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Monday, April 14, 2014
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How the Public Trust Doctrine Can Save Us from the Perils of Climate Change

By Guest Author, Verner Wilson III, Yale F&ES '15

University of Oregon environmental and natural resources law Professor Mary Christina Wood tries to minimize her personal travel to reduce her carbon footprint.   But as a professor, she believes that it is extremely important to constantly engage with future leaders who will have to deal with the growing impacts of climate change.  That is why she traveled across the nation to offer her expertise at the Yale Law School on April 3rd

Her message to the future leaders at Yale offered a glimmer of hope and a new way of thinking about how environmental law can help battle the perils of climate change and other environmental issues.  The paradigm shift that she urges the environmental community to undertake in order to help solve the climate and environmental challenges of our time is also eloquently stated in her new book Nature’s Trust: Environmental Law for a New Ecological Age.While reading her book, listening to her lecture, and having conversations with her throughout her visit at Yale, I was intrigued with this new way of thinking.

It’s no secret that the many current environmental statutes and the strategies that the environmental movement has used to try to reduce greenhouse gas emissions have failed in many ways.  It was all too evident this past week in Berlin, Germany, where the world’s governments along with its most expert and credible scientists met to finalize an updated scientific report by the United Nation’s Intergovernmental Panel on Climate Change (IPCC).  The report, released on Sunday April 13, is to be used for discussion at the 2015 United Nations Framework Convention on Climate Change (UNFCCC) conference in Paris where expectations are high for a strong international greenhouse gas reducing treaty.

In putting together the IPCC document, scientists agreed that humans are fuelingthe extreme storms and weather to which many parts of the world have fallen victim in the past decade.  They also agreed that there needs to be a global shift on how we get our energy, and that moving to renewable energy sources will be critical.  Yet many of the world’s political leaders used the IPCC process in Germany to try to hack away the strong language that scientists agreed on.  For example, Saudi Arabia’s officials did not want the report to contain scientific findings that declare that emissions need to go down 40 to 70 percent by 2050 for the world to stay below a warming of two degrees Celsius.  Saudi Arabia would stand to lose a lot if countries ultimately acted upon that language, since its economy relies heavily on the oil industry.  While the language remained in the scientific document, it is unlikely to be ratified at the UNFCCC because the process requires unanimous consent.

Here in the United States, a recent Supreme Court ruling also paved the way for wealthy special intereststo influence the political process even more, which will likely have a lasting impact on climate-related law and policy.  In the case McCutcheon vs. the Federal Election Commission, the Supreme Court ruled earlier this month that there can be no limits on how many candidates for federal office a single private donors can give to.  Under the previous rules, a donor could only give a maximum of $123,200 in federal races and parties in each two-year election cycle.  Now an individual donor can give up to $3.6 million in federal U.S. Senate and House races. Thisallows rich political donors connected to the fossil fuel industry, such as coal company CEO Shaun McCutcheon who brought the suit, to have more political influence. 

Professor Wood argues that because of the grip that fossil fuel interests hold on the political process, we must look at another way to fight climate change.  She argues that the Public Trust Doctrine surpasses legislative and regulatory environmental efforts that have thus far failed to curb greenhouse gas emissions.  The doctrine, enshrined in constitutional and common law, states that governments hold certain natural resources needed by everyone, such as clean air and water, in trust.  Government officials cannot just give those resources away for private ownership, and may not permit the demise of those resources.  Public officials also have a continuous duty to safeguard the long-term preservation of those resources for the benefit of future generations.  Professor Wood argued that the founding fathers recognized that the people rely on clean natural resources such as wildlife and streams to exist, and that our government must act as a trustee for these resources.

Use of the doctrine for environmental protections is reaching a critical point.  In a recent groundbreaking case, on December 19,2013 the Pennsylvania Supreme Court ruled that Robinson Township in eastern Pennsylvania was allowed to ban the practice of hydrologic fracturing or “fracking” for natural gas within their jurisdiction to protect their town’s water supplies.  In that decision, former Chief Justice Ronald Castille cited the Public Trust Doctrine and wrote that there are certain environmental rights that we all hold, such as a right to clean air and water, and in addition to being identified in the Pennsylvania constitution, these rights are inherent to the public at large. 

The Public Trust Doctrine is currently being tested in federal court by a group of young people who argue that their rights to clean air are being compromised by increased greenhouse gas emissions. The youth are trying to force the Obama Administration to create a comprehensive Climate Recovery Plan in order to protect the “Atmospheric Trust” that they argue young people and future generations are entitled to.  The Washington D.C. Circuit Court of Appeals will decide the case on May 2nd, and Professor Wood will undoubtedly be paying attention to what she believes will be a historic ruling. 

 

Verner Wilson, III, is a first-year Master of Environmental Management candidate at the Yale School of Forestry and Environmental Studies. He is originally from Bristol Bay, Alaska, and obtained a bachelor’s degree in Environmental Studies in 2008 from Brown University. He previously worked for the World Wildlife Fund, as well as a coalition of Alaska Native tribes, on issues related to sustainable wild salmon fisheries, environmental justice, mining, oil and gas, and climate change.

Posted in: Innovation & EnvironmentEnvironmental Law & GovernanceEnergy & Climate

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