For decades, many have assumed that international negotiations would address global environmental problems. But as the world hurtles towards catastrophic climate change without international agreement to reduce carbon emissions, the treaty process shows endemic problems.
No normative sense of obligation anchors diplomatic treaty talks. Instead, negotiations sink to a lowest common denominator of what the domestic politics of participating nations will allow. Moreover, a continuing international impasse sabotages domestic progress as political leaders insist that they cannot settle on national targets absent a full international agreement allocating responsibility. Finally, treaty commitments remain vulnerable to enforcement failure within signatory nations. A more diversified legal strategy remains necessary to confront climate crisis.
Dr. Moomaw’s article provides an excellent focus by stating that the climate strategy must have two parts: emissions reduction and natural removal of carbon dioxide from the atmosphere. As to the first, it will be essential over the long term to reduce emissions to nearly zero, but political gridlock in the legislative and executive branches of the United States (and in many other nations) blocks progress. Judicial intervention is necessary on the domestic level to force leaders to act before climate tipping points nullify the opportunity to thwart catastrophe.
A global litigation strategy called Atmospheric Trust Litigation (ATL) is underway to define sovereign legal obligations towards the global atmosphere and force governments to lower carbon emissions within their jurisdictions. The approach draws upon the public trust doctrine, which is manifest in many nations throughout the world. This principle requires that sovereigns (nations and their subdivisions) act as trustees towards crucial natural resources and protect such resources against substantial impairment. The principle depicts both present and future generations of citizens as beneficiaries holding inalienable public property rights—of constitutional character—in life-sustaining resources. The judiciary has enforced public trust protections in other contexts (such as waterways and wildlife). ATL asks courts to apply the same logic to the atmosphere.
As sovereign co-trustees of the atmospheric trust, all nations on earth owe corollary and reciprocal responsibilities to other co-trustees, as well as to their own citizen beneficiaries, to protect the Earth’s climate function. An international team led by Dr. James Hansen has developed a prescription for restoring equilibrium at a 350 parts per million level of carbon dioxide in the atmosphere. The prescription calls for two measures: 1) a global pathway of six percent annual carbon dioxide emissions reductions; and 2) a drawdown of 100 Gigatons of carbon from the atmosphere through reforestation and soil sequestration methods. The two measures can quantify the two-step strategy that Dr. Moomaw illuminates.
ATL seeks a judicial remedy in domestic courts requiring governments to develop climate recovery plans that reduce emissions within their jurisdictions by six percent annually (a figure that increases with delay). ATL cases and petitions have been brought by the non-profit organization Our Children’s Trust in every state in the United States, against the Obama administration, and in other countries as well. By characterizing climate crisis as a matter of sovereign constitutional obligation and by offering a uniform remedy linked to a global climate prescription, ATL envisions discernable rules enforceable in domestic courts that can help promote a common plan of global protection—even in a world governed by multiple sovereigns with fragmented jurisdiction over the planet. While there is no panacea, domestic courts have the power to order swift and decisive relief responsive to the urgency of the crisis.
The public trust principle can also promote the other side of the prescription, the “restorative development” underscored by Dr. Moomaw. International negotiations have been slowed by lack of funding commitments towards this end. Public trust law puts the focus on the polluters themselves for funding an atmospheric restoration effort involving reforestation and soil measures.
Public trust law requires sovereign trustees to seek recovery of monetary damages from third parties that have damaged public trust assets. Corporations that pollute the ocean through accidental spills, for example, are held accountable for natural resource damages. The same principle can extend to the atmosphere, a global trust resource. An economic analysis to quantify damage to the climate system from carbon emissions is now underway.
The primarily responsible parties are the major fossil fuel corporations. Their proportionate responsibility for carbon emissions since the Industrial Revolution has been determined in a groundbreaking study. The largest fossil fuel corporations have purportedly made (collectively) more than $1 trillion in profits since the millennium. They therefore stand as a significant deep-pocket funding source for atmospheric restoration. Nations around the world are positioned, as co-trustees, to seek such damages through their domestic legal systems, either by applying existing laws or by formulating new statutes that allow recovery.
A central United Nations mechanism is necessary to: 1) collect the damages; 2) apply them to priority projects around the globe; 3) maintain a trust fund accounting that applies the damages recovered against the balance owed; and 4) maintain a carbon accounting that estimates extracted carbon from the atmosphere. While such a global restoration effort on this scale is unprecedented, the underlying legal principles are strikingly similar to those traditionally applied.
On both sides of the prescription (emissions reduction and carbon extraction), courts may prove instrumental in establishing responsibility for restoring the atmospheric trust. Judicial intervention may be the only recourse to break a political stalemate that threatens life, liberty, and civilization itself.
This piece is part of The Fletcher Forum of World Affairs’ 2014 Global Risk Forum. The Global Risk Forum is an effort to convene conversations around some of the most pressing issues we face as a global community in the year ahead: the breakdown of climate change negotiations; the spread of sectarian violence in the Middle East; the credit crisis and economic slowdown in China; the growth of cyber espionage; and the unraveling of Africa’s economic boom. We encourage you to read the conversations, participate with written responses or on social media, and help us work together to produce constructive ideas that will reduce the aggregate risks we face.