Moving Forward

It might be claimed that green governance is a utopian enterprise. But the reality is that the current pursuit of ever-expanding consumption on a global scale is the utopian, totalistic dream. It cannot fulfill its mythological vision of human progress through ubiquitous market activity. It simply demands more than nature can deliver, and it inflicts too much social inequity and disruption in the process. The first step toward sanity requires that we recognize our myriad ecological crises as symptoms of an unsustainable cultural, socioeconomic, and political worldview.

In our book, Green Governance, we outline a variety of legal tools and initiatives that can be helpful in spreading a vision of commonsand rightsbased ecological governance. Moving forward, however, requires bridging the divide among activists between “intellectual dialogue” and “movement building.” There is an urgent need for intensive mutual collaboration between creative thinkers and activists in co-developing bracing new forms

Box 9–1. Litigating for the Public Trust

When legislation fails to address social or environmental wrongs, litigation may be the only recourse, and the environmental movement has a long history of asking the courts to address various ills or failures to uphold environmental law. The current threat of atmospheric degradation runs afoul of state and federal constitutional and statutory protections, as well as the government's common-law obligations to protect public resources for the benefit of present and future generations. (See Chapter 8.) But the U.S. legislative and executive branches have been paralyzed by politics and unwilling to pass laws that will help stabilize the climate.

That is why I sued the U.S. government, on May 4, 2011. The lawsuit (Alec L., et al. v. Gina McCarthy, et al., USCA Case #13-5192, D.C. Circuit) demands that six major federal agencies develop a comprehensive climate recovery plan to reduce U.S. carbon dioxide (CO2) emissions and protect the atmosphere. In addition to the federal case, over the past three years, young people have filed legal actions in all 50 states and around the world.

The cases are based on a legal theory called atmospheric trust litigation (ATL). ATL is grounded in commons law (which has existed since Roman times and is reflected in such codes as the Magna Carta) and the public trust doctrine, under which the state serves as a trustee for rights and resources held in common by all people. According to Mary Christina Wood, the legal scholar at the University of Oregon who developed ATL, a trustee has “an active duty of vigilance to prevent decay or waste to the asset.” ATL holds that these assets—including rivers, groundwater, the seashore, and in this case, the atmosphere—cannot be privatized or substantially impaired because they belong to everyone equally, including those yet unborn. As representatives of the youngest generation and generations to come, the plaintiffs in all these suits are the beneficiaries of this atmospheric trust, and the government has a fiduciary duty to protect the atmosphere on behalf of our generation.

The public trust doctrine has been used successfully in the past to defend the commons from destruction by private interests. As the U.S. Supreme Court itself stated in Geer v. Connecticut, “the ownership of the sovereign authority is in trust for all the people of the state; and hence, by implication, it is the duty of the legislature to enact such laws as will best preserve the subject of the trust, and secure its beneficial use in the future to the people of the state.”

Examples of the success of the public trust doctrine include the case of the pollution and diversion of water from Mono Lake in California, argued as National Audubon Society v. Superior Court, in which the court held that the public trust doctrine restricts the amount of water that can be withdrawn from navigable waterways. Also, in a landmark trust case, Illinois Central Railroad v. Illinois, the U.S. Supreme Court declared that the state can no more abdicate its trust over property in which the whole people are interested.” And in December 2013, the Pennsylvania Supreme Court invoked the public trust in a landmark decision to overturn a state statute that promoted fracking.

There are many other examples of successful public trust cases that address situations of localized environmental damage, but never the atmosphere as a whole. Our case asks the courts to establish a comprehensive climate recovery plan that brings atmospheric CO levels down to no more than 350 parts per million by 2100, which is what the world's leading climate scientists say is necessary to stabilize the earth's climate. To achieve this, fossil fuel emissions must decline at a rate of at least 6 percent per year, beginning now, and aggressive reforestation must be promoted throughout this century.

This is what our lawsuit is demanding.

The first hearings before the court were dominated by lawyers representing the fossil fuel industry, who intervened in the case and moved for dismissal (which the district court eventually granted), claiming that our complaint did not allege that the defendants violated any specific federal law or constitutional provision. We have filed an appeal, however, which is currently pending in the U.S. Court of Appeals in the D.C. Circuit in Washington, D.C. Several critical amicus curiae briefs were filed in support of our case by top U.S. scientists, national security and legal experts, local government officials, and leaders on behalf of indigenous, faith, and human rights communities. The federal appeal will be heard in spring or summer of 2014, with a decision expected before the year ends.

—Alec Loorz, 19 Founder, Kids vs Global Warming, Source: See endnote 16.

of ecological governance that transcend and transform existing frames of legal-political governance and economic and policy analysis. New ideas do not self-actualize, and policy advocacy may not have ready access to bold new ideas.

Moving to green governance will entail many novel complexities and imponderable challenges. Yet there is little doubt that we must re-imagine the roles of the state and market, and imagine alternative futures that fortify the commons sector. We must gird ourselves for the ambitious task of mobilizing new energies and commitments, deconstructing archaic institutions while building new ones, devising new public policies and legal initiatives, and cultivating new understandings of the environment, economics, human rights, governance, and commons.

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