Defense Counsel Journal - International Association of Defense ...

Newsletters Page 495emissions that will counter the negativeimpacts of climate change.”The “public trust” doctrine is a legalprinciple derived from English CommonLaw. Traditionally applied to waterresources, it recognizes that the waters ofthe state are a public resource owned byand available to all citizens equally forthe purposes of navigation, conductingcommerce, fishing, recreation and similaruses. Such a “public trust” is notinvalidated by private ownership of theunderlying land – instead, it serves tolimit the owner’s land use to those thatwill not interfere with the public’s useand interest in resources covered by thetrust. Generally, the public trustee –usually the state – must act to maintainand enhance the trust’s resources for thebenefit of future generations.Historically, American courts haveapplied the doctrine primarily tosubmerged lands on the shores of theocean, lakes, substantial rivers andstream, to the waters above them,groundwater, and to parklands. Althoughsome decisions have extended protectionto wildlife found in public areas,migratory fowl and to dry sand beachesjust above the high tide water mark,others have refused to expand thedoctrine beyond its traditional scope.Despite the narrowness of thedoctrine, environmental groups hope touse the elasticity of the “common law” toexpand its application beyond its historiclimitations. They argue that, like water,the atmosphere, which comprises the airwe breathe, is a legitimate “public trust” –one which imposes fiduciary obligationsupon the state as the trustee of theatmosphere for the public good. In manyrespects, these cases mark the “secondwave” of climate change litigation. The“first wave” sought – so farunsuccessfully – to regulate emissions orobtain damages caused by greenhouse gasemissions using the ancient common lawtort of public nuisance. 3Many legal experts have been unsurewhether an “atmospheric trust” can becreated and used successfully to combat“atmospheric” problems, such as climatechange caused by greenhouse gasemissions. Overall, courts have beenunwilling to expand the public trustdoctrine to impose public trust dutiesexcept in conjunction with a federalstatute or as required by a statute itself.Not surprisingly then, courts in severalstates, including Colorado, Oregon,Arizona, Washington, Arkansas, andMinnesota have dismissed these types ofcases early on, finding no basis for an“atmospheric trust” under state commonlaw.The United States Supreme Court hasraised even greater obstacles to thedoctrine’s expansion. Even if a court iswilling to consider expanding the “publictrust” doctrine to address climate change,it must address the “displacement” orpreemption of common law remediesrecognized in American Electric PowerCompany v. Connecticut. 4 In thatdecision, the Supreme Court held that theClean Air Act and EPA’s implementationof the Act displaced any federal commonlawright to seek abatement of carbondioxide emissions from fossil-fuel fired3 See generally, Richard O. Faulk, UncommonLaw: Ruminations on Public Nuisance, 18MO. ENVTL. L. & POL’Y REV. 1, 13-22 (2011)(analyzing the propriety of public nuisance toredress climate change claims).4 564 U.S. ___ (2011).