FEDERAL ATMOSPHERIC TRUST LITIGATION AMICUS BRIEF

The following is the original draft of an amicus brief submitted to the United
States Court of Appeals, District of Columbia Circuit. The brief, submitted by
thirty-three professors of environmental and constitutional law, was written in
support of the Plaintiffs/Appellants in the case of Alec L., et al. v.Gina McCarthy,
et al. (No. 13-5192).

The Plaintiff minors, acting through guardians ad litem and in conjunction

with environmental non-profits Earth Island Institute and WildEarth Guardians,
brought the case as beneficiaries of a constitutionally mandated, federal Public
Trust Doctrine. Plaintiffs note the existence of an atmospheric emergency, caused
by greenhouse gas emissions, that threatens this nation’s atmospheric resource and
other public natural resources. They assert that, because of the urgent need for
action, and consistent with its fiduciary obligations under the constitutional Public
Trust Doctrine, the federal government must be required to protect the nation’s
atmospheric resource by developing and implementing a comprehensive climate
recovery plan.

This brief explains the theoretical and jurisprudential connections between

the Public Trust Doctrine (PTD) and the equally ancient Reserved Powers
Doctrine. It explains how both doctrines reflect fundamental constitutional
principles, focusing particularly on the doctrines’ foundations in the Preamble,
Article I’s vesting clause, the anti-nobility clauses, the Equal Protection clause, and
Fifth Amendment substantive due process. It explains, further, why the
atmosphere must be treated as a public trust resource and why the Public Trust
Doctrine imposes an affirmative preservation duty upon the federal government
under present circumstances.

Because of the number and complexity of the constitutional issues involved

in this case, the original draft of the amicus brief exceeded the word and page
limits prescribed by court rules. Accordingly, Amici are submitting a condensed
version of this brief to the D.C. Court of Appeals. However, because Amici
believe that the relevant theoretical, historical and constitutional arguments cannot
be fairly and fully conveyed in that condensed format, and because court
personnel, lawyers, legal scholars and other interested individuals might benefit

Electronic copy available at: http://ssrn.com/abstract=2361780

from a more complete exposition of the issues, we now make this complete draft of
the original arguments available through the Social Science Research Network.

TABLE OF CONTENTS

I. IDENTITY AND INTERESTS OF THE AMICI CURIAE............................1

II. SUMMARY OF THE ARGUMENT..............................................................1

III. ARGUMENT..................................................................................................3

A. Terminology and PPL Montana, LLC v. Montana...............................3

B. Origins of the Reserved Powers and Public Trust Doctrines................7

C. Application of the Reserved Powers and Public Trust Doctrines

to the Federal Government..................................................................12

D. Constitutional Foundations of the Reserved Powers and Public

Trust Doctrines....................................................................................16

E. The Atmosphere as a Public Trust Resource......................................32

1. A Doctrine Adaptable to Changed Circumstances...................32

ii

Electronic copy available at: http://ssrn.com/abstract=2361780

 2. Prior Recognition of Air and the Atmosphere as Common

Trust Resources........................................................................35

3. Fugitive Nature.........................................................................36

4. Public Character of the Covered Property................................38

5. Navigation and Commerce.......................................................38

6. Subsistence...............................................................................39

7. Security and the Necessity of National Oversight....................39

F. Affirmative Constitutional Duties and the State Action Doctrine......41

1. Affirmative Duty......................................................................41

2. State Action..............................................................................46

G. The Role of the Federal Judiciary in the Public Trust Context...........47

1. Enforcement of Trust Obligations............................................47

iii
 2. Application of the Public Trust Doctrine Does Not Invoke
the Separation of Powers and the Political Question
Doctrines...................................................................................48

IV. CONCLUSION.............................................................................................52

iv
 TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ............................................................................................. 24

Air Pegasus of D.C., Inc. v. U.S.,

424 F.3d 1206 (Fed. Cir. 2005).............................................................................15

Alabama v. Texas,
347 U.S. 272 (1954) ..............................................................................................39

Am. Elec. Power Co. v. Connecticut,

131 S. Ct. 2527 (2011)..........................................................................................44

Ariz. Ctr. For Law in Pub. Interest v. Hassell,

837 P.2d 158 (Ariz. App.
1991)........................................................................................................................47

