Nature's Trust (Part 4)

04/28/2015 03:35 pm ET | Updated Jun 28, 2015

When we find a failure of governance or regulatory systems, we have always as recourse taken the issue to court to apply the legal tools of law. We know that judicial principle and precedent can be a basis for an argument intended to redress wrong and restore justice. If you accept that the principles on which American environmental law was based in the 1970s has been compromised and excepted subsequently to dilute protections, regulations and enforcement to an unacceptable circumstance, then we have but one tactic to fall back on: lawsuits to force the issue, re-assert the principles and reverse the destructive trend. And that is exactly what citizens in Europe, the United States and elsewhere have chosen to do.

In the Netherlands, some 990 Dutch citizens have filed suit against their government for "failing to effectively cut greenhouse gas missions and curb climate change." According to the website Climate Progress, "The plaintiffs will ask the court to force the Dutch government to reduce its greenhouse gas emissions by between 25 and 40 percent relative to their 1990 levels by 2020 -- reductions that the Intergovernmental Panel on Climate Change (IPCC) has said developed nations must make if the world wants a 50 percent chance of avoiding a 2 degree Celsius increase in global temperature. Currently, the European Union has committed to reducing its emissions 40 percent by 2030, but the Netherlands has not made any specific commitments, saying instead that it intends to adopt any international agreement that comes from the Paris climate talks later this year."

The class action was supported by the Urgenda Foundation, a Dutch organization devoted to sustainability and climate advocacy. The Netherlands is certainly vulnerable to extreme weather and sea level rise; indeed have been leaders for centuries in the design and construction of dykes and coastal barriers and other engineering systems to protect the 25 percent of the national land mass that is below or at sea level. The urgency of the changing circumstance has not been lost on the Dutch government and various new schemes to innovate and protect against further inundation have been put forward. But the plaintiffs argue that that same government has been not aggressive enough in addressing the root problem requiring much stricter emission controls and faster shift to alternative and renewable energy generation. The judicial proceedings will stake place over the coming months, and Urgenda is mobilizing publicity and support from citizens in Holland and throughout the European Union.

A similar, extraordinary movement has been quietly underway in the United States led by the Oregon-based not-for-profit Our Children's Trust (OCT) devoted to "a game-changing, youth-driven, global climate recovery campaign, securing the legal right to a healthy atmosphere and stable climate" through legal action, youth engagement, and public education and film. The organization, along with five individual teenagers, and two other non-profit organization representing thousands more, partnered to bring a federal suit to the U.S. Supreme Court designed "to require the federal government to immediately plan for national climate recovery according to the scientific prescription of Dr. James Hansen and other leading international climate scientists that will restore our atmosphere to 350 parts per million (ppm) of CO2 by the end of the century and avoid the disastrous scenarios of 2°C of warming. This lawsuit relied upon the long-established legal principle of the Public Trust Doctrine, which requires our government to protect and maintain survival resources for future generations." On December 8, 2014, the Court declined to hear the case, and Our Children's Trust responded as follows: "Our Children's Trust has been building new federal cases on behalf of youth to secure science-based climate recovery policy nationally, and will return to the Supreme Court if necessary. We will expand our efforts to enforce individual states' responsibilities to preserve the atmosphere for the benefit of future generations, and we will advance select global and local efforts to do the same. Piecemeal legislative and executive actions not based on nature's laws will simply never get us where we need to be. We need judicial declarations that government must act systemically to stabilize our climate."

OCT is pursuing legal remedies in State courts with some successes. Cases are pending in New Mexico, Oregon, Massachusetts, Colorado, Washington, and North Carolina, with courts in Alaska, Texas, Arizona, Kansas, Montana, and Pennsylvania issuing developmental decisions along the way on which the pending suits are based. In addition, Our Children's Trust has sought administrative rule-making decisions in various agencies in all fifty states as another means to make the argument and compel consideration of the legal principle.

OCT asserts: "Specifically, these court decisions have rejected many legal defenses raised by our opponents, including non-justiciability, standing, separation of powers and sovereign immunity. In support of our youths' positions, and in face of argument to the contrary, the courts have validated critical climate science and reserved for the courts the exclusive right to determine whether a particular commons resource is protected by the Public Trust Doctrine for benefit of present and future generations, and whether there has been a breach of that trust."

We need a children's crusade based on the Public Trust Doctrine to take back our future with Nature. With this work, in the U.S. and abroad, the crusade has already begun.