Draft Atmospheric Trust Litigation Amicus Brief

Abstract

The following is the original draft of an amicus brief submitted to the United States Court of Appeals, District of Columbia Circuit. The brief, submitted by thirty-three professors of environmental and constitutional law, was written in support of the Plaintiffs/Appellants in the case of Alec L., et al. v.Gina McCarthy, et al. (No. 13-5192).

The Plaintiff minors, acting through guardians ad litem and in conjunction with environmental non-profits Earth Island Institute and WildEarth Guardians, brought the case as beneficiaries of a constitutionally mandated, federal Public Trust Doctrine. Plaintiffs note the existence of an atmospheric emergency, caused by greenhouse gas emissions, that threatens this nation’s atmospheric resource and other public natural resources. They assert that, because of the urgent need for action, and consistent with its fiduciary obligations under the constitutional Public Trust Doctrine, the federal government must be required to protect the nation’s atmospheric resource by developing and implementing a comprehensive climate recovery plan.

This brief explains the theoretical and jurisprudential connections between the Public Trust Doctrine (PTD) and the equally ancient Reserved Powers Doctrine. It explains how both doctrines reflect fundamental constitutional principles, focusing particularly on the doctrines’ foundations in the Preamble, Article I’s vesting clause, the anti-nobility clauses, the Equal Protection clause, and Fifth Amendment substantive due process. It explains, further, why the atmosphere must be treated as a public trust resource and why the Public Trust Doctrine imposes an affirmative preservation duty upon the federal government under present circumstances.

Because of the number and complexity of the constitutional issues involved in this case, the original draft of the amicus brief exceeded the word and page limits prescribed by court rules. Accordingly, Amici are submitting a condensed version of this brief to the D.C. Court of Appeals. However, because Amici believe that the relevant theoretical, historical and constitutional arguments cannot be fairly and fully conveyed in that condensed format, and because court personnel, lawyers, legal scholars and other interested individuals might benefit from a more complete exposition of the issues, we have made this complete draft of the original arguments available through the Social Science Research Network.

Keywords: public trust doctrine, reserved powers doctrine, atmospheric trust litigation, climate change, global warming, Alec L. v. McCarthy, intergenerational justice, generational sovereignty