Should the atmosphere be considered part of the public trust, a resource essential for our collective survival?

That’s one question currently being considered by the Alaska Supreme Court, which earlier this month traveled to the northernmost town in the United States to hear arguments for a climate change lawsuit brought by six youth plaintiffs. On behalf of the youth, attorney Brad De Noble argued that the atmosphere itself should be considered a legally-protected resource under the state’s constitution.

The plaintiffs, who live throughout the state, initially sued the Alaska Department of Natural Resources last year, and that lawsuit was dismissed by a lower court. But as part of an educational outreach effort, the state’s Supreme Court agreed to hear the case in a public venue, a packed high school auditorium.

“The greatest threat to Alaska, its people and its natural resources is the impairment of the atmosphere caused by greenhouse gas emissions,” said the plaintiff’s attorney De Noble. “The constitutional public trust doctrine imposes an affirmative fiduciary obligation on the State to reduce such emissions to ensure that the plaintiffs and future generations inherit a viable a viable atmosphere.”

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De Noble’s arguments are based on the “atmospheric trust” legal theory, which has been developed over the past decade by University of Oregon Law professor Mary Wood.

The theory is based on the premise, according to Wood, “that all governments hold natural resources in trust for their citizens and bear the fiduciary obligation to protect such resources for future generations.”

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If you’ll bear with a shallow dive into the legal theory, “atmospheric trust litigation” is rooted in the Public Trust Doctrine, an evolution of old British “Commons Law” that has been used successfully in the past to preserve and protect natural resources — like air and water — for public use.

In 2011, youth from around the country coordinated an effort to eventually bring legal action against all 50 states and the federal government, based on this atmospheric trust litigation. A non-profit called Our Children’s Trust, helped organize the legal actions, and set the youth plaintiffs up with actual grownup lawyers. (Check out Grist’s coverage of the original spate of lawsuits from 2011.)

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While the lawsuits haven’t seen any outright victories, there are eight states still with active lawsuits, and there has been some encouraging feedback from legal experts and judges alike.

In Iowa, one judge in the Court of Appeals argued that there was “a sound public policy basis” for extending the public trust doctrine to include the atmosphere. Glori Dei Fillippone, a 14-year-old from Des Moines, had petitioned the Iowa Department of Natural Resources to adopt new greenhouse gas emissions rules, citing the public trust doctrine. The DNR predictably denied her petition, so she sought judicial review. The district court first affirmed the DNR’s denial, then the Court of Appeals affirmed that decision.

But in that decision, Judge Doyle ceded the question to the State Supreme Court, and offered blunt support for the idea of protecting the atmosphere as a public trust. His comments in full:

I concur specially. I agree there is no Iowa case law for extending the public trust doctrine to include the atmosphere. But, I believe there is a sound public policy basis for doing so.

In 1989, in enacting the Resources Enhancement and Protection (REAP) program, the legislature stated:

The general assembly finds that:

1. The citizens of Iowa have built and sustained their society on Iowa’s air, soils, waters, and rich diversity of life. The well-being and future of Iowa depend on these natural resources.. . . .

4. The air, waters, soils, and biota of Iowa are interdependent and form a complex ecosystem. Iowans have the right to inherit this ecosystem in a sustainable condition, without severe or irreparable damage caused by human activities. 1989 Iowa Acts ch. 236, § 2 (now codified at Iowa Code § 455A.15 (2013)) (emphasis added). Furthermore,

It is the policy of the state of Iowa to protect its natural resource heritage of air, soils, waters, and wildlife for the benefit of present and future citizens with the establishment of a resource enhancement program. Id. § 3 (now codified at § 455A.16) (emphasis added).

The legislature, the voice of the people, has spoken in terms as clear as a crisp, cloudless, autumn Iowa sky.

[Emphasis added. You can read the entire original judgement here (PDF).]

To translate this from legalese, the judge essentially said that it is sound judgement to protect the atmosphere, but it’s up to the state legislature to make it into explicit law — which it should because it aligns with existing statutes and laws.

Judge Doyle isn’t the first to take this public position. State court judges in Texas and New Mexico made very similar statements in remarks about their respective cases.

In Texas, the state’s Commission on Environmental Quality was so upset with the outcome that just last week it appealed the lawsuit — which it had actually won. The New York Times described the curious case:

District Judge Gisela D. Triana of Travis County ruled in the agency’s favor, saying it could use its own discretion and decide not to institute greenhouse gas regulations.

But the commission still appealed, insisting that the court did not have jurisdiction over the case to begin with and that Judge Triana had made an “improper declaratory judgment” — that Texas is responsible for protecting “all natural resources of the state including the air and atmosphere.”

Judge Triana agreed with the plaintiffs that a tenet of United States common law known as the public trust doctrine required the government to protect the atmosphere as a resource for public use.

As for the federal case, it was first brought to a federal court in San Francisco in late 2011, and was soon transferred by the courts to Washington D.C. because of its “national significance.” The defendants, six federal agencies, were supported by so-called “intervenors” — a bunch of fossil fuel dependent industry groups like the National Association of Manufacturers — who filed a motion to dismiss the case. In May of 2012, the DC District Court granted this dismissal, but the plaintiffs have since taken the lawsuit to the Court of Appeals. “he Obama Administration has failed to develop, let alone implement, a climate plan that will actually protect our generation,” said Alec Loorz, founder of Kids vs Global Warming and lead plaintiff in the federal lawsuit. “The youth of America are forced to look to the courts to protect our constitutional right to clean air.”

Back in Alaska, the Supreme Court’s decision can be expected within a couple of months.