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William S. Becker

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Defending the Atmosphere

Posted: 05/04/11 09:41 PM ET

Last February, three Republican leaders in Congress filed a brief in the U.S. Supreme Court arguing that when it comes to global climate change, judges and Justices should mind their own business.

The courts are about to get a different message. Starting on May 4, young people in the United States and several other countries will file petitions and lawsuits in an effort to force public officials into protecting us all from climate change.

The international legal intervention -- the sponsors call it guerrilla law -- is believed to be the first of its kind. It is being organized by Our Children's Trust in Eugene, Oregon. It's part of a broader campaign that will include "iMatter" marches by young people around the world May 7-14, the brainchild of 16-year-old Alec Loorz of California.

Behind these demonstrations and legal actions is a principle that goes back to Roman law: the "pubic trust doctrine." The doctrine holds that government officials are "trustees of the commons" with a fiduciary responsibility to protect critical natural resources on behalf of present and future generations. Attorneys working on the campaign will ask the courts to rule that the atmosphere is one of those critical resources.

More concretely, the lawsuits will ask that public officials be required to create plans to return atmospheric concentrations of carbon dioxide to 350 parts per million, the level scientists, such as NASA's Jim Hansen, say is necessary to avoid catastrophic climate impacts.

The court action is meant to empower young people who have the most to lose from climate change but are too young to vote. Loorz explains it this way:

Young people will be affected most by decisions that are made today and yet we can't vote and we don't have money to compete with lobbyists. We do, however, have the moral authority and the legal right to insist that our future be protected.

A more technical explanation of the atmospheric trust idea is included in a book being written by the author of the concept, University of Oregon law professor Mary Christina Wood. She argues:

The legal foothold for Atmospheric Trust Litigation (ATL) is the ancient public trust doctrine, which imposes a strict fiduciary obligation on government to protect natural resources in trust for the citizens. As a legal doctrine, the public trust compels protection of those ecological assets necessary for public survival and community welfare.

The judicial branch should hold government to its legal responsibilities. So far, however, though many lawsuits have been filed, none have forced the carbon reduction needed to curb runaway atmospheric heating...

What power do judges have to enforce the doctrine? Through injunctive powers, Wood says, courts won't tell government how to lower carbon emissions, but they can insist that governments show they are meeting their bottom-line responsibility to the citizens.

Which brings us back to the U.S. Supreme Court and the three Republicans. The high court is considering "American Power v. Connecticut," a lawsuit by several states and organizations that contend major emitters of carbon dioxide are a "public nuisance." The claim was upheld by the Court of Appeals, but energy companies and the federal government have asked the Supreme Court to rule that climate policy is a "political question" that must be resolved by Congress and the President.

In a brief filed last February, Rep. Fred Upton, Rep. Ed Whitfield and Sen. James Inhofe told the Justices it is inappropriate and unnecessary for courts to get involved in America's climate policy.

Upton chairs the House Committee on Energy and Commerce; Whitfield chairs the House Subcommittee on Energy and Power; and Inhofe is the ranking member of the Senate Committee on Environment and Public Works. All three are prominent Republican opponents of climate action, working, among other things, to scuttle EPA's authority to regulate greenhouse gas emissions.

To be fair, it's not just Republicans who are blocking Congress from acting against climate change. Nineteen Democrats in the House voted for Inhofe's and Upton's bill to strip EPA of its regulatory authority. Several Senate Democrats also voted for the bill, including Sen. Joe Manchin of West Virginia, who complains "EPA's overreach is destroying jobs in my state and all over the country." (For an excellent report on Congress's effort to "repeal climate science", see Remapping Debate.)

The Upton/Whitfield/Inhofe brief previews the arguments we're likely to hear if courts agree to consider the "iMatter" movement's atmospheric trust lawsuits. Here are passages from the brief (the italicized portions are direct quotes) and a reality check on each.

Argument: The courts don't have to act because members of Congress have been actively involved in the legislative process relating to climate change policies and regulations.

Reality Check: By "actively involved in the legislative process," the three Republicans mean they're using the process to block meaningful congressional action on climate change. So far, they've been successful.

