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Public Trust Doctrine In Context Of Climate Change

We are living on the planet as if we have another one to go -Terry Swearingen

In this article, we try to look at the importance of climate, the public trust doctrine and jurisprudence corresponding to protection of climate. In particular public trust doctrine in the field of climate litigation has been the focus of study. It begins with ancient understanding and goes on to explore evolving climate consciousness in the global arena. It also touches the position in the United States, and where India stands today by looking at precedents, Atmosphere Trust Litigation and judicial opinions. Finally on the concluding remark it ends on a positive note with a personal view.

We are living on the planet as if we have another one to go -Terry Swearingen

Introduction
The PTD is a central tenet of many legal systems of countries around the world and is recognized as an attribute of sovereignty itself. The origins of PTD come from Roman and Anglo American jurisprudence. Four decades ago, Professor Joseph Sax observed that the public trust duty underpins democracy itself, delimiting a nation of citizens rather than of serfs.[1] 

Today the same tools are used in the form of citizen actions against the governments to tackle climate change. A new phenomenon called Atmosphere Trust Litigation evolved in which it can be seen that young minds voice their concerns against the climate crisis. The basic premise of this argument is that the resources should not be exhausted such that it is impossible for future generations to sustain as a consequence of carbon emissions which in turn is responsible for climate change. In this article, we try to understand the PTD, its usage in the form of litigation and the climate crisis.

Climate Change And Risks

To begin the discussion, it would be appropriate to quote a famous public trust scholar viz. Mary Christina Wood described the problem as follows:

Earth is in imminent peril, on the verge of runaway climate heating that will impose catastrophic conditions on generations to come.

Should business as usual continue even for a few more years, future humanity for untold generations will be pummeled by floods, hurricanes, heat waves, fires, disease, crop losses, food shortages, and droughts as part of a hellish struggle to survive in deadly greenhouse conditions.

In a world of runaway climate heating, these unrelenting disasters would force massive human migrations and cause staggering numbers of deaths culminating in, as more and more analysts predict, humanity's own self-destruction.[2] (Emphasis supplied)

The Global risk report[3] says that the prominent risks to humanity which are impending are in the sphere of the environment. They are majorly:
  • extreme weather events like floods and storms;
  • failure of climate change mitigation and adaptation; 
  • major natural disasters like earthquakes, tsunamis,
  • volcanic eruptions and geomagnetic storms; 
  • major biodiversity losses and ecosystem collapse;
  • Human-made environmental damage and disasters

Carbon emission has grown by leaps and bounds and is the primary reason for global warming. Therefore if the threshold also known as tipping point is crossed, the problem of global warming will be beyond anyone's control. Other associated externalities include rise in sea level, warming of atmosphere by over two degree celsius, extinction of flora and fauna.

At a time when climate change is often overlooked by municipal governments for short term goals the PTD has emerged as a tool in the hands of citizens to remind the state that addressing carbon reduction and climate change is a fiduciary responsibility of the governments in order to protect the public trust given the fact that a situation like Global emergency is not too far sighted.

Global Response And Developments

In order to understand where we stand today it is important to look at the historical development which occurred globally and the kind of response which countries expressed.

