September 14th, 2011


Principal, Cotchett, Pitre & McCarthy

Former Congressman

Associate Professor, UC Hastings College of the Law


With climate legislation dead in Congress, and the international climate talks years from resolution, some proponents of climate action are turning to the courts in the hope that judges will compel governments to act. On Wednesday, September 14, Climate One brought together three attorneys who are pursuing climate action through a novel concept: atmospheric trust litigation.

The strategy posits that governments have failed to curb planet-warming emissions and must, as compelled under the centuries-old common-law public trust doctrine, be held to account. In May, public-interest litigator Our Children’s Trust filed the first atmospheric trust suits, with young people named as the plaintiffs. The strategy couples lawsuits, which have now been filed in all 50 states and in federal courts, with the mobilization of youth, organized in part by sixteen-year-old climate campaigner Alec Loorz (see “Generation Hot: A Look Into Our Future,” Climate One, March 11, 2011).

Phil Gregory, Principal Attorney, Cotchett, Pitre & McCarthy and co-counsel for the federal suits, explained the strategy. “Historically there have been statute-based lawsuits, where you find a particular problem and you go after that problem. But labeling the polar bear an endangered species is not going to solve the human-made climate crisis. You have to approach it at the macro level. You have to say to the courts, you, the judge, need to declare that there’s a problem here, and that the government, the sovereign, is not doing enough to protect the trust.”

Gregory insisted that that aim of the suits is not to turn judges into policymakers. “What we want the court to do is not itself institute a regulation, or not itself say, this is what you must do, this particular act, but you, the state agencies, you, the federal departments, need to come forward with a plan that works,” he said.

The outcome he envisions would look something like the tobacco settlement of 1998, in which 46 state attorneys general hammered out a deal with the nation’s biggest tobacco companies. “We would rather have it fashioned in a consent way, through a consent decree, than to have some judge sit there and listen to the testimony. Because we all know when a judge listens to the testimony about the science and about the effects he or she is going to be outraged that nothing is being done,” he said.

David Takacs, Associate Professor, UC Hastings College of the Law, conceded that atmospheric trust is a novel application of the public trust doctrine, but that doesn’t make it less valid. “Part of why the atmosphere has never been considered a public trust resource is because we’ve never had to think about climate change or the atmosphere as being a renewable resource,” he said. “Nonetheless,” he continued, “if you look at what the public trust doctrine actually says, the atmosphere is no different than those other resources [water, wildlife, and land] in terms of how fundamental it is to human life for present and future generations.”

Retired California Congressman Pete McCloskey, co-author of the Endangered Species Act, noted that these suits will require judges to make a leap. But judges have done so before in our history when politicians weren’t ready to act, he said, citing the Supreme Court’s role in desegregating schools. “Courts have been in the lead, and judges have addressed matters of conscience when politicians didn’t have the courage to do something. Courts have said, ‘You must do.’ That’s the theory of this lawsuit,” he said.

“Never trust the government to adhere to the doctrine of the public trust,” he added. “You’ve got to force them. It’s going to be the courts that take the lead. And it’s going to be the young people that force politicians to act.”


– Justin Gerdes
September 14, 2011
Photos by Ed Ritger
The Commonwealth Club of California