Yves here. We will all miss Bill Moyers, who in an important act of public service came out of retirement twice at viewer request. I was lucky enough to appear on his show twice. Bill is both a gentleman and a true pro, and went to great lengths to make his interviewees look good.
His final show looks forward in an important way, to the efforts of a young group of climate change activists called Our Children’s Trust to use well-settled case law as the basis for suing governments for their failure to combat change.
From the start of the transcript:
BILL MOYERS: Welcome. This is our final broadcast. But you haven’t seen the last of us — we’ll continue to report and comment at our website, BillMoyers.com, I hope you’ll join me there for a webchat later this month.
We end our broadcast series on an encouraging word from the emerging generation. Remember Kelsey Juliana from Eugene, Oregon? She’s 18 years old, and co-plaintiff in a lawsuit spearheaded by the organization Our Children’s Trust, which claims that Oregon is not doing all it can to slow down global warming and protect the future. It’s one of several such suits around the country based on the doctrine of public trust, which goes back to ancient Rome…
Further hearings in the Oregon case are expected in a couple of months. The idea, which has come to be called atmospheric trust litigation, is catching on, thanks to this very influential book, “Nature’s Trust,” by the aforementioned legal scholar Mary Christina Wood…
Let’s talk about some of those cases that have been filed by Our Children’s Trust. Exactly what is the purpose of those particular suits. What do they want?
MARY CHRISTINA WOOD: Every suit and every administrative petition filed in every state in the country and against the federal government asks for the same relief. And that is for the government, whether it’s the state of Tennessee or the state of Oregon or the federal government to bring down carbon emissions in compliance with what scientists say is necessary to avert catastrophic climate change.
And so the remedy in the suits pending is for the courts to order a plan, simply order the legislatures and the agencies to do their job in figuring out how to lower carbon emissions. So the courts would not actually figure out how to do that. That’s the other branch’s job. It’s just that they’re not doing it. And they probably won’t without pressure before we pass crucial tipping points.
BILL MOYERS: A plaintiff in one of the early suits, 16 years old at the time, sued the federal government, quote, “…for making decisions that threaten our right to a safe and healthy planet.” Now, where does it say anywhere in law that the government serves as the trustee of the atmosphere and that it’s violating its most compelling duties by failing, in the words of this young man, to protect the atmosphere from climate change? Where do you find that?
MARY CHRISTINA WOOD: You find that in case law, going back to the beginning years of this country. The Supreme Court, the US Supreme Court, has announced the public trust doctrine in multiple cases over the years. And again, it’s in every state jurisprudence as well. And so this is not statutory law.
I think people are so accustomed to our statutory system, they always say, as you just did, where can we find it written down in a statute? Well, this is actually the foundation of all laws. Professor Gerald Torres has a wonderful quote in his writings, saying this is the slate upon which all constitutions and laws are written. And that is the approach most courts (in this country and other countries) take in describing the public trust.
I hope you’ll watch the show in full. If you are time-pressed, you can find the transcript here.
Bill Moyers will be missed. His retirement is a sad day for American journalism.
Yes, we can hope that someone will pick up the torch.
I admire Prof. Wood and I appreciate her efforts. However, I see little support for her views in the Federal Constitution and since our Federal judiciary prides itself on its lack of imagination, I see scant hope that the Climate Trust Doctrine will thrive in the Federal courts. OTOH, some state constitutions explicitly provide for such a possibility. For the forseeable future, the Federal judiciary is a dead-end for activism of all kinds. The states are where the action will be. The interesting questions will arise when Big Business uses the Supremacy Clause as a sword to attack rulings based upon state constituional principles.
Equally interesting will be the so called trade agreements, TTP, TTIP and TiSA if any or some combination of them are signed. One wonders what will become the effective purpose of the Supreme Court if and as these trade agreements supersede national laws and international treaties, particularly about climate change and different forms of pollution, now in place. Of course the court hardly provides any protection as it is, but still.
I keep reading that signing is a big if, but then these agreements are now surfacing even in the main stream
mediastenography corps which indicates that the administration is either in la-la land altogether or has some justification for confidence.
And stranger things have happened. I found Angela Merkel’s compliance with US sanctions against Russia – even though they went wildly opposite to Germany’s core interests, care for a spot of war anyone? – to be equally dumbfounding.
I should have said, TTP, TTIP, TiSA AND the one -like the war- we haven’t heard about quite yet.
Yes, that is a good point. The federal judiciary is retrogressive in all areas today but one: private property rights. And since corporations are now super-people under prevailing Federal constitutional law, I fear we may see SCOTUS decide that it is perfectly legitimate to subjugate the state — and by extension, the People — to the private property rights of transnational corporations. In this one area, the Federal judiciary is rabidly activist. Forget civil liberties, forget the common good, forget freedom and liberty, private property has been elevated to the pinnacle of our legal system.
Thank you for your comments, Brooklin. You have raised an enormously important issue. And no, I don’t believe this administration, their corporate sponsors, and their corporatist allies in Congress, the courts and the media, have given up on “Fast Track” passage of their TPP, TTIP and TISA “agreements”, if they can even be objectively characterized as “agreements” in this environment of corruption and secrecy.
Scientists are not a fourth branch of government and whatever such scientists, individually or collectively, may think “necessary” is entirely irrelevant to any legal obligations of government.
To the extent this is true, it is good news.
It is not the function of the judiciary to promote any particular political point of view about what the law should be (a duty of the legislature). It is only the function of the courts to determine whether any such point of view expressed in legislation, if challenged, does not violate fundamental law.
Hopefully a legal scholar will correct me, but I believe appeal to the public trust doctrine would be more effective in Great Britain than here in the states. My understanding is that English jurisprudence is more based on concepts of legal rights than on specific statutory language, while in the U.S. the courts tend to focus on the letter of the law. Thus, while the public trust doctrine is part of the social contract, absent clear expression in the law, it is a weak argument on which to build a case. On the other hand, I consider the tactic of issuing children to bring these complaints to be brilliant. No force on earth is better at shaming adults into doing the right thing than conscious children. I fervently hope they win. And I will miss the downhome plainness of Mr. Moyers interviews.
And I will miss the downhome plainness of Mr. Moyers interviews. Absolutely! That and his honest clear sightedness which was behind what introduced many of us to NC and to early Glen Greenwald for example.
Not sure I agree. My CalPERS suit, which was procedurally similar (a writ of mandate, or in most states, a writ of mandamus) was argued on both sides just about entirely on case law.
There is no case law establishing the Public Trust Doctrine in Federal law. Prof. Wood admirably patches together various bits of dictum from cases but, when push comes to shove, there is simply is no Federal Constitutional basis for the Public Trust Doctrine. The Property Clause and associated case law are clear that Federal property can be disposed however the elected branches of government see fit. And this SCOTUS is probably the least likely ever to craft a new doctrine of communal property rights without a firm if not compelling constitutional foundation. I hope I’m wrong about this and I encourage Prof. Wood’s efforts. I believe, however, she will find far greater success in less retrograde state judiciaries and in states with a clear constitutional basis for the Public Trust doctrine.
The first case is in Oregon, so many of these cases are being pursued on the state level, so they would be a writ of mandamus.
Why would Bill Moyers have these people on his show? Why continue the War Against Plant Food?
Better hurry up and buy as much seaside coastal beachfront land as you can, if you haven’t already.