Arnold v. Mundy,
6 N.J.L. 1 (N.J. 1821) ...........................................................................................29

Bolling v. Sharpe,
347 U.S. 497 (1954).......................................................................................22, 24

Butchers’ Union v. Crescent City

111 U.S. 746 (1884)................................................................................................4

City of Milwaukee v. State,

214 N.W. 820 (Wis. 1927)...................................................................................42

Cohens v. Virginia,
19 U.S. 264 (1821)...............................................................................................46

Comer v. Murphy Oil USA, Inc.,

839 F. Supp. 2d 849 (S.D. Miss. 2012)................................................................45

Ctr. For Biological Diversity v. FPL Grp.,

166 Cal. App. 4th 1349 (Cal. App. 1 Dist. 2008)..................................................43

v
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189 (1989).......................................................................................44, 45

Fletcher v. Peck,
10 U.S. 87 (1810)....................................................................... ......................9, 25

Geer v. Connecticut,
161 U.S. 519 (1896) ............................................................................ 5, 14, 35, 42

Georgia v. Tenn. Copper Co.,

206 U.S. 230 (1907) .............................................................................................35

Harris v. McRae,
448 U.S. 297 (1980).............................................................................................24

Her Majesty v. City of Detroit,

874 F.2d 332 (6th Cir. 1989).................................................................................35

Holmes v. Jennison,
39 U.S. 538 (1840)...............................................................................................17

Hughes v. Oklahoma,
441 U.S. 322 (1979) ..............................................................................................15

Ill. Cent. R.R. Co. v. Illinois,

146 U.S. 387 (1892) ............... 2, 4, 5, 10, 11, 12, 14, 16, 19, 20, 21, 25, 38, 40, 41

In re Complaint of Steuart Transp. Co.,

495 F. Supp. 38 (E.D. Va. 1980) ..........................................................................39

In re water Use Permit Applications, Waihole Ditch Combined Contested Case

Hearing,
94 Haw. 97, 9 P.3d 409 (Haw. 2000) ..................................................... 42, 43, 52

Just v. Marinette Cnty.,

201 N.W.2d 761 (Wis. 1972)...............................................................................43

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928).............................................................................................20

vi
Magner v. People,
97 Ill. 320 (1881)............................................................................................15, 42

Marbury v. Madison,
5 U.S. 137 (1803) .................................................................................................49

Marks v. Whitney,
491 P.2d 374 (1971).............................................................................................33

Martin v. Waddell,
41 U.S. 367 (1842)...............................................................................................29

Massachusetts v. E.P.A.,
549 U.S. 497, (2007)............................................................................................48

Matthews v. Bay Head Improvement Ass’n,

471 A.2d 355 (N.J. 1984).....................................................................................33

Missouri v. Holland,
252 U.S. 416 (1920).................................................................................15, 39, 40

Munn v. Illinois,
94 U.S. 113 (1877)...............................................................................................29

Native Village of Kivalina v. ExxonMobil Corp.,

663 F. Supp. 2d 863 (N.D. Cal. 2009)..................................................................49

Nat’l Audubon Soc’y v. Superior Ct. of Alpine City,

658 P.2d 709 (Cal. 1983) ......................................................................... 34, 36, 42

Newton v. Commissioners of Mahoning County,

100 U.S. 548 (1879) .............................................................................................10

N. Carolina, ex rel. Cooper v. Tennessee Valley Authority,

615 F.3d 291 (4th Cir. 2010).................................................................................45

Office of Commc’n of United Church of Christ v. F.C.C.,

707 F.2d 1413 (D.C. Cir. 1983)............................................................................36

Ophir v. City of Boston,

647 F. Supp.2d 86 (D. Mass. 2009)......................................................................45

vii
Owsichek v. State Guide Licensing & Control Bd.,
763 P.2d 488 (Alaska, 1988)................................................................................34

PPL Montana, LLC v. Montana,

132 S. Ct. 1215 (2012)............................................................................. 3, 6, 7, 13

Reichelderfer v. Quinn,
287 U.S. 315 (1932) .............................................................................................13

Robinson v. Ariyoshi,
658 P.2d 287 (Haw. 1982)....................................................................................34

