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Atmospheric Trust Litigation

Mary Christina Wood—




INTRODUCTION

This chapter outlines the contours of potential “atmospheric trust litigation,”
designed to provide a means by which courts can hold governments at the national
and subnational level accountable for reducing carbon emissions. Such litigation
rests on the premise that all governments hold natural resources in trust for their
citizens and bear the ¬duciary obligation to protect such resources for future gener-
ations. The trust is embedded in the law as an attribute of sovereignty itself. While
most frequently applied to state governments, public trust theory applies with equal
force to the federal government, and seemingly indeed, to any sovereign.1 Atmo-
spheric trust litigation would characterize the atmosphere as one of the assets in the
trust, shared as property among all nations of the world as co-tenants.
Protection of the trust through judicial oversight lies at the heart of the public
trust jurisprudence in this country. As this chapter explains, the courts have the
ability to enforce a ¬duciary obligation to reduce carbon at all levels of government.
Whether they will do so or not depends largely on individual judges™ perception
of the urgency of climate crisis, their belief as to whether the political system will
address the issue, and their view of the role of the judiciary in confronting climate
change. While atmospheric trust litigation bears the risk of any untested strategy,
it is perhaps the only macro approach that can empower courts to effectuate the
reductions in emissions within the limited time frame afforded to us before critical
climate thresholds are exceeded.

— Philip H. Knight Professor of Law, Wayne Morse Center for Law and Politics Resident
Scholar, 2006“2007, Luvaas Faculty Fellow, 2007“2008, University of Oregon School of Law,
mwood@law.uoregon.edu. Generous support for this project came from the Luvaas Faculty Fellow-
ship Endowment Fund. The author is a member of the Consultants Working Group, Climate Legacy
Initiative, http://www.vermontlaw.edu/cli/, and a contributor to the Presidential Climate Action
Project, http://www.climateactionproject.com. The author wishes to thank Dawn Winalski, Kelly Fahl,
Erin Roach, Rachel Black-Maier, and Matt Rykels for valuable research assistance; Heather Brinton,
Marianne Dellinger, and Tim Ream for contributing analysis; and Professors Patrick Parenteau and
Deepa Badrinarayana for reviewing an earlier draft of this chapter. For additional scholarship and
speeches by the author on climate crisis, see http://www.law.uoregon.edu/faculty/mwood/.
See infra note 19 and accompanying text.
1


99
Mary Christina Wood
100


Section 1 of this chapter describes the body of public trust law and presents the
atmosphere as an asset in the “res” that all governments have the duty to protect.
It asserts that the United States™ ¬duciary obligation is measured according to the
targets recently set forth by scientists. This ¬duciary obligation applies to every level
of government as an organic, uniform responsibility “ an approach formulated to
leave no orphan shares of carbon reduction. Section 2 then offers a framework for
judicial enforcement of government™s trust obligation to protect the atmosphere.


1. PUBLIC TRUST AS A MACRO APPROACH

Atmospheric trust litigation is premised on the generic and inherent ¬duciary obli-
gation of all governments to protect a shared atmosphere that is vital to human
welfare and survival. The judicial role is to compel the political branches to meet
their ¬duciary standard of care through whatever measures and policies they choose,
as long as such measures suf¬ciently 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 ful¬llment of their trust
responsibility in accordance with the climate imperatives of Nature.2
As a strategy, atmospheric trust litigation is geared toward enforcing planetary
carbon reduction requirements, formulated to hold each government accountable
for its share of the necessary reduction. The carbon reduction regime prescribed by
scientists serves as the yardstick for determining whether government is carrying out
its ¬duciary obligation to protect the atmosphere.3 Put another way, the scienti¬c
prescription is the expression of whether public trustees are meeting the “reasonable
care” standard in protecting the trust.4 As explained later, the remedy of a carbon
accounting provides courts and the public with the necessary information as to
whether governmental ¬duciaries are adequately recovering the atmospheric trust.
By taking a macro approach, public trust litigation seeks not only to impose
concrete, quantitative carbon requirements on all levels of government but also to

See Lake Mich. Fed™n v. U.S. Army Corps of Eng™rs, 742 F. Supp. 441 (D. Ill. 1990) (“The very
2

purpose of the public trust doctrine is to police the legislature™s disposition of public lands. If courts
were to rubber stamp legislative decisions the doctrine would have no teeth. The legislature would
have unfettered discretion to breach the public trust as long as it was able to articulate some gain to
the public.”). While beyond the scope of this chapter, defenses based on the “political question”
doctrine should carry far less weight in public trust litigation than in climate nuisance litigation,
where they have presented barriers to actions brought by states against carbon polluters. See California
v. Gen. Motors, Order Granting Defendants™ Motion to Dismiss, 2007 U.S. Dist. LEXIS 68547,
at — 29 (N.D. Cal. Sept. 17, 2007) (dismissing nuisance lawsuit brought by California against auto
manufacturers, stating, “the Court ¬nds that injecting itself into the global warming thicket at this
juncture would require an initial policy determination of the type reserved for the political branches
of government.”); see also Connecticut v. Am. Elec. Co., 406 F. Supp. 2d 265, 272 (S.D.N.Y. 2005)
(dismissing climate nuisance lawsuit brought by state against electric company on basis that it raised
nonjusticiable political questions).
See infra note 56 (discussing Target for U.S. Emissions Reductions).
3

Restatement (Second) of Trusts § 176 (1957) (“The trustee is under a duty to the bene¬ciary to
4

use reasonable care and skill to preserve the trust property.”).
Atmospheric Trust Litigation 101


invoke the full bureaucratic capacity of the United States and all of its subdivision
governments to accomplish the rapid transformation of infrastructure necessary to
achieve requisite carbon reduction.5 In these ways, trust litigation is much differ-
ent from claims that may be brought under environmental statutes including the
National Environmental Policy Act (NEPA), the Endangered Species Act (ESA),
and the Clean Air Act (CAA). Such claims are directed toward discrete actions that
have carbon consequences. Grounded in more traditional litigation, these types of
claims are not geared toward assuring the sum total of carbon reduction needed.6
That is not to say they are unimportant; they do provide a vital check on government
policies that contribute to major individual sources of carbon.
The following sections explore the contours of a potential public trust claim. They
provide an overview of the doctrine and discuss its applicability to climate change.

1.1. Public Trust Law
Deriving from the common law of property, the public trust doctrine is the most fun-
damental legal mechanism to ensure that government safeguards natural resources
necessary for public welfare and survival.7 In the context of the climate crisis, which
threatens the lives of innumerable human beings into the future, the public trust
doctrine functions as a judicial tool to ensure that the political branches of gov-
ernment protect the basic right to life held by citizens.8 An ancient yet enduring
It is clear that carbon reduction will have to occur across all sectors of society. Different levels of
5

government bring different resources and regulatory authority to the task. It would be ill considered to
expect the federal government alone to solve the carbon problem. Cities and counties, for example,
have primary jurisdiction over local transportation infrastructure and land use planning, both of which
account for signi¬cant carbon emissions.
By the same token, trust claims are broader than nuisance claims, which are directed against single
6

sources of emissions. Two district courts have dismissed global warming nuisance claims partly due
to the vast nature of the problem and the courts™ sense that the political branches should make initial
policy determinations on how to regulate the various sources. See supra note 2 and cases cited therein.
Trust litigation is geared toward forcing action in the political branches without invading the province
of those branches to decide how to accomplish atmospheric recovery.
For sources and materials on the public trust doctrine, see Jan G. Laitos, Sandra B. Zellmer,
7

Mary C. Wood & Dan H. Cole, Natural Resources Law, chap. 8.II (2006). For discussion of the
public trust concept, see Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention, 68 Mich. L. Rev. 471, 558“66 (1970); Harrison Dunning, The Public Trust: A
Fundamental Doctrine of American Property Law, 19 Envtl. L. 515 (Spring 1989); Allen Kanner, The
Public Trust Doctrine, Parens Patriae, and the Attorney General as the Guardian of the State™s Natural
Resources, 16 Duke Envtl. L. & Pol™y F. 57 (2005).
Perhaps the best expression of this organic concept comes from the Philippines Supreme Court™s
8

opinion in Juan Antonio Oposa v. Fulgencio S. Factoran, Jr., G.R. No. 101083 (S.C., 1993) (Phil),
excerpted in Laitos, Zellmer, Wood & Cole, supra note 7, at 441“44:
[T]he right to a balanced and healthful ecology belongs to a different category of rights altogether
for it concerns nothing less than self-preservation and self-perpetuation the advancement of
which may even be said to predate all governments and constitutions.
As a matter of fact, these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly mentioned it is
because of the well-founded fear of its framers that unless the right to a balanced and healthful
Mary Christina Wood
102


legal principle, it underlies modern statutory law.9 At the core of the doctrine is the
principle that every sovereign government holds vital natural resources in “trust”
for the public.10 The doctrine invokes the sovereign™s property powers and obliga-
tions, distinct from the police powers of a state.11 Its ful¬llment depends largely on
judicial enforcement through injunctive relief. In the United States, the doctrine
is redolent in hundreds of judicial decisions, including landmark Supreme Court
opinions.12
As trustee, government must protect the natural trust for present and future
generations.13 It may not allow irrevocable harm to critical resources by private
interests. As the Supreme Court said in Geer v. Connecticut:
[T]he power or control lodged in the State, resulting from this common ownership,
is to be exercised, like all other powers of government, as a trust for the bene¬t of
the people, and not as a prerogative for the advantage of the government, as distinct
from the people, or for the bene¬t of private individuals as distinguished from the
public good. . . . [T]he ownership is that of the people in their united sovereignty.14


ecology and to health are mandated as state policies by the Constitution itself the day would
not be too far when all else would be lost not only for the present generation, but also for those
to come “ generations which stand to inherit nothing but parched earth incapable of sustaining
life.

