Landmark Ruling: Texas Judge Rules the Atmosphere Is a Public Trust

In 2007, in a law review arti­cle University of Oregon Professor Mary Wood elab­o­rated on the idea of a Nature’s Trust. “With every trust there is a core duty of pro­tec­tion,” she wrote. “The trustee must defend the trust against injury. Where it has been dam­aged, the trustee must restore the prop­erty in the trust.”

She noted that the idea itself is not new. In 1892 “when pri­vate enter­prise threat­ened the shore­line of Lake Michigan, the Supreme Court said, ‘It would not be lis­tened to that the con­trol and man­age­ment of [Lake Michigan]—a sub­ject of con­cern to the whole peo­ple of the state—should . . . be placed else­where than in the state itself.’ You can prac­ti­cally hear those same Justices say­ing today that ‘[i]t would not be lis­tened to’ that gov­ern­ment would let our atmos­phere be dan­ger­ously warmed in the name of indi­vid­ual, pri­vate prop­erty rights.”

In 2010 Wood, along with Julia Olson, Executive Director of Our Children’s Trust “had the vision to orga­nize a coor­di­nated inter­na­tional cam­paign of attor­neys, youth, and media around the idea that the cli­mate cri­sis could be addressed as a whole sys­tem,” Barnes observes, replac­ing a sit­u­a­tion in which “legal solu­tions were frag­mented, focused on clos­ing down a par­tic­u­lar power plant or seek­ing jus­tice for a par­tic­u­lar endan­gered species, threat­ened neigh­bor­hood or body of water impacted by our fos­sil fuel abuse.”

On behalf of the youth of America, Our Children’s Trust, Kids Versus Global Warming and oth­ers began fil­ing suits around the coun­try, argu­ing the atmos­phere is a pub­lic trust. So far cases have been filed in 13 states.

The “pub­lic trust” doc­trine is a legal prin­ci­ple derived from English Common Law. Traditionally it has applied to water resources. The waters of the state are deemed a pub­lic resource owned by and avail­able to all cit­i­zens equally for the pur­poses of nav­i­ga­tion, fish­ing, recre­ation, and other uses. The owner can­not use that resource in a way that inter­feres with the public’s use and inter­est. The pub­lic trustee, usu­ally the state, must act to main­tain and enhance the trust’s resources for the ben­e­fit of future generations.

In Texas, after a peti­tion to the Texas Commission on Environmental Quality (TCEQ) to insti­tute pro­ceed­ings to reduce green­house gases was dis­missed, the Texas Environmental Law Center sued on behalf of a group of chil­dren and young adults. The Center asserted the State of Texas had a fidu­ciary duty to reduce emis­sions as the com­mon law trustee of a “pub­lic trust” respon­si­ble for the air and atmosphere.

Click here to read the rest of this arti­cle at AlterNet.org.