The Public Trust Doctrine: Spurring Government Action on the Environment

JoshEbersoleBy Joshua Ebersole, GIELR Staff

The recent passing of renowned environmental law pioneer Professor Joseph Sax creates an exceptional moment to revisit his greatest legacy: the expansion of the public trust doctrine. The public trust doctrine is a concept rooted in ancient Roman and English law. The tenet of this traditional common law doctrine is the public interest in navigation and, to a lesser extent, fishing. The interest is secured by holding or preserving the properties of the seashore and running water for the benefit of the public. Property held in public trust cannot be privately held.

The doctrine carried over in American law to navigable waters and the seashore between high and low tide. Firmly establishing the doctrine in American law was the 1892 United States Supreme Court opinion in Illinois Central Railroad v. Illinois, 146 U.S. 387. The Court invalidated the Illinois Legislature in granting the Illinois Central Railroad ownership of 1,000 acres of Lake Michigan shoreline, holding such land to be “held in trust for the people of the state.” Today the doctrine exists in every state, including in at least a dozen states constitutions, but the trust obligation varies. At the federal level, the status of the doctrine is currently being parsed out in the courts.

In 1970, Sax published his seminal vision for the expansion of the public trust doctrine to protect the environment beyond the seashore. The same year, 20 million Americans participated in Earth Day, President Richard Nixon signed the Clean Air Act, and Congress created the Environmental Protection Agency. Sax initially proposed expanding the doctrine to include the air, non-navigable water, and all natural resources. Since then, Sax and others have expanded the vision of the doctrine to include lands management, wildlife, ecological resources, and cultural resources. Under Sax’s vision, citizens would have standing in the courts to bring actions for the protection of the public trust. They would take the lead in environmental law by balancing the general interest of the public against government, business, and individuals who threaten harm to the environment. Under the doctrine, Sax advocated for the courts to take a “hard look” at environmental impacts.

Credit: NASA/Goddard Space Flight Center/Reto Stöckli

Credit: NASA/Goddard Space Flight Center/Reto Stöckli

Following less than a decade after the publication of Sax’s expansive vision, the California Supreme Court handed down a broadening of the doctrine in its opinion in National Audubon Society, 33 Ca.3d 419 (1983). The Audubon Society sued the State of California for allowing Los Angeles to tap tributaries of Mono Lake. While Mono Lake was a navigable body subject to the traditional public trust doctrine, its tributaries of creeks and streams were not. The court expanded that state’s doctrine, championing Sax by name, holding that non-navigable waters merit the same protection as navigable waters under the doctrine.

More recently, the Pennsylvania Supreme Court handed down a powerful embrace of the doctrine in striking down a statute that promoted fracking. Pennsylvania has become one of the central battlegrounds over the controversial practice of hydraulic fracturing to release natural gas from shale deposits often found thousands of feet below aquifers. In striking down the Pennsylvania Oil and Gas Act, which promoted the exploitation of the Marcellus Shale, the court held the air, groundwater, and other resources are held in public trust and that all levels of government have a fiduciary duty to protect these assets.

Today, the doctrine is found in many countries, such as India, Pakistan, the Philippines, Uganda, Kenya, Nigeria, South Africa, Brazil, Ecuador, and Canada. A famous example on the international level is the case of Manila Bay. Philippine government agencies were given the duty to protect Manila Bay, but failed to do so. The Supreme Court of the Philippines relied on the public trust doctrine in ordering the government to carryout their responsibilities and clean up Manila Bay.

Some see the future of the public trust doctrine as a means of using the courts to force government action on climate change by an atmospheric trust. Under this view of the doctrine, citizens have standing to ask courts not to impose limits on greenhouse gases, but order the legislature and executive branches to carry out their duty of protecting the natural resources everyone relies on. In such cases, courts commonly hold the issue to be one of public policy for the other branches of government, failing to address the underlying issue that the other branches are neglecting their responsibilities to protect these resources.

Soon we will have a better view of how the federal courts, if at all, will use the common law public trust doctrine to order the federal government to carryout their responsibilities. In 2012, the United States District Court for the District of Columbia dismissed the case of Alec L. v. Jackson, No. 11-cv-2235. Plaintiffs alleged that, “six federal agencies had violated their fiduciary duties to preserve and protect the atmosphere as a commonly-shared resource under the public trust doctrine.” In dismissing the case, the court cited the matter to be political and best suited for the executive and legislative. The court held that the common law public trust doctrine does not exist in federal law because it is supplanted by the Clean Air Act. The case is set for appeal as Alec L. v. Gina McCarthy and will be heard on Friday, May 2, 2014, at 9:30 A.M. before the United States Court of Appeals for the District of Columbia Circuit.