See National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4331(b)(1) (2006) (declaring
9

a national duty to “ful¬ll the responsibilities of each generation as trustee of the environment for
succeeding generations”). Federal pollution laws also designate sovereigns (federal, tribal, and state
governments) as trustees of natural resources for purposes of collecting natural resource damages. For
discussion, see Mary Christina Wood, The Tribal Property Right to Wildlife Capital (Part II): Asserting
a Sovereign Servitude to Protect Habitat of Imperiled Species, 25 Vt. L. Rev. 355, 443 (2001). The public
trust is also expressed in many state constitutions. See, e.g., Haw. Const. art. XI, § 1; Pa. Const. art. I,
§ 27; R.I. Const. art. I, § 17. For discussion, see Robin Kundis Craig, A Comparative Guide to
the Eastern Public Trust Doctrine: Classi¬cations of States, Property Rights, and State Summaries,
16 Penn St. Envt™l L. Rev. 1 (2007), available at http://ssrn.com/abstract=1008161 (last visited
June 8, 2008).
Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 455 (1892); Geer v. Connecticut, 161 U.S. 519, 525“29 (1896)
10

(detailing ancient and English common law principles of sovereign trust ownership of air, water, sea,
shores, and wildlife); see also Charles L. Wilkinson, The Public Trust Doctrine in Public Land Law,
14 U.C. Davis L. Rev. 269, 315 (1980) (“The public trust doctrine is rooted in the precept that some
resources are so central to the well-being of the community that they must be protected by distinctive,
judge-made principles.”).
See Laitos, Zellmer, Wood & Cole, supra note 7, at 623 (“Because the public trust doctrine
11

emanates from property ownership on behalf of the public, the duties and powers to preserve the trust
are distinct from the states™ legislative police powers.”); see also Gerald Torres, Who Owns the Sky? 19
Pace Envtl. L. Rev. 515, 525 (2002) (distinguishing sovereign™s police power and property interests
in context of air pollution).
See discussion at Kanner, supra note 7 at 71“72; Torres, supra note 11, at 521.
12

Geer, 161 U.S. at 534 (“The ownership of the sovereign authority is in trust for all the people of the
13

state; and hence, by implication, it is the duty of the legislature to enact such laws as will best preserve
the subject of the trust, and secure its bene¬cial use in the future to the people of the state.”).
Id. at 529. See also Lake Mich. Fed™n v. U.S. Army Corps of Eng™rs, 742 F. Supp. 441, 445 (D. Ill. 1990)
14

(“[T]he public trust is violated when the primary purpose of a legislative grant is to bene¬t a private
interest.”); Gail Osherenko, New Discourses on Ocean Governance: Understanding Property Rights
and the Public Trust, 21 J. Envtl. L. & Litig. 317, 327 (2006).
Atmospheric Trust Litigation 103


The lodestar public trust opinion is Illinois Central Railroad Co. v. Illinois, where
the Supreme Court announced that the shoreline of Lake Michigan was held in
public trust by the State of Michigan and could not be transferred out of public
ownership to a private railroad corporation. In broad language encompassing the
public™s fundamental right to natural resources, the Court stated:

[T]he decisions are numerous which declare that such property is held by the state,
by virtue of its sovereignty, in trust for the public. The ownership of the navigable
waters of the harbor, and of the lands under them, is a subject of public concern
to the whole people of the state. The trust with which they are held, therefore, is
governmental, and cannot be alienated.15

Public trust jurisprudence makes clear that government is not at liberty to disclaim
its ¬duciary obligation to protect crucial natural resources. As the Court said in
Illinois Central:

The state can no more abdicate its trust over property in which the whole people are
interested than it can abdicate its police powers in the administration of government
and the preservation of the peace.
Every legislature must, at the time of its existence, exercise the power of the state
in the execution of the trust devolved upon it.16

As a federal district court said more recently in applying the doctrine to both the
federal and state governments, “The trust is of such a nature that it can be held only
by the sovereign, and can only be destroyed by the destruction of the sovereign.”17
The public trust is appropriately viewed as a fundamental attribute of sovereignty
itself, applicable to all governmental bodies.18

Ill. Cent. R.R. Co., 146 U.S. at 455 (but noting that parcels could be alienated “when parcels can be
15

disposed of without detriment to the public interest in the lands and waters remaining.”). Id. at 453.
Id. at 460.
16

United States v. 1.58 Acres of Land, 523 F. Supp. 120, 124 (D. Mass. 1981).
17

See Geer, 161 U.S. at 528 (referring to the trust over wildlife as an “attribute of government” and
18

tracing its historical manifestation “though all vicissitudes of government.”); State v. Bartee, 894
S.W.2d 34, 41 (Tex. App. 1994) (“attribute of government”); see also Gary D. Meyers, Variation on a
Theme: Expanding the Public Trust Doctrine to Include Protection of Wildlife, 19 Envtl. L. 723, 728
(1989) (noting “[t]he ownership of wildlife, like water, historically has been treated as an aspect of
sovereignty”).
While most public trust cases involve states, the doctrine, as an attribute of sovereignty, logically
applies to the federal government as well. See Complaint of Steuart Transp. Co., 495 F. Supp.
38, 40 (E.D. Va. 1980) (applying doctrine to federal government); 1.58 Acres of Land, 523 F. Supp.
at 124 (same); see also Zygmunt J.B. Plater et al., Environmental Law and Policy: Nature,
Law, and Society 1103 (Erwin Chemerinsky et al. eds., Aspen Publishers, 3d ed. 2004) (“In several
cases, courts have asserted that the federal government is equally accountable and restricted under
the terms of the public trust doctrine. . . . [Since] the federal government is a creature of the states by
delegation through the Act of Union and the federal Constitution[,] the federal government is therefore
exercising delegated powers [and] cannot have greater rights and fewer limitations than the entities
that created it.”). For further discussion, see Mary Christina Wood, Protecting the Wildlife Trust: A
Reinterpretation of Section 7 of the Endangered Species Act, 34 Envtl. L. 605, n.38 and accompanying
text (2004).
Mary Christina Wood
104


As a property law concept, the trust has an orientation very different, and in funda-
mental ways more exacting, than the body of statutory law. Though the prescriptions
of statutory law are vastly more detailed, the discretion afforded to bureaucratic man-
agers and the widespread cultural tolerance for behind-the-scenes political decisions
often defeat the purposes of such statutes. Agencies typically use their statutory dis-
cretion to allow depletion and degradation of resources.19 Trust law, by contrast,
holds trustees to the “most exacting ¬duciary standards.”20


1.2. The Res of the Trust
At its core, the public trust doctrine de¬nes certain natural resources as quanti¬able
assets that the government holds for the bene¬t of present and future citizen bene-
¬ciaries. Those assets are the “res” or “corpus” of the trust. The bene¬ciaries of the
trust are present and future generations.21
The assets constituting the res of the public trust have been expanded by courts
to meet society™s changing needs.22 The original cases focused on submersible lands
as trust assets.23 As society industrialized, a much broader array of resources became
critical. Over time, the doctrine has reached new geographic areas including water,
wetlands, dry sand beaches, and nonnavigable waterways.24 The doctrine has also
pushed beyond the original societal interests of ¬shing, navigation, and commerce
to protect modern concerns such as biodiversity, wildlife habitat, aesthetics, and
recreation.25 Such expansion is well within the function of common law to adapt to
emerging societal needs.26

See generally Mary Christina Wood, Nature™s Trust: Reclaiming an Environmental Discourse, 25 Va.
19

Envtl. L.J. 243 (2007).
Seminole Nation v. United States, 316 U.S. 286, 297 (1942). See also Jicarilla Apache Tribe v. Supron
20

Energy Corp., 728 F.2d 1555, 1563 (10th Cir. 1984) (where “the Secretary is obligated to act as a ¬du-
ciary . . . his actions must not merely meet the minimal requirements of administrative law, but must
also pass scrutiny under the more stringent standards demanded of a ¬duciary.”).
See supra note 13; Ariz. Ctr. for Law in the Pub. Interest v. Hassell, 837 P.2d 158, 169 (Ariz. Ct. App.
21

1991) (“The bene¬ciaries of the public trust are not just present generations but those to come”); see
also Deborah G. Musiker et al., The Public Trust and Parens Patriae Doctrines: Protecting Wildlife
in Uncertain Political Times, 16 Pub. Land L. Rev. 87 (1995); Peter H. Sand, Sovereignty Bounded:
Public Trusteeship for Common Pool Resources, 4 Global Envtl. Pol. 47, 55 (2004), available at
http://www.mitpressjournals.org/doi/pdfplus/10.1162/152638004773730211?cookieSet=1 (de¬ning ben-
e¬ciaries, on the global level, as “future humanity”).
As the New Jersey Supreme Court said, “[W]e perceive the public trust doctrine not to be ˜¬xed or
22

static,™ but one to be ˜molded and extended to meet changing conditions and needs of the public it was
created to bene¬t.™” Matthews v. Bay Head Improvement Ass™n, 471 A.2d 355, 365 (N.J. 1984) (citation
omitted); see also Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (“In administering the trust the state
is not burdened with an outmoded classi¬cation favoring one mode of utilization over another.”);
Kanner, supra note 7, at 72 (“United States judges have broadened the geographic protections and
widened the range of activities under the public trust.”).
See Ill. Cent. R.R. Co., 146 U.S. at 453.
23

See Laitos, Zellmer, Wood & Cole, supra note 7, at 651.
24

Matthews, 471 A.2d at 363; Nat™l Audubon Soc™y v. Sup. Ct., 658 P.2d 709, 719“22 (Cal. 1983).
25

In re Hood River, 227 P. 1065, 1086“87 (Or. 1924):
26
Atmospheric Trust Litigation 105


The governmental trustee bears a ¬duciary obligation to protect the assets of the
trust from damage.27 Scores of cases emphasize this duty of protection,28 and many
hold that the duty imposes an af¬rmative obligation on government.29 Under well-
established principles of private trust law, trustees may not sit idle and allow damage
to occur to the trust.30 Moreover, where trust assets have been damaged, the trustee

