Applying the Public Trust Doctrine to Climate Change Using Atmospheric Trust Litigation

On Bill Moyer’s final broadcast of the show Moyers & Company which aired this past weekend, he interviewed University of Oregon legal scholar Professor Mary Christina Wood, author of Nature’s Trust: Environmental Law for an Ecological Age (2013; Cambridge University Press).

In that extraordinary interview, Professor Wood provides a powerful, innovative, intellectually coherent, and legally sound interpretation of the public trust doctrine as applied to climate change and protection of the atmosphere.

Although the courts as yet haven’t embraced her arguments as they pertain to climate change, her pioneering work has led to the filing of several lawsuits on behalf of youth and their right to a habitable planet. These cases have come to be known as The Children’s Climate Crusade.

Woods’s commented in the course of her Moyers interview: “If this nation relies on a stable climate system, and the very habitability of this nation and all of the liberties of young people and their survival interests are at stake, the courts need to force the agencies and the legislatures to simply do their job.”

Woods also provided a gloss on an important climate decision by the Eugene City Council inspired by the testimony of youth organized by Our Children’s Trust demanding a carbon-neutral Eugene. The council responded by passing what Wood calls “the most aggressive city climate ordinance in the country.”

Here’s an excerpt from Professor Wood’s interview with Bill Moyers:

MARY CHRISTINA WOOD: “. . . street democracy is so powerful. I don’t know of any major movement that has succeeded without street democracy. When hundreds of thousands of people take to the streets, as they did in New York City, exercise their constitutional rights of free assembly; and then when you see, also, almost 100,000 people signing up and pledging to risk arrest if Keystone, the Keystone Pipeline, that would transport tar sands from Canada, those people are pledging to risk arrest if Obama or Congress approves the Keystone Pipeline.

When you see this kind of uprising, that only reinforces the more formal legal approaches that are put forth in the atmospheric trust litigation. The two go very much hand in hand because what is very important for judges is to sense the moral authority of the people. Judges have a finger on the pulse of the American people in a way that I think we don’t really understand that well. Judges can, if they sense the need, move very rapidly and order swift injunctions to force the legislatures or agencies, or both, to create a carbon reduction plan. And as that awareness becomes more acute, as demonstrated in the streets, courts, I believe, will become more receptive to coming in and ordering the legislatures to do their job.

BILL MOYERS: What’s the one thing you want the reader to take away from “Nature’s Trust”?

MARY CHRISTINA WOOD: Most important thing is for citizens to understand that they are needed to promote environmental democracy at this crucial moment in time, that environmental law held a lot of promise but that it’s not working, and that agencies have basically used it to allow almost unfettered destruction of our natural resources.”

Now that Bill Moyers’ long running shows* are off the air, his website www.BillMoyers.com, which he will be continuing, is now the best way to access his archive and any new commentary and content posted. With his departure from TV screens, America is diminished. Bill Moyers was possibly the most thoughtful, knowledgeable, insightful, principled, eloquent and decent human being ever to appear on TV. He is irreplaceable and his weekly show will be sorely missed.

* The most recent series “Bill Moyers & Company” was preceded for many years by “Bill Moyers’ Journal,” another weekly interview program.

Biodiversity Loss: Getting the Point Across

by John J. Berger, Ph.D and Lani Maher

According to a report by Dr. Peter Raven, President of the International Botanical Congress, the current extinction rate is now approaching 1,000 times the background rate and may climb to 10,000 times background during the next century, if present trends continue. At the latter rate, one-third to two-thirds of all the Earth’s species will be lost in the next 200 years. Raven also states that vast numbers of unknown plants, animals, and other organisms are currently being lost before they are even recognized. Only about 1.6 million organisms out of a conservatively estimated 7-10 million in existence have been scientifically identified.

Forest ecosystems provide much of the world’s overall biodiversity and are therefore a main focus of efforts to conserve biodiversity. While biodiversity is important for the survival of species and ecosystems, it is also important for human survival. Not only are we dependent on the environmental services provided by ecosystems, but we also depend on medicines derived from forests. Those medicines account for forty percent of all commercially sold pharmaceutical preparations, and many more have yet to be discovered. The importance of biodiversity to our everyday lives also has yet to be fully conveyed to the public.

