A Legal Call To Arms To Remedy Environmental And Climate Ills
By Fen Montaigne
03 January, 2014
Yale Environment 260
University of Oregon law professor Mary Wood says environmental laws in the United States are simply not working. In an interview with Yale Environment 360, she explains why she believes a new strategy and robust judicial intervention are needed to protect nature and the climate.
Mary Christina Wood has an unsparing view of the state of environmental protection in the United States today: On a host of fronts — from climate change, to mountaintop removal mining, to the nationwide fracking boom — the federal and state governments are failing to protect ecosystems and resources vital to current and future generations.
In an interview with Yale Environment 360 senior editor Fen Montaigne, Wood discusses why she believes the judiciary needs to step in to force the executive and legislative branches to protect natural resources that are part of the “public trust.” And as she does in her recently released book, Nature’s Trust, she also explains why she supports ongoing litigation to reduce carbon emissions under a related doctrine to protect the “atmospheric trust.”
“The political branches of government are doing next to nothing to address this crisis, which is threatening the future survival and welfare of the youth of this nation and future generations” says Wood. “Across the board, on the state, local, and federal level the agencies are not using the statutes to protect nature — they’re using statutes to permit damage to the environment.”
Yale Environment 360: Can you describe the concept of the "atmospheric trust," and why you think it needs to be applied to slow climate change?
Mary Wood: The atmospheric trust approach simply applies the public trust doctrine to the atmosphere, which is not much of a leap because the purpose of the public trust is to protect critical resources that the public relies on for its very survival and welfare. The atmosphere certainly qualifies. So the litigation just takes this well known, ages-old principle that government is trustee of our crucial resources and applies it to the atmosphere and to the climate in particular.
The reason it’s important is because the political branches of government are doing next to nothing to address this crisis, which is threatening the future survival and welfare of the youth of this nation and future generations. Where the two political branches are doing nothing, the public trust has its most forceful argument for judicial intervention. The atmospheric trust cases don’t ask the courts to determine what measures should be taken to reduce carbon dioxide emissions. But they do ask courts simply to force the other branches to do their job in protecting the natural resources we rely on.
e360: Can you cite a recent example where a government was failing to do what it was supposed to do to protect a common resource and the public trust doctrine was applied?
Wood: One of my favorite examples comes from the Philippines in a case that dealt with the horrific pollution of Manila Bay. Using the trust doctrine, the Supreme Court of the Philippines forced about a dozen agencies to clean up Manila Bay. All of these agencies had statutory obligations to protect Manila Bay in some fashion or another, but virtually all of them were failing to fulfill their duties ...
e360: So what you’re saying is that when the U.S. passed the Clean Air and Clean Water acts, the government was carrying out its public trust responsibilities and there was no need for judicial remedies?
Wood: When environmental law works, and the agencies actually implement the laws, there should be no need for judicial intervention. But right now the agencies have turned these statutes inside out. Across the board on the state, local, and federal level, the agencies are not using the statutes to protect nature — they’re using statutes to permit damage to the environment. These statutes have turned into broad permitting systems, and permit denials have been the exception. That’s why we see cascading collapses of resources, because the environmental laws simply aren’t working. And the sooner the public realizes that, the sooner we can hold our agencies accountable.
e360: What you’re saying goes against the conventional wisdom that, in the history of environmental regulation and the environmental movement, the Clean Air Act and Clean Water Act were a success and that the air and water are actually cleaner today.
Wood: This conception that environmental law is working has, I think, crippled our ability to deal with reality. Rivers aren’t catching on fire anymore. However, the capacity of the industrial machine to wreak destruction on nature has magnified many times beyond what was present in the 1970s when these laws were passed. And so while rivers aren’t catching fire, Appalachian mountaintops are being blown up, toxic chemicals are accumulating in our bodies, extinction rates from habitat loss are soaring ...
e360: So you argue in your book that the EPA and environmental regulators are failing?
Wood: They are failing. There are investigative reports, congressional reports, and reports as to the health of ecoystems that across the board point to this failure, but the average American still thinks that we have the greatest system of environmental law in the world and that it’s working. And because Americans think that environmental laws are working, they’re not holding agencies accountable. But when you get to the level of Americans actually trying to protect resources — maybe they’re working on climate change or trying to protect a wetland or a forest — that is when Americans realize the system is rigged. There are a large number of Americans waking up to the reality that their government is not serving them, but serving industry and using environmental laws to permit colossal damage ...
There are few instances today of the government denying permits. Where permit denial rates have been studied, they only amount to about 1 percent. So when you talk about huge mining proposals in Alaska, or proposals for natural gas drilling in Pennsylvania, or coal mining in Montana, all of these instances involve government saying yes to industry and not listening to the broader public ...
But you can’t expect the American public to drop what they’re doing in their everyday lives and rise up and defend the resources that they rely on every time there’s a proposal for destruction, because the proposals come in so fast and so furiously from industry that the pace of destruction is overcoming the ability of the American public to exercise their right to protest these proposals in administrative proceedings ... There is an industrial onslaught right now that is quickening, particularly in the fossil fuel industries. Do we really expect citizens to show up to all of these hearings and write all of these comments, only to find out that agencies are disregarding them in the end because industry is paying lobbyists to grease the wheels?
e360: What are your concrete recommendations for how to use the public trust doctrine to get where you want to go?