The very essence of the common law is ¬‚exibility and adaptability. It does not consist of ¬xed
rules, but is the best product of human reason applied to the premises of the ordinary and
extraordinary conditions of life, as from time to time they are brought before the courts. . . . If
the common law should become so crystallized that its expression must take on the same form
whenever the common-law system prevails, irrespective of physical, social, or other conditions
peculiar to the locality, it would cease to be the common law of history, and would be an
inelastic and arbitrary code. It is one of the established principles of the common law, which
has been carried along with its growth, that precedents must yield to the reason of different or
modi¬ed conditions.
George T. Bogert, Trusts § 99, at 358 (6th ed. 1987) (“The trustee has a duty to take whatever
27

steps are necessary . . . to protect and preserve the trust property from loss or damage.”); 76 Am. Jur.
2d Trusts § 331, at 404 (“[T]he trustee must make the trust property productive, and must not suffer
the estate to waste or diminish, or fall out of repair.”); Restatement (Second) of Trusts, supra
note 4, at § 176 (“The trustee is under a duty to the bene¬ciary to use reasonable care and skill to
preserve the trust property.”); United States v. White Mountain Apache Tribe, 537 U.S. 465, 475 (2003)
(fundamental common law duty of a trustee is to maintain trust assets); State v. City of Bowling Green,
313 N.E.2d 409, 411 (Ohio 1974) (“[W]here the state is deemed to be the trustee of property for the
bene¬t of the public it has the obligation to bring suit . . . to protect the corpus of the trust property.”);
State Dep™t of Envtl. Prot. v. Jersey Cent. Power & Light Co., 336 A.2d 750, 758“59 (N.J. Super.
Ct. App. Div. 1975) (¬nding both right and duty to recover damages for harm to natural resources held
in public trust), rev™d on other grounds, 351 A.2d 337 (N.J. 1976); Fort Mojave Indian Tribe v. United
States, 23 Cl. Ct. 417, 426 (1991) (¬nding federal trust duty to protect Indian water rights because
“the title to plaintiffs™ water rights constitutes the trust property, or the res, which the government, as
trustee, has a duty to preserve.”).
See, e.g., Geer, 161 U.S. at 534 (“[I]t is the duty of the legislature to enact such laws as will best
28

preserve the subject of the trust, and secure its bene¬cial use in the future to the people of the
state.”); Nat™l Audubon Soc™y v. Sup. Ct. of Alpine County, 658 P.2d 709, 724 (Cal. 1983) (expressing
the “duty of the state to protect the people™s common heritage of streams, lakes, marshlands and
tidelands”); White Mountain Apache Tribe, 537 U.S. at 475; Fort Mojave Indian Tribe, 23 Cl. Ct. at
426.
See City of Milwaukee v. State, 214 N.W. 820, 830 (Wis. 1927) (“The trust reposed in the state is
29

not a passive trust; it is governmental, active, and administrative [and] requires the lawmaking body
to act in all cases where action is necessary, not only to preserve the trust, but to promote it. . . . ”).
For discussion, see Kanner, supra note 7, at 75“77; Torres, supra note 11, at 549 (government has an
obligation to act to preserve the atmospheric trust); City of Bowling Green, 313 N.E.2d at 411 (“[W]here
the state is deemed to be the trustee of property for the bene¬t of the public it has the obligation to
bring suit . . . to protect the corpus of the trust property.”); see also Musiker et al., supra note 21, at 96
(“The [government], as trustee, must prevent substantial impairment of the wildlife resource so as to
preserve it for the bene¬ciaries “ current and future generations.”).
See Bogert, supra note 27, § 99, at 358 (duty to protect and preserve property); id. at § 107, at 391
30

(“The trustee is liable for damages if he should have known of danger to the trust, could have protected
the trust, but did not do so.”); Am. Jur. 2d Trusts, supra note 27, at § 656 (noting the “power, and a
duty of the trustee, to initiate actions . . . for the protection of the trust estate”). Courts have imported
principles of protection from the private realm of trust law to govern public trustee duties in state
lands management. See Idaho Forest Indus. v. Hayden Lake Watershed Improvement Dist., 733 P.2d
733, 738 (Idaho 1987) (noting the administration of public trust is governed by the same principles
applicable to the administration of trusts in general).
Mary Christina Wood
106


has the af¬rmative duty to recoup damages and restore the corpus, or res.31 Common
law has vested sovereigns with the right and obligation to sue third parties to recoup
natural resource damages for destruction of public trust assets.32


1.3. Co-tenancy Sovereign Interests
A singular failing of statutory law is its con¬nement to jurisdictional bound-
aries. A notable strength of the trust doctrine™s property framework is that it cre-
ates logical rights to shared assets that are not con¬ned within any one juris-
dictional border. It is well established that, with respect to transboundary trust
assets, all sovereigns with jurisdiction over the natural territory of the asset have
legitimate property claims to the resource.33 States that share a waterway, for
example, have correlative rights to the water.34 Similarly, states and tribes have
coexisting property rights to share in the harvest of ¬sh passing through their
borders.35 Shared interests are best described as a sovereign co-tenancy. A co-
tenancy is “the ownership of property by two or more persons in such manner that
they have an undivided . . . right to possession.”36 The Ninth Circuit has invoked
the co-tenancy model to describe shared sovereign rights to migrating salmon.37

See Jersey Cent. Power & Light, 336 A.2d at 758“59 (¬nding duty to seek damages for harm to natural
31

resources held in public trust); City of Bowling Green, 313 N.E.2d at 411 (noting public trustee™s
“obligation . . . to recoup the public™s loss occasioned by . . . damage [to] such property”); Wash. Dep™t
of Fisheries v. Gillette, 621 P.2d 764, 767 (Wash. Ct. App. 1980) (noting right and “¬duciary obligation
of any trustee to seek damages for injury to the object of its trust”); Mary Christina Wood, The Tribal
Property Right to Wildlife Capital (Part I): Applying Principals of Sovereignty to Protect Imperiled
Wildlife Populations, 37 Idaho L. Rev. 1, 58“59, 92“93 (2000) (discussing duty); Musiker et al., supra
note 21, at 107“08 (discussing trust obligations as parens patriae); Susan Morath Horner, Embryo, Not
Fossil: Breathing Life into the Public Trust in Wildlife, 35 Land & Water L. Rev. 23, 27“28 (2000)
(discussing rights and duties).
See Charles B. Anderson, Damage to Natural Resources and the Costs of Restoration, 72 Tul. L. Rev.
32

417, pt. III (1997); Thomas A. Campbell, The Public Trust, What™s It Worth?, 34 Nat. Resources J.
73, 82“86 (1994); Carter H. Strickland, Jr., The Scope of Authority of Natural Resource Trustees, 20
Colum. J. Envtl. L. 301, pt. III.A (1995) (some common law claims may be preempted if they fall
within a comprehensive program established by federal statutory law). See generally Md. Dep™t of Nat.
Res. v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972); City of Bowling Green, 313 N.E.2d at
411; State of North Dakota v. Dickinson Cheese Co., 200 N.W.2d 59, 61 (N.D. 1972). Modern statutes
also provide the right to recover damages to public trust assets. See Anderson, supra. Natural resource
damages must be applied to restoration of the trust. See Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9607(f ).
See Idaho ex rel. Evans v. Oregon, 462 U.S. 1017, 1031 n.1 (1983) (O™Connor, J., dissenting) (noting
33

“recognition by the international community that each sovereign whose territory temporarily shelters
[migratory] wildlife has a legitimate and protectible interest in that wildlife”).
Arizona v. California, 373 U.S. 546, 601 (1963).
34

See Washington v. Wash. State Commercial Passenger Fishing Vessel Ass™n, 443 U.S. 658, 676“79
35

(1979); see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).
20 Am. Jur. 2d Cotenancy and Joint Ownership § 1 (1995). A co-tenancy typically implies each
36

party™s right to full possession of the asset. Joseph William Singer, Property Law: Rules, Policies,
and Practices 711 (2d ed. 1997).
Puget Sound Gillnetters Ass™n v. U.S. Dist. Ct., 573 F.2d 1123, 1126 (9th Cir. 1978) (“We held that [the
37

treaty] reserved an exclusive right to ¬sh on the reservation and that [the treaty] established something
analogous to a cotenancy, with the tribes as one cotenant and all citizens of the Territory (and later of
Atmospheric Trust Litigation 107


Co-tenancy relationships give rise to correlative duties not to waste the common
asset.38
Within the United States, layered sovereign interests in natural resources arise
from the constitutional con¬guration of states and the federal government. Where
the federal government has a national interest in the resource, it is a co-trustee along
with the states.39 The concurrence of federal and state trust interests is re¬‚ected
in statutory provisions that provide natural resource damages to both sovereign
trustees.40 As one court has made clear in the context of streambed ownership, the
federal government and states are held to identical trust obligations but must carry
them out in accordance with their unique constitutional roles:
This formulation recognizes the division of sovereignty between the state and fed-
eral governments. . . . [T]hose aspects of the public interest . . . that relate to the
commerce and other powers delegated to the federal government are administered
by Congress in its capacity as trustee of the jus publicum, while those aspects of
the public interest in this property that relate to nonpreempted subjects reserved to
local regulation by the states are administered by state legislatures in their capacity
as co-trustee of the jus publicum.41

the state) as the other.”); United States v. Washington, 520 F.2d 685, 686, 690 (9th Cir. 1975) (applying
co-tenancy construct, by analogy, to Indian ¬shing rights). Of course, a co-tenancy framework for
sovereign management of natural resources differs in some ways from a private co-tenancy in land
among individuals. For example, a sovereign co-tenancy in natural resources may not be capable of
partitioning. See Puget Sound Gillnetters, supra, at 1134“35 (Kennedy, J., concurring). Nevertheless,
the basic co-tenancy construct is helpful and instructive in the sovereign context. See id. at 1128, n.3
(stating, in the treaty ¬sheries context, “We refer to the cotenancy analogy only because it is helpful in
explaining the rights of the parties, not because all the rights and incidents of a common law cotenancy
necessarily follow. . . . Obviously, not all the rules of cotenancy in land can apply to an interest of the
nature of a pro¬t.”).
Acts that amount to permanent damage to the common property are held to constitute waste. E. Hop-
38

kins, Handbook on the Law of Real Property § 214, at 342 (1896); 2 W. Walsh, Commentaries
on the Law of Real Property § 131, at 72 (1947). See also Washington, 520 F.2d at 685 (stating, in
context of ¬sheries shared between states and tribes: “Cotenants stand in a ¬duciary relationship one to
the other. Each has the right to full enjoyment of the property, but must use it as a reasonable property
owner. A cotenant is liable for waste if he destroys the property or abuses it so as to permanently impair
its value. A court will enjoin the commission of waste. . . . By analogy, neither the treaty Indians nor
the state on behalf of its citizens may permit the subject matter of these treaties to be destroyed.”).
For an extensive discussion of these co-trustee interests, see United States v. 1.58 Acres of Land,
39

523 F. Supp. 120, 121 (D. Mass. 1981) (discussing tidelands: “Since the trust impressed upon this
property is governmental and administered jointly by the state and federal governments by virtue of
their sovereignty, neither sovereign may alienate this land free and clear of the public trust.”). See
also Wood, The Tribal Property Right to Wildlife Capital (Part I), supra note 31, at 79 (describing
concurrent federal, state, and tribal trust interests in wildlife).
See, e.g., CERCLA, 42 U.S.C. § 9607(f ).
40

1.58 Acres of Land, 523 F. Supp. at 121. Recently, in Massachusetts v. U.S. Environmental Protection
41

Agency, the Supreme Court echoed this division of authority with respect to the air assets in the trust:
When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts
cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate
an emissions treaty with China or India, and in some circumstances, the exercise of its police
powers to reduce in-state motor-vehicle emissions might well be pre-empted.

