(Public) Trust Us: Another Wayward Regulation-by-Litigation Effort on Climate Change

Did you know that you’re a trust-fund kid?  Sure, you may not have received a private trust worth millions of dollars from your grandparents, but you’re a beneficiary of the world’s largest public trust: the world’s atmosphere.

Or so an activist group in Oregon claims.   In suits filed yesterday, Our Children’s Trust protested pollution and other damages to the environment saying that such actions eroded the value of a public trust being held for the next generation of Americans. 

The group’s representative plaintiffs: teenagers who have supposedly been deprived of their future assets. 

The group’s planned plaintiffs:  All young Americans.

The group’s planned venues:  All states and Washington, DC.

It’s a cute notion, and I’m not going to say “no” to anyone who wants to give me a bit of the atmosphere, but in terms of legal theory, the case is simply another effort to make the courts – rather than Congress – the deciding agent on climate change. We should also mention that the public trust theory, as noted by consumer class action attorney Russ Jackson, normally involves “the sovereign’s ownership interest in the land underlying navigable waters.”

Washington Legal Foundation has sounded out on this issue many times:  Climate change is a complex question that should be decided by elected officials (Congress) with the input of expert testimony.  It is not a matter for the courts.  Harvard Law School professor Laurence Tribe made this point in a WLF Working Paper titled “Too Hot For Courts To Handle: Fuel Temperatures, Global Warming, And The Political Question Doctrine,” and we reiterated these ideas in our briefs filed in AEP v. Connecticut.

In AEP v. Connecticut, the plaintiffs sued against pollution under the legal theory of nuisance.  But in the oral argument heard on April 19, the Supreme Court strongly indicated that it agreed with WLF that the issue is best decided by Congress. 

The AEP decision, when handed down, will hopefully be a signal to other judges that cases like that being brought by Our Children’s Trust shouldn’t burden the courts.  And that may mean that millions of America’s children and young adults (include yours truly) will be deprived of public trust funds.  A real shame.  But we have three branches of government in this country for a reason, and the lines dividing them should be respected.