Carbon & Courts I: Atmospheric Trust Phil Gregory, Cotchett, Pitre & McCarthy Pete McCloskey, Former Congressman David Takacs, Associate Professor, UC Hastings College of the Law With climate legislation dead in Congress, and the international climate talks years from resolution, some proponents of climate action are turning to the courts in the hope that judges will compel governments to act. This Climate One panel brings together three attorneys who are pursuing climate action through a novel concept: atmospheric trust litigation. In May, Our Children’s Trust filed the first atmospheric trust suits, with young people named as the plaintiffs. The strategy couples lawsuits, which have now been filed in all 50 states and in federal courts, with the mobilization of youth. Phil Gregory, Principal Attorney, Cotchett, Pitre & McCarthy and co-counsel for the federal suits, explains the strategy. “You have to say to the courts, you, the judge, need to declare that there’s a problem here, and that the government, the sovereign, is not doing enough to protect the trust.” Gregory insists that that aim of the suits is not to turn judges into policymakers. “What we want the court to do is not itself institute a regulation, or not itself say, this is what you must do, this particular act, but you, the state agencies, you, the federal departments, need to come forward with a plan that works,” he says. David Takacs, Associate Professor, UC Hastings College of the Law, concedes that atmospheric trust is a novel application of the public trust doctrine. “Part of why the atmosphere has never been considered a public trust resource is because we’ve never had to think about climate change or the atmosphere as being a renewable resource,” he says. “Nonetheless,” he continues, “if you look at what the public trust doctrine actually says, the atmosphere is no different than those other resources [water, wildlife, and land] in terms of how fundamental it is to human life for present and future generations.” Retired California Congressman Pete McCloskey notes that these suits will require judges to make a leap. But judges have done so before in our history when politicians weren’t ready to act, he says, citing the Supreme Court’s role in desegregating schools. “Never trust the government to adhere to the doctrine of the public trust,” he says. “You’ve got to force them. It’s going to be the courts that take the lead. And it’s going to be the young people that force politicians to act.” This program was recorded in front of a live audience at The Commonwealth Club in San Francisco on September 14, 2011

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