These sovereign prerogatives are now lodged in the Federal Government. . . .
549 U.S. 497, 519 (2007) (citation omitted).
Mary Christina Wood
108


1.4. The Atmosphere as a Public Trust Asset
Guided by the essential doctrinal purposes expressed by the Supreme Court in
foundational public trust cases, it is no great leap to recognize the atmosphere as
one of the crucial assets of the public trust. At the time of the Illinois Central case, the
Court made clear that the essence of the doctrine is to protect resources of “special
character” that serve purposes “in which the whole people are interested.”42 The
Court was presented with a novel situation “ the conveyance of a major shoreline to
a private party. The Court noted:
We cannot, it is true, cite any authority where a grant of this kind has been held
invalid, for we believe that no instance exists where the harbor of a great city and
its commerce have been allowed to pass into the control of any private corporation.
But the decisions are numerous which declare that such property is held by the
state, by virtue of its sovereignty, in trust for the public.43

Climate crisis presents the courts with an equally novel, yet necessary, application
of the public trust. In the crisis at hand, the public interests at stake are leagues
beyond the traditional interests at the forefront of Illinois Central: ¬shing, navigation,
and commerce. Atmospheric health is essential to all facets of civilization and
human survival. As such, it falls within the core of the purpose of the public trust
doctrine: to protect natural assets crucial to human survival and welfare. While air
has not previously been the subject of trust litigation, the Roman origins of the
public trust doctrine classi¬ed air “ along with water, wildlife, and the sea “ as
“res communes.”44 In a landmark public trust decision, Geer v. Connecticut, the
Supreme Court relied on this ancient Roman classi¬cation of “res communes”
to ¬nd the public trust applicable to wildlife.45 Since then, the Court has also
recognized the states™ sovereign interests in air as a basis upon which to bring an
interstate nuisance suit. In Georgia v. Tennessee Copper Co., the Court upheld an
action brought by the state of Georgia against Tennessee copper companies for
discharging noxious gas that drifted across state lines, stating: “This is a suit by a state
for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an
interest independent of and behind the titles of its citizens, in all the earth and air
Ill. Cent. R.R. Co., 146 U.S. at 453.
42

Id. at 455.
43

See Geer, 161 U.S. at 525 (“These things are those which the jurisconsults called ˜res communes™ . . . the
44

air, the water which runs in the rivers, the sea, and its shores. . . . [and] wild animals.”); id. at 524. See
also Torres, supra note 11, at 529“30 (“The evolution of the public trust doctrine is complex, but it is
essentially rooted in Roman law and from those laws through the various commentators on Roman
law. . . . If a resource were excluded from private ownership because by its nature it could only be
used in common, it was called res communes. . . . The principle of res communes was expressed in
the English common law and in 19th century American law as jus publicum. The bene¬cial interest
in any res communes is held by the people in common.”).
See Geer, 161 U.S at 523 (quoting Ponthier treatise on property) (citations omitted): “Among other
45

subdivisions [in property], things were classi¬ed by the Roman law into public and common. The
latter embraced animals ferae naturae, which, having no owner, were considered as belonging in
common to all the citizens of the state.”
Atmospheric Trust Litigation 109


within its domain.”46 Recently, in Massachusetts v. EPA, the Supreme Court drew
upon Georgia v. Tennessee Copper Co. to underscore the state™s unique interest in
air, alluding to the state™s position as trustee in its discussion of standing.47
Given the essential nature of air, it is unsurprising that numerous state court
decisions, constitutions, and codes have recognized air as part of the res of the public™s
trust,48 and commentators have urged a focus on the atmosphere as a trust asset.49
Moreover, federal statutory law includes air as a trust asset for which the federal
government, states, and tribes can gain recovery for natural resource damages.50
On the international level, the United Nations Framework Convention on Climate
Change declares an atmospheric trust obligation by calling upon nations to “protect
the climate system for the bene¬t of present and future generations of humankind.”51


1.5. The Carbon Fiduciary Obligation
The trust construct positions all nations of the Earth as sovereign co-tenant trustees
of a shared atmosphere.52 In addition to a ¬duciary obligation owed to their own
citizens to protect the atmosphere, all nations have duties to prevent waste arising
from their co-tenancy relationship with each other.53 Courts are positioned to de¬ne
these duties by tying them directly to scientists™ concrete prescription for carbon


Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907).
46

See Massachusetts v. EPA 549 U.S. 497, 519 (2007) (¬nding that Massachusetts had standing to sue
47

the federal government over its inaction to prevent carbon emissions from new automobiles).
See, e.g., Her Majesty v. City of Detroit, 874 F.2d 332, 337 (6th Cir. 1989) (citing Michigan act that
48

codi¬es public trust to include “air, water, and other natural resources”); Haw. Const. art. XI, § 1
(stating, “All public natural resources are held in trust by the State for the bene¬t of the people,”
and “the State and its political subdivisions shall conserve and protect Hawaii™s natural resources,
including land, water, air, minerals and energy resources.”); La. Const. art. IX, § 1 (“natural resources
of the state, including air and water shall be protected”); R.I. Const. art. I, § 16 (duty of legislature to
protect air), interpreted as codi¬cation of Rhode Island™s public trust doctrine in State ex. Rel. Town
of Westerly v. Bradley, 877 A.2d 601, 606 (R.I. 2005); Nat™l Audubon Soc™y v. Super. Ct. of Alpine
County, 658 P.2d 709, 720 (1983) (“purity of the air” protected by the public trust); c.f. PA. Const. art.
I, § 27 (declaring public trust duty to conserve natural resources, and expressing citizens™ right to clean
air); see also William Rodgers, Jr., Environmental Law: Air and Water § 2.20, at 162 (1986) (“It
is eminently clear now that trust properties not only can, but must, be administered to protect birdlife
and to prevent air and water pollution.”).
See Torres, supra note 11, at 533, 526: (“Properly understood the traditional rationale for the public
49

trust doctrine provides a necessary legal cornerstone to protect the public interest in the sky.”); id.
at 532 (“The public trust doctrine supplies a broad framework that supports the establishment of
a mechanism to supervise the government dealings in relationship to the carrying capacity of the
atmosphere.”); Peter Barnes, Who Owns the Sky: Our Common Assets and the Future of
Capitalism (2006).
CERCLA, 42 U.S.C. § 9601 (16) (de¬ning air as among the natural resources subject to trust claims
50

for damages).
United Nations Framework Convention on Climate Change, Article 3, Principle 1 (1992).
51

See Sand, supra note 21, at 51“54 (discussing concept of global trusteeship for common resources
52

vital to humanity). For an analysis applying the trust to the analogous global oceans resource, see
Osherenko, supra note 14.
See discussion at supra note 38.
53
Mary Christina Wood
110


reduction.54 The Union of Concerned Scientists has developed such a prescription “
called the Target for U.S. Emissions Reductions “ based on the extensive body of
climate science.55 Courts often rely on independent scienti¬c recommendations in
assessing liability and formulating injunctive relief.56 The Target maps a climate
stabilization pathway whereby the industrialized nations on Earth must collectively:
(1) arrest the rising trajectory of carbon emissions by 2010; (2) reduce emissions an
average of 4% per year starting in 2010; and (3) reduce carbon by at least 80% below
2000 levels by 2050.57
The scienti¬cally established structure re¬‚ected in the Target for U.S. Emis-
sions Reductions, as adapted to comport with changed scienti¬c understanding,58

While beyond the scope of this chapter, courts may invoke several procedural tools to gain the scienti¬c
54

expertise necessary to de¬ne the ¬duciary standard of care. Increasingly, judges use court-appointed
experts, technical advisers, and special masters to resolve dif¬cult scienti¬c questions in environmen-
tal, toxic torts, and product liability cases. See Federal Judicial Center, Reference Manual on
Scienti¬c Evidence (1994); The Carnegie Commission on Science, Technology, and Gov-
ernment, Science and Technology in Judicial Decision Making: Creating Opportunities
and Meeting Challenges (1993). For discussion of these various judicial tools, see Samuel H.
Jackson, Technical Advisors Deserve Equal Billing with Court Appointed Experts in Novel and Com-
plex Scienti¬c Cases: Does the Federal Judicial Center Agree?, 28 Envtl. L. 431 (1998); Karen Butler
Reisinger, Court-Appointed Expert Panels: A Comparison of Two Models, 32 Ind. L. Rev. 225 (1998).
55 A. Luers, M. D. Mastrandrea, K. Hayhoe & P. C. Frumhoff, How to Avoid Dan-
gerous Climate Change: A Target for U.S. Emissions Reductions 5 (Union of Con-
cerned Scientists 2007) (hereinafter Target for U.S. Emissions Reductions), available at
http://www.ucsusa.org/assets/documents/global_warming/emissions-target-report.pdf (last visited June
16, 2008).
See Pac. Coast Fed™n of Fishermen™s Ass™ns v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228, 1250
56

(N.D. Cal. 2001). The scienti¬cally established target for carbon reduction is similar in concept to
scienti¬cally established river ¬‚ows for endangered ¬sh, which courts have relied upon in structuring
injunctions for federal water project operations. Id. at 1250 (relying on independent scientist™s report
in setting river ¬‚ows for ¬sh); see discussion at Wood, Restoring the Abundant Trust, infra note 105, at
10,178. For examples of injunctions in the river context, see Am. Rivers v. U.S. Army Corps of Eng™rs,
271 F. Supp. 2d 230, 262 (D. D.C. 2003) (ordering more natural ¬‚ow regime in Missouri River); Rio
Grande Silvery Minnow v. Keys, 333 F.3d 1109, 1119 (10th Cir. 2003) (af¬rming injunction requiring
¬‚ows in Rio Grande and reservoir release pending compliance with the ESA), vacated as moot by
355 F.3d 1215 (10th Cir. 2004); see also Wash. Toxics Coal. v. U.S. EPA, 413 F.3d 1024 (9th Cir. 2005)
(banning application of pesticides near salmon streams).
Target for U.S. Emission Reductions, supra note 55. The report groups the United States with
57

other industrialized nations and then sets forth speci¬c U.S. targets. The ¬rst part of the prescription,
arresting emissions growth by 2010, is by far the most urgent and important because the world is
dangerously close to climate thresholds, or a “tipping point” that will cause runaway heating. For
discussion, see David Spratt & Philip Sutton, Climate Code Red: The Case for a Sustain-
ability Emergency (Friends of the Earth, 2008), available at http://www.climatecodered.net/ (last
visited June 16, 2008) (hereinafter Climate Code Red). The call for arresting U.S. emissions growth
by 2010 is in line with a call by the United Nations to arrest the growth of worldwide emissions by
2015. See Cahal Milmo, “Too Late to Avoid Global Warming,” Say Scientists, Independent UK,
Sept. 19, 2007, available at http://www.independent.co.uk/environment/climate-change/too-late-to-
avoid-global-warming-say-scientists-402800.html (last visited June 16, 2006). The worldwide date is set
out ¬ve years beyond the U.S. date because the developing nations like China and India are going to
take more time to arrest emissions.
The assumptions underlying these target levels may already be outdated by more recent data showing
58