President Obama and Methane – Inconsistence or Strategy?

DSC_1012By Sam Lipson, GIELR Staff

On March 28, President Obama proposed a strategy to cut methane emissions from oil and natural gas production, landfills, and cattle. The proposal focuses on the acceleration of biogas development to recapture and reduce methane emissions from its largest sources. President Obama famously pledged to cut the United States’ greenhouse gas emissions 17% below 2005 levels by 2020. Simply put, this methane proposal is only a modest step in that direction. This effort is likely intended to set a tone for future regulation aimed to cripple the boom of natural gas production, rather than make an appreciable impact on current methane emission levels.

Although methane emissions make up just nine percent of greenhouse gas emissions, this number is expected to increase as natural gas production continues to rise. President Obama has generally encouraged this production because natural gas releases far less greenhouse gas emissions than burning oil or coal. But environmental advocates argue that because methane has a more severe effect on climate change, even at relatively small emission levels, natural gas production should be curbed. In light of President Obama’s 2020 pledge, it is likely his administration’s belief that methane emissions should be addressed now is due to the rise in natural gas production. Otherwise, attacking a source responsible for just nine percent of overall emissions seems incomprehensibly selective.

cow-grassThe administration’s effort is also voluntary, outlining methods to accelerate the adoption of biogas and other technologies to reduce emissions. Methane emissions are particularly prominent in agriculture, where the nation’s herd of 88 million cattle fart and eat their way to huge methane emissions. However, President Obama aimed this proposal at dairy farmers, despite dairy cows making up only nine million of the nation’s herd of livestock. The stated goal of the dairy industry effort is to reduce their methane emissions by 25 percent by 2020. But Professor Thomas Hertel, a professor of agricultural economics at Purdue University, does not expect the industry to reach this goal. Though the voluntary program reduces waste, creates jobs, and creates better manure, Professor Hertel recognizes that to reduce emissions drastically requires “more than letting the industry there’s an opportunity out there.”

So why target dairy farmers, and why set such lofty goals? My impression is that the Obama administration is aiming to create a voluntary regulatory environment that incentivizes methane emissions reduction to make it politically palatable for a larger impact reduction program down the road.  Given the current pace of legislative action, particularly on divisive issues, voluntary executive proposals may soften the impact of future efforts.

Corporations have been spying on environmental advocacy groups for decades, and rarely face any consequences

GIELR_LOGO1By Nayantara Bhushan, GIELR Staff

In 2008, Mother Jones published an article titled Black Ops, Green Groups revealing that major corporations had been spying on Greenpeace and other environmental groups for over a decade. From dumpster diving, to computer hacking, to undercover infiltration of a local chapter’s governing board, a private security company called Becket Brown International (BBI) had been stealing confidential information and selling it to corporations embroiled in environmental controversies. The revelations prompted the U.S. Greenpeace office to file a civil suit against BBI, bringing state claims of trespass, invasions of privacy, and misappropriation of trade secrets, as well as a federal RICO claim. No criminal charges were ever brought, though the evidence showed BBI had likely violated criminal laws.

A recent report published by the Center for Corporate Policy (CCP) found that corporate spying on environmental advocacy groups has only been expanding since the Mother Jones investigation. Entitled Spooky Business: Corporate Espionage against Nonprofit Organizations, the report documents all the known instances of corporate spying against environmental nonprofits. Much of the narratives are the same: a corporation, like Shell or BP, hires a private security group, usually made up of former FBI, CIA, or Secret Service agents, to gather confidential information on an advocacy group’s internal operations.

The report notes that despite the prevalent use of illegal and unethical tactics, corporations rarely face any consequences for their spying. Civil cases are either dismissed for failure to state a claim or, if successful in the lower courts, overruled on appeal. This is due in large part to the fact that private law is an inadequate remedy for the problems created by corporate spying. When courts are only willing to recognize economic harm as an injury, nonprofits have a hard time showing that they have been injured by corporate spying. Additionally, nonprofit groups have a hard time fitting their grievances into most private claims, because private law usually protects individuals’ rights. And governments are not prosecuting the corporations for spying. As a result, corporations have not been deterred from continuing their spying programs.