Taking cue from the Introduction:Ch. 1 of the book Climate Change and Global Development by Tiago Sequeira and Liliana Reis[4]:
November 1988 IPCC Established To this day IPCC assessments are the scientific underpinning of international negotiations while also providing unique insights into, for example, managing the risk of extreme events and disasters.
November 1990 IPCC and Second World Climate Conference Call for Global Treaty The IPCC releases the first assessment report saying 'emissions resulting from human activities are substantially increasing the atmospheric concentrations of greenhouse gases' leading to calls by the IPCC and the second World Climate Conference for a global treaty.
December 1990 UNGA Negotiations on a Framework Convention Begin On 11 December 1990, the UN General Assembly establishes the Intergovernmental Negotiating Committee (INC) for a Framework Convention on Climate Change. The INC held five sessions where more than 150 states discussed binding commitments, targets and timetables for emissions reductions, financial mechanisms, technology transfer, and 'common but differentiated' responsibilities of developed and developing countries.
May 1992 UNFCCC Adopted The text of the UNFCCC is adopted at the United Nations Headquarters in New York.
June 1992 UNFCCC Opens for Signature at Rio Earth Summit UNFCCC opens for signature at the Earth Summit in Rio. The UNFCCC has two sister Conventions also agreed in Rio, the UN Convention on Biological Diversity and the Convention to Combat Desertification.
March 21, 1994 UNFCCC Enters into Force The UNFCCC enters into force. With 196 Parties, the UNFCCC has near-universal membership. Parties meet annually at the Conference of the Parties (COP) to negotiate multilateral responses to climate change.
April 1995 Berlin Mandate Parties agreed that commitments in the Convention were 'inadequate' for meeting Convention objectives. The Berlin Mandate establishes a process to negotiate strengthened commitments for developed countries, thus laying the groundwork for the Kyoto Protocol.
December 11, 1997 Kyoto Protocol Adopted The 3rd Conference of the Parties achieves an historical milestone with adoption of the Kyoto Protocol, the world's first greenhouse gas emissions reduction treaty.
January 2005 EU Emissions Trading Launches The European Union Emissions Trading Scheme, the first and largest emissions trading scheme in the world, launches as a major pillar of EU climate policy. Installations regulated by the scheme are collectively responsible for close to half of the EU's emissions of CO2.
February 16, 2005 Kyoto Protocol Enters into Force History is made when the Russian Federation submitted its instrument of ratification to the Kyoto Protocol, sealing its entry into force.
December 2009 Copenhagen World leaders gather for the fifteenth Conference of the Parties in Copenhagen, Denmark, which produced the Copenhagen Accord. Developed countries pledge up to USD 30 billion in fast-start finance for the period 2010-2012.
December 2010 Cancun The sixteenth Conference of the Parties results in the Cancun Agreements, a comprehensive package by governments to assist developing nations in dealing with climate change. The Green Climate Fund, the Technology Mechanism and the Cancun Adaptation Framework are established.
December 2011 Durban At the 7th Conference of the Parties, governments commit to a new universal climate change agreement by 2015 for the period beyond 2020, leading to the launch of the Ad Hoc Working Group on the Durban Platform for Enhanced Action or ADP.
December 6, 2011 Momentum for Change Launched at COP 17 in Durban, South Africa Momentum for Change, a special initiative of the UNFCCC, shines a light on innovative and transformative climate action taking place around the world.
December 2015 COP 21 - Historical Paris Agreement adopted 195 nations agreed to combat climate change and unleash actions and investment towards a low-carbon, resilient and sustainable future, on 12 December 2015.
November 2016 COP 22 - Marrakech Partnership for Global Climate Action launched A crucial outcome of the Marrakech climate conference was to move forward on writing the rule book of the Paris Agreement.
The Conference successfully demonstrated to the world that the implementation of the Paris Agreement is underway, and launched the Marrakech Partnership for Climate Action.
November 2017 COP23 - A Launch-Pad for Higher Ambition At the UN climate conference COP23 in Bonn, nations agree the next steps towards higher climate action ambition before 2020. Delegates launch the 'Talanoa Dialogue' to help set the stage for the revising upwards of national climate action plans needed to put the world on track to meet pre-2020 ambition and the long-term goals of the Paris Agreement.
October 2018 IPCC Confirms Importance of 1.5C Goal A special Global Warming of 1.5C report by the Intergovernmental Panel on Climate Change confirms the need to maintain the strongest commitment to the Paris Agreement's aims of limiting global warming to stave off the worst impacts of climate change, which include more frequent and more severe droughts, floods and storms.
December 2018 Governments Adopt Katowice Climate Package In Poland, governments adopt a robust set of guidelines for implementing the landmark 2015 Paris Climate Change Agreement. The agreed 'Katowice Climate Package' operationalizes the climate change regime contained in the Paris Agreement, promotes international cooperation and encourages greater ambition.
September 23, 2019 UNSG's Climate Action Summit to Boost Ambition To boost ambition and to accelerate actions to implement the Paris Agreement, UN Secretary-General Antonio Guterres will host a summit in New York. The Summit comes exactly one year before countries are set to enhance their national climate pledges under the Paris Agreement.

