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This article has been written by Nehal Misra, from Nirma University, Ahmedabad. In this article, she discusses the insights related to public trust doctrine and climate change.

Introduction

“Earth provides enough to satisfy every man’s need, but not every man’s greed.”

 – Mahatma Gandhi

Global climate change has been recognized as a priority within the international community, as indicated by 195 of the 197 nations in the world that signed the Paris Agreement in 2016. Yet the efforts by the federal and state governments to combat climate change in the United States have been scattered and slow to materialize. US citizens have taken their governments to court in account for the climate change action on account of the doctrine of public trust (“PTD”). This strategy has not enjoyed uniform success in the courts of the other states. At the federal level, similarly, the PTD has not fared well in efforts to compel the United States government to take action. Yet the decision in Juliana v. the U.S. illuminates a forward path through reframing the Public Trust Doctrine as a matter of constitutional rights. Framing the PTD thus provides a potential means of holding the federal government accountable for the impacts of climate change. Juliana ‘s outcome may have a significant impact on the twenty-first – century US climate change policy, given the resistance of the Trump administration towards climate change. The public trust doctrine, an ancient tradition rooted in Roman law and long known in Anglo-American jurisprudence, has been cited in recent state and federal court cases and citizens’ regulatory actions that aim to force the federal and state governments to confront the challenge of climate change. 

Public Trust Doctrine

The PTD embodies the notion that a sovereign entity like a state government can not confer its core sovereign powers on itself. In the sense of natural resources, this term has been interpreted to mean that, for the good of its people, the beneficiaries, a sovereign holds title to a property—”public trust resources”—in confidence. The sovereign owes an equal obligation even to future recipient generations. This arrangement restricts the ability of the sovereign to alienate and degrade such resources to ensure public access and enjoyment thereof. The PTD originates from Justinian Institutes, the ancient body of Roman law which is the “foundation for modern civil law systems.” Justinian Institutes stated that “the following things are common to all by natural law — air, running water, sea, and consequently the seashore.” Then the PTD found its way into English common law regulating public navigation into the United States. After the American Revolution, those privileges were vested within their respective boundaries in the original states of the United States. Since then, the right of States to use or dispose of these tidal lands has been limited to the extent that it would cause “substantial impairment of the public’s interest in the waters.” Also, states must grant “the paramount right of Congress to control navigation [in tidal waters] to the extent necessary to regulate trade with foreign nations and between states.”

Evolution of the Public Trust Doctrine 

The doctrine of public trust holds that certain crucial natural resources are the common, shared property of all citizens who can not be subject to private ownership and must be preserved and protected by the government. As the sovereign trustee of such resources, the government has a fiduciary duty to protect such natural assets for the trust’s beneficiaries, which include present and future citizens. In Geer v. Connecticut, the United States Supreme Court acknowledged that “the ownership of the sovereign authority is in trust for all the people of the state; and therefore, by implication, the legislature must enact laws that best preserve the subject matter of the trust and secure its beneficial use for the people of the state in the future.” The doctrine has been interpreted as identifying the legislature as the primary trustee and the executive branch as an agent of the trustee vested with the same public trust obligation.

The philosophy of public confidence speaks to one of the government’s most basic aims: to conserve natural resources for the common good. Four decades earlier, Professor Joseph Sax argued that the obligation of public trust underpins democracy itself, delimiting a country of “people rather than serfs.” The roots of the doctrine of public trust were traced by the courts to the English legal system and back to Roman and natural law as a central concept of organized society. The precept of public confidence is also a basic tenet in many countries across the world’s legal structures and is accepted as an aspect of sovereignty. Illinois Central Railroad v. Illinois, the U.S., in a seminal case of public trust in the US The Supreme Court stressed that, as the police force, the doctrine of public trust is a foundational principle of government. The Court declared, “The state can no longer abdicate its trust over property that the whole people are interested in, then it can abdicate its policing powers in government administration and peace preservation. Each legislature shall, at the time of its existence, exercise the power of the State in the execution of the trust which has been transferred to it. “Thus, the Court acknowledged that the doctrine of public trust imposed both governmental duties and governmental authority. The doctrine of public trust, sovereign immunity, eminent domain, and policing was recognized as inherent attributes of sovereignty. 

