozo, to “obligations of fidelity and diligence that attach to the office of trustee.”
In other words, trustees as fiduciaries never use any of the assets for themselves, their interests and projects, or any third party. They are to preserve the res in its entirety and, when possible, to increase it. In seeking to increase it, moreover, the trustees will take a precautionary approach, avoiding any speculative or otherwise risky investments, just as a prudent husband and wife would with their own money.
Equally important, a trustee must avoid any conflicts of interest. Perhaps the most difficult temptation to avoid is that of overindulging the presently-living beneficiaries, thereby reducing the endowment available for the beneficiaries of future-generations. Conservation of the trust for all generations into the indefinite future is the trustees’ supreme duty.

Nature’s Planetary Trust
Looking at the government as trustees to preserve natural resources for its rightful beneficiaries – including the people of future generations - would imply policies and behaviors radically different from those that have brought us to the brink of destruction.
In defining “the planetary trust,“ Weiss said: “[T]he human species holds the natural . . . resources of the planet in trust for all generations of the human species.” To do this, the present generation will need “to preserve the diversity of the resource base and to pass the planet to future generations in no worse condition than it receives it.”
In describing “nature’s trust,” Mary Wood wrote:

The res of Nature’s Trust consists of ecological assets, natural wealth that must sustain all foreseeable future generations of humanity. It amounts to humanity’s survival account – the only one it has. Government trustees must protect trust resources for the benefit of present and future generations.


Basing Nature’s Trust on Nature’s Laws

To avoid further destruction of nature’s trust, the nation and the world need to bring, in Wood’s words, “the public trust doctrine into alignment with Nature’s own laws” – sometimes described as bringing the PTD into line with “natural law.”
The notion of natural law has come into disrepute, due to the association of this term with Aristotelian science, which was often mixed with prejudice. But by “natural law,” Wood simply means the laws of nature as thus far understood by the natural sciences. Therefore, environmental law should “calibrate to the physical, chemical, and biological requirements for achieving climate equilibrium.”
These requirements, moreover, are not political and hence flexible. Government officials, as nature’s trustees, must realize that “requirements are set by Nature, not politicians,“ so that “averting climate disaster is a matter of carbon math, not carbon politics.”
Doing the carbon math means using the best scientific calculations to determine the percentage of CO2 in the atmosphere, how to bring it back down to 350 ppm or lower, and, moreover, extracting 100 gigatons of carbon.
The courts are crucial to forcing the legislative and executive branches of government to make policies that fit with natural law in this sense, which will often require delving into scientific questions. “While judges may not relish sorting through environmental science,” Wood says, they should do it with the spirit of the Ninth Circuit court, which, under orders from the U.S. Supreme Court, said, “we take a deep breath and proceed with this heady task.”


PTD: Alternative to the UN Treaty System

Failure to base government policies on the laws of nature does not, of course, exist only in the United States. This failure is true of most nations and, therefore, the world as a whole.
Following Earth Day in 1970, the formation of the IPCC in 1988, and the U.N. Earth Summit in Rio de Janeiro in 1992 - at which the nations signed the U.N. Framework Convention on Climate Change (UNFCCC) – there was great optimism that global warming could be stopped before it became much worse. But now there is now much pessimism. For many years, great energy went into the conferences, about which participants were confident, at least hopeful, that the next one would achieve the breakthrough. But after the almost complete failure at Copenhagen, there is little confidence or even hope. The nations have failed to use the UNFCCC to stop or even slow climate change.
“Children born in 1992,” writes Wood, “have arrived at adulthood with no meaningful action to protect their planet – and their future survival,” so “climate crisis screams out for a reality check.“ In particular,

The failure of the Copenhagen Conference calls into serious question the continued wisdom of relying on international negotiations as a mechanism to force pollution reduction.