Most ecologists and biologists agree that biodiversity is a key factor in determining an ecosystem’s resilience, adaptability, and chances of long-term survival. Similarly, worldwide biodiversity loss is often in the forefront of climate change and deforestation discussions. However, when it comes to international treaties and environmental policymaking, biodiversity conservation has not been appropriately prioritized, says David Dickson, Director of the Science and Development Network (a not-for-profit organization dedicated to providing information about science and technology for the developing world). Dickson believes that the disparity may be due primarily to a lack of clear and constant communication between scientists, policymakers, and the public.

Efforts to conserve biodiversity “face formidable challenges in persuading political leaders and the public of the urgent need to take action,” Dickson says. “[A]t root is the conflict between the need to radically change our use of natural resources and the desire to maintain current forms of economic growth in both developed and developing countries.”

While compelling scientific evidence exists on the importance of biodiversity and its continued decline, more emphasis must be placed on communicating that evidence in a way that the general public and policymakers can understand. Building public support is crucial for the passage of environmental laws protecting biodiversity. Getting the message across to policymakers is vital for the development and implementation of sound conservation policy.

To read David Dickson’s full article, titled Biodiversity Loss Matters, and Communication is Crucial, please click here.

For more information on strategies for forest protection and on forest biodiversity and its global importance, please see Forests Forever: Their Ecology, Restoration, and Protection by Dr. John Berger.

Deforestation in Haiti Adds to Post-Earthquake Landslide Concerns

by John J. Berger, Ph.D and Lani Maher

Haiti, the most impoverished country in the Western Hemisphere, finally captured international attention following a devastating 7.0 earthquake that struck the country on January 12th. The quake killed an estimated 230,000 Haitians and left over a million homeless. International relief organizations are currently working to help Haitian refugees and start rebuilding all that was destroyed.

It is unfortunate, however, that such a catastrophe was necessary to bring Haiti’s ongoing struggles into the public eye. Prior to the earthquake, Haiti already faced extreme poverty and environmental degradation, which severely exacerbated the earthquake’s impact on the Haitian people.

Homeless Haitians set up tents nearby the Presidential Palace, in the aftermath of the 2010 Haiti Earthquake. Marcello Casal Jr, Agência Brasil.

According to NASA, Haiti has one of the worst cases of deforestation in the world, with only about 2% green cover, in contrast to the Dominican Republic, which borders Haiti and has about 28% green cover. Measurements of green cover indicate the proportion of a country’s total terrestrial area that is covered by vegetation, as opposed to soil, sand, or concrete. The lack of trees in Haiti has been very detrimental to the environment and to the Haitian population that depends on them. Five hundred years ago, the island of Hispaniola, where Haiti and the Dominican republic are now situated, was densely forested, but centuries of logging and poor farming practices have removed most of the trees and soil nutrients. Still, Haitians are continuing to scavenge the last forest remnants for fuel.

Because Haiti’s soil is largely void of plant roots, it is especially vulnerable to erosion and it’s ability to absorb and hold water and nutrients is impaired. This makes it especially susceptible flooding, while contributing to the country’s shortage of clean drinking water. The lack of forest also eliminates transpiration, which in turn reduces ambient humidity and rainfall and creates unfavorable conditions for new plant growth. All this presents substantial difficulties for Haiti’s subsistence agriculture. Haiti’s extreme deforestation thus also contributes to the country’s inadequate food supply, as well as its dismal economic condition.

The border between Haiti (left) and the Dominican Republic highlights the relative deforestation of Haiti. NASA/Goddard Space Flight Center Scientific Visualization Studio.

January’s earthquake also raised concerns among relief workers about landslides in Haiti, as the quake may have destabilized denuded hills and mountainsides that lack trees to hold the earth in place. This may leave Haitian cities especially susceptible to damaging landslides, even as they try to rebuild. Therefore, relief and rebuilding efforts will not be enough to mitigate future natural disasters unless Haiti’s deforestation problem is addressed. Only then can this country and its people have a chance to overcome its impoverished and weakened state.