Romer v. Evans,
517 U.S. 620 (1996) .............................................................................................23

Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935).............................................................................................20

Snyder v. Massachusetts,
291 U.S. 97 (1934)...............................................................................................29

State ex. Rel. Town of Westerly v. Bradley,

877 A.2d 601 (R.I. 2005)......................................................................................36

State v. City of Bowling Green,

313 N.E.2d 409 (Ohio 1974) ................................................................................42

Stone v. Mississippi,
101 U.S. 814 (1879) ...........................................................................................3, 9

Terminiello v. City of Chicago,

337 U.S. 1 (1949).................................................................................................44

The Genessee Chief v. Fitzhugh,

53 U.S. 443 (1851)...............................................................................................33

United States v. 1.58 Acres of Land,

523 F. Supp. 120 (D. Mass. 1981)....................................................................5, 14

viii
United States v. Carolene Products, Co.,
304 U.S. 144 (1938).............................................................................................23

United States v. Causby,

328 U.S. 256 (1946) ............................................................................ 5, 15, 38, 39

United States v. Rands,

389 U.S. 121 (1967)...............................................................................................5

Utah Division of State Lands,

482 U.S. 193 (1987).............................................................................................40

CONSTITUTIONAL PROVISIONS

HAW. CONST. art. IX, § 1.........................................................................................32

HAW. CONST. art. XI, § 1.........................................................................................35

ILL. CONST. art XI, § 1.............................................................................................32

MONT. CONST. art. IX, § 1.......................................................................................32

PA. CONST. art. I, § 27..............................................................................................32

R.I. CONST. art. I, § 17.............................................................................................35

U.S. Const. amend. V..............................................................................................17

U.S. Const. amend. XIV, §1....................................................................................17

U.S. Const. art 1, § 1................................................................................................19

U.S. Const. art. 1, § 9.........................................................................................17, 19

U.S. Const. art 1, § 10........................................................................................17, 19

U.S. Const. pmbl......................................................................................................17

STATUTES

ix
42 U.S.C. § 4331(b)(1) (1970)................................................................................32

42 U.S.C. § 9601 (2006)..........................................................................................36

49 U.S.C.A. §176(a)................................................................................................36

OTHER AUTHORITIES

1 J Story, Commentaries on the Constitution of the United States § 462 (2d ed.
1885).....................................................................................................................17

Bernard Schwartz, The Roots of the Bill of Rights at I: 196..............................27, 28

B. P. Poore, The Federal and State Constitutions, Colonial Charters and Other
Organic Laws of the United States (1878), Vol. 2...............................................28

Charles F. Wilkinson, The Headwaters of the Public Trust: Some of the Traditional
Doctrine, 19 Envtl. L. 425 (1989)........................................................................34

Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82

Yale L.J. 189 (1972)............................................................................................25

Cicero, Letters to Atticus...........................................................................................8

David Dana & Susan Koniak, Bargaining in the Shadow of Democracy, 148 U. Pa.
L.Rev. 473 (1999)...................................................................................................8

Douglas Grant, Underpinnings of the Public Trust Doctrine: Lessons from Illinois
Central Railroad, 33 Ariz. St. L.J. 849 (2001)...............................................12, 21

Edmund Burke, Reflections on the Revolution in France (1790), Ed. J.C.D. Clark
(2001)....................................................................................................................30

THE FEDERALIST No. 10 at 78 (James Madison) (Clinton Rossiter ed., 1961)........22

Francis Bacon, The History of the Reign of King Henry VII (1622).........................8

George G. Bogert, et al., Bogert’s Trusts and Trustees, § 582 (2011)....................42

x
H. A. Cushing, The Writings of Samuel Adams (1906), ed., II...............................28

Herbert Sloan, Principles and Interest Thomas Jefferson and the Problem of Public
Debt (1995).....................................................................................................30, 32

Gerald Torres, Who Owns the Sky?, 19 Pace Envtl. L. Rev. 515 (2002)................16

Institutes of Justinian, J. INST., 2.1.1-2.1.6 at 55 (P. Birks & G. McLeod trans.

