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, 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.