Additional Sources

Greenpeace Victorious After Five-Year Forestry Struggle

Kimberly-Clark Bows to Kleercut Campaign Demands:
Adopts New Environmental Policy
, by John J. Berger, Ph.D and Lani Maher

We hear of so many environmental tragedies and good battles lost in the environmental arena, but sometimes, steps are taken in the right direction. Greenpeace’s Kleercut campaign appears to be one such success story.

For five years, the Kleercut campaigners have worked to pressure Kimberly-Clark, the multinational paper and consumer products company, to stop supporting the destruction of ancient and endangered forests, like the boreal forests of North American. Kimberly-Clark is the world’s largest tissue producer and the maker of Kleenex, Scott and Cottenelle toilet paper, as well as diapers and other products.

In addition to efforts by Greenpeace, the company was also receiving pressure from clients demanding answers to hard questions and threatening to terminate their contracts with the tissue giant. After nearly five years of public campaigning by Greenpeace, the company’s level of awareness of forest-related issues and sustainability had reached a tipping point. That then resulted in the development and adoption of what he believes is one of the strongest paper policies on the planet, according to Greenpeace Canada’s Forest Campaign Coordinator, Richard Brooks.

On August 5, 2009, Kimberly-Clark released a new environmental policy that was developed in conjunction with Greenpeace to promote the protection of ancient boreal forests in Canada and other treasured forests worldwide. The tissue giant vowed to exclusively use Forest Stewardship Council certified pulp in the production of Kimberly-Clark products and agreed to increase its use of recycled fibers from 29.7% to 40% by 2011. While Kimberly-Clark’s operations will still involve logging, the provisions of its new fiber procurement plan now emphasize environmental values.

Even more impressive than the company’s new policies, is its dedication to implementing them. Since the plan’s adoption, Kimberly-Clark has stopped purchasing pulp from the Kenogami and Ogoki boreal forests in Northern Ontario, in response to the refusal of forest managers to provide Forest Stewardship Council certified pulp. While these forests are maintained by private companies, they are subject to some regulations and are used, in part, by the public for recreational purposes. Old-growth makes up much of these forest management units, however a very small percentage of the forests are protected from logging and development. Prior to the adoption of their new paper policy, Kimberly-Clark purchased 325,000 tonnes of pulp a year from clearcut logging operations in the Kenogami and Ogoki Forests.

Only time will tell how faithfully Kimberly-Clark will implement its new policies and how sustainable those policies will eventually prove to be. The company has agreed to hold meetings with Greenpeace representatives every six months to discuss ongoing implementation. “I believe that Kimberly-Clark is fully behind the policy and committed to implementing it,” Brooks said.

To read Kimberly-Clark’s fiber procurement plan in its entirety, please click here.

For more information about forests, their global importance, and strategies for their protection, please see Forests Forever: Their Ecology, Restoration, and Protection by Dr. John Berger

Also, check out this video from the Kleercut Campaign. Congratulations again to Greenpeace for running a successful campaign, and to Kimberly-Clark for committing to better environmental practices. We hope they’ll apply them fairly and vigorously.

http://www.youtube.com/watch?v=NWtzZzqylhI&amp

Arbor Day is Coming up!

by John J. Berger, Ph.D and Lani Maher

Arbor day is a holiday that celebrates and promotes the planting of new trees. Arbor day was founded in 1872 in Nebraska and spread throughout the United States. Similar holidays are also observed in over 30 other countries. In the United States, National Arbor Day is the first Friday in April, but each state has also designated a specific day or week for the celebration of Arbor Day, in accordance to the growing seasons of vegetation in each state.

In preparation for California Arbor Day (March 7-14), the International Society of Arboriculture and Trees Are Good have prepared basic tips and directions for planting trees. “Planting a tree is making an investment in the future,” says Sharon Lilly, ISA Educational Director. “You must care for and nurture your young tree so that it will pay dividends for years to come.” These tips are designed to ensure trees are planted and initially maintained in such a way that maximizes their chances of long-term survival and growth and can be found here.

Forests Forever is a great resource for those celebrating Arbor Day. Chapter 15 discusses the benefits of planting trees. According to author Dr. John Berger, “While planting a single tree may seem like a small gesture, with enough public support this simple act can be multiplied millions and even billions of times until significant local and regional ecological benefits are realized. These benefits can include soil protection, flood prevention, wildlife habitat, aesthetic renewable fuels, and the removal of airborne carbon dioxide. Tree planting can also modulate local temperature extremes.” The chapter also provides more detailed, in-depth tips and suggestions for successful planting.