PTD And Indian Jurisprudence

The PTD is not a completely new term introduced in Indian jurisprudence notwithstanding the fact the Ridhima case[5] was the first of a kind in terms of climate litigation. Earlier in cases like Kamalnath case[6], the supreme court extended the meaning of A.21 of Indian Constitution by recognising the duty of the state to protect the natural resources as a trustee of the people (public trust) and imposed responsibility on the motel to restore the environment and ecology. Quoting the relevant para from the judgement:

Our legal system - based on English Common Law- includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea- shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

First, the court said that the court would consider the legislative intent behind the statute which is nothing but a purposive interpretation method (which deals with purposive and literal construction and purposive and strained construction). However in case of absence of a legislation the court observed that the PTD can be considered as a gap filler.

But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. The esthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public goods and in public interest to encroach upon the said resources.[7]

In MI builders Private Limited v. Radhe Shyam Sahu, notwithstanding the fact that the underground shopping complex beneath the park was almost completed, the court upheld the PTD and came down heavily on the Lucknow mahapalika.

In Fomento resorts and hotels Limited v. Minguel Martins[8] the court in the judgement, among many, cited a US decision viz., Illinois Central railroad Co v. people of the state of Illinois[9] which gave a very beautiful observation that the title of the state in land in that impugned case is different in character from land held by the state for sale in general. The court in the Illinois case observed that the public trust assets are those that are subject of concern to all people of the state and described them to be of special character. It also opined, 

(resources) cannot be placed entirely beyond the direction and control of the state and that an overarching public interest prevents such resources from being subject to private ownership.[10] (emphasis supplied)

The Fomento resorts case dealt with the right of the public to pass through the land to a public beach (similar to the right of way or easement right). Other cited cases in Fomento resorts case held the state as the trustee of wetland[11] , water or lake[12] .
The key takeaway points from the Fomento resorts case are:
  • interferes with the right of the public;
  • traditional right of people;
  • being entitled to uninterrupted use;
  • and natural resources like forest, water bodies, rivers, seashores, etc.
which provide sufficient ground to build up an argument for PTD in climate change.

Climate: A Public Trust?
To begin with, resources which are to be covered under public trust are those which are,

so central to the well-being of the community that they must be protected by distinctive, judge-made principles.-Professor Charles F Wilkinson

In order to build an argument to encompass climate also within the ambit of PTD, the closest sister of it would be the atmosphere since air comprises the atmosphere and the climate associated with it which are critical resources facing a historically unparalleled threat. Hence the concept of  underlying public trust  in the air is rather an ancient concept which finds a reference in many religious texts and spiritual learning. Legally speaking, the Roman concept of res communes, or things which remain common are wildlife, sea, water and air, which were considered under the public trust. 

This was recognised in future decisions of various courts including the US Supreme Court. For instance this approach was applied in Geer v. Connecticut[13]which corresponded to wildlife. Similarly Georgia v. Tennessee dealt with a very interesting issue related to copper companies generating transboundary air pollution. The court here made a very clear observation that the interest of the state is standalone in all the Earth and air within its domain and is behind the titles of the citizens.[14]

Another important and rather interesting explanation of the doctrine is the public character of the property, which pertains to the resources which are owned by all the people in common and hence are required to be maintained, preserved and protected by the state which is for the larger interest.

