Current Legal Developments Climate Change and the Constitutional Obligation to Protect Natural Resources: The Pennsylvania Atmospheric Trust Litigation

Climate Law ◽  
2017 ◽  
Vol 7 (2-3) ◽  
pp. 209-226
Author(s):  
Samvel Varvaštian
Keyword(s):  
Climate Change ◽  
United States ◽  
Human Rights ◽  
Natural Resources ◽  
State Government ◽  
Constitutional Law ◽  
Public Trust ◽  
The United States ◽  
The Public ◽  
Public Trust Doctrine

When it comes to climate litigation, environmental plaintiffs in the United States have demonstrated a remarkable ingenuity in terms of utilizing various legal avenues to compensate for the persisting regulatory gaps. In the last few years, the public trust doctrine and constitutional law have been present among these, in an attempt to put the risks associated with climate change on the map of human rights in relation to the environment and natural resources. However, despite a nationwide occurrence of such lawsuits, courts have been cautious in their approach to them. Similar lawsuits have emerged outside the United States, in Europe and Asia, demonstrating some viability. This analysis addresses the recent litigation in Pennsylvania, where petitioners asked the court to order the state government to take action on climate change and to declare such action a constitutional obligation under the state’s Constitution. 1

scholarly journals Look to Windward: The Michigan Environmental Protection Act and the Case for Atmospheric Trust Litigation in the Mitten State

2021 ◽  
pp. 275
Author(s):  
Jonathan Coumes
Keyword(s):  
Climate Change ◽  
United States ◽  
Environmental Protection ◽  
Public Trust ◽  
The United States ◽  
Natural World ◽  
Potential Relief ◽  
The Public ◽  
State Constitutions ◽  
History Of

Failure to address climate change or even slow the growth of carbon emissions has led to innovation in the methods activists are using to push decisionmakers away from disaster. In the United States, climate activists frustrated by decades of legislative and executive inaction have turned to the courts to force the hand of the state. In their most recent iteration, climate cases have focused on the public trust doctrine, the notion that governments hold their jurisdictions’ natural resources in trust for the public. Plaintiffs have argued that the atmosphere is part of the public trust and that governments have a duty to protect it. These types of lawsuits, known as Atmospheric Trust Litigation, have foundered on the shoals of courts wary of exceeding their powers, whether granted by Article III or state constitutions. The trouble in many cases, including Juliana v. United States, has been standing. Courts balk at declaring that any one actor has the power to affect climate change. Since they usually think one actor can’t fix the climate, redressability is out the window. Even if courts get past redressability, they believe the scale of any potential relief is just beyond the ability of a court to order. The number of lawsuits that have been filed suggests that that reasonable minds can differ, but most judges have found plaintiffs do not have standing before clearing the cases off their dockets. This Note contends that at least one state remains fertile ground for an atmospheric trust lawsuit. Michigan’s 1963 Constitution implies that the atmosphere is within the public trust, and the Michigan Environmental Protection Act, passed to carry out the state’s constitutional duties towards the natural world, does away with most, if not all, of the standing issues that have stymied climate cases across the nation. Motions, briefs, and equitable relief are not the only way to avoid the onset of what could be the greatest calamity in the history of humanity, but in Michigan, at least, Atmospheric Trust Litigation may well be what breaks and rolls back the carbon tide.

Land, History, and the Law

2019 ◽  
pp. 108-128
Author(s):  
Susan Y. Najita
Keyword(s):  
United States ◽  
National Park ◽  
Rift Zone ◽  
Public Trust ◽  
The United States ◽  
Lava Flows ◽  
Land Acquisition ◽  
The Public ◽  
Public Trust Doctrine ◽  
History Of

This essay examines the history of land acquisition in creating Hawai‘i Volcanoes National Park during the period after the overthrow of the Hawaiian monarchy and the annexation of the islands to the United States. Its specific focus are the land condemnations and exchanges that went into creating what is known as the Kalapana Extension, an area of active lava flows along the area known as the East Rift Zone. I examine the implications of this history for our understanding of "the public" and conservation’s best legal principal, the public trust doctrine.