Wood: Well, we do need to recognize that the public trust doctrine is not a panacea. It is a new frame for viewing all of our environmental resources and our government’s responsibility towards them. But it’s also an old frame because the public trust underlies all of our environmental laws. So basically it asks government officials and judges and citizens to view government as trustee of resources and to protect remaining natural assets rather than allow continued damage ... The trust could empower citizens to make new demands on government to say, “Look, you’re not protecting our resources; this permit issued under environmental law was wrongly approved.” It could empower lawyers to bring new cases to court ... And it definitely asks the courts to become more involved. We can’t just rely on litigation to accomplish all the environmental protection we need. However, we probably can’t achieve environmental protection without our third branch of government. We have three branches of government for a reason, but the courts have been very passive over the last decade or so, particularly in environmental law.
e360: Is there a clear recognition of the public trust doctrine in U.S. law?
Wood: Yes, there is recognition of the doctrine in every single state in this country. What is not yet established is a coherent framework of trust obligation. So that’s why I wrote my book, to pull together the different threads of trust law, from the various states, and from federal and international cases, to present an integrated doctrine for the first time ... If you just look at the climate context and atmospheric trust cases, I think courts are beginning to understand that the political branches aren’t working, and hopefully the courts will begin to understand their role to force the political branches to perform their trust obligation.
e360: Can you give an example where the courts have in fact made rulings and issued orders based on the public trust doctrine?
Wood: Sure. The Pennsylvania Supreme Court just handed down a landmark decision overturning a statute that promoted fracking. The lead opinion found that air, groundwater, and other resources were held in public trust and that all levels of government had a fiduciary duty to protect these assets.
e360: Let's talk about atmospheric trust litigation.
Wood: Atmospheric trust litigation characterizes the atmosphere as an integral trust asset and establishes a duty of protection toward the atmosphere, defined by the best available science. Dr. James Hansen and an international team of scientists have developed a pathway of carbon emissions reduction that is geared toward restoring equilibrium to the climate to prevent catastrophic heating. This pathway calls for a 6 percent emissions reduction every year, along with other measures to draw down carbon ... It’s the only tangible prescription out there geared toward protecting the functioning of our atmosphere and climate system.
So it’s really rather straightforward — atmospheric trust litigation defines that pathway as the fiduciary duty that the government must carry out. Atmospheric trust theory imposes this obligation on every single sovereign [government] on the planet, because all the sovereigns are co-trustees of our atmosphere. So that means, in this country, that all of the states and the federal government alike are co-trustees. There are atmospheric trust litigation lawsuits and petitions covering every single state in this country, as well as a case against the Obama administration. They are being asked to order development of climate recovery plans, which means that the governors and the federal government must plan this 6 percent annual reduction [in CO2 emissions] and then carry it out ... Atmospheric trust litigation remedies don’t attempt to interfere with the political prerogatives of the executive and legislative branches, but they do put the courts in the position of saying, “Hey you’ve got to do your job before it’s too late.”
e360: In terms of the fate of these suits, in federal court there have been some setbacks. I believe a district judge ruled this was a political matter. Where do things stand with litigation at the federal level at this point?
Wood: On the federal level, the case is sitting in the DC Court of Appeals right now ... The [lower court] DC judge denied relief largely on the basis that this is a question that is more appropriate for the legislative and executive branches, and of course that’s true. Of course they should be doing their jobs. But so far, the Obama administration has dragged its feet and Congress has been paralyzed. The lawsuit aims to force those political branches to carry out their trust obligations to protect the climate that is necessary for the survival of our children and grandchildren and future generations ...
e360: What’s happening with litigation in the states?
Wood: Roughly the same thing. These cases have been bumped up from the lowest courts to the appellate courts, on much the same grounds ... Most judges have said this is a question for the other branches, which of course is obvious, but it doesn’t answer the problem that society faces, which is that our government is asleep at the wheel.
e360: And how would you respond to people who say, “Well this all sounds good but this is so pie in the sky, this is not going to happen in the real world”?
Wood: I’d say, “Fine. If this is not going to work, present something that will work.” There’s no litigation that I know of, and no statutes, teed up to take effect in time ... There are little things happening, but those are all micro responses, and when you’re dealing with a climate system that is being flooded with carbon dioxide pollution, you have to have a macro approach that rapidly reduces the pollution to match the urgency of the situation. I don’t see any way of achieving that unless you have governments planning their reductions and carrying through with the task. The courts are now positioned to force them to do just that.
e360: A final question, about intergenerational responsibility. What’s really at issue here from your point of view — legally, ethically, and morally?
Wood: Well I tend to take the conversation away from intergenerational responsibility because I think it leads people to believe that their own children are safe in their future. I always bring the focus back to children alive today. You cannot look a child in the eyes and ignore their climate future. And whatever you think may be the disagreement in science about the pace of change, the consequences, and so forth, the warnings are so grave that we have to acknowledge our children’s future is at stake.
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