As Illinois Central Railroad Co. v. Illinois made clear, the Illinois legislature was unable to convey title to a private railroad corporation at Lake Michigan harbour: The legislature was unable to give away or sell the discretion of its successors in matters of which the government must vary with different circumstances from the very nature of things. Each legislature must exercise the power of the State in the execution of the confidence transferred upon it at the time of its existence. The core of trust obligation is the sovereign fiduciary duty to protect against irrevocable harm to the vital properties of the country. A trustee may not ignore threats of harm to trust property under well-established core principles of confidence law. As one leading treatise explains, “the trustee must protect the property of the trust against damage or destruction.” Importantly, these mandatory fiduciary duties are radically different from the permissive character of the statutory law applicable to administrative discretion. Through refusing to act effectively in the face of an unprecedented environmental crisis, governments can be seen as relinquishing their sovereign public confidence obligation for intervening to protect the climate for current and future generations.

Analysis of Climate Change and Public Trust Doctrine

Earth is in imminent danger, on the brink of runaway climate heating which will impose catastrophic conditions on future generations. If business continues, as usual, even for a few more years, floods, hurricanes, heatwaves, fires, diseases, crop losses, food shortages, and droughts will pummel future humanity for untold generations as part of a hellish struggle to survive in deadly greenhouse conditions. Such unrelenting disasters will trigger major human migrations in a world of accelerated climate heating and cause catastrophic numbers of deaths resulting in more and more observers to expect the self-destruction of humanity. The Global risk report says that the prominent risks to humanity that are impending are in the sphere of the environment. They are major:

  • Extreme events, such as floods and storms;
  • A failure to mitigate and adapt to climate change;
  • Large natural disasters, such as earthquakes, tsunamis,
  • Volcanic outbreaks and geomagnetic storms;
  • Significant loss of biodiversity and a deterioration of the ecosystem;
  • Human-made damage and disasters to the environment

Carbon emissions have increased by leaps and bounds, and are the primary cause of global warming. Therefore if the threshold also known as the tipping point is crossed, the global warming problem will be beyond the control of anybody. Certain related externalities include sea-level rise, air warming of more than two degrees celsius, extinction of flora, and fauna. At a time when climate change is often ignored by local governments for short-term targets, the PTD has emerged as a weapon in the hands of people to remind the state that tackling carbon reduction and climate change is the government’s fiduciary duty to maintain public confidence, provided that a situation like Global emergency is not too far-sighted.

Climate as a Public Trust

“First of all, resources to be covered by the public trust are those that are so central to the community’s well-being that they need to be protected by distinctive, judge-made principles.”                                         -Professor Charles F Wilkinson.

The closest sister of it would be the environment, because air comprises the environment and the climate associated with it, which are vital resources facing a historically unprecedented threat, to create a case to include climate even within the PTD ambit. The concept of underlying public trust in the air is, therefore, quite an ancient concept that finds a reference in many religious texts and spiritual learning. Legally speaking, animals, sea, water, and air, which were considered under public confidence, are the Roman definition of res communes or items which remain popular. In subsequent rulings of different courts, including the US Supreme Court, this was accepted. This approach has, for example, been applied in Geer v. Connecticut which corresponded to wildlife. Similarly, Georgia v. Tennessee addressed a very interesting issue concerning copper companies that generate transboundary air pollution. The court here made a very clear observation that the state’s interest in all of the Earth and air within its domain is standalone and ‘behind the citizens’ titles. Another important and rather interesting explanation of the doctrine is the property’s public character, which pertains to the resources that are commonly owned by all people and are therefore required to be maintained, preserved, and protected by the larger-interesting state.

PTD In Atmospheric Trust Litigation

The PTD is a clear concept at the outset that states that the state is the trustee of all-natural resources, and therefore is not entitled to freely alienate resources at a comparable expense. The concept of confidence liability is nothing else than the fiduciary obligation to prevent significant and irreversible damages from public resources. Legally speaking, the etymology of the word trustee denotes the duty to protect the property held in confidence from any loss or injury. By comparison, Atmospheric Trust litigation is a novel type of litigation in which the complainant’s primary concern is to argue that trust liability is an attribute of sovereignty. Hence the fiduciary duty of the State to preserve these natural resources is for greater benefit.

