The regulatory aims of the EPA to curb CO2 emissions; the continued push for carbon cap and trade legislation; and, the ongoing attempts by the international body politic to arrive at an operating framework to address climate change, all of these are now joined by our children’s efforts to get the judiciary to act to protect the planet. Well, maybe not your child or mine, but some youths throughout the country are now plaintiffs in various lawfare battles intended to obtain from the courts what climate change activists cannot seem to accomplish through the legislative and regulatory processes.
Alec Loorz is an example of one such child. He is a 16-year-old Oak View, CA climate change activist. According to Alec the youth have no political power, nor the ability to hire corporate lobbyists, nor the right to vote. But they do have a voice and Alec is using his to sue the federal government to protect the climate.
However, regardless of the flattering write-up Alec gets in the Ventura County Star, the legal framework for his lawsuit is not only not his idea, it’s also not a new one. As the VCStar notes, Alec is helped in his legal efforts through the aid of attorneys and a nonprofit, Our Children’s Trust. Looking a little more closely at those who have helped Alec may reveal where he came up with the fine idea to sue our government to protect the atmosphere.
In a related article at ABC News, Mary Christina Wood, a professor at the Oregon University of Law is credited as having created the legal framework for suits such as Alec’s. The following statements are attributed to Professor Wood in the ABC article:
What is needed, Wood said, is a sweeping challenge to the government’s failure to address climate change. And having young people as plaintiffs in the cases gives added moral authority, she added.
“We should be getting youths in front of the courts, not polar bears,” Wood said…
But Professor Wood isn’t just good for a quote in a news article on the topic or for having developed a legal concept. Wood is a rather passionate environmental activist and has written extensively on the threat of climate change to the world and on the legal strategy of utilizing the judiciary to force government into action to protect the environment relative to climate change. She is also the founder and current faculty director for the Environmental and Natural Resources Law Program at the Oregon University of Law.
Professor Wood’s legal theory, upon which Alec’s suit relies, can generally be summarized to claim that the atmosphere, along with all other natural resources, make up Nature’s Trust. Government as the trustee of Nature’s Trust is obligated to protect the trust. Climate change represents an imminent threat to the trust. Therefore, where government has failed to act, it should be forced to address the threat by judicial order.
Wood has written on this particular topic and the legal framework since at least 2007 and of note, has drafted a proposed Executive Order on Climate Change. This order would address climate change as a security threat to the nation and its citizens. It would allow the president to mandate carbon reductions and require, among other things, that all federal agencies –
“develop climate adaptation plans to adjust their policies and programs to climate change in order to best secure the safety, health, and welfare of the American citizens.”
“make transparent all difficult choices necessitated by emergency conditions ….developed in close partnership with state and local authorities, and with citizen input.”
Though the order does not address the specific actions that the citizens of the nation would have to take to also address climate change, imagine the implications if each and every federal agency with which the average citizen must deal imposed guidelines specific to climate change to the citizen’s interaction with that agency.
Actually, little imagination is necessary. Professor Wood has made it rather clear in her writings and speeches what she thinks are the citizenry’s obligations in defending the world against climate change. In a 2007 speech to the Eugene City Club, Wood suggests that the citizenry’s response to climate change should be on a par with the actions taken by our greatest generation after Pearl Harbor. In discussing what American’s did to support the country during a state of war, with the implication that they should do no less to address climate change catastrophe, one specific quote sticks out from her speech –
“Communities planted victory gardens to grow food locally so that the commercial food supplies could be sent to the military. Consumers made do with the bare minimum.”
Additionally, in this same speech, Wood made clear how the concept of private property fit within the framework of Nature’s Trust –
“…by defining Nature in familiar property terms, the trust frame reconciles private property rights with environmental protection. The discretion frame doesn’t do this. It portrays environmental resources as nebulous features of the world we live in. Private property rights carry the day in our agencies simply because they draw upon a language of property that is so deeply embedded in our national culture. To confront any environmental crisis today, including global warming, we have to be clear on how public resources and private property rights fit together in the scheme of things. The trust frame is itself a property concept, so rather than pitting environment against property rights, you are fitting Nature into the system of property rights. The Nature’s Trust frame is not anti-property rights. To the contrary, it affirms our collective property rights in assets, like the atmosphere, that support humanity. In securing our public property, the trust also anchors our entire system of private property rights. All private property depends on Nature’s infrastructure.”
To make clear, Wood suggests that her concept supports private property rights. However, upon scrutiny it appears those rights are subservient to the collective rights of the public. Yet all of Wood’s writings and speeches on the topic of Nature’s Trust amount to no more than legal theory.
It is where her legal framework has led us today that should be somewhat disconcerting. Alec Loorz’s lawsuit is not an editorial or a speech. It is a legal claim being made against the federal government. Through the help of the Oregon nonprofit, Our Children’s Trust, many more suits are being filed in various states under the same theory with several of the plaintiffs being minors. Though Professor Wood doesn’t appear to be directly tied to either the plaintiffs in these cases or Our Children’s Trust, it is interesting to note that the registered agent for the nonprofit, David Atkin, an attorney in Eugene, was also an adjunct professor at the Oregon University of Law. He taught courses for the same law program, the Environmental and Natural Resources Law Program, founded and still directed by Professor Wood. In any case, Wood’s legal theory has now become a legal claim as it appears generally within each of the claims made by the plaintiffs.
It’s past 11 o’clock. Do you know where your children are? If they are in court fighting against climate change, you may want to call Professor Wood and ask her to send them home.