September 5, 2017

The federal government is responsible for the atmosphere



Today the Niskanen Center filed a brief in the Children’s Climate Case (Juliana v. United States), urging the Ninth Circuit Court of Appeals to agree with a lower court that the federal government has a trust responsibility to preserve the atmosphere from the effects of greenhouse gas emissions.

While most of the attention given to this case has centered on the issue of whether there is a constitutional right to “a climate capable of sustaining human life” (which Niskanen takes no position on), a second major issue—the public trust doctrine—is also in play. Ever since the 19th century, the Supreme Court has held that the federal government has a duty to preserve and protect certain natural resources that the government holds in trust for the citizens of the United States; the prototypical “public trust” property are tidelands, navigable waterways, and the land beneath them. Contrary to hundreds of years of such precedent, the federal government now takes the position that it is not subject to any trust obligations when it comes to the atmosphere.

Niskanen’s brief discusses the Supreme Court decisions imposing trust obligations on the federal government, and how—because Congress has nationalized the atmosphere and eliminated common law property rights in the airspace above people’s property (going back to the Air Commerce Act of 1926)—the federal government has thus assumed an obligation to manage and protect that resource. Niskanen believes that if the federal government is going to seize private property and declare it to be owned in common by all Americans, then the government must take responsibility to manage it, CO2 and all.

Download the brief here.