PTD In Atmospheric Trust Litigation

At the outset the PTD is a potent principle which says that the state is the trustee of all natural resources and therefore is not entitled to simply alienate the resources at even similar cost. 
The concept of trust responsibility is nothing but the fiduciary duty to protect the public resources from larger and irreversible damages. Legally speaking the etymology of the term trustee means the duty to protect the property held in trust against any form of destruction or damages. 

Atmospheric Trust litigation on the other hand is a novel form of litigation where the primary concern of the plaintiff is to assert that trust responsibility is an attribute of sovereignty. Therefore the state's fiduciary obligation to protect such natural resources is for larger interest.

Taking a broad look at the cases related to climate change[15]:
  1. the Clean Air Act[16]
  2. public nuisance doctrine[17]and,
  3. more recently, the public trust doctrine[18]
  4. in Canada for alleged violations of the UNFCCC and the Kyoto Protocol[19]
  5. in Pakistan based on principles of sustainable development, precaution, and inter-generational equity[20]
  6. in Nigeria on the basis of human rights law;[21]
  7. in Australia and New Zealand[22]among others, based on domestic environmental legislation
  8. in Netherlands based on breach of duty of care [23]

In January 2020, the Ninth Circuit Appeal Court in Juliana v. United States[24] remanded to the district court with instructions to dismiss for lack of Article III standing in which the plaintiffs sought relief against governmental inaction in regulating CO2 pollution. The relief was sought on explicit and implicit violation of constitutional rights guaranteed by the US Constitution and the PTD. Notwithstanding that fossil fuel combustion will wreak havoc on the earth's climate if unchecked, the Court held that the judiciary holds no power to order the US Government to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions. However Judge Staton's dissent is noteworthy:

Judge Staton wrote that plaintiffs brought suit to enforce the most basic structural principal embedded inour system of liberty: that the Constitution does not condone the Nation's willful destruction. She would hold that plaintiffs have standing to challenge the government's conduct, have articulated claims under the Constitution, and have presented sufficient evidence to press those claims at trial.[25]

In 2017, Ridhima Pandey (Ridhima Pandey v. Union of India) a 9 year old, invoked sustainable development and Precautionary Principle under Section 20 of the National Green Tribunal Act, 2010 supplemented by intergenerational equity principle and PTD and filed a petition against the Indian Government, prompted by the Uttarakhand floods of 2013. She had asked the government to prepare a carbon budget, a climate recovery plan and to assess industrial projects in the context of climate-related issues.[26]

The prayer did not receive the outcome in its favour and initially the NGT said that the government is diligent enough to conduct EIA and thereby dismissed the petition. However today not much is known about the development of the case and no appeals were perhaps filed thereupon.

Conclusion
Many scientists have acknowledged and there are proven studies that show that the impact of climate change on Earth is a cause of concern and if not addressed in near future it could be catastrophic and today climate change is one of the biggest challenges facing countries across the globe. The effect was being observed since the last few decades but in recent past the projections as well as the predictions reveal that if it keeps going at the same place it could lead to is repairable loss and affect the lives of people.

Hence climate change has been fairly described as a "super wicked problem" because of the fact that time is not costless, so the longer it takes to address the problem, the harder it will be to do so.[27]

Today on the global stage, Greta Thunberg jolted the international consciousness by highlighting the callous and selfish development at the cost of the environment. More recently, sixteen child petitioners including Greta Thunberg and Ridhima Pandey filed a complaint against Argentina, Brazil, France, Germany and Turkey at the UN as these countries were unable to tackle the climate crisis which constituted a violation of child rights (Convention on the Rights of the Child).[28]

The Indian legislature, unfortunately has not made any law and addressed climate change as such (though there are some policies which are related to it). The reason behind this is perhaps that the politicians do not consider climate change in their political manifestos due to vote bank politics. 
It won't be wrong to say perhaps that at the time when ecological crisis is impending upon the whole world the governments are deviating, abdicating and ignoring the public trust responsibility (which is sovereign to them) to act and safeguard the climate for current and future generations.