1987).....................................................................................................................29

James E. Hansen et al., Scientific Case for Avoiding Dangerous Climate Change to
Protect Young People and Nature, NASA (Jul. 9th, 2012),
http://pubs.giss.nasa.gov/abs/ha08510t.html........................................................46

James Madison, Federalist 51.................................................................................47

Jefferson to James Madison, September 6, 1789, Papers of Thomas Jefferson, Ed.

Julian Boyd XV, 392-98 (1950)....................................................................8, 30, 32

Jefferson to Thomas Earle, September 24, 1823.....................................................30

Jim Gardner, Discrimination Against Future Generations: The Possibility of

Constitutional Limitation, 9 Envtl. L. 29 (1978)............................................18, 51

John Locke, SECOND TREATISE OF GOVERNMENT par. 142 (1689).........................20

Journals of the House of Burgesses of Virginia, 1761-1765, ed. by Kennedy

(Richmond, 1907)....................................................................................................27

Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention, 68 Mich. L. Rev. 471 (1970).............................................41

Joseph Ellis, American Sphinx: The Character of Thomas Jefferson 56-65

(Random House, New York: 1998)......................................................................27

Julian Eule, Temporal Limits on the Legislative Mandate: Entrenchment and

Retroactivity, 1987 Am. B. Found. Res. J. 379 (1987)...........................................8

Karl S. Coplan, Public Trust Limits on Greenhouse Gas Trading Schemes: A

Sustainable Middle Ground? 35 Colum. J. Envt’l L. 287 (2010)........................12

xi
MAGNA CARTA (1215).............................................................................................29

Mary Christina Wood, Nature’s Trust: Environmental Law for a New Ecological
Age 131 (Cambridge University Press 2013).......................................................12

M. Farrand, THE RECORDS OF THE FEDERAL CONVENTION OF 1787........................26

Michael C. Blumm & Aurora Paulsen, The Public Trust in Wildlife, 2013 Utah L.
Rev. (2013), available at http://ssrn.com/abstract=2189134...............................14

Michael C. Blumm & Mary Christina Wood, The Public Trust Doctrine in
Environmental and Natural Resources Law (Carolina Academic Press 2013)....12

Michael C. Blumm, The Public Trust Doctrine – A Twenty-First Century Concept,

16 Hastings W.-N.W. J. Envtl. L. & Policy 105 (2010) available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1468601.............................33

Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85

Geo. L.J. 491 (1997).........................................................................................8, 24

Patrick Parenteau, Come Hell and High Water Coping with the Unavoidable
Consequences of Climate Disruption, 34 Vt. L. Rev. 957 (2010)........................41

Roberts and Chemerinsky, Entrenchment of Ordinary Legislation at 1795 –

1801................................................................................................................13, 21

Sir Robert Chambers, A Course of Lectures on the English Law, Delivered at the
University of Oxford, 1767-1773, ed. Thomas M. Curley, 2 vols. (Madison, Wis.
1986).....................................................................................................................30

United States Declaration of Independence (1776)................................................26

Virginia Declaration of Rights (1776).....................................................................27

W. Hamilton Bryson, The Use of Roman Law in Virginia Courts, 28 American

Journal of Legal History 135 (1984)....................................................................30

William Blackstone, Commentaries on the Laws of England (1769)...........8, 31, 36

xii
 GLOSSARY
CAA Clean Air Act

EPA Environmental Protection Agency

xiii
I. IDENTITY AND INTERESTS OF THE AMICI CURIAE

Amici curiae are the law professors and scholars listed on the signature page

below.1 These individuals have dedicated their careers to teaching, researching

and writing about environmental law, climate law, property law, constitutional law,

and the Public Trust Doctrine, including three who teach courses devoted solely or

primarily to the Public Trust Doctrine. These law professors and scholars are

among the Nation’s leading experts on the complex legal history and evolution of

the Public Trust Doctrine. They have a strong interest in informing the Court

about the role of the Public Trust Doctrine in defining sovereign legal obligations

to protect the atmosphere from the adverse effects of greenhouse gas pollution.

Even more importantly, they offer a wealth of knowledge and expertise that will be

indispensable to the Court in resolving the novel legal issues raised by the

emerging climate crisis. The extensive expertise and scholarship of these law

professors and their colleagues are described in more detail in Appendix 1 to this

brief. Amici file this brief in support of the Appellants in this case.

