New Litigation to Address Climate Change

By Don MacGillivray


On September 21, 400,000 people marched in the streets of New York City to call on 100 global leaders to take action on climate change during the United Nations climate summit that took place September 23. This action was supported by 1,400 climate related organizations.

At the end of next year, a worldwide climate conference will take place in Paris where the world must reach a difficult agreement.

Even with continuing skepticism, recent authoritative reports and publications have all but proven the reality of Climate Change.

Some of these are: The United States National Climate Assessment (compiled by 300 of the leading climate scientists), British Parliament’s Environmental Audit Committee report, the United Nations’ Intergovernmental Panel on Climate Change, Synthesis Report which was sent to world governments and lastly, a book by Naomi Klein titled This Changes Everything: Capitalism versus The Climate.

Policymakers have been warning about the urgency of climate change since 1988. The climate holds the potential to be more destructive than anything we have ever imagined, short of a large meteorite hitting the earth. Climate scientists say that the carbon in the atmosphere must be lowered immediately from its current 398 parts per million (ppm) to 350 ppm and hopefully within ten years.

Based on fundamental principles of sovereignty rooted in ancient law, people have a right to live and flourish. Therefore governments have a duty to protect the natural systems from human actions causing the damage. If the government will not do it, the resulting violation of citizens’ constitutional rights requires the judiciary to intervene.

There are nine lawsuits or petitions currently making their way through state and federal courts based on this legal theory that are setting a new precedent in environmental law. The legal theory is called The Public Trust Doctrine Of The Constitution that ensures the people’s right to a livable environment and a clean atmosphere required to maintain our natural systems.

The need stems from the laws designed to protect nature. With the passage of the Clean Air Act, Safe Drinking Water Act, and Endangered Species Act protection was promised for water, soil, air, forests,  wildlife and almost everything else. However, these acts have not prevented serious damage to the environment.

The Congress charged the Environmental Protection Agency and many other agencies with enforcement of these new laws in the early 1970s. These agencies have the power to decide who can harm what, and by how much.

These agencies became a magnet for industrial influence and the government agencies treated them as clients they must serve. This is known as “agency capture,” a term first used in 1971 by Nobel laureate economist George J. Stigler.

What can lawsuits demand as a remedy that could stabilize the atmosphere and reverse the previous damage that has been done?

A prescription to solve this question has been written by eighteen world-renowned climate scientists in the Scientific Case for Avoiding Dangerous Climate Change to Protect Young People and Nature.

It warns that preventive action must be taken immediately by cutting carbon emissions by six percent a year along with a massive global reforestation.

“Atmospheric trust litigation” is the only thing that can meaningfully tackle climate change. Thirty-two law professors, including leading constitutional law scholars, submitted a legal brief warning the courts that failure to act now becomes a decision to eliminate the option of preserving a life- affirming climate system for the world.

On June 11 this year, the Oregon Court of Appeals handed a victory regarding the public trust doctrine by reversing a lower court case.

This decision makes it obvious that the court is taking trust arguments seriously. The court said that the state can’t ignore the public trust rights that are in the Constitution. It’s the judiciary’s job to determine what those rights are and the legislature must follow the rulings of the court.

The atmospheric trust litigation theory, meanwhile, is spreading to more and more law professors worldwide. The courts need to come forth and deliver a remedy.

Atmospheric trust litigation is not going away because the climate crisis is intensifying while the other branches of the government are ineffective. It’s been around since Roman times and it is so important that even a Supreme Court opinion cannot eliminate it.

Portland has been working on the issue of climate change for the past twenty years. The Northwest’s climate future is expected to be characterized by warmer winters with more rain and warmer, drier summers.

Recently City Council adopted the Climate Change Preparation Strategy and the associated Risk and Vulnerabilities Assessment.

These documents identify more than 80 actions to build climate resilience in the City of Portland and Multnomah County policies, operations, services and infrastructure and suggest actions for many of the important players in the community over the coming years. This plan is about fairness and to everyone involved.

The strategies recommend prioritizing preparations in communities where people face situations that may be exacerbated by the impact of climate change. Reducing carbon emissions remains a crucial component of everyone’s work to improve the environment to ensure a safe and livable future.

New Litigation to Address Climate Change

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