Atmospheric recovery litigation: making the fossil fuel industry pay to restore a viable climate system.

• Author: Wood, Mary Christina
• Position: I. Introduction into III. Recovery of Natural Resource Damages Under the Public Trust Doctrine D. Fiduciary Duties: Asset Protection and the Recovery for Damages 2. The Recovery of Natural Resource Damages, p. 259-293 - Developments in the Public Trust

1. INTRODUCTION II. THE CLIMATE PRECIPICE AND THE SCIENTIFIC PRESCRIPTION TO RESTORE ATMOSPHERIC EQUILIBRIUM III. RECOVERY OF NATURAL RESOURCE DAMAGES UNDER THE PUBLIC TRUST DOCTRINE A. The Trust Frame 1. The Constitutional Force of the Public Trust Doctrine 2. A Doctrine Organic to Government Itself 3. The Relationship of the Public Trust Doctrine to Statutory Law a. A Macro Focus b. An Active Duty c. Limited Discretion d. A Separate Set of Obligations B. The Trustees C. A Sovereign Co-Trusteeship D. Fiduciary Duties: Asset Protection and Recovery for Damages. 1. The Duty of Protection and Restoration 2. The Recovery of Natural Resource Damages a. Basis for Recovery: Statutory La w and Common Law b. Elements of a Natural Resources Damages Claim c. Defenses d. Valuation of Natural Resource Damages IV. RECOVERY OF NATURAL RESOURCE DAMAGES TO THE ATMOSPHERIC TRUST A. Atmosphere as Trust Res B. Trustees and Beneficiaries C. Fiduciary Authority and Duty to Recover Damages D. Liable Parties and Causation E. Jurisdiction F. Defenses G. Quantifying the Damages V. ATMOSPHERIC RECOVERY IMPLEMENTATION A. Atmospheric Recovery Plan B. Financing the Atmospheric Recovery Fund C. Atmospheric Recovery Litigation Partnerships 1. The Sovereign Advantage 2. Enforcement of Judgments D. The Functions of an Atmospheric Recovery Council: Implementation, Administration, Verification, and Tabulation E. Litigation Information Tracking System VI. CONCLUSION I. INTRODUCTION

   As reports of planetary heating, glacier melt, sea level rise, species extinction, devastating droughts, and other consequences of human greenhouse gas (GHG) pollution flood the news, citizens and leaders increasingly recognize that climate disruption poses an existential threat to global civilization. (1) And yet, international law--the very structure that society relies upon to provide an organized response to common global threats--shows little capacity to create a logical and rapid response to this crisis.

   The starting point of any coherent response to this global danger is an understanding of what action remains necessary to stabilize the climate system. In December 2013, an international team of scientists led by Dr. James Hansen, Director of NASA's Goddard Institute for Space Studies, issued a path-breaking report setting forth a clear prescription for restoring the planet's atmosphere to a safe level of 350 parts per million (ppm) carbon dioxide (C[O.sub.2]). (2) The prescription calls for two measures: 1) a global pathway of 6% annual C[O.sub.2] emissions reductions, beginning in 2013, and 2) a drawdown of 100 gigatons of carbon (GtC) from the atmosphere using reforestation and soil sequestration methods. (3) Both parts of this prescription--emissions reduction and drawdown measures--are essential to restoring climate stability, yet the window of time in which to accomplish this response is rapidly closing. (4)

   While international climate negotiations have been ongoing for decades, they show remarkably meager progress on emissions reduction, while the effects of climate change worsen. (5) Even as preparations move forward for the next major negotiation, faith in the international treaty process wanes among policy makers and citizens alike. (6) The simple fact remains that there is no global superpower capable of imposing responsibility for a common global asset such as the atmosphere. Without that, climate is left to the sporadic, arbitrary, and highly manipulated process of political negotiation. (7) Absent domestic will to clamp down on carbon emissions, nations have no inclination to offer commitments in international negotiations. As a narrow window of remaining opportunity closes fast, it is imperative to try other approaches not inconsistent with the international approach.