II. SUMMARY OF ARGUMENT

This case involves the duties of federal officials under the Public Trust

Doctrine and whether those duties apply to the air we breathe. The doctrine

compels scrutiny of the fundamental relationship between government and its

1
Amici file this brief solely as individuals and not on behalf of the institutions with
which they are affiliated.

1
citizens, and the basic expectation, central to the purpose of organized government,

that those natural resources essential for our survival remain abundant, justly

distributed, and bequeathed to future generations.

The foundational U.S. Supreme Court public trust cases, such as Illinois

Central v. Illinois, affirmed an understanding that citizens never confer to their

government the power to substantially impair or alienate resources crucial to public

welfare. Such resources form a perpetual trust to sustain present and future

generations of citizens. The nation’s public trust over such crucial natural

resources has long been recognized as an attribute of sovereignty that government

cannot shed. In this basic sense, by incorporating the Public Trust Doctrine, the

Constitution governs for the preservation of the nation.

Courts have frequently applied the Public Trust Doctrine in cases that evoke

this reserved powers doctrine, in cases affirming ancient strictures against

alienating essential resources, particularly in the context of state streambeds

underlying navigable waters. A plethora of cases have defined a body of state law

presenting a Public Trust Doctrine arising from, and applying to, this latter state

waters context. The trial court in this case erroneously applied that state-law

doctrine to plaintiff’s claims.

This case does not involve states or streambeds. Instead the youth plaintiffs

maintain that the Public Trust Doctrine imposes sovereign duties on the federal

2
government to protect the atmosphere that sustains the climate necessary for

human survival. As government agencies continue to allow massive amounts of

carbon dioxide to imperil that climate system, government actors jeopardize the

future life, liberty, and property of both these youth plaintiffs and future

generations. Supported by the world’s leading climate scientists, these youth

plaintiffs allege that they will face “the collapse of natural resource systems and a

largely uninhabitable Nation” if courts do not intervene to hold government

accountable for protection of the atmosphere before climate tipping points are

passed. Appellants’ Opening Brief at 3, 7. This catastrophic harm implicates the

basic constitutional public trust duty, applicable to the federal government through

the reserved powers doctrine and other constitutional provisions, to protect

resources crucial for the future survival and welfare of our citizens.

III. ARGUMENT

A. Terminology and PPL Montana, LLC v. Montana

The terms “public trust” and “Public Trust Doctrine” carry a range of

contextual meanings. In its broadest sense, reflecting principles of popular

sovereignty, the “public trust” refers to a general fiduciary obligation of a

government toward its citizens and to the related, fundamental understanding that

no legislature can legitimately abdicate or irrevocably alienate its core sovereign

powers. In Stone v. Mississippi, the Supreme Court held:

3
 No legislature can bargain away the public health or the public
morals. . . . The supervision of both these subjects of governmental
power is continuing in its nature. . . . [T]he power of governing is a
trust committed by the people to the government, no part of which can
be granted away.

101 U.S. 814, 819-20 (1879). In Butchers’ Union v. Crescent City, Justice Field

explained that the rule “is a principal of vital importance, and its habitual

observance is essential to the wise and valid execution of the trust committed to the

legislature.” 111 U.S. 746, 766 (1884) (concurring opinion). This broad trust

principle is commonly referred to as the “reserved powers doctrine.”

In a second sense, the terms “public trust” and “Public Trust Doctrine” refer

to application of the reserved powers doctrine to sovereign natural resources

critical to public welfare. As explained below, the reserved powers doctrine

prohibits complete privatization of such sovereign resources because privatization

would constitute an impermissible transfer of governmental power into private

hands, wrongfully impinging upon the powers of later legislatures and the rights of

the public to safeguard societal interests.

Frequently recognized sovereign trust resources include air, water, and

wildlife. In Illinois Central Railroad Co. v. Illinois, the Supreme Court recognized

that “[t]he ownership of the navigable waters of the harbor, and of the land under

them, is a subject of public concern to the whole people of the state . . . . The trust

with which they are held, therefore, is governmental, and cannot be alienated . . . .”

