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Public Trust Doctrine Basis for Lawsuits Seeking Action on Climate Change

A series of lawsuits commenced, since the beginning of May, seek action by state and federal government on Climate Change, based upon the Public Trust Doctrine. A group called Our Children’s Trust, in conjunction with other groups, commenced an action in the U.S. District Court for the Northern District of California on May 4, 2011. It has also started actions in eleven states.

The Federal complaint states the basis for the claim as follows:

“The Public Trust Doctrine provides that our federal officials have a fiduciary duty to protect the atmosphere from the effects of human-induced global energy imbalance and to hold our country’s vital natural resources in trust for present and future generations of citizens. Our federal government may not manage the trust resource in a way that substantially impairs the public interest in a healthy atmosphere.”

The complaint does not claim that a specific action or actions should be taken only that the government must take action.
The Public Trust Doctrine has been described by the New York State Department of State, which administers New York’s coastal resources as:

“The Public Trust Doctrine provides that public trust lands, waters, and living resources in a State are held by the State in trust for the benefit of all of the people, and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of recognized public uses.”

The claim that the Public Trust Doctrine applies to climate change and its impacts upon the environment, on the one hand can be argued to be beyond the scope of the doctrine and on the other as a logical extension of the prior application of the doctrine. It will be interesting to see whether the courts view this as an intrusion into the realm of separation of powers or a mandate that must be enforced.

-Steven Silverberg

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