Argument: Members of Congress have strong institutional and policy interests in preserving Congress' plenary role in determining climate change policy for the nation.

Reality Check: In other words, members of Congress want to maintain control of climate policy so they can protect the interests of the coal, oil and nuclear industries, which contribute handsomely to reelection campaigns.

Argument: Plaintiffs are asking the Court to become involved in political and public policy matters that are being resolved by the Legislative and Executive branches of government.

Reality Check: Climate policy is not "being resolved," unless "being resolved" means making sure there is no national climate policy at all. While the evidence and impacts of climate change are increasing in the United States and worldwide, there is no prospect that Congress will pass a bill limiting greenhouse gas emissions anytime soon.

As for action by the Executive Branch, the three Republicans and their colleagues are trying to block it. At the same time they argue, climate policy is being resolved, their brief complains the Obama administration has "unleashed a torrent of greenhouse gas regulations" and has "engaged in frenetic regulatory activity."

Argument: The courts needn't worry because the United States is engaged in two decades of Congressionally authorized international climate change policy negotiations.

Reality Check: Due in large part to opposition in Congress and the last Bush administration, two decades of international negotiations have not produced an effective treaty to combat climate change. It was opposition in the U.S. Senate that prevented the United States from becoming party to the Kyoto Protocol, in which other nations committed to reducing their carbon emissions. The United States has not yet fulfilled its obligations under the one climate treaty the Senate did support -- the United Nations Framework Convention on Climate Change signed by President George H.W. Bush 14 years ago.

Argument: The climate actions the Obama administration has taken over the last two years may well exceed the authorities Congress has vested in the Executive, and are at a minimum extremely misguided.

Reality Check: The actions the Obama administration has taken so far to cut America's greenhouse gas emissions are based on sound science and are designed to protect the security of the American people. What's more, the administration has been carrying out the environmental protection laws instituted by past congresses. That's hardly "misguided." On the other hand, Congress's willful denial of observational and scientific evidence of global climate change is an abdication of the government's responsibility to protect the health and welfare of the American people.

Argument: Extensive Congressional hearings have examined the broad range of economic issues associated with proposed "solutions," including their impact on energy prices, markets household incomes and American competitiveness ...

Reality Check: Examining issues is not the same as resolving them. Hearings in the current Congress have been used to mock climate science and to raise fears that a clean energy economy would hurt families, workers and the economy. In reality, unmitigated climate change is what will cause incalculable damages to American lives, property and the economy, leading to massive increases in federal spending.

Clear and consistent policies to create a clean energy economy, on the other hand, would have positive economic impacts, including a boost to American competitiveness in the growing international market for low-carbon energy technologies. According to Pew Charitable Trusts, worldwide investments and financing in the clean energy sector have grown 630 percent since 2004, but the "U.S. competitive position in the clean energy sector is deteriorating." The United States has slipped from the world leader in clean energy investments in 2008 to third place today.

Argument: The Legislative and Executive Branches are doing their jobs in a way that the Constitution envisions.

Reality Check: In the Senate, climate-related legislation has been blocked by a rule that requires 60 votes just to debate, let alone pass, a bill. The Constitution envisioned that a simple majority would be sufficient to pass the nation's laws.

Argument: Climate change involves extremely complex, highly charged policy questions that are purely political in nature.

Reality Check: Responsible climate policy is not "purely political," although opponents have tried to make it so. Climate policy is question of risk: If it's possible that the majority of the world's climate scientists are correct in concluding that unmitigated climate change will be catastrophic, how much of that risk will Congress force upon the American people, present and future? And as the iMatter lawsuits will assert, climate protection is a fiduciary obligation, not a political question.

We don't know what the courts will rule on these questions, but we do know that any judge who reads the newspapers can see through the claim that Congress is handling the climate issue. If I were arguing these cases, I'd contend that the balance of power the Founders intended between the three branches of the U.S. government should be used to protect the American people from abuses of omission as well as commission.

Prof. Wood makes the case more eloquently:

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. The courts' role is not to supplant a judge's wisdom for a legislature's approach, but rather to police the other branches to ensure fulfillment of their trust responsibility in accordance with the climate imperatives of nature.
 

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