If you think there's something odd about the US committing itself to at least a 26 percent reduction in greenhouse gases by 2025 even while federally owned lands produce a quarter of the nation's fossil fuel energy, you just might be a believer in an old legal concept: the public trust doctrine.
This ancient idea, applied since Roman days, is pretty straightforward: The government has an affirmative duty to protect natural resources that are shared by everybody. In the past, the doctrine has been used to prevent the selling off of lakefront shorelines or the bulldozing of rare fossil beds. With the clock ticking on the climate crisis, many legal scholars and activists have begun asking whether it's time to put the public trust to work on climate change.
Governments could certainly use the added pressure. On April 22, world leaders gathered in New York to sign the Paris agreement on climate change. Earth Day handshakes were as liberally distributed as tax breaks for the oil industry, but the celebratory atmosphere couldn't quite distract from the glaring absence at the heart of the agreement: the lack of binding legal requirements to meet the new warming limits.
While the law takes its slow, tortuous path to recognizing climate justice, activists are taking matters into their own hands.
The contrast between high-minded ambition and absence of accountability is a good summation of where climate politics stand today. With the exception of reactionary Republican denialism, we've mostly left the days of "contested climate science" and are in a time where pretty much everyone agrees that global warming is real, human-made and already happening -- but nobody in power really wants to commit to the sorts of disruptive economic fixes that this science tells us are required. There's still too much hope that taking two steps forward and one step back will get us to the finish line before it disappears under the high-tide mark. From President Obama's inconsistent targeting of the coal sector while opening up the Arctic to drilling, to China's shift away from energy-intensive industry even as it seriously misreports emissions data, we have acknowledgment without acceptance, and recognition without responsibility.
As has been the case throughout the climate change era, it's thus fallen to regular activists and agitators to keep the pressure on for realistic climate action. This involves more than talking about wind energy and 350 parts per million of carbon in the atmosphere; it requires translating the climate crisis into a political crisis, and setting out the real stakes of climate justice. Whereas world leaders have yet to impose binding obligations on their governments to curb carbon emissions, movement activists have taken the law into their own hands and started to frame the climate debate as less about science and technical fixes than it is about rights, duties and intergenerational justice.
This is where the public trust doctrine comes in. In recent years, Prof. Mary Wood of the University of Oregon has made a hard push to extend the public trust idea to the atmosphere. Wood argues that because the stability of the climate is so important to the well-being of people today and generations hence, no government has the right to permit (much less actively encourage and subsidize) harmful greenhouse gas emissions.
It's a hard point to disagree with. Individuals cannot stop global warming on their own, so it naturally falls to governments to put a check on the massive cost externalization that allows the fossil fuel industry to damage the planet with little or no consequence. At the very least, governments shouldn't proactively extend and expand deadly systems of fossil fuel infrastructure.
When world leaders agreed in Paris that they had a collective responsibility to keep total warming somewhere below 1.5 degrees Celsius, they were acknowledging that governments had a duty to protect the atmosphere (they just didn't want to admit that this duty has been violated). With so much support for government intervention, Wood's "atmospheric trust" idea would seem to face resistance only from those who think that the state's primary environmental role is to protect whoever wants (and can afford) to exploit common resources as quickly and cheaply as possible.
The growing wave of climate disobedience promises to shift the tenor and temperature of climate politics.
Alas, courts have proven none too eager to hold the government's feet to the climate change fire. Public trust claims related to global warming have repeatedly failed, just like past efforts to hold oil companies responsible for their contributions to climate change. Litigation moves slowly, but there are definite glimmers of hope. For example, on April 8, 2016, a major legal victory was scored by the Oregon legal nonprofit Our Children's Trust when a federal magistrate judge recommended that a lawsuit making atmospheric trust claims be allowed to go forward. Nobody thinks that a US court is going to solve our climate policy woes with the stroke of a judicial pen, although there is hope that a judge will order the government to uphold its climate commitments (as happened in the Netherlands last year).
While the law takes its slow, tortuous path to recognizing climate justice -- and in an effort to kick the law into a higher gear -- activists are taking matters into their own hands and enforcing the public trust on the streets.
This month, the Break Free From Fossil Fuels campaign, a series of actions organized by 350.org, is bringing together large numbers of climate protesters at a few crucial points of fossil fuel infrastructure to disrupt business as usual and risk arrest. The goal of these Break Free actions is to highlight the serious gap between talking the climate talk and walking the climate walk, and will be the latest show of strength for a rapidly growing and rapidly radicalizing climate movement.
One way activists are framing these actions is by presenting themselves as faithful enforcers of the public trust. (The 350.org Public Trust Working Group, of which I am a part, has been developing messaging on this point.) Basically, the argument is that everyday people have to do the dirty work of keeping fossil fuels in the ground so long as the government waffles and wavers. For protesters who will be arrested during Break Free, this reliance on a higher law provides the ultimate justification for their minor trespassing or disorderly conduct violations. When the state violates its own basic obligations -- whether that's preserving the atmosphere for future generations or ensuring that all citizens have an equal right to vote -- it's left to normal individuals to claim their rights, usually by engaging in principled lawbreaking.
This public trust-inspired disobedience can provide a powerful jolt of justice talk and rights awareness to an area of public policy that is too often characterized by dry scientism and feelings of individual impotence. Standing up for your right to a healthy climate is more invigorating and exciting than demanding more thorough administrative environmental review of proposed extraction projects.
Activist use of the public trust doctrine, and of popular rights language in general, can also wake up segments of the population that are, at best, indifferent to climate change. Too often, people think that global warming is a matter of consumer preference ("Don't like climate change? Stop heating your house with gas.") or economic necessity ("I don't want to return to the Stone Age."), and they're afraid of the changes that need to happen to avert catastrophic warming. But, as laid out in the complaint in the Our Children's Trust case, our current climate predicament is no accident; it's in large part the result of designed dependence on fossil fuels and of calculated avoidance of alternative energy systems. Demanding redress for this massive social wrong, and empowering citizens to demand the healthy climate that's rightfully theirs, gives greater agency to people who feel disempowered and confused by the climate crisis.
Twenty-six years ago, Cornel West laid out a vision for how attorneys might further social justice in an essay called "The Role of Law in Progressive Politics." His call to the legal profession applies equally well to any individual who wants to enforce her climate rights today:
Progressive lawyers can.... highlight the legal system's internal contradictions and blatant hypocrisy, using the very ideals -- fairness, protection, formal equality -- it heralds. This kind of progressive legal practice, narrative in character and radical in content, can give visibility and legitimacy to issues neglected by and embarrassing to conservative administrations and can educate citizens on the operations of economic and political powers in the courts.
"Fairness, protection, formal equality" -- these are ideas that we're just starting to talk about in the climate conversation, and they're crucial to making the ideals of the Paris agreement a reality. "Progressive legal practice" uses the resources of the law to highlight how legal authority has failed. In the coming days, the public trust framing of the Break Free actions will do just that, shining a light on the government's failures to curb warming and legitimating citizen action to protect the atmosphere.
Recognizing the realities of climate change and the obligation of governments and rich nations to curb further emissions is a good step -- but it's not enough. Recognition must lead to action. With the public trust doctrine as an intellectual backstop and with the courage of individual action as impetus, the growing wave of climate disobedience promises to shift the tenor and temperature of climate politics. It's far past time for climate resistance to heat up as quickly as the planet.