ABSTRACT

The persisting absence of comprehensive climate change legislation in the United States has long resulted in the ever-growing number of climate-related lawsuits. Litigation has been used in various ways, for example, by requesting the regulating bodies to introduce new air quality standards, or by targeting specific individual greenhouse gas emissions sources. In the last few years, climate plaintiffs have increasingly relied on common law public trust doctrine and constitutional provisions granting rights to natural resources in an attempt to force the government to take decisive climate change mitigation measures. The latter line of climate cases, also known as atmospheric trust litigation, is the result of a nationwide campaign, which seeks judicial recognition of the fact that the planet's atmosphere is a natural resource; thus, its protection from dangerous greenhouse gas emissions is an essential obligation of the government. This chapter explores how United States courts have interpreted the public trust doctrine with regard to the atmosphere.

INTRODUCTION

Climate change presents a global problem, critically affecting many regions on the planet and jeopardizing both the environment and human communities. The impact of climate-related extremes, including heat waves, droughts, wildfires, weather anomalies, sea level rise, disrupted hydrological cycles, and ocean acidification is taking its toll on lives and livelihoods as well as ecosystems. Unsurprisingly, climate change has been recognized as adversely affecting a whole spectrum of human rights, most notably the right to life, health, housing, and food and water.

The legal response to climate change, developed over nearly the last three decades, has been multi-level. Global climate deals, regional action and national climate legislation as well as action by non-state actors have all been used in a complex way to mitigate climate change and adapt to its impact. The existing policies, however, have not yielded any decisive results. The reasons behind this are many, but in a general sense, the failure to achieve the required climate goals is attributable to poor policy implementation or the lack of such a policy altogether.

The United States (US), unfortunately, has long demonstrated a lacklustre approach, when it comes to climate policy. Being among the top climate polluters, the country has failed to develop any comprehensive federal climate policy. Starting from the early 1990s, this regulatory void has gradually been filled with litigation.