A Professor Speaks on What We Owe

• Author: Gerald Torres
• Position: Professor of environmental justice at Yale School of the Environment and professor of law at Yale Law School
• Pages: 48-51

48 | THE ENVIRONMENTAL FORUM Reprinted by permission from The Environmental Forum®, January/February 2022.

Copyright © 2022, Environmental Law Institute®, Washington, D.C. www.eli.org.

On September 10, 2015, a group

of children led a complaint in

federal court in Oregon, assert-

ing that the government must ad-

dress the threat posed by climate

change. e plaintis of Juliana v.

United States alleged that the gov-

ernment had violated the youngest generation’s

constitutional rights to life, liberty, and property,

and failed to protect essential public trust resources.

At the time of writing, the Ninth Circuit has grant-

ed a temporary stay and denied an appeal. Plaintis

have subsequently led a motion to amend their

complaint, while 17 states have led a motion to

intervene in the case. e children have also led

proceedings in all 50 states.

In 2017, cities rst began ling lawsuits to hold the

fossil fuel industry accountable for its decades-long

campaign of deception about the science of climate

change and the role its products play. In the initial cas-

es, the cities of Santa Cruz and Imperial Beach and the

counties of San Mateo and Marin sued Chevron. Sub-

sequent cases named BP, Exxon, and Sunoco as defen-

dants, among others. e cities claim that the compa-

nies failed to warn those at risk or to take steps to avoid

the predictable harm their products were causing. So

far, 26 states and local governments have led climate

damage and deception lawsuits. Because the cases are

brought under state law, the cities and states are resist-

ing eorts to have them removed to federal court.

ese two initiatives framed by public and private

law have a lot in common, although their claims are

fundamentally distinct. Each raises questions of re-

sponsibility for the climate crisis in profound, yet radi-

cally dierent ways.

At the most general level, the principal dierence

between public law and private law is that private law

governs relationships among individuals, while public

law governs the relationship between individuals and

the state. As early as 1939, Roscoe Pound looked at

the birth of the administrative state and assayed the

dierence between public and private law. e con-

test, as some viewed it, suggested “that laisser faire has

been abandoned, the public lawyer is ousting the pri-

vate lawyer, and duties of institutions are superseding

the ordinary rights and duties of private citizens.”’ Of

course, as Pound explained, the ideological critique

misunderstood the history of our law.

e cases brought by the cities are rooted in the

private law of torts. By relying on state tort claims,

the plaintis ask that the defendants conform to es-

tablished standards of conduct. By negotiating the

TESTIMONY

A Professor

Speaks on

What We Owe

How should we understand

responsibility in the conte xt of the

climate crisis? e answe r lies in the

legal tools already at our di sposal

Gerald Torres is a professor of envi ronmental

justice at Yale Scho ol of the Environment and p rofessor of

law at Yale Law School .