There were people who from the beginning feared that this approach to the problem would fail, because it is a treaty system, in which nations can veto any proposals they would find too costly or otherwise undesirable. Accordingly, any treatises achieved are usually weak, unable to prevent much pollution; these weak treaties are then difficult to enforce; and any country can drop out of the treaty at will. As Wood says, “due to the autonomy of nations and the lack of any world ‘super-jurisdiction [or ‘super-power’], there is no way to directly force sovereigns to reduce carbon emissions.”
The problems are illustrated by the Kyoto Protocol. It is the only climate change treaty that has been signed; some countries, including the United States, have never ratified it; and some countries that originally signed, including Canada and Japan, have dropped out.
The alternative, Wood suggests, is to employ the PTD internationally. This would not be problematic, say two scholars of international relations: “The principles of public trust are such that they can be understood and embraced by most countries of the world.” And, as shown below, many countries have developed PTD more fully at the national level than has the United States.
A common legal basis is provided by the UNFCCC, especially its formula “common but differentiated responsibilities,” which means that all nations have responsibilities with regard to reducing the use of fossil fuels, but some countries need to reduce their use more drastically and quickly.
America and other nations have resisted the UNFCCC formula, using their objection to this policy as an excuse to do nothing. Within the treaty framework, there is nothing the poorer nations can do about this. But the international PTD movement is counting on the judiciary to play its role. Wood explains:

“As a legal doctrine, the public trust compels protection of those ecological assets necessary for public survival and community welfare. The judicial role is to compel the political branches to meet their fiduciary obligation through whatever measures and policies they choose, as long as such measures sufficiently reduce carbon emissions within the required time frame.”

That describes the function of the PDT within the nation.
But the hope is that the judiciaries around the world will do this in their own countries - especially with regard to Atmospheric Trust Litigation, to be discussed below.
This is where the UNFCCC’s four-word formula, “common but differentiated responsibilities,” comes in. One might think that these words could make no difference in the real world. But Wood, who lives in the Northwest, explains how “three key words” enabled the Native Americans to continue fishing salmon in the Columbia River.
The settlers were about to take all of the salmon for themselves. So officials worked out a treaty, “reserving Indian rights to take fish ‘in common with’ the non-Indian settlers.” But still, the settlers were going to take all of the salmon: “No state legislature was willing to carry out the treaty promise that the U.S. had solemnly agreed to.” And so, “U.S. courts constructed a co-tenancy framework” (“co-tenancy” is discussed below), and then enforced it. As a result, neither the settlers nor the Native Americans went hungry, and the salmon survived to feed many subsequent generations. This success occurred thanks to the three key words, “in common with,” which was then interpreted and enforced by the courts.
By analogy, the statement with the four key words, “common but differentiated responsibilities,” can work if, and only if, the courts enforce it. There is a basis for American courts to do this, because the UNFCCC treaty was signed and ratified, and any ratified treaty becomes, by U.S. law, part of “the supreme law of the land.” Of course, the government has ignored it. But the executive and legislative branches of the government have been able to ignore this treaty only because the third branch, the judiciary, has not demanded that it be followed.
If the judiciary does make this demand, the four-word formula could provide a basis for preventing global warming from being terminal, by forcing our political leaders to become the trustees of nature they are supposed to be. “[T]he trustee’s fundamental duty,” said Peter Brown, is to preserve humanity.”
Of course, the movement to spread the public trust doctrine will not do much to preserve nature, and hence humanity, unless it goes beyond the United States. Besides taking effect in our state and federal governments, it must also take effect in other countries, so that the effort to save the planetary trust becomes truly planetary, as Weiss hoped.
If this were to occur, then there could come about what international relations scholar Peter Sand calls “transnational environmental trusteeship,” understood as the accountability of states “for their management of trust resources to the interest of the beneficiaries – the world’s peoples.”


The Spread of the Public Trust Doctrine

Fortunately the public trust movement, which began in the 20th century on the basis of the writings of Sax and Weiss, has in recent decades become global, with governments in at least a dozen countries using the public trust doctrine to protect their natural resources. This internationalizing of the doctrine can be illustrated in terms of six countries: Canada, the Philippines, India, Kenya, Uganda, and South Africa.

