Opinion: Is our atmosphere a public trust?

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Dave Dickey

Dave Dickey

It’s a good-news-bad-news story.

The good news is that President-elect Donald Trump bypassed vocal climate change contrarian Myron Ebell to head the Environmental Protection Agency.

The bad news – at least if you believe that global greenhouse gas emissions are accelerating climate change on the little blue ball we all call home – is that Trump has instead tapped Oklahoma Attorney General Scott Pruitt, a man who has been a constant thorn in the side of the Obama administration with a string of lawsuits opposing emissions standards.

In recent weeks, Trump appeared to be softening his campaign’s anti-climate change rhetoric. In late November, he told The New York Times editorial board that he had an open mind to last December’s historic Paris climate change accord and that he was looking into it.

But if personnel is policy, then Trump’s pick of Pruitt is sounding alarm bells among climate change believers.

On Dec.11, I think Trump tipped his hand in an interview with Fox-TV’s Chris Wallace. Trump told Wallace that he is “very-opened minded” on the question of whether climate change is real or not.

But then he totally disregarded the scientific community, who at large believes it has the facts that climate change is real, in saying: “Nobody really knows… It’s not something that’s so hard and fast.  I do know this: Other countries are eating our lunch.”

And THAT is Trump’s truth. Regulations – like President Obama’s Clean Power Plan, which is designed to lower U.S. emissions to meet objectives of the Paris accord – could get in the way of the corporate bottom line.

I think the reason that Trump recently invited former Vice President Al Gore, a leading climate change supporter, for a little sit down is to look for intel on how climate change folk think, in order to better thwart their efforts.

And there’s this disturbing nugget: Trump’s transition team has asked for a list of anyone who has voiced support for climate change.

When asked directly why the list was being compiled, Trump’s team refused to comment.

I get Trump’s emerging position. Profit comes first. Even if it has long term consequences for the planet’s climate. Is there anyone in the Rebel Alliance able to stand up to the Empire? (Yes, I like Star Wars.)

Like so many, many issues, climate change policy ultimately will be decided in the courts. I buried the lead in this commentary, but here it is: A group of — wait for it — teenagers and their lawsuit may hold the keys to the climate change question.

The lawsuit (Kelsey Cascadia Rose et al. v. United States of America et al. Case No. 6:15-cv-01517-TC) claims that, when it comes to climate change, the federal-government violated the 1892 public trust doctrine — a case where the Supreme Court ruled (Illinois Central Railroad Company v. Illinois 146 U.S. 387) that Illinois could not give a railway company some prime real estate along Lake Michigan.

The 1892 case codified policy in the U.S. to a doctrine dating back to the time of the Romans:  to whit, some resources must be held in trust by the government for public use and cannot be sold or bartered away to private entities.

In that case, the resource in question was navigable waters on Lake Michigan.

In recent years, the doctrine has been used to protect things like beaches and water.  But Kelsey Cascadia Rose makes the stunning argument that the Earth’s atmosphere is a public-trust and that the federal government has done little to protect it.

In ruling that the case could move forward over the strenuous objections of energy-industry and government lawyers, federal U.S. District Judge Ann Aiken wrote:

This is no ordinary lawsuit… This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed. The questions before the court are whether defendants are responsible for some of the harm caused by climate change, whether plaintiffs may challenge defendants’ climate change policy in court and whether this court can direct defendants to change their policy without running afoul of the separation of powers doctrine… It alleges that defendants’ actions and inactions – whether or not the violate any specific statutory duty – have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitution rights to life and liberty.

To state the obvious, a successful defense of the lawsuit to the Supreme Court would be ground breaking, impacting the policy of numerous federal agencies.

Expect team Trump to oppose the lawsuit with a vigor that makes the first Rocky Balboa-Applo Creed fight look like a love fest.

The opening bell – uh, make that arguments – could come as soon as next summer.


About Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.

This column reflects the writer’s own opinions and not those of Big Ag Watch

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