Air as a ‘public trust’

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By Optic Editorial Board

Desperate times call for desperate measures. That could well be the battle cry for a group of litigants who are targeting states with a legal effort to force government intervention on climate change.

Last week, The Associated Press reported on an effort being mounted to get earth’s atmosphere declared a “public trust” and therefore deserving of special protections. It’s an approach that helped clean up polluted rivers and coastlines in times past, and its proponents think it might just work in this case, too.

We’re skeptical that the attorneys can pull this one off, but we’re rooting for them anyway. As the world’s largest economy, the U.S. needs to step up to counter human emissions contributing to global warming, and litigation might just spur the nation in the right direction.

Oregon-based Our Children’s Trust is spearheading the legal maneuver, by using children and young adults as the plaintiffs in the lawsuits. That’s entirely appropriate in our view, since it’s their future that’s at stake.

Opponents to the effort say this could overload the judicial system and seriously damage the economy with over-regulation. We’re not fans of courthouse frivolities either, but the seriousness of climate change, coupled with an inability to get government or the private sector to address it substantively, justifies these lawsuits. As for the economy, part of the reason why it’s already so sluggish is our dependence on that which pollutes the atmosphere. Greenhouse gas emissions could well be the death of this nation — economically and environmentally — if we don’t figure out a way to wean ourselves off fossil fuels.

Clearly, the “public trust” lawsuits are a stretch, with a basis in common-law theories rather than actual statutes. But the strategy — which includes filings in every state and in the District of Columbia; and state-level suits in 10 targeted states, including New Mexico — could shake things up.

At the very least, it could advance the public debate about how to address greenhouse gas emissions to counter climate change.

“We should be getting youths in front of the courts, not polar bears,” said Oregon law professor Mary Christina Wood, who is helping to lay the legal foundations for the litigation. She’s exactly right. This isn’t just an environmental issue. It’s about what our children will inherit.