Coming to judiciary, taking cue from other countries and also from the evolving constitutional understanding of Indian Supreme court by expanding the meanings of A.48A and A.51 read with the fundamental right guaranteed under A.21 a valid argument clubbed with PTD can perhaps be a game changer in this regard.

It has been observed in the recent past that the position of Indian Supreme Court vis a vis age old laws corresponding to LGBTQ rights or gender equality in terms of entering temples for instance which deserved no presence in the 21st century has been worth appreciating. Hence it would be a great opportunity for the courts to deal with this issue and balance larger public interests on the lines of intergenerational equity with that of the private interests.

Finally, an effective implementation of the Paris Agreement and climate change action plans would certainly strengthen India's position in the international arena in years to come.[29] And this article has tried to convey that this ancient doctrine as it has evolved to create modern governmental fiduciary trust obligations is perhaps a rational and viable vehicle to apply to this extraordinary crisis like climate change. 

Earth provides enough to satisfy every man's need, but not every man's greed - Mahatma Gandhi

References:
  1. Two sections of this commentary, Evolution of the Public Trust Doctrine and The Atmosphere as Public Trust Asset, contain extensive quotes and citations from the Brief for Amicus Curiae Law Professors, Alec L., et al. v. Jackson, 863 F.Supp.2d 11, 15 (D.D.C., 2012) in the drafting of which Professor McGinley participated
  2. Ibid
  3. http://www3.weforum.org/docs/WEF_Global_Risks_Report_2019.pdf
  4. ISBN 978-3-030-02662-2 (eBook), https://doi.org/10.1007/978-3-030-02662-2
  5. 2019 SCC Online NGT 843
  6. MC Mehta v. Kamal Nath (1997) 1 SCC 388, p 413
  7. MC Mehta v. Kamal Nath, https://indiankanoon.org/doc/1514672/
  8. (2009) 3 SCC 571
  9. 146 US 387(1892)
  10. Supra note 1
  11. Robbins v. Department of Public Works 244 NE2d 577
  12. National Audubon Society v. Superior Court of Alpine County 33 Cal 3d 419
  13. 161 U.S. 519 (1896)
  14. 206 U.S. 230, 237 (1907) 
  15. Daniel Bodansky, The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections, 49 Arz. ST. L.J. 689, 696 (2016)
  16. Massachusetts v. EPA, 549 U.S. 497 (2007)
  17. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011)
  18. Juliana v. United States, No. 6:15-cv-1517-TC, 2016 WL 183903
  19. Friends of the Earth v. Canada, [2008] F.C. 1183 (Can. Fed. Ct.)
  20. Leghari v Fed'n of Pakistan, W.P. No. 25501/2015 (Lahore High Ct.) (Sept. 4, 2015) (Pak.).
  21. Gbemre v. Shell Petroleum Dev. Co. Nigeria [2005] AFR. HUM. RTS. L. REP. 151 (F.H.C. Nigeria)
  22. Greenpeace New Zealand v. Northland Reg'l Council [2006] NZHC CIV 2006- 404-004617 at [57] per Williams J. (N.Z.); Genesis Power Ltd. v. Franklin Dist. Council [2005] NZRMA 541 (N.Z.).
  23. Urgenda Found. v. Netherlands (Neth.)
  24. 339 F. Supp. 3d 1062 (2018)
  25. https://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf
  26. https://economictimes.indiatimes.com/news/environment/global-warming/indian-student-ridhima-pandey-among-16-children-suing-countries-for-climate-change/articleshow/71276686.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
  27. Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 Cornell L. Rev. 1153 (2009)
  28. https://www.unicef.org/press-releases/16-children-including-greta-thunberg-file-landmark-complaint-united-nations
  29. Arindam Basu,Grasping Climate Technology Transfer: A Brief Discussion on indian Practice, Vol 23 pp 51-59, JIPR, January 2018
  30. P. Leelakrishnan, Environmental Law in India, 3rd Ed, 2010
Online Resources:
  • Heinonline
  • Manupatra
  • SCC Online
  • Westlaw

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