Taking a broad look at cases related to climate change:

    1. The Clean Air Act
    2. Public nuisance doctrine and,
    3. The public trust doctrine
    4. In Canada for alleged violations of the UNFCCC and the Kyoto Protocol
    5. In Pakistan based on principles of sustainable development, precaution, and inter-generational equity
    6. In Nigeria based on human rights law
    7. In Australia and New Zealand among others, based on domestic environmental legislation
  • In the Netherlands based on breach of duty of care 

In January 2020, in Juliana v. the United States, the Ninth Circuit Appeal Court referred to the district court with instructions to dismiss for lack of Article III standing in which the plaintiffs sought relief from governmental inaction in regulating CO2 pollution. The remedy was sought on the overt and tacit breach of fundamental rights enshrined in the US Constitution and the PTD. While fossil fuel combustion would, if unchecked, cause havoc on the earth’s atmosphere, the Court held that the judiciary had no power to order the US government to devise and enact an enforceable national remedial plan to phase out fossil fuel emissions. However, the dissent of Judge Staton is noteworthy: Judge Staton wrote that the plaintiffs brought suit to implement the most basic constitutional concept inherent in our liberty system: that the Constitution does not allow the willful destruction of the country. She argued that the plaintiffs can challenge the behaviour of the government, have articulated claims under the Constitution, and have provided sufficient evidence to bring those claims to trial.

In 2017, in the case of Ridhima Pandey v. Union of India, Ridhima Pandey (a 9-year-old) quoted Sustainable Development and Precautionary Principles under Section 20 of the NGT, reinforced by the principle of intergenerational justice and PTD, and a petition was lodged against the Indian Government. It was also suggested that the government plan a carbon budget, a policy for climate recovery and review industrial projects in the light of climate problems. The application did not receive the result in its favour, and initially, the NGT said the government was careful enough to conduct EIA and the petition was refused. Greta Thunberg has raised international concern on the global scene by exposing the callous and greedy growth at the detriment of the world. Seventeen UN children’s petitioners, including Greta Thunberg and Ridhima Pandey, protested against Argentina, Brazil, France, Germany and Turkey, upon their inability to address the climate crisis as a violation of children’s rights under the Child Rights Convention.

Conclusion

The context in which cases of atmospheric public confidence come before the courts are unique and extraordinary. Many scientists have agreed, and there are proven studies showing that the effect of climate change on Earth is a cause of concern and if not resolved early it may be disastrous and today climate change is one of the greatest problems facing countries across the globe. The effect has been observed since the last few decades, but the projections, as well as the predictions, reveal in the recent past that if it continues to go to the same place it could lead to repairable loss and affect people’s lives. Climate change was therefore fairly described as a “super wicked problem” because time is not expensive, so the longer it takes to tackle the problem, the harder it gets.

The Indian legislature has not made any laws and discussed climate change as such.  Perhaps the reason behind this is because of voting bank politics, the politicians don’t include climate change in their election manifestos. It may not be incorrect to say that the governments deviate, abdicate, and neglect the duty of the public confidence (which is sovereign to them) to intervene and protect the environment for present and future generations at a time when the ecological crisis is imminent on the entire planet. The Indian Supreme Court’s evolving constitutional understanding by expanding the meanings of Article 48A of the Indian Constitution and Article 51 of the Indian Constitution read with the fundamental right guaranteed under Article 21 of the Indian Constitution, a valid argument clubbed with PTD may perhaps be a game-changer in this respect. It would, therefore, be a great opportunity for the courts to tackle this issue and to balance broader public interests on the lines of intergenerational equity with those of private interests. Finally, the successful implementation of the Paris Agreement and action plans on climate change will improve India ‘s position in the international arena in the coming years. This ancient theory, as it has developed to establish contemporary fiduciary governmental trust obligations, is perhaps a fair and viable tool to apply to this unprecedented crisis such as climate change.

References


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