Constitution Check: How goes the kids’ constitutional crusade against climate change?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the public trust doctrine, an age-old concept about environmental protection, and some recent legal challenges related to it.

THE STATEMENTS AT ISSUE:

“For the first time, a U.S. court not only recognized the extraordinary harms young people are facing due to climate change, but ordered an agency to do something about it.  The state of Washington’s Department of Ecology is now court-ordered to issue a rule that fulfills its constitutional and public trust duty to ensure the state does its part to reduce greenhouse gas emissions and protect the planet.”

 – Statement by Andrea Rodgers, an attorney for the Western Environmental Law Center, commenting on a decision April 29 by a state trial court judge in Seattle ordering state officials to draft a greenhouse gas emissions-reduction rule by the end of the year.  The case is part of a broad legal crusade, led by Our Childrens’ Trust, an Oregon-based non-profit advocacy group seeking a legal right to a healthy atmosphere and stable climate for youths and future generations.

“At this stage of the proceedings, the court cannot say that the public trust doctrine does not provide at least some substantive due process protections for some plaintiffs within the navigable water areas of Oregon.  Accordingly, the court should not dismiss any claims under the public trust doctrine to that extent.  The nascent nature of these proceedings dictate further development of the record before the court can adjudicate whether [this case] should not survive for trial.

 – Excerpt from an April 8 ruling by a U.S. magistrate judge in Eugene, Ore., Thomas M. Coffin, in a recommendation that a federal District Court reject the federal government’s plea to dismiss a lawsuit by youths between 8 and 19 years old claiming personal harm to themselves from excessive carbon emissions.

WE CHECKED THE CONSTITUTION, AND...

The idea that governments have a duty to protect natural resources for the good of their people – the so-called “public trust doctrine” – dates back before the U.S. Constitution, probably originating with the Roman emperor, Justinian, in the Fifth Century.  It developed into English common law, and through that, became a part of law in the American colonies, and then in the state governments.

Although there is no specific federal law that specifically recognizes the doctrine, a number of federal agencies have taken steps to demonstrate the obligation they feel to protect the environment on behalf of public health and safety.

The Supreme Court has yet to spell out where, if anywhere, the doctrine might be found in the Constitution.  The federal government and industries that would be affected by applying a strong version of the doctrine to compel explicit action to protect the environment are relying on three separate actions by the Supreme Court that, they argue, undermine “public trust” claims.

First, they note that the Justices in late 2014 refused even to review lower court decisions that had dismissed, as beyond federal court authority, the very type of “public trust” lawsuit that an advocacy group, Our Childrens’ Trust, has been pursuing across the country – a case filed on behalf of teenagers.   The Justices denied review of that case without any explanation.

Second, the doctrines’ challengers cite a 2012 case involving protection of state waters, with the Supreme Court remarking that it would not explore the constitutional dimensions of the “public trust” theory, but suggesting that it was controlled by state, not federal, law.

Third, they rely on a 2011 decision involving an attempt to use a common law theory about stopping a public “nuisance” to prevent emissions of carbon dioxide from power plants, with the Supreme Court ruling that such claims were displaced by a federal statute, the Clean Air Act.

However, the advocates of the doctrine, especially Our Children’s Trust, have not grown discouraged by those developments, and continue this children’s crusade in a number of state courts, in a federal case in Oregon and, even, in supporting lawsuits on the same theme in ten foreign countries.

And, lately, the advocates have been making some modest progress in court, both at the state and federal law.  Just last week, they scored a major victory in a state court in Seattle, and earlier this year, they persuaded the highest state court in Massachusetts, the Supreme Judicial Court, to take up the dispute without waiting for it to work its way through lower appeals levels.

If, in fact, the Supreme Court has left at least an implicit suggestion that the “public trust” doctrine is, mainly, a matter for the states, those two developments were at least modest breakthroughs at the state level.

But a federal magistrate judge, in a preliminary ruling a month ago in an Oregon case pursued by Our Children’s Trust, along with environmental protection groups, has kept that case alive over vigorous objections by the federal government and private fuel and energy industries.

In the constitutional claims in the Oregon case, the advocates have cited a broad array of provisions, some but not all of which are related to the “public trust” doctrine.  One claim relies directly on that doctrine, and the magistrate judge allowed that to proceed further, under both the open-ended protection of unenumerated rights under the Ninth Amendment, and due process and equal protection principles under the Fifth Amendment.

But the lawsuit also has claims under constitutional grants of authority to Congress and to the Executive Branch, under the Preamble’s words securing liberties to “ourselves and our Posterity,” and even under the Constitution’s denial of federal authority banning “titles of nobility.”  That last point is based on the theory that the “public trust” doctrine does not allow government officials to give away the gift of natural resources to exploitation by private industry.

Some of these, perhaps obviously, are long-shot claims.  What they illustrate, though, is that the advocates of the “public trust” concept are pushing the creative talents of their lawyers close to the limits of their imagination, as advocacy organizations often do.  That has the prospect of widening the scope of judicial review, with the hope that at least some of the claims will survive to a decision.

Another facet of the preliminary victory these groups have won in the federal case in Oregon is that the magistrate judge recommended a rejection of the challengers’ arguments that the children involve have no constitutional right to be protected against carbon emissions, and that they cannot show that they, personally, are experiencing any injury that would not be a common grievance of the people at large – a generalized claim not within federal court jurisdiction.

Whatever its ultimate promise as a constitutional matter, the children’s crusade for their environmental future goes on with vigor and high hopes.