accelerated polar ice melting, suggesting that a lower atmospheric level of carbon may be necessary
Atmospheric Trust Litigation 111


can be invoked as a generic standard of ¬duciary obligation applicable to each
industrialized nation. Such targets can also be “scaled down” to each subnational
jurisdictional level as well.59 Established liability principles create a rational struc-
ture for apportioning responsibility among sovereigns and subsovereigns. The law
has often imposed proportionate liability on multiple contributors to a problem.60
Moreover, in co-tenancies, each tenant is responsible for paying his share of the
expenses proportionate to his interest in the property.61
The carbon loading of the atmosphere may be thought of as a sort of “natural
lien.” Having created the debt, all industrialized nations have the duty to pay it
off. Invoking these basic principles, each nation is responsible for its proportionate
share, or “fair share,” of carbon reduction.62 If each industrialized sovereign reduces

to achieve climate stability. For discussion, see Climate Code Red, supra note 57, at 26“28. The
Target delineates a “reasonable emissions pathway” for the United States calibrated to the goal of not
exceeding 450 ppm carbon equivalent in the atmosphere. Target for U.S. Emissions Reductions,
supra note 55, at 3, 8, 14. This scienti¬c prescription should be subject to change if data shows that
450 ppm is too high to achieve climate equilibrium. Courts must necessarily adjust the ¬duciary
standard of care to emerging science. Recently, NASA scientist Jim Hansen suggested that a lower
goal may be necessary to avoid dangerous climate feedbacks that would trigger runaway heating.
See Bill McKibben, Remember This: 350 Parts per Million, Wash. Post (Dec. 28, 2007), available
at http://www.washingtonpost.com/wp-dyn/content/article/2007/12/27/AR2007122701942.html (last vis-
ited June 16, 2008); see also Climate Code Red, supra note 57 (climate stability may require reducing
atmospheric carbon dioxide to 320 ppm). Courts may incorporate new scienti¬c understanding into
litigation management through use of the judicial tools described in supra note 4. For an example of
a court™s use of a technical advisor to resolve complex and rapidly changing science involving species
survival, see Nat™l Wildlife Fed™n v. Nat™l Marine Fisheries Serv., 2005 U.S. Dist. LEXIS 16658, slip
op. at 15“18 (Mar. 2, 2005) (upholding use of technical adviser in case brought under Endangered
Species Act).
See Hari M. Osofsky, The Geography of Climate Change Litigation Part II: Narratives of Massachusetts
59

v. EPA, 8 Chi. J. Int™l L. 573, 583 (2008) (concept of “scaling up and down” in climate strategies);
Sand, supra note 21, at 57 (discussing “transfer of the public trust concept from national to the global
level”).
The Restatement of Torts provides: “Damages for harm are to be apportioned among two or more
60

causes where there is a reasonable basis for determining the contribution of each cause to a single
harm.” Restatement of the Law (Second) Torts (ALI 1965); § 433 A (1). As an illustration, it states:
Such apportionment is commonly made in cases of private nuisance, where the pollution of
a stream, or ¬‚ooding, or smoke or dust or noise, from different sources, has interfered with
the plaintiff ™s use or enjoyment of his land. Thus where two or more factories independently
pollute a stream, the interference with the plaintiff ™s use of the water may be treated as divisible
in terms of degree, and may be apportioned among the owners of the factories, on the basis of
evidence of the respective quantities of pollution discharged. . . . Id. (emphasis added).
For broad discussions of proportionate liability, comparative fault, and contribution in tort law, see
generally Gerald W. Boston, Apportionment of Harm in Tort Law: A Proposed Restatement, 21 Dayton
L. Rev. 267 (1996); Gary T. Schwartz, The Beginning and the Possible End of the Rise of Modern
American Tort Law, 26 Ga. L. Rev. 601 (2001).
See, e.g., Willmon v. Koyer, 143 P. 694, 695 (Cal. 1914) (“In proportion to their interests all tenants in
61

common are in duty bound to pay taxes. . . . ”).
This was the general premise of the Kyoto Protocol, which called for each industrialized nation that
62

was a party to Annex I to reduce its greenhouse gas emissions by an average of 5% below 1990 levels by
2008“2012. Kyoto Protocol, Art. 3.1. Courts have quanti¬ed and enforced a “fair share” concept among
governmental jurisdictions in other contexts. See infra note 108 (land use planning context).
Mary Christina Wood
112


proportionately its carbon emissions “ ultimately 80% or more below 2000 levels by
2050 “ the total industrialized carbon share on a planetary level will be reduced by
that amount. The developing nations, in turn, have the corresponding duty not to
waste the common asset.63
Atmospheric trust litigation calls upon United States courts to translate this “fair
share” concept into a streamlined obligation that applies within this nation evenly
to each of the ¬fty states and all of their subdivisions (cities and counties), as well as
to the federal government. Each jurisdictional level, in other words, bears a uniform
responsibility of meeting the Targets for U.S Emissions Reductions. For example, the
states of New Jersey and Idaho, though they have vastly different carbon footprints,
will each bear the same proportionate reduction of carbon emissions over the same
time frame.
This approach will have its critics, as it does not take into account certain state
differences. Some states are more carbon heavy than others in particular sectors.64
Some, for example, rely primarily on coal for energy, and others rely more heavily
on hydropower.65 But because carbon emissions are spread across all sectors, the
differences between states in any one sector are likely to be compensated for in other
sectors. All of the ¬fty states are similarly situated in terms of the carbon-dependent
lifestyles of their citizens. In other words, there is no “developed versus undeveloped
world” within the United States as there is on the international level that would
justify differentiating between states in terms of the burden they carry. It would
be a nearly impossible judicial task to arrive at any approach that accounts for all
state differences. Courts should reject liability distinctions that encumber a swift
governmental response appropriate to the scale of the crisis facing society.66
In other environmental contexts, courts and Congress have rejected a ¬ne-lined
fairness approach in order to carry out paramount public objectives. In imposing
liability for hazardous waste pollution, Congress and the courts adopted strict liability
principles out of a concern that fairness-based principles such as negligence would
vastly complicate the role of the courts and impede swift judicial recovery.67 These
concerns are manifold in the context of global heating. Furthermore, in the area

See discussion at supra note 38 and accompanying text.
63

See Seth Borenstein, Texas, Wyoming Take Lead in Emissions, USA Today (June 2, 2007), available at
64

http://www.usatoday.com/weather/climate/globalwarming/2007“06-02-emissions_N.html (last visited
June 16, 2008).
Id.
65

Moreover, courts should reject arguments that liability percentages should be reduced to account
66

for carbon “sinks” within the jurisdiction that provide natural offsets. Not only is the inquiry far too
complex, but the sinks are not reliable. Forests, for example, have traditionally operated as sinks.
Global warming, however, can make vegetation less able to absorb carbon dioxide from human
activities. See David Adam, Ten-Year Warming Window Closing, Sydney Morning Herald (May
12, 2007) (reporting scienti¬c ¬ndings that plants take up less carbon dioxide under unusually hot
and dry conditions); see also Fred Pearce, With Speed and Violence Ch. 13 (Beacon Press 2007)
(explaining process of natural carbon sinks turning to carbon sources).
See CERCLA § 107; Veolia Es Special Servs., Inc. v. Techsol Chem. Co., 2007 U.S. Dist. LEXIS
67

88127 at — 29“30 (S.D. W. Va. 2007).
Atmospheric Trust Litigation 113


of regulatory takings, the Supreme Court has said that individuals may bear the
burden of exactions that are “roughly proportional” to the harm that they cause,
emphasizing that “no precise mathematical calculation is required.”68


1.6. The Inexcusability of Carbon Orphan Shares
The needed emissions reductions will be achieved only if the apportioned responsi-
bility de¬nitively adds up to the required “carbon math.” Each industrialized nation
must carry out its proportion of the overall planetary carbon reduction, or it leaves
an “orphan share” on the doorstep of the world. An orphan share is a share of liabil-
ity for which the liable party does not take responsibility. In the context of carbon
reduction, any signi¬cant orphan share is likely to defeat efforts to reduce emissions
adequately in the short time frame needed. Because the required carbon reduction
is as steep as it is, no sovereign is positioned to take on more than its share, at least
at the outset. In other words, no industrialized nation is likely equipped to adopt
an orphan share left by another sovereign. Doing so would mean that citizens of
the adoptive sovereign must decrease their emissions multifold, beyond what their
national liability would require “ simply so that citizens of the “deadbeat” sovereign
can continue living a lifestyle in carbon excess with no regard to meeting their
planetary obligations. The concept applies to fractional orphan shares as well. If a
sovereign has liability to decrease its emissions 80% but actually decreases its carbon
emissions by only 50%, it will leave a 30% orphan remainder. A bedrock principle
of atmospheric trust liability must be the inexcusability of orphan shares and partial
orphan shares.69
The concept of orphan shares applies at every jurisdictional level, from national
to local. For example, on the state level, if all California cities except for San Diego
were to meet their ¬duciary obligation to reduce carbon emissions, San Diego™s
orphan share would nevertheless sink the state™s ability to meet its ¬duciary obligation
unless some other city or county also took on San Diego™s share, which, as previously
discussed, is an unlikely scenario and certainly not one that courts can rely on. The
dif¬culty of adopting any signi¬cant orphan shares in the carbon context means, as
a practical matter, that virtually all levels of government, including cities, counties,
states, and national governments, must be held to their ¬duciary duty to meet their
fair, proportionate share of the planetary carbon liability. As a legal reality, this means
that each sovereign and subsovereign must have a clear, generic ¬duciary obligation
that courts are capable of strictly enforcing. This does not mean that atmospheric
trust litigation must be brought against every jurisdiction. More than likely, a few

Dolan v. City of Tigard, 512 U.S. 374, 391 (1994). Moreover, in the context of approving consent decrees
68

for treaty ¬shing rights, courts have emphasized that mathematical precision is not required and the
courts™ approval is an “amalgam of delicate balancing, gross approximations and rough justice.” U.S.
v. Oregon, 913 F.2d 576, 580“81 (9th Cir. 1990).
This does not necessarily prevent sovereigns from using cap-and-trade mechanisms to ful¬ll their
69

proportionate share of reduction.
Mary Christina Wood
114


precedent-setting lawsuits that create a clear liability framework can spur necessary
action on the political level nationwide, without the need for massive litigation. A
press strategy can magnify the public impacts of atmospheric trust litigation long
before any judicial decision is rendered.


