Law professor wants to use courts to fight global warming

“It’s a theory that seems well-suited and perhaps ideal when you’re talking about who owns the atmosphere.” said Greg Costello, executive director of the Western Environmental Law Center.

EUGENE - University of Oregon law professor Mary Wood is tired of waiting for government officials to take action on global warming. So she’s devised a new legal tool to hurry them up.

Drawing on her background in both natural resources and property law, Wood has developed a theory that claims the atmosphere is an asset that belongs to all but is held in trust by the government. The government has a legal obligation to protect that trust from harm, she argues, just as financial managers have a legal obligation to protect the monetary assets in their care.

“The main problem with climate is that no government is taking responsibility for it and our government is sitting idle while this catastrophe is unfolding,” Wood said.

“There’s no other body of law that requires the government to act. But a trustee has to act to protect the body of the trust.”

Wood, 45, has worked tirelessly for more than a year to promote the idea, writing articles for legal journals, presenting at conferences, speaking on college campuses and radio programs and co-authoring a new book titled “The Dawn of Planetary Patriotism.”

Her theory began to get some traction among public interest attorneys in March after she spoke at an environmental law conference in Eugene. Afterward, a group of 30 attorneys formed a task force to explore ways to take Wood’s atmospheric trust doctrine from the classroom to the courtroom.

No one has filed a suit based on the doctrine yet, but in the absence of aggressive action by the government to check emissions of carbon dioxide and other greenhouse gases, it may be just a matter of time.

“What we’ve got is a vacuum — the federal government has taken zero responsibility,” Wood said. “You can’t find an atmospheric obligation in the statutes because Congress hasn’t written any statutes.”

Wood wants to see the United States embrace the targets set forth last fall by the Union of Concerned Scientists:

• Cap the growth of greenhouse gas emissions by 2010.

• Reduce emissions by 4 percent a year each year thereafter.

• Bring emissions down to 80 percent below year 2000 levels by 2050.

The group sets out similar targets for other industrialized nations and less sweeping goals for the developing world. If these goals aren’t met, the scientists warn, the world could soon reach a “tipping point” — an irreversible greenhouse effect triggering rising sea levels, widespread drought, crop failures and other disasters.

To prevent that, Wood advocates taking a number of immediate steps to reduce emissions, from banning new coal-fired power plants and airport expansions to mandating renewable energy use and curtailing motorized recreation. To protect natural “carbon sinks” that pull CO2 out of the atmosphere, she wants to see limits on commercial logging, wetlands conversion and farmland development.

“At first it sounds radical, and I acknowledge that. But what’s really radical is trying to survive in a world of runaway heating,” Wood said.

“It’s so basic. The government should protect the natural resources you need for survival.”

From theory to practice

Greg Costello is one of the public interest attorneys evaluating Wood’s proposal as the basis for potential lawsuits. He thinks it could be a successful legal strategy because it’s grounded in a widely accepted principle of common law.

“Public trust doctrine is a doctrine everybody learns in law school. It goes back to Roman times,” said Costello, executive director of the Eugene-based Western Environmental Law Center.

“It’s a theory that seems well-suited and perhaps ideal when you’re talking about who owns the atmosphere.”

While the lawyers are still working through all the ramifications, Costello thinks possible applications include states suing one another over greenhouse gas levels or taking the U.S. Environmental Protection Agency to court for the right to enact their own restrictions on tailpipe emissions.

Jay Austin, a senior attorney with the Environmental Law Institute, also sees merits in Wood’s approach, especially in light of a Supreme Court decision last year in a case known as Massachusetts v. EPA.

Oregon was one of a dozen states, several smaller jurisdictions and numerous environmental and citizens’ groups pushing the federal agency to regulate carbon dioxide and other greenhouse gases under the Clean Air Act.

In a 5-4 ruling, the court rejected EPA’s claim that it lacked authority to regulate greenhouse gases and affirmed that public interest groups had standing to sue over the issue. To Austin’s thinking, that opens an avenue for the kind of suit Wood envisions.

“Her idea strikes me as not a slam dunk in the courts, but it’s far from being frivolous. It’s a serious argument,” Austin said.

“I think it will spark a wave of lawsuits.”

Not everybody thinks that’s such a good idea.

Ben Lieberman, a senior policy analyst with the conservative Heritage Foundation, called Wood’s proposal “far-fetched” and said Congress, not the courts, should be making national

“I don’t want to be so presumptuous as to lecture a law professor on legal issues, but that sounds like something that would squarely sit with the legislative branch,” Lieberman said.

The Competitive Enterprise Institute, a conservative think tank that has led the charge against what it considers “alarmism” on global warming, has been keeping tabs on Wood’s work.

“It’s designed to cause mischief,” said Myron Ebell, CEI’s director of energy and global warming policy. “No one thinks the legal system, through a series of lawsuits, can figure out how to rearrange and shrink America’s energy system.”

Ebell predicted atmospheric trust suits would clog up the courts and create climate policy gridlock, much as Endangered Species Act litigation to protect the northern spotted owl paralyzed federal timber policy in the early 1990s.

“That’s where all this is headed,” Ebell warned.

Wood said she hopes it won’t come to that.

Although her atmospheric trust doctrine provides a basis for litigation, she’d rather see government at all levels — local, state and federal — begin acting to halt global warming.

The greatest contribution she can make to that effort, Wood said, is to create a conceptual framework that helps people understand government has an obligation to act.

“We all know we need to do something about global warming. We cannot go past that tipping point,” she said.

“If our politicians would show some leadership, we wouldn’t have to go to court.”