William & Mary Environmental Law and Policy Review


Kacie Couch


The cliffs of California are dissolving.2 Glaciers in Colorado and Montana are dissolving.3 Islands in Louisiana and Alaska are dissolving.4 America as we know it is dissolving; twenty-one youth plaintiffs that face a future with less liberty and independence than generations before them claim that federal government inaction in the face of climate change is to blame.5 Those plaintiffs, in the landmark case Juliana v. United States, sought judicial declaration of a federal public trust and substantive due process right to a stable climate system.6 In proceedings, Judge Anne Aiken of the District Court of Oregon declared a newly recognized fundamental right to a habitable climate and a federal public trust in the atmosphere in favor of the plaintiffs,7 but in a recent two-to-one decision the Ninth Circuit reversed and remanded with instructions to dismiss, holding that the plaintiffs lacked standing before the court.8

Juliana exemplifies just one of the growing number of Atmospheric Trust Litigation suits that have steadily gained recognition throughout the United States (and throughout the world)9 in the past decade.10 Atmospheric Trust Litigation, or ATL, is a litigation strategy that seeks to utilize the courts to compel the government to more effectively regulate and reduce greenhouse gas emissions.11 Specifically, litigants hope to compel reduction of carbon dioxide (“CO2”) emissions to atmospheric levels under 350 parts per million, which scientists believe could minimize the effects of climate change that will otherwise disproportionately impact future generations.12

While the plaintiffs’ loss in Juliana might seem bitter to those who wholeheartedly believe in ATL’s objective, this Note argues that Juliana’s loss might more appropriately be described as bittersweet. A favorable determination under the plaintiffs’ pleadings could conceivably have produced an unwelcome remedy: federal preemption over state public trust doctrines.13 Stemming from the Constitution’s Supremacy Clause, the doctrine of preemption stands for the principle that federal law supplants any state law or regulation that is “inconsistent” with federal law.14 Should a federal public trust be found to exist that is at odds with state definitions of the public trust, many issues of preemption could arise. For example, preemption of state authority over the public trust could hinder cooperative environmental federalism and erode principles of state sovereignty by impairing states’ abilities to regulate traditional state uses of waterways and other public trust resources.15 Furthermore, preemption could prevent individuals from advancing certain common law environmental claims in federal court.16

Therefore, Atmospheric Trust Litigation remains risky if wielded improperly, as Juliana arguably did—but that does not preclude ATL’s beneficial use in future lawsuits. In consideration of the issues raised in Juliana, this Note argues for a revision of the Atmospheric Trust Litigation strategy in federal court. This proposed revision will more effectively protect the common law rights of individuals and preserve state law while simultaneously compelling recognition of a federal substantive due process right to a livable atmosphere through a state special solicitude case.17

In Part I, this Note discusses the principles behind the public trust doctrine and details the current state of Atmospheric Trust Litigation, ending with an analysis of the Juliana decision. Part II argues that the Ninth Circuit ruled correctly in Juliana, because recognition of a federal public trust could endanger principles of federalism and put at risk the more fundamental objective that Atmospheric Trust Litigation plaintiffs fight for. This Note then offers potential revisions to federal Atmospheric Trust Litigation pleadings that could remedy those issues. Part III lays the foundation for a state special solicitude Atmospheric Trust Litigation case, building on what has been learned from Juliana and prior Atmospheric Trust Litigation cases, that would meet the elements of standing after the Juliana decision and could pave the path to a cleaner, healthier atmosphere for current and future generations.