And that’s a problem. When corporations are allowed to spy on environmental activists with impunity, vital debate over environmental issues is stifled, while corporations are allowed to profit from violating the law. The CCP report proposes a number of solutions to the problem; for example, that Congress should hold hearings on the issue and that the United States should pass a federal statute criminalizing corporate spying on advocacy groups. All the proposed solutions involve government action of some sort, which makes sense. Corporate self-regulation has clearly failed.

Climate Change: The New WMD?

GIELR_LOGO1By Matt Purushotham, GIELR Staff

It seems that if you want someone in Washington to take an issue seriously these days, it must be framed as a threat to national security.

For instance, over the past few years, public leaders as varied as former Secretary of State Hilary Clinton, former Chairman of the Joint Chiefs of Staff Admiral Michael Mullen, and Senator Rand Paul, among others, have all referred to the national debt as a threat to national security.   The issue dominated the second half of President Obama’s first term, led to a government shutdown, and will return again.

The White House has learned from this experience, and it is deploying the same language with respect to climate change.  In a recent statement, Secretary of State John Kerry called climate change “the world’s most fearsome weapon of mass destruction” and declared it a threat to America’s national security.

Internationally, one of the biggest obstacles to urging rising powers like China and India to grow their economies more cleanly is that the United States was heavily dependent on dirty fuels during a comparable period of its own economic development.  For either the United States or China to make major steps toward addressing climate change, however, each nation will have to make the same commitment.  The two powers, which are the top two emitters of greenhouse gasses in the world, met in mid-February to discuss climate change.  Although no specific measures were announced, the countries committed to working to secure such results by the sixth U.S.-China Strategic and Economic Dialogue later in 2014.

In his 2014 State of the Union address, President Obama took the significant step of making a clear statement affirming that climate change is a fact.  In doing so, he acknowledged the reality that approximately 33 percent of the U.S. population still questions the validity of climate change.  This view is not limited to the fringe of the political spectrum; mainstream voices like Washington Post columnist George Will continue to question whether climate change is happening.  Perhaps in response, scientists continue to highlight the vast consensus on the issue.

Meanwhile, recent years have seen an increase in severe weather and drought.  Current projections predict a rise in sea levels and threats to coastal lands, islands, and areas only slightly above sea level, like much of highly populated Bangladesh. The country of 160 million people may have tens of millions of inhabitants that would be driven from their homes as a result of even a relatively modest rise in sea levels.

The military and intelligence community has been analyzing climate change as a global security threat for years.  In the 2014 Quadrennial Defense Review, the Pentagon identified climate change as a “threat multiplier,” which will lead to water scarcity, displace populations, and result in increased food costs.

Research institutes and non-profit organizations also frame climate change in national security terms.  The Truman National Security Project, a research institute whose Board of Advisors includes Anne-Marie Slaughter, John Podesta, and Madeleine Albright, among other distinguished advisors, features veterans who promote the security-related merits of renewable energy in an effort dubbed Operation Free.  A new non-profit group, American Security Project, whose Board of Directors is led by former Senator Gary Hart and includes business, non-profit, and former government leaders, is dedicated to addressing security threats stemming from climate change and related issues.  For instance, in addressing the current situation in Ukraine, the group produced a briefing note on the impact of Eastern Europe’s dependence on Russian oil.

So, if the White House, the overwhelming majority of scientists, the military, private groups and even China have agreed that steps must be taken to curb climate change, what will be done about it?

Enter Congress.  On Monday, March 10, 2014, thirty Democratic senators engaged in an all-night series of speeches about the need to take action on climate change.  Republicans have dismissed the speeches as “theater,” not policy.  Nothing in the reactions of Republicans, or even moderate Senate Democrats, offers hope for any near-term action.

The President pledged in the State of the Union address, that where Congress would not act, he would take action independently.  In November 2013, President Obama issued an executive order outlining planned action to address climate change.  The order establishes a number of intergovernmental groups to enhance information sharing and policy coordination.  In March of this year, the Environmental Protection Agency also issued new emissions standards for fuel and cars.  However, in order to make any changes to address the vast and real challenges recognized by scientists and the military, the President will need legislation passed by Congress.

Further steps to forge new international agreements on climate change will be doomed if the United States, by virtue of its domestic politics, is not in a position to lead.  The President has laid down a marker by identifying the problem as real.  Secretary Kerry has taken the additional step of recognizing climate change as a national security threat.  The question is: will it be enough to move Congress toward substantial action?

