It was a historic achievement in 2015 when nearly 200 nations signed the Paris climate accord. It culminated a quarter-century of slow and tense negotiations where governments searched for the sweet spot between their sovereignty and their collective responsibility to prevent an irreversible global catastrophe.
Heads of state finally decided that each country would develop its own plan to cut fossil-fuel pollution rather than submitting to binding and enforceable commitments. They agreed to increase their goals every five years. The collective goal is to hold the Earth’s surface warming to less than 2 °C above preindustrial temperatures and to try to hold it at 1.5 °C. But six years after Paris, pledges and progress are not on track. The United States and other wealthy nations have updated their plans, but they would still result in 2.4 °C of warming – well into the disaster zone for humans and other species.
In other words, the sovereignty barrier has been overcome only to encounter the obstacle of faltering political will. Sufficient technologies are available to meet the world’s energy needs without exceeding the Paris limits. But the fossil energy lobby is strong, and consumers sometimes don’t like the policies necessary to make substantial cuts in greenhouse gas pollution. For example, economists maintain that raising the price of carbon fuels is the most efficient way to reduce carbon pollution, but when France tried it in 2018, the “yellow vests” rioted in Paris, and President Emmanuel Macron backed down. Similar protests have taken place in India, Serbia, Nepal, Croatia, Brazil, and China and were linked to uprisings in Myanmar and Mozambique. “Are fuel riots the food riots of the 21st century?” one blogger asked. Perhaps. But if climate change proceeds on pace, the fuel riots of the 21st century may become the food riots of the 22nd.
Because of that faltering political will, climate-altering pollution is accumulating in the atmosphere faster than nations are responding, and time is running out. Scientists say dramatic reductions in pollution are necessary by 2030, only nine years from now. If national leaders and civil societies fail, the principal victims will be today’s children and young adults, plus all the generations that follow. So rather than rioting, young people in several countries have filed lawsuits to make their governments move faster.
In the United States, young people formed a nonprofit organization, Our Children’s Trust, that works with kindred organizations in other nations to sue governments for more aggressive climate action. So far, it has done this in 14 other nations; it currently supports litigation in five.
A U.S. court flinches
But in its own country, which is responsible for most of the anthropogenic greenhouse gases in the atmosphere today and is still the world’s second-largest source of that pollution, Our Children’s Trust has hit a roadblock. Twenty-one children and young adults sued the American government in 2015 (Juliana v. U.S. Government), alleging it is violating their constitutional rights with policies like fossil-fuel subsidies that encourage the pollution responsible for global warming. A three-judge panel in federal court “reluctantly” dismissed the lawsuit in January 2020. The judges acknowledged that the science is compelling and young people have legal standing to sue. But the panel ruled 2-1 that political bodies and voters rather than the courts should deal with climate change. Intimidated by the breadth and depth of the issues involved in climate change, the court threw the ball back to the bureaucracy without ordering it to move more quickly.
Germany’s Federal Constitutional Court reached a different decision about its government’s climate action plan. The plan calls for Germany to eliminate its greenhouse gases by mid-century, but it prescribes emission quotas only until 2030. Doing so “offloaded” the burden of greenhouse gas reductions to future generations, the Court ruled in April. Young people would be “forced to engage in radical abstinence” to preserve the “natural foundations of life.” The Court gave the government until next year to set binding emission targets beyond 2030.
Observers called the ruling an example of intergenerational justice that could influence the adjudication of climate lawsuits around the world. We should hope they are correct.
The ruling was the third recent legal breakthrough for the environment in Europe. In November 2020, a French court ruled the government was deficient in implementing its climate commitments. Last January, the European Parliament urged the EU and member states to support the recognition of “ecocide” – crimes against nature – in international law. An independent panel of criminal and environmental lawyers will define ecocide more precisely. But the Stop Ecocide Foundation, which pushed for the amendment, called it a sign that world leaders are acknowledging the co-dependence of humanity and nature. Chairperson Jojo Mehta said making ecocide a crime provides “a practical guardrail to prevent the worst excesses of damage that are pushing Earth’s life-support systems towards the breaking point.”
Policies lag footprints
These cases could be, and should be, the beginning of an even broader application of law to force governments to keep and go beyond their commitments under the Paris accord. Time is running out to prevent catastrophic climate changes, but sovereign nations are not acting boldly or rapidly enough to avoid ever-more-extreme weather disasters, the loss of cities to rising seas, widespread drought that threatens food production, massive biodiversity loss, border-crossings by millions of climate migrants, and places on Earth where conditions are so severe that many species, including ours, have not evolved to survive there.
In Juliana, the plaintiffs invoked an ancient legal principle to make their case that the federal government is obliged to protect the atmosphere. The Public Trust Doctrine is rooted in the laws of the Byzantine Emperor Justinian. It later became law in England and was strengthened much later in the Magna Carta. It says the “sovereign” (government leaders today) are responsible for protecting and preserving certain natural resources for present and future generations. Private ownership can’t restrict access to those resources.
