In 533 A.D., Roman Emperor Justinian asked his top legal scholars to write the most important laws of the Empire. They deemed,

By the law of nature these things are common to all mankind; the air, running water, the sea, and consequently the shores of the sea.

Justinian concluded that these essential, common, natural resources belong to everyone and not just the Emperor or the privileged. Consequently, the Roman Empire protected these resources in trust, for the public. The King of England was the next to adopt this wisdom. Then, at the turn of the 19th century, the U.S. Supreme Court affirmed Justinian’s wisdom to protect, by law, our essential common natural resources for the present, as well as future, generations of Americans.

This hallowed legal principle, referred to as the Public Trust Doctrine, is perhaps most simply explained by 11-year-old Xiuhtezcatl Martinez:

Federal agencies understand that public trust underpins the very foundation of our legal system and have articulated its importance. The National Oceanic and Atmospheric Administration (NOAA) at the Department of Commerce shares,

[T]he essence of the Public Trust Doctrine, is that the doctrine is a fundamental safeguard of a free society. It provides oversight of fundamental public interests and protection against corruption, abuse of power, and negligence.

Despite the government’s full and express knowledge that the failure to protect these shared resources would undermine the very foundation upon which this country was built, the federal government did not oppose the request of 12,000 members of the fossil fuel and manufacturing industry, as represented by the National Association of Manufacturers (NAM), to intervene in the federal atmospheric trust lawsuit filed by youth around the nation. NAM describes themselves as “the coal, oil, and natural gas sectors, petroleum refiners, and petrochemical producers, as well as thousands of manufacturing companies … which themselves emit greenhouse gases.”

On May 11, 2012, the government will literally sit side-by-side with industry, opposite our nation’s youth, at a table in the U.S. District Court for the District of Columbia, Courtroom #17, 333 Constitution Ave. The Federal Defendants, in tandem with the fossil fuel and manufacturing industry, are seeking to dismiss a lawsuit, brought by our youth, who are calling out the government for its failure to protect the one and only atmosphere that we all share, in trust, for our futures. The decision to listen – or not – to the case brought by our kids now sits in the hands of the U.S. judiciary.

The law and the facts weigh heavily in favor of our youth. Here’s why:

The Science Is Undisputed

All the world’s top climate scientists agree. We are now precariously close to ecological “tipping points” which, if reached, will make climate change, and the resulting harms and losses, irreparable and irreversible. In other words, this is a defining moment for our children, because they will experience the lion’s share of these harms. The Federal Defendants do not dispute the science. And at least inside the courtroom, NAM has yet to present any significant dispute over the science and they do not deny human-caused climate change.

The Youths’ Case is Rooted in the Well-defined and Foundational Public Trust Doctrine

The Public Trust Doctrine is enshrined in every civilized government’s laws and policies. Over a century ago, our own Supreme Court recognized that our federal government has an absolute duty to protect essential natural resources as a public trust, acknowledging that the state has a sovereign obligation over “all the earth and air within its domain.”

For the federal government to deny the existence of this trust obligation would be to deny the fundamental legal rights that the Roman Emperor, the King of England, the colonists, the founding fathers, and the U.S. Supreme Court did not disavow.

The Government’s Trust Obligation Applies to Our Atmosphere

The Pubic Trust Doctrine was traditionally applied to protect water resources, but its roots endure and apply to all key elements that sustain life. Our atmosphere is the essential umbrella resource that protects the named trust resources. Without a stable climate system, our water and our air would not be resilient, and without healthy water and air, our food systems, health systems, and our systems for shelter – all the very resources we rely upon to meet basic needs – fail. The atmosphere sustains our water and it sustains our air. The atmosphere sustains us. The atmosphere should be the absolute type of resource that the Public Trust Doctrine protects.

The Court Has the Authority and the Responsibility to Determine Whether the Atmosphere is a Public Trust Asset

While the legislative and executive branches of government in Washington are gridlocked, due to the divisive political climate, the climate we depend upon for our very survival is rapidly crashing. The judicial branch is the last option our youth have. In a democracy, we call on the third branch of government for justice when the political branches fail. Our courts have grappled with natural resources, civil rights, and human rights issues for hundreds of years. To fail to hear this case now would be to overturn history.

Our Youth Have the Right to Bring This Case to Court

Under the basic trust law, when a beneficiary is harmed by the mismanagement of a trust asset, the beneficiary has the right to bring action against the trustee. Harms to the beneficiaries in this case could not be clearer. Climate change causes more frequent and severe floods, droughts, storms, wildfires, heat waves, and sea level rise. The iMatter TRUST youth tell these stories. Nelson Kanuk and Glori Dei Filippone show us the impacts of floods from the Artic to Iowa. Jaime Lynn Butler takes us to her home on the Navajo reservation, where drought is the new normal. Xiuhtezcatl Martinez describes the losses his community has suffered due to massive wildfires that have devastated the Rocky Mountain front. John Thiebes reveals the challenges that climate will cause for our food security. And Alec Loorz, inspires us to do something about it.

Furthermore, the government trustee has admittedly failed in its effort to manage the trust asset embodied by the atmosphere. For at least two decades, the federal government has acknowledged the need to drastically reduce the growing concentrations of greenhouse gases hovering above earth .… Despite the evidence, despite our knowledge, despite our understanding that the current way of doing business is threatening the sustainability of contemporary societies and the viability of working natural systems for our children. The legislative and executive branches of government, who serve as the trustee of our shared resources, have fundamentally failed society as a whole. If we continue along this trajectory we are destined to leave a legacy of destruction for our children.

Historically, when the political branches of government broke their own laws, courts provided broad guidance to ensure that the law was followed. In 1955, in the landmark school desegregation decision, Brown vs. Board of Education, the U.S. Supreme Court, relying on our Constitution, directed the federal government to desegregate the schools “with all deliberate speed.”

Following this decision, the 5th Circuit Court of Appeals developed the Doctrine of Affirmative Duties, which shifted the burden of overcoming discrimination from the black plaintiffs to the government. The remedy our youth seek in this litigation parallels the now praised racial discrimination cases of the 1950s and 60s. Our youth are asking our courts, in light of the fundamental right to air and water, to direct the federal government to control our spiraling climate with all deliberate speed. How the government does this is their decision to make, as long as the decisions sit within the scientific parameters determined by the best available science.

The Remedy Our Youth Seek is Feasible and Just

Our youth are working with experts to ensure that the remedy they seek is feasible. In his lengthy declaration, which can be downloaded here, Dr. Arjun Makhijani provides a concrete road map of one way we can move to a fully renewable, efficient energy system that is technically and economically feasible by 2050.

As someone who cares about our youth, my fundamental concern is this – when I walk into Courtroom #17 at 9:30 am on May 11th, and I see the U.S. Department of Justice sitting side-by-side with the fossil fuel industry, I will ask myself, “Why is our federal government supporting industry’s claim that it has a legally protected interest to pollute the planet in a unrestrained manner, rather than supporting our kids in their fight to secure healthy natural resources and a livable future?” This question lies at the very heart of the case.

Whose side would you sit on?

To learn more about Atmospheric Trust Litigation (ATL), please download and read:

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