2. ENFORCING THE ATMOSPHERIC FIDUCIARY OBLIGATION

The trust framework presents two causes of action, available to different classes of
parties, to enforce the atmospheric ¬duciary obligation. The ¬rst is an action by
citizen bene¬ciaries against their governmental trustees for failing to protect their
natural trust. It is well settled that bene¬ciaries may sue the trustee to protect their
property.70 Citizens are positioned to bring trust actions against their cities, counties,
states, or the federal government.71 The second is an action brought by one sovereign
trustee against another for failure to maintain common property. Co-tenants have a
right against other co-tenants for waste and for failing to pay necessary expenses.72
States may bring an action for waste against other states or the federal government.
Tribal sovereigns may also bring actions. Waste and breach of trust claims ¬nd
grounding within the same basic property framework.
As with any claim, a myriad of issues may bar recovery. Litigants must nav-
igate potential barriers such as standing, sovereign immunity, preemption, the
political question doctrine, ripeness, jurisdiction, and intervention. This chapter
does not discuss such hurdles, charting instead the broad terrain of atmospheric
trust litigation. It should be noted, however, that courts recognizing the enor-
mity of climate crisis and the crucial role of the judiciary may approach these
barriers with a leniency that is not characteristic of past decisions. At its core,
the unparalleled force of the public trust doctrine is its mandate to preserve
resources for future generations “ and the role of the court in policing the legis-
lature and agencies in their management of trust assets. The substantive underpin-
ning of the doctrine thus creates powerful arguments in defense of many potential
barriers.73


See Bogert, supra note 27, § 154 at 551 (“If the trustee is preparing to commit a breach of trust, the
70

bene¬ciary need not sit idly by and wait until damage has been done. He may sue in a court of equity
for an injunction against the wrongful act.”).
Marks v. Whitney, 491 P.2d 374, 381 (Cal. 1971) (private citizens have standing to sue under public
71

trust though a court may raise the issue on its own). Of course issues of sovereign immunity may arise
in such suits, and general Constitutional requirements of standing apply.
Willmon v. Koyer, 143 P. 694, 695 (Cal. 1914) (each co-tenant has a right to maintain an action against
72

co-tenants “to have refunded to him by the other his proportion of any expenditures made for the
bene¬t of common property.”); 63C Am. Jur. 2d Property § 31; Chosar Corp. v. Owens, 370 S.E.2d
305 (Va. 1988) (co-tenants who allowed mining without consent of all other co-tenants were liable
for waste); Anders v. Meredith, 1839 WL 525 (N.C. 1839); see also supra note 38 (discussing waste in
context of sovereign co-tenancy in migrating ¬shery).
While procedural issues are beyond the scope of this chapter, they are considered in Mary Christina
73

Wood, Courts as Guardians of the Global Trust (work in progress).
Atmospheric Trust Litigation 115


2.1. Declaratory Relief
It is important to design a remedy with a view toward providing the macro relief
imperative to addressing the climate crisis. A declaratory judgment setting forth the
trust framework for atmospheric obligations will greatly advance society™s task of
clarifying the responsibilities of governments worldwide. Amid the present political
chaos surrounding climate change, such clari¬cation may bring results reaching
far beyond the courtroom because it infuses citizens with the conceptual tools they
need to hold their respective governments accountable in quanti¬able terms at all
jurisdictional levels. In that sense, a declaratory judgment could become a yardstick
for political action.
A declaratory judgment should clearly iterate the following principles: (1) all
governments have a ¬duciary obligation, as trustees, to protect the atmosphere as
a commonly shared asset; (2) all governments bear liability for reducing carbon;
(3) the ¬duciary obligation among industrialized nations and subjurisdictions is to:
(a) arrest the growth of emissions no later than 2010; (b) reduce carbon levels by
at least 4% each year; and (c) ultimately bring carbon levels down to 80% or more
below 2000 levels by 2050; (4) this ¬duciary obligation is organic to government and
permits no orphan shares or partial orphan shares; (5) the ¬duciary obligation is
enforceable by the citizen bene¬ciaries of the trust representing present and future
generations; and (6) the ¬duciary obligation and the concomitant duty to prevent
waste are enforceable by co-tenant trustees.74
Declaratory relief should be accompanied by suitable injunctive relief that allows
courts to provide a remedy on a macro level without invading the province of the
political branches.75 Courts have emphasized that the core purpose of the public trust
doctrine is to police the other branches of government in their disposition of public
assets.76 By drawing on traditional relief available against co-tenants and trustees for
misuse of property, courts may require carbon accountings and enforceable carbon
budgets as remedies for sovereign breach of the atmospheric ¬duciary obligation
without reaching into the lawmaking purview of the other branches.


2.2. A Carbon Accounting
An accounting is a traditional remedy springing from the equitable powers of the
court in both the co-tenancy and trust contexts.77 It is a judicial process whereby

However, a declaratory judgment should not be a “general admonition” but must be narrowly crafted
74

to de¬ne a duty according to “concrete facts presented by a particular dispute.” United States v.
Washington, 2007 U.S. Dist. LEXIS 61850, at — 23 (W.D. Wash. 2007). Courts have rejected overly
broad declaratory judgments. See id.
Winberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (the basis for injunctive relief is a ¬nding of
75

irreparable injury and the absence of an adequate legal remedy) (citations omitted).
See supra note 2.
76

See, e.g., Evans v. Little, 271 S.E. 2d 138, 141 (Ga. 1980) (co-tenancy); Koyer, 143 P. at 695 (“As an
77

incident to a cotenancy relationship, either cotenant has a right to demand of the other an accounting
Mary Christina Wood
116


co-tenants or trustees must account for expenses and/or pro¬ts in connection with
the property.78 The basic premise of an accounting in the co-tenancy context is
that each co-tenant is responsible for his share of the expenses and is due his
share of the pro¬t from the property.79 An accounting is the procedural method
by which this “fair share” principle is enforced by courts. In the trust context, an
accounting is the method by which bene¬ciaries may ensure proper management
of their property.80 Accordingly, courts have held that “any bene¬ciary, including
one who holds only a present interest in the remainder of a trust, is entitled to
petition the court for an accounting.”81 The scope of an accounting must include
“all items of information in which the bene¬ciary has a legitimate concern.”82 In the
¬nancial context, this means a statement “in clear and concise terms of the nature
and value of the corpus of the trust and the amount and location of any balance or
remainder.”83
In the context of atmospheric trust litigation, an accounting would take the
form of quantifying carbon emissions and tracking their reduction over time.84
This form of accounting is an extrapolation from the traditional remedy in two
ways. First, it is applied against a sovereign trustee, not a private trustee. It is

as to rents and pro¬ts of the cotenancy, which of course, involves the right of one cotenant to have
refunded to him by the other his proportion of any expenditures made for the bene¬t of the common
property.”); Zuch v. Conn. Bank & Trust Co., 500 A.2d 565, 568 (Conn. App. 1985) (“As a general
matter of equity, the existence of a trust relationship is accompanied as a matter of course by the right
of the bene¬ciary to demand of the ¬duciary a full and complete accounting at any proper time.”)
(citations omitted); Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) (Cobell VI) (accounting against
federal government for mismanagement of Indian trust funds).
Evans, 271 S.E.2d at 141.
78

See, e.g., Garber v. Whittaker, 174 A. 34, 37 (Super. Ct. Del. 1934) (“Tenants in common of the legal
79

title to land are ordinarily entitled to the use, bene¬t and possession of such land, including their
just and proper shares of the rents and pro¬ts therefrom.”); Koyer, 143 P. at 695“96 (“The rule is that
when one tenant in common has paid a debt or obligation for the bene¬t of the joint property, or has
discharged a lien or assessment imposed upon it as a common burden, he is entitled as a matter or
right to have his co-tenant, who has received the bene¬t of it, refund to him his proportionate share
of the amount paid.”); see also William B. Stoebuck & Dale A. Whitman, The Law of Property
205 (3d ed. 2000) (where a cotenant derives income from a use of land that permanently reduces its
value the cotenant must account to the other cotenants); White v. Smyth, 214 S.W.2d 967, 978 (Tex.
1948) (“When it is claimed that a cotenant in possession of property has become liable to his cotenants
for pro¬ts accruing from his productive operations, the usual mode of settling the account is to charge
him with all his receipts and credit him with all his expenses, thereby ascertaining the net pro¬ts
available for distribution [among cotenants].”).
See Zuch, 500 A.2d at 567 (“The ¬duciary relationship is in and of itself suf¬cient to form the basis
80

for the [accounting].”) (citations omitted); Faulkner v. Bost, 137 S.W. 3d 254, 259 (Tex. App. 2004)
(bene¬ciaries may ¬le suit to compel a trustee to provide an accounting, citing Texas Property Code).
In re Estate of Ehlers, 911 P.2d 1017, 1021 (Wash. App. 1996) (citing Nelsen v. Grif¬ths, 585 P.2d 840,
81

843 (Wash. App.1978)).
Zuch, 500 A.2d at 568.
82

Id.
83

On a broader level, NASA scientist Jim Hansen has suggested keeping an annual public scorecard of
84

measured changes of (1) fossil fuel CO2 emissions; (2) atmospheric CO2 amount; (3) human-made
climate forcing; and (4) global temperature. James E. Hansen, A Brighter Future, 52 Climatic Change
435, 438 (2002). The carbon accounting suggested herein would track all greenhouse gas emissions.
Atmospheric Trust Litigation 117


well established, however, that a sovereign defendant may be subject to an account-
ing for mismanagement of a trust. In the Indian law context, for example, the
federal government is currently subject to a multibillion-dollar accounting action
for its mismanagement of tribal trust funds.85 Second, a carbon accounting invokes
a tool developed in the ¬nancial context and extends it to the natural context.
Such a leap should be well within the imagination of judges. Modern natural
resource management increasingly imports concepts from the ¬nancial world.
Approaches recognizing “natural capital” and “environmental services” draw upon
¬nancial constructs to organize human demands on a natural resource.86 Courts
are also quite familiar with assigning monetary value to resources through the
process of awarding natural resource damages to governmental trustees.87 More-
over, courts have essentially engaged in natural “accountings” in the environ-
mental context before, without using the label. In determining rights to ¬sh
runs shared between states and tribes, for example, courts have delved into the
quantitative aspects of bene¬cial use of a resource held in common by sovereign
co-tenants.88
In the climate context, the accounting consists of a judicially supervised periodic
quanti¬cation of the amount of greenhouse gas pollution emitted by the sovereign
defendant. Such pollution is an overriding factor affecting the productivity of the
atmospheric trust.89 The accounting establishes the current carbon pollution emitted
on the particular jurisdictional level (local, state, or federal) so as to de¬ne a baseline
and then tracks progressive reduction over time. Modern modeling is capable of
quantifying a carbon footprint on virtually any scale, from individual to global.90
Much of the necessary data has been developed and is already accessible. The
U.S. Department of Energy, for example, has released overall carbon emissions of
all ¬fty states and will continue the reporting on an annual basis.91 Several cities,