Additional Resources

  • For more information about the history of Arbor Day in the United States, please visit the Arbor Day Foundation’s website.
  • For more information about Arbor Day celebrations around the world, please click here.
  • A state-by-state breakdown of Arbor Day celebrations can be found here.

U.S. Forest Service Approves Plans To Clearcut Roadless Old-Growth in Alaska’s Tongass National Forest

by John J. Berger, Ph.D and Lani Maher

A plan by Viking Lumber Company of Craig, Alaska to clearcut more than five square miles of pristine old growth forest in the Tongass National Forest has run into stiff opposition. On January 11, 2010, a lawsuit was filed in the U.S. District Court for the District of Alaska by the Tongass Conservation Society, Greenpeace, and Cascadia Wildlands claiming that the USFS failed to consider the profoundly damaging effects that the Logjam Timber project on Prince of Wales Island, Alaska would have on local wildlife. The project specifically opens 3,422 acres for logging, almost all of which is old-growth. The project is expected to produce 73 million board feet of timber and require the construction of 22 miles of new roads.

An additional suit has been filed by the Organized Village of Kake, an Alaska Native village, to overturn the Tongass exemption to the Roadless Area Conservation Rule, claiming the exemption was to be temporary and is still being illegally implemented by the Forest Service. Several conservation and tourism groups have joined in the lawsuit.

Tongass National Forest, Douglas Island in Juneau, Alaska. September, 2004

The Roadless Rule, adopted by the U.S. Forest Service in 2001 under the Clinton Administration, prevented the construction of new roads in all existing roadless areas of our National Forests. However, in 2003, the Tongass National Forest was exempted from the Roadless Rule through an amendment to the rule proposed by then-Governor of Alaska Frank Murkowski and adopted by the Bush Administration.

In response to these lawsuits, Alaskan Governor Sean Parnell has come to the defense of the timber industry by ordering the Office of Attorney General Daniel S. Sullivan to intervene in the cases to protect timber jobs and uphold the Tongass’ exemption from the Roadless Rule.

Misty Fjords Waterfall, Ketchikan, Alaska. May, 2007

As pointed out in Forests Forever: Their Ecology, Restoration, and Protection, logging in the Tongass is a very costly way to produce jobs. “Data obtained from the USFS and cited by the nonpartisan budget watchdog group, Taxpayers for Common Sense, revealed in 2005 that each direct timber job created in the Tongass National Forest in 2002 cost $170,000 – quadruple the average U.S. 2002 household income – hardly a sensible way to create rural employment.” Furthermore we noted that, “whereas Tongass timber cannot be profitably cut on a large commercial scale in an ecologically sustainable manner, fishing and tourism in Alaska and elsewhere could provide more jobs and revenue than could the continued destruction of the old-growth forest.”

The Tongass is the nation’s largest stand of continuous temperate rain forest and covers about seventeen million acres. Much of the forest targeted for logging is old growth that took thousands of years to evolve and, if cut, will never return to its old-growth condition on any time scale of interest to present generations. For more information about the Tongass and the general effects that clearcutting has on forests, see Forests Forever, which also contains recommendations on national and global forest-saving action needed (pages 166-231) as well as guidance for citizens reviewing federal timber sales (pages 239-248).

Take Action-What You Can Do To Help Protect the Tongass

    Contact the following officials and tell them why protection of the Tongass is important to you.

  • President Barack Obama
    Contact Form
    Comments for the President: (202) 456-1111

  • United States Department of Agriculture Secretary Tom Vilsack
    Ph: (202) 720-3631

  • United States Forest Service Director Sherry Reckler
    Ph: (707) 562-9016

  • Alaska Department of Natural Resources Commissioner Tom Irwin
    Ph: (907) 465-2400

    —————————————————————
    1. Pemberton, Mary. “Suit Seeks to Overturn Tongass Roadless Exemption.” Associated Press. December 23, 2009.

Additional Resources

—————————————————————
*Note: Pictures featured in this post are not the property of Healthy Forests, but have been released for public use. You can click on them to view them in their original context.