Following election results and a subsequent transition  period that probably has been fairly dispiriting to those concerned about tackling the problem of climate change, recent days have seen what could be characterized, by some, as one unusual ray of sunshine in an otherwise cloudy sky.
An improbable ruling handed down by a federal district court in Eugene, Oregon, will allow a collection of plaintiffs to proceed in a case brought to compel the federal government  to “prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2.”
Or, as one Slate writer put it, “the kids suing the government over climate change are our best hope now. ”
For the sake of both our democracy and the climate, let’s hope not.
To comprehend how this fairytale of judicial activism was conceived, cast one’s gaze toward the brick façade of the University of Oregon School of Law, situated in that very same Eugene, Oregon. This unusual legal theory comes from U of O property-law professor Mary Wood, who—to give it the imprimatur of legitimate and binding law—retooled the common law doctrine of the “public trust” and recast it as an “atmospheric trust ”.
Wood’s pivot was clever, though unsubtle. The well-established public trust doctrine states that some assets—specifically coastlines and navigable waterways—are held by the government in trust for the public at-large. Thus, the government must act to enjoin private parties from damaging or otherwise appropriating them.
The “atmospheric trust” doctrine purports to function in a similar manner, but aspires to extend its reach to an altogether grander scale. Rather than be limited to navigable waterways, the entirety of the natural environment falls under its reach. In practice, claims under the atmospheric trust doctrine could conceivably proceed on the basis of harm caused to the climate as a whole, provided the plaintiffs involved are particularly aggrieved and, as a result, have standing to sue.
Which brings us to the plaintiffs in the Eugene case and the amazing order out of the Oregon District Court. The plaintiffs are a collection of young people—ranging in age from nine to 20—assembled by a group called “Our Children’s Trust” for the twin purposes of supporting the organization’s novel standing argument and attracting fawning publicity. In U.S. District Judge Ann Aiken’s courtroom, they succeeded on both fronts. Aiken, another product of U of O Law, produced a 54-page opinion and order drafted with fawning deference to the plaintiffs’ cause.
Alas, despite that length and passion, the document fails to obscure a mountain of legal and public-policy problems that are sure to be exposed on appeal.
To establish standing for the young plaintiffs, the court eagerly transmuted their facially generalized grievances about the climate into specific addressable harms on the basis of the children’s experiences of climate change-related events. For instance, one plaintiff lamented that “he has been unable to ski during winter as a result of decreased snow pack” while another alleged that fires caused by climate change have aggravated her asthma. Aiken found these individual harms sufficient to allow the plaintiffs to move forward with their effort to transform the lives of every citizen in the United States.
Given the scale of the equitable relief sought—and that it literally entails spontaneously legislating from the bench in ways that could change the course of the entire global economy—Aiken at least felt the need to try to address the political question doctrine, which precludes courts from interfering with matters more properly within the purview of the elected branches of government. In a nutshell, the judge is unconcerned that matters of this kind are, historically, left for the elected branches of government to decide and is instead persuaded that the gravity of the plaintiffs’ claims demands that they be heard.
On both issues, the order presses the very limits of both standing and political question jurisprudence. A less ideologically sympathetic court, and a less sympathetic jurist, will almost certainly look with extreme skepticism on the order’s conclusions. Time will tell.
More importantly, what this case actually signals is a new level of hopelessness with the electoral process within the environmental community. The proponents of the atmospheric trust doctrine have given up on politics and are so convinced of the immediate and existential threat of climate change that they will even take down the pillars of American jurisprudence to realize their policy goals.
Climate change is a serious problem that begs for a solution. But making farcical legal arguments to change the behavior of an entire nation will only harden opposition to the legitimate concerns expressed by groups like Our Children’s Trust. No matter the outcome of this case, if the environmental movement has given up on persuasion, it has already lost.
Image by anetta 
- “transition”: https://www.washingtonpost.com/news/energy-environment/wp/2016/11/11/meet-the-man-trump-is-relying-on-to-unravel-obamas-environmental-legacy/?utm_term=.c1af4ecb4368
- “case brought to compel the federal government”: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf
- “the kids suing the government over climate change are our best hope now.”: http://www.slate.com/articles/health_and_science/science/2016/11/the_kids_lawsuit_over_climate_change_is_our_best_hope_now.html
- “atmospheric trust”: https://law.uoregon.edu/images/uploads/entries/atmo.pdf
- “anetta”: https://www.shutterstock.com/gallery-122137p1.html