See Cobell v. Kempthorne, 455 F.3d 317, 319“21 (D.C. Cir. 2006) (describing background of litigation).
85

See generally Pawl Hawken, Amory Lovins & L. Hunter Lovins, Natural Capitalism: Creating
86

the Next Industrial Revolution (1999); Peter Barnes, Capitalism 3.0 (Barrett-Koehler 2006);
Costanza et al., The Value of the World™s Ecosystem Services and Natural Capital, Nature 387, 253
(May 15, 1997).
See generally Coeur D™Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094 (D. Idaho 2003).
87

See generally Wood, The Tribal Property Right to Wildlife Capital (Part 1), supra note 31, at 16.
88

See Torres, supra note 11, at 547 (calling for accounting).
89

U.S. Environmental Protection Agency, Personal Emissions Calculator, available at http://www.epa.
90

gov/climatechange/emissions/ind_calculator.html (last visited Sept. 18, 2007) (allows individuals to
calculate their emissions); The Climate Registry, available at http://www.theclimateregistry.org/
index.html (last visited Sept. 18, 2007) (tracks emissions from private industry); Borenstein, supra
note 64 (chart with all state emissions in million metric tons); Australian Government, National
Carbon Accounting System, available at http://www.greenhouse.gov.au/ncas/background.html (last
visited Sept. 18, 2007) (describing National Carbon Accounting System for Australia); UNFCCC,
Counting Emissions and Removals: Greenhouse Gas Inventories Under the UNFCCC, available at
http://unfccc.int/resource/docs/publications/counting.pdf (last visited June 16, 2008).
See Borenstein, supra note 64. Raw data for state carbon dioxide emissions is available from the
91

Energy Information Administration, Energy Emissions Data & Environmental Analysis of Energy
Data, available at http://www.eia.doe.gov/environment.html (last visited June 16, 2008).
Mary Christina Wood
118


such as Seattle, Washington, have already quanti¬ed their carbon footprint.92 A new
carbon registry has formed to account for releases from private sources as well.93
While inevitably there will be areas of dispute regarding some emissions sources,
particularly mobile sources, the methodology for measuring jurisdictional carbon
footprints will continue to be re¬ned as professional standards emerge in the ¬eld
of carbon accounting.94
Carbon accounting allows co-tenants and bene¬ciaries of the trust to evaluate
government™s measures to protect the atmospheric trust. The accounting would
determine jurisdictional compliance with the Target for U.S. Emissions Reductions,
which, as explained previously, is the quantitative standard of government™s ¬duciary
obligation. A court must maintain ongoing jurisdiction over the case to receive
periodic progress reports, a common procedure in accounting cases. Accountings
for trust management are often performed on a regular basis, such as quarterly,
biannually, or annually, and contain an inventory of the trust fund at the end of
the accounting period.95 The narrow window of time remaining before climate
thresholds are crossed seemingly justi¬es carbon accounting reports every quarter.


2.3. Nested Jurisdictions
Unprecedented as it may seem, atmospheric trust litigation may call forth municipal
judges, state court judges, and federal judges to enforce the ¬duciary obligation
against various levels of government. This is because, for greenhouse gas reductions
to truly add up to the “carbon math” in time, each jurisdiction must be accountable
for reducing carbon. The unavailability of judicial relief at any jurisdictional level
risks orphan shares at that level. Accordingly, the atmospheric trust obligation must
be viewed as a general mandate capable of multilevel jurisdictional enforcement.
This in turn presents a need for coordination among various courts. Cross-judicial
coordination is a familiar challenge for many judges. Complex class action cases,
such as those involving asbestos and tobacco claims, have often involved more
than one court. Water appropriation cases also frequently involve simultaneous
proceedings at both the state and federal level. The dynamic nature of environmental
resources typically creates a need for transjurisdictional judicial coordination.


City of Seattle, Climate Action Plan, http://www.seattle.gov/climate/carbonfootprint.htm (last vis-
92

ited June 16, 2008); City of Seattle, Our Carbon Footprint, available at http://www.seattle.gov/
climate/PDF/Our_Carbon_Footprint.pdf (“Any serious initiative to reduce global warming pollution
must begin with a very challenging ¬rst step: A greenhouse gas emissions inventory that establishes
the baseline against which progress will be measured, and identi¬es the major sources of pollution
that will be the focus of the program.”).
The Climate Registry, supra note 90.
93

Australia, for example, has developed a carbon accounting system with uniform standards. Australian
94

Government, National Carbon Accounting System, supra note 90.
See, e.g., Fraser v. Se. First Bank of Jacksonville, 417 So.2d 707, 708 (Fla. App. 1982) (citing Florida
95

statutes); Cobell v. Norton, 240 F.3d 1081, 1086 (D.C. Cir. 2001) (Cobell VI) (quarterly reports in
Indian trust litigation against the federal government).
Atmospheric Trust Litigation 119


Coordination in atmospheric trust litigation is made possible using the “nested
jurisdiction” concept. Greenhouse gas reductions achieved on a subjurisdictional
level (i.e., cities and counties) are readily and easily attributable to the umbrella
jurisdiction (the state). For the same reason, reductions at the subnational (state)
level are easily accounted for at the federal level. Through open accounting pro-
cesses, carbon reduction can simultaneously be attributed to the most immediate
jurisdictional level as well as the broadest jurisdictional level.
Courts can facilitate the process by posting accounting results on the website
that houses litigation documents.96 In this way, carbon accountants nationwide
can quickly obtain information and incorporate it into ongoing analysis for any
jurisdiction of concern. For example, as carbon reduction takes place as a result
of a suit against the city of Phoenix, such reduction may be accounted for in any
suit against the state of Arizona. The judicial process would be greatly streamlined
by uniform reporting schedules as well as accounting templates and processes.
Like any emerging ¬eld, atmospheric trust litigation would bene¬t from procedural
uniformity among various courts and advisers to the court.97


2.4. An Enforceable Carbon Budget and Recovery Plan
While an accounting remedy provides the means whereby a bene¬ciary or co-
tenant can measure the performance of a governmental trustee, additional injunc-
tive relief is necessary to enforce the sovereign duty to restore the natural trust
where it has been damaged. At a very simple level, the ¬duciary obligation to
reduce carbon pollution can be carried out through a “budget” for carbon reduc-
tion over time that sets forth quanti¬able mileposts. The jurisdiction must also
develop an asset recovery plan containing measures calibrated to bring about such re-
duction.98
Seattle, Washington, has undertaken an initiative that provides an example of a
template for such action. Under the leadership of Mayor Greg Nickels, the city set
a goal for reducing its greenhouse gas emissions to 7% below 1990 levels by 2012.99

Many courts post documents related to current cases online through a case management and elec-
96

tronic ¬ling system. See, e.g., U.S. District Court for the Eastern District of California, CM/ECF,
http://www.caed.uscourts.gov/caed/StaticOther/page_1581.htm (last visited June 16, 2008); U.S. Dis-
trict Court for the District of Columbia, Electronic Case Filing, http://www.dcd.uscourts.gov/ecf.html
(last visited June 16, 2008).
To that end, it is imperative that carbon professionals develop a uniform protocol for measuring
97

the carbon footprint at each jurisdictional level. Such protocol must address, for example, attribut-
ing mobile sources and origins of electricity consumption. The lack of such protocol should not
deter courts in enforcing the carbon ¬duciary obligation. Litigation will most certainly create a
demand for professional assistance that will rapidly be met by a cadre of professional carbon acco-
untants.
Proposed British legislation provides an example of a “carbon budget.” Britain Proposes Bold Environ-
98

mental Legislation that Could Pave Way for Post-Kyoto Pact, Int™l Herald Trib. Mar. 13, 2007, avail-
able at http://www.iht.com/articles/ap/2007/03/13/europe/EU-GEN-Britain-Climate-Change.php.
City of Seattle, Our Carbon Footprint, supra note 92.
99
Mary Christina Wood
120


This goal requires reducing current emissions by 680,000 metric tons a year.100 The
city then created a plan that divided the overall emissions into sectors such as city
lighting, coal, heating, cars and trucks, airports, maritime, and other.101 The plan
sets forth speci¬c action items designed to reduce carbon from the various sectors.102
Courts can require governmental trustees at any jurisdictional level to establish
a budget and asset recovery plan calibrated to the uniform ¬duciary standard set
forth in the Target for U.S. Emissions Reductions. The contemplated injunctive
relief does not invade the prerogatives of the other branches because it does not
dictate to the trustee how to accomplish the carbon reduction. It simply spurs action
where the political branches neglect to carry out their ¬duciary responsibility. Cities,
counties, and states have wide latitude in devising plans that are tailored to the unique
circumstances of their jurisdiction. Periodic reports provided to the court through
the accounting process inform the court and the bene¬ciaries whether the trustee
is making adequate progress in accordance with the budget and plan.103 In this
respect, the trust remedy may strike the ideal balance between necessarily potent,
macro judicial enforcement and traditional deference to the political branches.
While some judges may be overwhelmed by the novel and all-encompassing
context of carbon reduction, it is important to bear in mind that the envisioned
judicial role is much the same as in other natural resource contexts where courts
enforce management and/or recovery of diminished natural assets. In the treaty
¬shing wars of the late 1960s and 1970s, the district courts of Oregon and Washington
became, for a time, “¬shmasters,” tasking themselves with detailed supervision of
tribal and state salmon harvests.104 The courts created a consent decree structure
whereby the states and tribes developed a judicially supervised and enforceable
plan for future harvest of the salmon.105 More recently, in the ESA lawsuits over
the imperiled Columbia River salmon, the federal district court of Oregon has
assumed a rigorous role overseeing the development of a ¬sh recovery plan pursuant
to a process of multisovereign consultation structured by the court.106 Courts have
supervised broad plans to address exclusionary zoning107 and racial desegregation.