The results of the budget debates of the last few years are not encouraging, but perhaps they hold a valuable lesson that U.S. leaders may use to avoid similar results: frame climate change in a national security context.

Tax Relief for the Polar Vortex?

DSC_0994By Benjamin Brookstone, GIELR Staff

As winter draws to a close and the ever-sunny tax season nears, it’s time to assess how we fared in the cold once more. I will remember this winter for the night of January 7th. I was leaving dinner with friends and, unsurprisingly, it was cold when I walked outside. Except this time it was really cold, and the cold had a name: the “polar vortex.” At first, I thought this insidious phenomenon was another invention of the pun-happy Northeast, like “Snowpocalypse” in 2009. Little did I know, the “polar vortex” is real thing.

The polar vortex is a low-pressure area in the stratosphere that does not produce the reasonably-minded weather of the troposphere we are accustomed to. This semi-permanent system usually sits atop Northern Canada, Siberia, and Greenland. There is a reason Greenland has a town named “North Ice.”

But this year, the polar vortex decided to pay us a visit. Why? Every year there are distortions in the jet steam that locks in cold air around the poles. But this year, the distortion was more widespread and more bitter than usual. polarvortexThe jet stream drooped, widening a now misshapen circle. As the stream dipped into the United States, it locked in cold air further south than usual and we experienced wind patterns that normally encircle the poles. The vortex extended as far south as Memphis and Atlanta this year, catching many off guard. It’s not every winter that icicles hang from oranges in a Florida grove.

Luckily for those who suffered damage, there may be some relief available in the form of a casualty loss deduction in this year’s tax return. This year’s deduction may be especially important to taxpayers who spent much more than anticipated to keep warm. Section 165 of the Internal Revenue Code provides taxpayers with a deduction for any loss sustained during the taxable year that is not compensated for by insurance. Section 165 is designed to provide relief in case the taxpayer has suffered losses resulting from theft, capital assets, natural disasters, and more. In the case of extreme weather or other natural events, the Code covers losses that occur with “suddenness comparable to that caused by fire, storm or shipwreck.” The loss must be extraordinary–termite damage won’t do, although the Code has no way of distinguishing a mutant termite from one that is merely virile. The taxpayer, as in Blackman v. Commissioner, 88 T.C. 677 (1987), also cannot have caused the damage. The court denied relief in Blackman, finding that the taxpayer had been grossly negligent when he burned down his home by accident when trying to burn his estranged wife’s clothes.

Some taxpayers may have suffered significant damage to their homes and will be submitting claims to their insurance. Insurers may try to classify the vortex as multiple “occurrences” to increase the number of deductibles that apply. Taxpayers can combat that interpretation by pointing to meteorological data: the freeze was caused by a single distortion of the jet stream that normally encircles the poles. The vortex expanded southward, causing an unusually intense and prolonged freeze. All damage resulting from this event, whether property damage from frozen pipes or the loss of business income, should be covered by the casualty loss provision under the Code. Taxpayers should demand relief from insurance and, if made not whole, pursue the casualty loss deduction under the Internal Revenue Code.

An Implied Warranty of Sustainability

DSC_1193By Christine Hottinger, GIELR Staff

Do you know where your banana has been? About 70 years ago, Chiquita Banana told us they liked the climate of the tropical equator, with a cutesy “Sí sí,” but do they come from the Spanish-speaking countries around the equator? How are they grown in those countries?

Bananas have had a strong place in US culture for over 100 years, a strong enough place that when the favored varietal, the Gros Michel banana, became racked with disease across almost all plantations, we quickly replaced it with another-the Cavendish banana. Did you know your banana had a first name? Although it may not be as much of a surprise that banana production is environmentally unsound, most consumers are not able to educate themselves or control this aspect of their bananas. While Dole recently settled a lawsuit over false claims of the environmental friendliness of its banana production, consumers usually have no legal means to improve the environmental impact of banana production.

In cases where buyers lack the power to control or inspect a good, common law offers a particular kind of remedy: an implied warranty on the contract. Unlike express contract terms, some promises of quality are implied by law into all contracts. An implied warranty becomes a contract term without the parties bargaining for it. The implied warranty of merchantability is the oldest implied warranty, guaranteeing that goods purchased are of merchantable quality, or meet the standard of quality for that item in general. Another important warranty development, the implied warranty of habitability, was first established in Washington, D.C., and eventually became a term in most leases across the country. Those who fought for this warranty sought to improve the conditions of rental apartments by taking aim at specific policies, although the warranty of habitability’s success in achieving those aims remains contentious.