   An atmospheric trust approach invokes the public trust principle on the national and subnational level worldwide to establish a framework of global responsibility. (8) The public trust principle has roots dating back to Roman law and is manifest in nations throughout the world. (9) Having constitutional underpinnings lodged in the fundamental sovereign compact between government and citizens, (10) the principle requires legislatures and agencies to act as trustees in protecting natural resources vital to the welfare and survival of present and future generations of citizens. (11) A global campaign known as Atmospheric Trust Litigation was launched in 2011 to provide a legal structure geared toward forcing urgent emissions reduction around the world. (12) The approach recognizes that, while there is no panacea to a climate negotiation stalemate, domestic courts do have the power to order swift and decisive relief responsive to the climate crisis. (13) The litigation seeks judicial orders requiring governments to develop climate recovery plans that reduce emissions within their jurisdictions by 6% annually, the target established by the international team of scientists led by Dr. James Hansen. (14)

   This Article aims to map out a public trust framework for achieving the second side of the scientific climate prescription--drawdown of 100 gigatons (GT) of atmospheric carbon. While it remains feasible to create a common plan of atmospheric drawdown through natural processes such as reforestation and soil sequestration, the required funding for accomplishing such restoration would be significant. The public trust doctrine (PTD) offers an approach for securing such funding by holding the major corporate carbon polluters responsible for natural resource damages (NRDs) to the atmosphere.

   Public trust law requires sovereign trustees to seek recovery of monetary damages from third parties that have damaged public trust assets. (15) Corporations that pollute the oceans or waterways through accidental spills, for example, are regularly held accountable for NRDs. (16) The same principle can extend to the atmosphere, a global trust resource. In that context, the primary responsible parties are the major fossil fuel corporations, which purportedly have known for years that their fuel products pose hazards to Earth's climate system. (17) A groundbreaking study released in 2014 determined their proportionate responsibility for carbon emissions since the Industrial Revolution based on market share data and other evidence. (18) The largest fossil fuel corporations have reaped, collectively, more than one trillion dollars in profits since the millennium (19) and therefore represent a significant deep-pocketed funding source for atmospheric restoration. Nations around the world stand positioned, as cotrustees of the atmosphere, to seek such damages through their domestic legal systems, either by applying existing common law principles or by formulating new statutes that allow recovery.

   The following analysis does not purport to resolve or even identify every procedural impediment that may arise in such an effort. Rather, its purpose is to suggest a tangible framework that can stimulate a conversation missing entirely in the international climate negotiations and domestic policy circles: Whether fossil fuel corporations should be held responsible for the damage they have caused to Earth's vital life systems? The narrow window of time to prevent uncontrollable heating is closing rapidly, (20) and if the law is to be relevant at all, it must address the climate imperative and both sides of the scientific prescription with utmost urgency. (21)

   Part II explains the climate context and the scientific prescription to restore the planet's atmospheric equilibrium. Part III provides background on the PTD as it applies to the recovery of NRDs. Part IV presents a conceptual structure for holding major fossil fuel corporations liable for NRDs to the atmospheric trust. Part V offers approaches to both recovery of NRDs and implementation of an atmospheric recovery plan.

2. THE CLIMATE PRECIPICE AND THE SCIENTIFIC PRESCRIPTION TO RESTORE ATMOSPHERIC EQUILIBRIUM

   It is probably safe to say that the law has never encountered a threat as pervasive, grave, and urgent as climate crisis. Scientists have warned that C[O.sub.2] and other GHG emissions place Earth in "imminent peril"--literally on the verge of an irreversible tipping point that would impose catastrophic conditions on generations of humanity to come. (22) Floods, hurricanes, killer heat waves, fires, disease, crop losses, food shortages, and droughts would arrive with far greater magnitude and regularity. (23) Rising sea levels would inundate coastal areas worldwide and trigger desperate mass human migrations. (24) In May 2010, two separate groups of scientists published papers warning that the melting of the Western Antarctic ice sheet is now unstoppable, and that it will cause an inevitable sea level rise of at least ten feet in the coming centuries. (25) They warn that most of the world's coastal cities will have to be abandoned. (26) According to Dr. James Hansen, society's continued carbon pollution will "transform the planet." (27)

   While some climate dynamics will unfold over long time spans, it is no longer possible to assume that severe threats are postponed for future generations. Earth has already warmed about 0.8[degrees]C over the past century. (28) A recent report of the U.S. Global Climate Change Research Program says unequivocally: "Climate change, once considered an issue for a distant future, has moved firmly into the present.... Precipitation patterns are changing, sea level is rising, the oceans are becoming more acidic, and the frequency and intensity of some extreme weather events are increasing." (29) Though climate disruption affects different parts of Earth in different ways--from droughts to floods to superstorms--no part of Earth remains safe from global heating. (30) Climate crisis threatens the basic habitability of the planet for humans and other species. (31) As Dr. Hansen and other scientists stated in an amicus brief...