What We Are Watching: Atmospheric Trust Doctrine in the 9th Circuit

Three judges in the 9th Circuit are poised to rule on the leading question in environmental litigation: the legal right to a livable climate. 

Unlike the early decades of U.S. climate action, which focused on legislation and federal agencies, environmental advocates in recent years have increasingly had to rely on states and the courts to demand progress. The 2005 court ruling in Massachusetts v. EPA recognized that sea level rise injures coastal states and required the EPA to regulate greenhouse gasses as pollutants. More recently, cities like New York and Boulder filed suit against Exxon Mobil for their role in the climate crisis. In 2015, youth petitioners brought what may become the flagship climate case of our time against the President and government of the United States. Juliana v. United States alleges that government inaction is denying young people their right to an inhabitable planet. Juliana relies on a long history of public trust doctrine that requires the state to responsibly manage resources held in trust for the public, and advances a new field of "atmospheric trust” litigation. Colorado-based youth climate organization and CEA ally Earth Guardians is a lead plaintiff in the case.

Thus far, the government has filed numerous procedural challenges seeking to have the District Court throw out the case, or for higher courts to intervene. The case has cleared most of these procedural roadblocks, and the higher courts, although expressing some skepticism about its overall viability, have allowed the case to proceed. 

Most recently, the government filed an appeal to the 9th Circuit to review the plaintiffs’ standing to bring a case. The question of standing often determines the fate of environmental litigation. For example, one of the key hurdles plaintiffs had to clear in Massachusetts v. EPA  was the lack of direct injury due to the small amount of state-owned land that would be affected. The Supreme Court ultimately found that climate change represented a sufficient threat to state sovereignty to give them a claim to injury. In this case, the standing challenge questions the core of atmospheric trust doctrine as the basis for a legal claim. Oral arguments were heard on June 4th. 

Now the nation and the world wait to see whether the 9th Circuit will allow the case to proceed to trial by affirming Judge Aiken’s conclusion that the youth of this country have a cognizable legal right to a climate capable of sustaining human life.

Further reading: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2954661