Sustainability is a worthy policy aim, and a growing force in the U.S. An implied warranty of sustainability would create an affirmative duty on the part of sellers to provide sustainable goods. Implied warranties are sometimes called default terms, because many may be disclaimed, or contracted around. They are frequently justified as being what most parties would contract for, but default terms may also correct an information imbalance: when they are disclaimed, the seller informs the buyer about a pertinent quality of the good. This informational function could improve the situation of banana consumers greatly: letting a consumer know that a banana is not sustainably produced. In turn, consumers may begin favoring more environmentally friendly bananas, as well as becoming better informed about their purchase.

Sustainability is a pertinent quality of food, and one that is growing in importance to consumers, the economy, and the world as we face global climate change. It is a valuable policy aim worthy of being guaranteed by contracts. Disclaiming the warranty would create a flow of information to consumers, who are less able than sellers to control this quality of their bananas. An implied warranty of sustainability is well-suited for contracts for the sale of bananas. I develop this idea further in a forthcoming note to be published in the Georgetown International Environmental Law Review.

A Low Standard of Ambition at TPP Talks: Corporations Oust Environmentalists from the Negotiating Table

DSC_0949By Christine Taverner, GIELR Staff

The Trans-Pacific Partnership (TPP) is a proposed trade agreement currently being negotiated among 12 nations to promote economic trade and development across their borders. Some have said that the TPP, if passed, would be “ambitious” and “comprehensive.” Recent talks ending February 25th have shown that many obstacles to a final agreement remain, including significant gaps on issues such as environment and labor standards and intellectual property protections, as well as political opposition at home.  The trade ministers of the 12-nation group, which includes Japan, Vietnam, Brunei, Malaysia, Singapore, Australia, New Zealand, Canada, Mexico, Peru, Chile, and the United States, departed from the Singapore meeting without any set date for the next round of trade talks.

The United States faces strong political opposition against the TPP at home, in part due to the shroud of secrecy surrounding the negotiations.   Members of Congress, most notably Senator Ron Wyden, have been calling for more transparency in the TPP negotiations.  As Senator Wyden explained in a Congressional statement, while “the majority of Congress is being kept in the dark” regarding the substance of the negotiations, “representatives of U.S. corporations . . . are being consulted and made privy to the details of the agreement.”  Concerns regarding the lack of negotiation transparency are not limited to Congress, especially when it comes to environmental matters.  Non-governmental organizations have also highlighted issues with the current status of TPP negotiations, such as “extreme secrecy,” “unfettered rights to corporations,” and an “increase in dirty fracking” as threats to current environmental protections and regulations.

This past November, the executives of 24 environmental organizations called on Michael Froman, the United States Trade Representative (USTR), to ensure that a “strong and enforceable environment chapter” be included in the trade agreement.  In that joint letter, the organizations commended the United States for its “high standard of ambition on conservation issues” proposed during previous rounds of TPP negotiations, and reiterated the need for “robust” measures to conserve “oceans, forests, and wildlife.”

The leak of a U.S. TPP trade talk proposal in February revealed that this “high standard of ambition on conservation issues” has all but disappeared in the most recent round of talks – a sharp turn, some argue, to accommodate corporate interests.  The leaks demonstrate the United States removed the term “climate change” from the trade discussions in favor of the more euphemistic “transition to a low-emissions economy.”  Moreover, in a biodiversity section, the United States proposed to remove language that would guarantee a country’s right to determine access to their natural and genetic resources.  Some fear that this is also a direct concession to corporate interests.  Major environmental organizations, such as the Sierra Club, have since called the U.S. proposal “incredibly disappointing.”

Coupling the current stalemate of trade talks with the watered down environmental protections proposals, it now appears that the “high standard of ambition on conservation issues” has become an unattainable goal.  The clear lack of transparency throughout these negotiations should be alarming to environmentalists.    The most recently leaked proposal demonstrates that the United States is not giving environmental protections and regulations the full backing initially hoped for by groups such as the Sierra Club.  The USTR has since defended the proposal, arguing that the leaks did not present the “full range of potential environmental benefits being negotiated at the TPP.”  Nevertheless, given recent revelations, it is more likely that corporations, rather than environmentalists, will be lauding the USTR for a “high standard of ambition” in future TPP proposals.