Environmentalists’ novel new legal theory

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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On April 19, the U.S. Supreme Court heard arguments in a case brought by 12 states seeking damages from major utilities. The states’ novel theory is that the companies’ carbon dioxide emissions constitute a “public nuisance” by contributing to global warming. The skeptical questions, posed by both liberal and conservative justices, suggest that the states will lose, possibly in a unanimous decision.

Perhaps anticipating defeat, a band of creative legal academics and their followers have filed legal proceedings in all 50 states advancing an even more farfetched theory. Their claim in each case is that the state has failed to protect the public from climate change. Their legal theory is that the common law public trust doctrine obliges states to act.

Absent a creative judge willing to invent new law, these cases will be dismissed as without merit. The long-established, common law, public trust doctrine recognizes public rights in commercial navigation, fishing and bathing in navigable waters, and thus limits state and private interference with those rights. Classic public trust cases involved such things as wharfs and dams that obstructed navigation, or grants of exclusive franchises limiting public access to oyster beds and fishing grounds.

Although in recent years a few activist state courts have extended the doctrine to recognize other public uses, like recreation and beach access, and to have application to non-navigable waters, no American court has come close to accepting a theory like that proffered in this barrage of climate change cases.

The argument that states have a duty under the public trust doctrine to limit greenhouse gas emissions relies on a totally fabricated rewriting of the doctrine’s history. As if saying it enough makes it true, it is invariably asserted that the doctrine originated in Roman law as recorded by the Emperor Justinian, who wrote: “Things common to mankind by the law of nature, are the air, running water, the sea, and, consequently the shores of the sea.” Al Gore could not have said it better from the perspective of global warming activists, but the inconvenient truth is that the public trust doctrine has no such ancient pedigree. Obstructions to navigation and private grants of fishing grounds were routinely allowed under Roman law.

Early English law and the Magna Carta are also cited as precedent, but in fact the doctrine embraced by American courts, and recognized by the Supreme Court in 1892, did not emerge in English law until the beginning of the 19th century. In both England and America, the doctrine was always narrowly limited to protecting public rights in commercial navigation, fishing and bathing in navigable waters.

Despite the public trust doctrine’s clearly limited scope, environmentalists have urged an expansive interpretation ever since Professor Joe Sax unearthed the then-obscure doctrine in a 1970 article. Ten years later, Sax acknowledged the doctrine would not serve most environmentalist objectives until, as Sax put it, it is liberated from its historical shackles — another way of saying that advocates for an expansive public trust doctrine would have to find activist judges willing to ignore two centuries of clear precedent. The bet of climate change activists is that, with legal proceedings in all 50 states, they will hit upon an activist judge or two.

Whatever one’s view about the extent and risks of climate change and the need for government action, the filing of public trust-based cases in all 50 states should be recognized for what it is: an abuse of the judicial process. Having failed to get the results they want from Congress and the Obama administration, climate change activists are taking another run at the courts. It has been a decades-long strategy that has yielded many environmentalist victories, but often at the expense of the separation of powers. As some justices suggested in the recent nuisance case, these are legislative, not judicial, questions.

Children and students have been recruited as plaintiffs in many of these cases. It’s their planet, say the orchestrating lawyers and professors. It’s also their government and legal system. The courts in every state should summarily dismiss these cases with a stern reminder that it’s not for the courts to invent new law.

Jim Huffman is a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity and the Erskine Wood Sr. Professor of Law at Lewis & Clark Law School.