Canada
In the 1930s, the Canadian Supreme Court declared that the Crown holds natural resources “as a trustee for the public.” In 2004, the Court sued a timber company for damages - to itself as landowner and as representative of the public interest. Pointing out that the “notion that there are public rights in the environment that reside in the Crown has deep roots in the common law,” the Court called a municipality “a trustee of the environment.” Relying on that decision, a trial court in 2005 explained that the government can sue “as guardian of the public interest, to claim against a party causing damage to that public interest.”

The Philippines
Echoing the language of the United States’ National Environmental Policy Act (NEPA), the 1977 Environmental Policy of the Philippines said that the country would “recognize, discharge and fulfill the responsibilities of each generation as trustee and guardian of the environment for succeeding generations.” In 2008, the Metropolitan Manila Development Authority was sued by citizens who alleged that 10 government agencies, violating the public trust doctrine as well as several laws, had failed to prevent the pollution of Manila Bay. Even if there had been no violations of legal statutes, the people running the agencies “cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly possible. Anything less would be a betrayal of the trust reposed in them.”

India
Having inherited the public trust doctrine from English common law, India’s Supreme Court said that this doctrine prevents the “aesthetic use and the pristine glory of the natural resources, the environment, and the ecosystems of our country” from being eroded by private use, “unless the courts find it necessary, in good faith, for the public good.” The occasion for this judgment was a plan by a development company - which had been given a 99-year lease by the Minister of the Environment - to dredge, blast, and reconstruct a riverbed in order to build a resort in a protected forest. A suit complained that the project, besides involving a major excavation of public land, encroached on a protected forest and threatened neighbors with flooding and landslides. The Court agreed. Explaining the public trust doctrine by citing the U.S. Supreme Court’s Illinois Railroad ruling and Joseph Sax’s 1970 article, the Court called this doctrine “the law of the land.” The public trust, the Court added, included “all natural resources,” so the public is the beneficiary of groundwater and parklands as well as the “sea-shore, running waters, airs, forests, and ecologically fragile lands.” The “laws of nature,” the Court added, should “inform all of our social institutions.”

Kenya
Kenya’s High Court said that the “essence of public trust is that the state, as trustee, is under a fiduciary duty to deal with trust property, being the common natural resources, in a manner that is in the interests of the general public.” Getting specific, the Court said that “the water table and the river courses affected are held in trust by the present generation for the future generations.” It also stated that federal and local governments were “under a public trust to provide adequate land for the establishment of [water] treatment works,” because residential development had posed a “threat to life,” whereas the Constitution included the “right to life.”

Uganda
Uganda’s National Environmental Management Authority gave a sugar refinery a 50-year permit to transform a forest reserve into plantation lands. The Advocates Coalition for Development and Environment challenged the permit on public trust, as well as statutory, grounds. Uganda’s High Court ruled for the plaintiffs, basing the public trust doctrine on the country’s Constitution, which said that the government “shall protect important natural resources, including land, water, wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda.” The Constitution said, furthermore, that both federal and local governments “shall hold in trust for the people and protect natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and touristic purposes for the common good of all citizens.”

South Africa
Two years after the adoption of South Africa’s 1996 Constitution, its legislature enacted the National Environmental Management Act, which declared: “The environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest, and the environment must be protected as the people’s common heritage.” The legislature also established the National Water Act, which states that “water is a natural resource that belongs to all people.” In a section headed “Public Trusteeship of Nation’s Water,” the text states that the national government as public trustee “must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner,” for the benefit of all persons, “while promoting environmental values.” The Mineral and Petroleum Resources Development Act called the State the “custodian” of mineral and petroleum resources, and the Coastal Management Act declared that the government “must act as the trustee of the coastal zone.”


Conclusion

Just as several U.S. states, especially California, Hawaii, and Pennsylvania, have demonstrated the potential of the Public Trust Doctrine for preserving and restoring various natural resources, several countries, especially India, Kenya, and South Africa, have done the same. The crucial question for the present book is whether it can provide a legal basis for preventing climate collapse. This is the topic of the next chapter.