scholarly journals Natural Resources and Natural Law Part II: The Public Trust Doctrine

2021 ◽  
pp. 225
Author(s):  
Robert Adler
Keyword(s):  
Natural Resources ◽  
Natural Law ◽  
Public Lands ◽  
Public Trust ◽  
Single Issue ◽  
The Public ◽  
Positive Law ◽  
Public Trust Doctrine ◽  
Religious Doctrine ◽  
Natural Law Theory

Natural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those individuals advocated their position in part through civil disobedience and armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, and the right to bear arms. Prior appropriation doctrine is consistent with secular natural law theory. Existing positive law, however, accepts prior appropriation for western water rights but rejects its application to grazing rights on federal public lands, for reasons consistent with secular natural law. Natural law doctrine allows citizens to advocate for change but requires them to respect the positive law of the societies in which they live. Separation of church and state also bars natural law claims based on religious doctrine unless those principles are also adopted in secular positive law. This sequel addresses claims from the opposite side of the political-environmental spectrum, that natural law provides one justification for the public trust doctrine, and that courts should enforce an atmospheric public trust to redress catastrophic global climate change. Although some religious groups have embraced environmental agendas supported by religious doctrine, public trust claims are secular in origin. Just as natural law provides support for prior appropriation, it supports the idea that some resources, such as water, wildlife, and air, should be held in common rather than made available for private ownership. From this perspective, the two doctrines merge into a single issue of resource allocation. Which resources are best made available for appropriation as private property, and which are best left in common? Natural law theory helps to explain the liberty and welfare goals that inform those choices. Positive law embraces the public trust doctrine with respect to some natural resources, and does not preclude its applicability to the atmosphere or other common resources.

Judicial Elections

2017 ◽  
Author(s):  
James L. Gibson ◽  
Michael J. Nelson
Keyword(s):  
United States ◽  
Interest Groups ◽  
State Government ◽  
The United States ◽  
Television Advertising ◽  
Institutional Legitimacy ◽  
The Public ◽  
Judicial Elections ◽  
High Profile

Most judges in the United States retain their judgeships through periodic popular elections. In recent years, these judicial elections have become more salient, with high-profile television advertising becoming commonplace. This chapter discusses the effects of judicial elections, particularly in an age of salient campaigning, on the choices judges make. It reviews existing findings about the influences other institutions of state government, interest groups, and the public have on judges, before discussing the effects of high-profile judicial elections on the information available to voters and the institutional legitimacy of the judiciary. Throughout, the chapter discusses the normative controversies inherent in the use of judicial elections as well as potentially fruitful avenues for future inquiry.

National Courts and Human Rights—The Fujii Case

1951 ◽  
Vol 45 (1) ◽  
pp. 62-82 ◽  
Author(s):  
Quincy Wright
Keyword(s):  
United States ◽  
Human Rights ◽  
Constitutional Law ◽  
The United States ◽  
The State ◽  
District Court ◽  
State Legislation ◽  
Court Of Appeals ◽  
National Courts ◽  
United Nations Charter

In the case of Sei Fujii v. The State, the District Court of Appeals of California held that a State statute which prohibited aliens ineligible to citizenship from acquiring land within the State was “in direct conflict with the plain terms” of provisions concerning human rights in the United Nations Charter, a treaty binding upon the United States. Consequently, land granted to a Japanese in 1948 did not escheat to the State. The case involves important questions of United States constitutional law, of international law, and of legal policy.On the issue of constitutional law the opinion follows a long and unbroken tradition that if State legislation conflicts with obligations undertaken by the United States in a treaty, the legislation will not be applied by the courts. The terms of Article 6, paragraph 2, of the Constitution are unambiguous: … all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

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