EarthFix Conversation: Using Environmental Law To Combat Climate Change

Can environmental laws protect the planet from climate change? They haven't so far, according to University of Oregon law professor Mary Wood. But she says one day they could.

Wood is the founder of UO's Environment and Natural Resources Law program. She developed a new legal approach to reducing carbon emissions that has resulted in numerous lawsuits filed on behalf of children. The suits ask the courts to order state action on climate change. There's one case awaiting a decision from the Oregon Court of Appeals. Similar suits were filed in all 50 states.

Wood sat down with EarthFix reporter Cassandra Profita to talk about this legal strategy and how well environmental laws work when it comes to climate change.

EarthFix: Professor Wood, tell me about this legal strategy known as atmospheric trust litigation.

Mary Wood: Well atmospheric trust litigation applies the public trust doctrine, which is the oldest principle in environmental law. And that doctrine says that the government acts as trustee of our crucial resources like navigable waters and wildlife. And all I’ve done is take that principle and apply it to the atmosphere as one of our most crucial resources. And as we know the atmosphere is being flooded with carbon dioxide pollution, and so the public trust says, ‘Government, as trustees you must protect the atmosphere and your fiduciary obligation as trustee would be to reduce the carbon pollution to the amount that the best science says is necessary to protect the atmosphere and our climate for the future of our children.’

EarthFix: What have the reactions been to that strategy?

Wood: When I first thought of it, people were still putting a lot of faith in the statutes and the regulations, and they thought the Clean Air Act would solve this problem or potentially listing a species under the Endangered Species Act or carbon cap-and-trade schemes and those have all fallen away.

Another group of people put a lot of emphasis in the international mechanisms, and now that has almost completely fizzled as a really realistic forum for global carbon reduction. It’s clear that there has to be domestic will in place first and then there’s the potential for international agreement.

EarthFix: What’s the status of the lawsuits that came out of the strategy you developed?

Wood: The lowest courts dismissed the lawsuits on the grounds that it wasn’t their job to interfere with climate science. And just a few years ago, people were expecting the legislatures and the agencies to step up to their jobs. And so it’s understandable that the very lowest courts dismissed some of these cases. Not all were dismissed but a few were, and now those cases are up on appeal. The appellate courts are sitting on these cases in a much different position because now we know climate is just so urgent, we’re losing time to take action and also the courts know the other two branches have failed. So the appellate courts are really in a different posture and I think we’re just sitting tight wondering if they appreciate the fact that they’ve really got the planet on their docket.

EarthFix: Are environmental laws effective in addressing climate change? Where do they shine and where are they failing?

Wood: Environmental laws were passed in a completely different era, and they’ve got many failings, I think, that are really showing up in climate. One of those is that the agencies implement the laws, and the agencies have become terribly politicized on the state level and on the federal level. So the laws are only as good as the agencies that implement them and if the fossil fuel industry has a vice grip on the Legislature but also the executive branch, then we’re just not going to see a lot of action under those environmental laws.

Another thing is environmental laws are very micro and procedural. There’s no environmental law that demands the approach that we need to take to climate, which is a macro approach. We’re not going to get carbon reduction on the order we need just by regulating certain sectors. We need to actually transform our transportation, energy, food sectors and that’s going to take government using all the tools it has available at every single level of government and people participating and businesses participating. So we’re talking about a whole mix of almost portfolio measures, if you can think of it that way, and one statute regulating one type of action is not going to bring us there.

EarthFix: Which environmental laws have you seen that are effective in protecting the environment?

Wood: That would be a hard one. I think most environmental laws have failed to protect the resource they were designed to protect. And the reason is the agencies have this permitting authority under most environmental laws. And so they can issue permits to allow the very damage that the law was designed to prevent. And most agencies have taken that permit system and allowed it to swallow up the purposes of the statute so they’re allowing damage on a routine basis and that’s sort of what their job has become. So really the most effective one is probably the Wilderness Act, because it’s just a boundary-based system, and it says conserve the resources within for these purposes and it doesn’t have a permitting scheme.

EarthFix: Is there anything else you’re working on now that you’d want to share?

Wood: I’m working on some sort of approach to hold fossil fuel companies accountable for their damage to the atmosphere. That’s a very interesting inquiry because if we had an oil spill and a company responsible for that they would have to pay natural resource damages under the very same public-trust approach that animates these other atmospheric trust lawsuits.

So if you consider that these companies, and there are about 90 major fossil fuel companies that are responsible for most of the emissions from the beginning of the industrial revolution –- their share of emissions has all been documented now –- if you just look at that and think if this was an oil spill, they’d be responsible for damages and that money would go into restoring the resource they damaged. Why can’t we apply that same approach that we would apply as a matter of course in rivers and the ocean, why can’t we apply that to the atmosphere?

I am looking at possible strategies and mechanisms for holding these companies responsible for that kind of damage. Someone’s got to pay the bill. These companies in my view are deep pockets that ought to be looked to.

Mary Wood is the author of Nature's Trust: Environmental Law for a New Ecological Age, published by Cambridge University Press.Copyright 2014 EarthFix. To see more, visit earthfix.kuow.org.