The Atmosphere Is a Public Trust. So What?

The last frontier of citizen climate litigation has been state-based litigation alleging that states have a public trust obligation to mitigate climate change. As I have previously noted, I’m skeptical that these cases are viable. A decision last month by the Supreme Court of Alaska suggests that such skepticism is well-founded.  Kivalina Aerial View

In Kanuk v. Alaska, a number of minors living in Alaska brought suit, claiming that Alaska had violated its public trust obligation to protect the atmosphere. While finding that the plaintiffs had standing, the Court held that the claims were non-justiciable due to “the impossibility of deciding [them] without an initial policy determination of a kind clearly for nonjudicial discretion.”

Following the lead of the decision in American Electric Power v. Connecticut, the Court stated that:

The limited institutional role of the judiciary supports a conclusion that the science- and policy-based inquiry here is better reserved for executive-branch agencies or the legislature, just as in AEP the inquiry was better reserved for the EPA.

Is there any guarantee that courts in other states will follow the Alaska Supreme Court’s lead? Certainly not. However, I’ll admit to being greatly surprised if they don’t.

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