Courts have most often applied the Doctrine to water, especially access to seashores. In the United States, the protection of natural assets usually has been a state government responsibility. But today, the natural resources governments must hold in trust – the atmosphere and oceans, for example – are more diverse and not confined by political boundaries. All nations must be “co-trustees” of crucial natural resources. The resources fundamental to life on the planet were not at risk when Justinian was Emperor, but they are now.
The atmospheric trust
Mary Christina Wood is a professor of environmental law at the University of Oregon in the United States. She is a frequently published champion of applying the Public Trust Doctrine to the atmosphere. She makes the compelling case that by using up the atmosphere’s “carbon budget” – its capacity to hold carbon dioxide emissions without major climate disruption – fossil energy companies are committing the generational theft of a natural asset that belongs to everyone today and in the future. She quotes colleagues who point out that “certain gifts of nature – pure air, clean water, a stable climate, and healthy ecosystems – belong to everyone and cannot be appropriated for exclusively private use.”
Wood developed the strategy of Atmospheric Trust Litigation, which uses the courts to establish that governments have a fiduciary responsibility to protect the atmosphere from greenhouse gas pollution. “The judiciary is potentially a crucial player in forcing carbon reduction,” she argues, “because it tends to be a less politicized branch of government (in most, though certainly not all, countries) with power to order swift and decisive relief.”
Even if government officials acted with speed, Woods points out, the agencies that administer environmental programs often have discretion over if, when, and how to apply them. Wood points out that two-thirds of the greenhouse gas pollution in the U.S. is emitted in accordance with government-issued permits.
“In many ways, our air resources would seem the natural resource most susceptible of treatment as a foundational public trust resource,” says Richard Frank, a professor of environmental law at the University of California Davis. “After all, it is by its physical nature incapable of private ‘ownership,’ and science has demonstrated how the private degradation of air quality can have demonstrable, harmful impacts on public health and aesthetic values… Accordingly, it is somewhat surprising that — at least until quite recently — there has been precious little development of public trust principles in the context of air quality and air resources.”
The Anthropocene’s damages The atmosphere is not the only planetary resource to which the Public Trust Doctrine should apply. In 2009, scientists led by the Stockholm Resilience Center and Australian National University identified nine planetary boundaries we cannot cross without risking large-scale abrupt or irreversible environmental changes. In 2019, geologists proposed that we have entered a new epoch in the Earth’s history, the Anthropocene, in which humans are the dominant influence on the planet. But our influence has not been positive.
The evidence of a new epoch includes “an order-of-magnitude increase in erosion and sediment transport associated with urbanization and agriculture; marked and abrupt anthropogenic perturbations of the cycles of elements such as carbon, nitrogen, phosphorus and various metals together with new chemical compounds; environmental changes generated by these perturbations, including global warming, sea-level rise, ocean acidification and spreading oceanic ‘dead zones’; rapid changes in the biosphere both on land and in the sea, as a result of habitat loss, predation, explosion of domestic animal populations and species invasions; and the proliferation and global dispersion of many new ‘minerals’ and ‘rocks’ including concrete, fly ash and plastics, and the myriad ‘technofossils’ produced from these and other materials.”
Findings like these trigger the question the European Parliament has raised: Does nature have its own rights apart from those that benefit humans.? Typical environmental protection is anthropogenic, created in the context of human health, economic impact or the services ecosystems provide to society. Are there also biocentric and ecocentric rights?
In 2016, the Constitutional Court of Colombia considered a case where plaintiffs alleged industries were polluting a river important to agriculture, hunting, and fishing. The court recognized the plaintiffs’ rights to a clean river, but it also declared that “other living organisms with whom the planet is shared (were) entities deserving of protection in and of themselves.” Ecuador, the first nation whose constitution acknowledges nature’s rights, recognizes that nature has “the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” Bolivia has the Law on the Rights of Mother Earth.
These laws recognize that nature does not exist solely for the benefit of the human species, although nature extends those benefits to us. The evidence is that the natural world would do quite well, and even better, without us.
The next frontier
The Public Trust Doctrine is anthropocentric, meant to protect certain critical natural resources for human access and use. Today, the human footprint is so large that little in the biosphere does not deserve protection.
With the ability to cause a nuclear holocaust or produce a planet on which we have not evolved to survive, and with a growing population that demands more of the Earth’s resources, we are the dominant generations of the dominant species. Yet our governing institutions seem unable, unwilling, or too corrupted to protect us from ourselves.
For that reason, international and national laws, built when necessary upon ancient doctrine and enforced when necessary by litigation, should be the next frontier for protecting the biosphere with the boldness and speed its well-being, and ours, require. Human laws and natural law are different things. But we will not survive, or survive happily, unless our laws respect and reflect nature’s.