City of Seattle, A Climate of Change: Meeting the Kyoto Challenge, Climate Action Plan Highlights
100

(Sept. 2006), available at http://www.seattle.gov/climate/docs/SeaCAP_summary.pdf (last visited June
16, 2008).
Id.
101

Action items include converting city governmental ¬‚eets to more ef¬cient cars, creating bicycle paths,
102

imposing parking taxes, creating residential electrical ef¬ciency programs, and other measures. See
id.
As carbon reduction measures come “on line,” progress may be quanti¬ed in the accounting process.
103

See Puget Sound Gillnetters Ass™n v. U.S. Dist. Court, 573 F. 2d 1123, 1133 (9th Cir. 1978); United
104

States v. Washington, 520 F.2d 685, 686, 693 (9th Cir. 1975); see also Mary Christina Wood, Restoring
the Abundant Trust: Tribal Litigation in Paci¬c Northwest Salmon Recovery, 36 Envtl. L. Rep. 10,163,
10,176“77 (2006).
For discussion, see Mary Christina Wood, Reclaiming the Natural Rivers: The Endangered Species
105

Act Applied to Endangered River Ecosystems, 40 Ariz. L. Rev. 197, 233 (1998).
See Wood, Restoring the Abundant Trust, supra note 104, at 10, 175“76.
106

In Southern Burlington County, NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975)
107

(Mt. Laurel I), the New Jersey Supreme Court found that housing, along with food, is one of the
Atmospheric Trust Litigation 121


While courts must be cognizant of appropriate judicial boundaries in structuring
relief for trust violations,108 they seemingly have wide latitude in requiring sovereigns
to develop enforceable plans for proper trust management.109


2.5. Backstops through Injunctive Relief
Enforcing the carbon reduction budget and plan presents a challenge for the courts.
On one hand, it is clear that enforcement is necessary, because the political branches
may lack the will to institute the measures necessary to carry out their ¬duciary
obligation. On the other hand, a carbon reduction plan is likely to contain a set of
measures beyond the power of courts to enforce “ measures such as carbon taxes,
infrastructure projects, and transfer of public investment. In structuring enforcement
mechanisms, courts must walk a ¬ne line between affording meaningful relief and
overstepping their role. It is unlikely that carbon reduction plans may be enforced
in their entirety down to the last detail.
Nevertheless, courts have it well within their power to force carbon reduction
through discrete injunctive measures tailored toward obvious carbon sources. An
injunction may contain “backstops” that consist of measures that the court will man-
date if the budget is not carried out. The broad realm of environmental and land
use litigation provides precedent for measures that may serve as effective backstops.
Such measures might include, for example, injunctions prohibiting new coal-¬red
plants110 and injunctions against large-scale logging, recreational vehicle use on pub-
lic lands, airport expansions, sewer hookups, issuance of air pollution permits, and
“most basic human needs” and interpreted affordable housing as a right implicitly guaranteed by
the State™s constitution. The Court held that towns must bear their “fair share” of providing housing
needed on a regional level and ordered a town to amend its zoning law to ful¬ll its fair share, noting,
“The municipality should ¬rst have full opportunity to itself act without judicial supervision.” Id. at
734. However, a second challenge was brought after the town failed to provide adequate housing, and
the Court devised a detailed remedy structure that included ordering af¬rmative remedies involving
government subsidies, incentive zoning, mandatory set-asides and other measures. S. Burlington
County, NAACP v. Township of Mount Laurel, 456 A.2d 390 (N.J. 1983) (Mt. Laurel II); see discussion
in Joseph William Singer, Property Law: Rules, Policies, and Practices 908 (4th ed. 2006).
The Court authorized the appointment of special masters to rewrite the zoning ordinances to provide
constitutionally suf¬cient housing. Id. (discussing remedy aspects of the case). The Court also provided
for the appointment of regional trial judges to handle all zoning cases in order to generate consistent
de¬nitions of regions and to “determine in an orderly way each community™s fair share of the regional
housing need.” Id. The Mt. Laurel II case seems particularly helpful to the global warming context,
where courts must allocate a fair share of carbon reduction liability on a regional basis and devise
innovative approaches to enforcing that share.
See Cobell v. Kempthorne, 455 F.3d 317, 330“31 (D.C. Cir. 2006) (reviewing reversals of district court
108

remedies in an Indian trust accounting case).
Cobell v. Norton, 283 F. Supp. 2d 66 (D. D.C. 2003), rev™d on other grounds, 392 F.3d 469 (D.C. Cir.
109

2004).
The world™s preeminent climate scientists are clear that climate stability cannot be achieved if
110

humanity uses the remaining coal reserves. James Hansen et al., Climate Change and Trace Gases,
Phil. Trans. Royal Soc™y A, 1925, 1939 (2007), available at http://www.planetwork.net/climate/
Hansen2007.pdf (last visited June 16, 2008) (“Given the estimated size of fossil fuel reservoirs, the
chief implication is that we, humanity, cannot release to the atmosphere all, or even most, fossil fuel
Mary Christina Wood
122


a myriad of other activities.111 While most of the precedent for such injunctions is
grounded in claims brought under statutory law, the relief awarded is typically not
statutorily mandated but rather devised by a court to afford a meaningful remedy. It
is within the traditional province of courts of equity to devise relief to remedy the
harm.112 Of course, the ultimate enforcement mechanism is to hold government of¬-
cials personally in contempt of court for failure to carry out court-ordered ¬duciary
duties.113


2.6. Collateral Bene¬ts of Atmospheric Trust Litigation
Statutory avenues of litigation offer the advantage of detailed frameworks and helpful
precedent. Atmospheric trust litigation carries the risk of any novel strategy. Professor
David Hunter, however, emphasizes the “awareness-building” and other positive
impacts of climate litigation apart from court victories.114 Atmospheric trust litigation
provides two substantial collateral bene¬ts missing from other strategies.


CO2. To do so would guarantee dramatic climate change, yielding a different planet than the one on
which civilization developed and for which extensive physical infrastructure has been built.”); James
Hansen, Dangerous Human-Made Interference with Climate, Testimony Before Select Committee
on Energy Independence and Global Warming, U.S. House of Representatives 18 (Apr. 26, 2007),
available at http://www.columbia.edu/∼jeh1/testimony_26april2007.pdf (last visited June 16, 2008)
(“Thus the most critical action for saving the planet at this time, I believe, is to prevent construction
of additional coal-¬red power plants without CO2 capture capability.”).
See, e.g., United States v. Metro. Dist. Comm™n, 757 F. Supp. 121, 128“29 (D. Mass 1991), aff ™d, 930
111

F.2d 132 (1st Cir. 1991) (moratorium against sewer hookup); Jeffery J. Matthews, Clean Water Act
Citizen Suit Requests for Municipal Moratoria: Anatomy of a Sewer Hookup Moratorium Law Suit, 14
J. Envtl. L. & Litig. 25 (1999) (discussing injunctions imposing moratoria against sewer hookups);
Am. Motorcyclist Ass™n v. Watt, 543 F. Supp. 789, 798 (C.D. Cal. 1982) (enjoining off-road vehicle
use because agency plan did not comply with the statute); Pac. Rivers Council v. Thomas, 30 F.3d
1050 (9th Cir. 1994) (enjoining the U.S. Forest Service from proceeding with projects under land
resource management plans prior to ESA consultation); Lane County Audubon Soc™y v. Jamison,
958 F.2d 290, 294 (9th Cir. 1992) (enjoining the BLM from new timber sales until ESA consultation
was completed); Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1975) (enjoining construction of road
until agency prepared biological assessment); Or. Nat. Desert Ass™n v. Singleton, 75 F. Supp. 2d 1139
(permanently enjoining grazing in all “areas of concern”).
See Alaska Ctr. for the Env™t v. Browner, 20 F.3d 981, 986 (9th Cir. 1994) (“The district court has broad
112

latitude in fashioning equitable relief when necessary to remedy an established wrong.”); Weinberger
v. Romero-Barcelo, 456 U.S. 305, 311 (1982) (“The essence of equity jurisdiction has been the power of
the [Court] to do equity and to mould each decree to the necessities of the particular case. Flexibility
rather than rigidity has distinguished it.”).
One district court recently threatened U.S. Agriculture Undersecretary Mark Rey with contempt
113

of court and jail time for the agency™s “systematic disregard of the rule of law.” The agency
failed to conduct environmental analysis required by statute in connection with the use of ¬re
retardant that kills ¬sh. See Matt Gouras, Judge: Ag Undersecretary Avoids Jail Time, Associa-
ted Press, Feb. 28, 2008, available at http://hosted.ap.org/dynamic/stories/B/BUSH_OFFICIAL_
CONTEMPT?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2008“02-
28“00-41“37.
David Hunter, The Implications of Climate Change Litigation for International Environmental Law-
114

Making, in Adjudicating Climate Change: State, National, and International Approaches 1
(William C. G. Burns & Hari M. Osofsky eds., 2009).
Atmospheric Trust Litigation 123


First, as a macro strategy, trust litigation speaks directly to government™s obligation
to address climate crisis “ in quantitative terms applicable to any jurisdictional level.
So far, government™s approach to climate crisis has been perceived as a matter of
political discretion, not obligation.115 The trust approach applies a logical, obligatory
framework to a situation dangerously devoid of any standards for government behav-
ior. Through the mere act of “preparing, announcing, ¬ling, advocating and forcing
a response,”116 trust litigants will be positioned to change the public™s expectation of
government on all levels. Statutory claims, by contrast, fail to address government™s
full obligation in the face of climate crisis. Such claims are geared toward isolated
instances of government action, such as approvals of air permits or programs, or
listing decisions under the ESA. While valuable in many other ways and worthy of
pursuit, they nevertheless embrace an approach of incremental change rather than
the rapid overhaul necessary to combat climate change.
Second, atmospheric trust litigation harnesses strength from the economic, moral,
and political realms. Perhaps the most dangerous aspect of global warming is that
there is no overarching paradigm to turn governmental, economic, or individual
choices away from the business-as-usual approach that has led the world to the
threshold of climate catastrophe. In order to accomplish the massive shift that soci-
ety must make in the short time frame remaining, there needs to be an encompassing
moral, political, spiritual, economic, and legal framework that draws from a com-
mon wellspring of human thought and experience. From this perspective, the major
drawback of most statutory legal claims is that they are often divorced from any uni-
fying framework that reaches across other realms. Claims brought under the ESA,
CAA, and various other statutes are mired in complexity and beyond the under-
standing of most citizens. Such claims do not serve as good vehicles for expression
of values and do not speak to the experience of citizens in the nonlegal realm. They
therefore often lack much-needed forti¬cation on economic or moral grounds.
Trust litigation, by contrast, draws on fundamental principles that are increas-
ingly invoked by today™s visionaries. In economic terms, the trust dovetails with
principles of natural capitalism, which leading thinkers present as a paradigm of
business and industrial reform.117 These principles urge business to structure opera-
tions using the Earth™s interest, not its capital. Emphasis on renewable energy is an
example of this approach. On a moral level, trust principles re¬‚ect an ethic toward
children and underscore the strong urge of human beings to pass estates along to

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