4
Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 455 (1892). In Geer v. Connecticut,

the Supreme Court enlarged the Public Trust Doctrine by adding wildlife to

navigable waters and their submerged lands:

[T]he ownership of the sovereign authority [of wildlife] is in trust for

all the people of the state; and hence, by implication, it is the duty of
the legislature to enact such laws as will best preserve the subject of
the trust, and secure its beneficial use in the future to the people of the
state.

161 U.S. 519, 534 (1896). In United States v. Causby, the Supreme Court

implicitly included the atmosphere within the sovereign resource trust category:

“To recognize such private claims to the airspace would clog these highways,

seriously interfere with their control and development in the public interest, and

transfer into private ownership that to which only the public has a just claim.” 328

U.S. 256, 261 (1946). These principles apply at both the state and federal levels.

See, e.g., United States v. Rands, 389 U.S. 121 (1967) (recognizing all navigable

waters as the public property of the nation); U.S. v. 1.58 Acres of Land, 523 F.

Supp. 120 (D. Mass. 1981) (when the federal government acquires submerged

lands, it takes those lands subject to the Public Trust Doctrine)).2

2
Throughout their pleadings, Appellants employ the term “Public Trust Doctrine”
to refer to the reserved powers doctrine as applied to critical natural resources.
This brief makes a similar use of the term. The constitutional reserved powers
doctrine undergirds this trust responsibility, holding that no present legislature (or
agency) can alienate resources that will prove necessary for future legislatures (or
agencies) to exercise sovereignty on behalf of the people.

5
 A third common usage of the term “Public Trust Doctrine” refers to the

narrow, carefully defined body of law governing state ownership of submerged

lands under navigable waters pursuant to the federal equal footing doctrine. As

Justice Kennedy summarized in PPL Montana, LLC v. Montana:

Unlike the equal-footing doctrine . . . which is the constitutional

foundation for the navigability rule of riverbed title, the public trust
doctrine remains a matter of state law . . . While equal-footing cases
have noted that the State takes title to the navigable waters and their
beds in trust for the public, . . . the contours of that public trust do not
depend upon the Constitution.

132 S.Ct. 1215, 1235 (2012) (emphasis added). Through its use of the modifier

“that,” the PPL Montana opinion implies the Public Trust Doctrine concerns issues

in addition to the federal government’s implicit transfer to states of ownership of

navigable waters and their beds at statehood.

The trial court in this case relied on PPL Montana’s reference to state law in

support of its dismissal of Appellants’ complaint. The trial judge apparently

concluded that, since Appellants framed their argument against federal officials in

terms of the Public Trust Doctrine, and since the Supreme Court stated that the

Public Trust Doctrine is a matter of state law, Appellants' claim was defeated.

However, the PPL Montana opinion distinguishes between the federal rule of

submerged lands ownership and the states’ ability to protect other resources under

their public trust doctrines. The state public trust referenced in PPL Montana is

related to, but distinct from, the public trust invoked in the instant case. There is

6
no indication in PPL Montana that the Supreme Court intended to deny that the

reserved powers doctrine applies to the federal government, or deny the

constitutional underpinnings of the federal government’s navigable servitude, or

deny the federal government’s public trust interests in air, water, wildlife, etc. In

fact, the Court has never articulated a thorough analysis of the reserved powers

doctrine or the Public Trust Doctrine as they apply to federal natural resources, and

it has frequently announced a public trust in federal resources. See Light v. U.S.,

220 U.S. 523, 537 (1911); Trinidad Coal, 137 U.S. 160, 170 (1890); Camfield v.

U.S., 167 U.S. 518, 524 (1897). For this reason, Amici have prepared this brief to

assist in resolving the arguments raised in this case.

B. Origins of the Reserved Powers and Public Trust Doctrines

The Public Trust Doctrine, as employed in this case, represents an

application of the reserved powers doctrine. The reserved powers doctrine

recognizes that one legislature may not legitimately infringe upon the equal

sovereignty of later legislatures. One recognized application of this principle

consists of the rule against legislative entrenchment: one legislature cannot bind a

later legislature by enacting an irrepealable law. This rule is an axiomatic principle

7
of government, having been endorsed by (among others) Cicero, 3 Bacon, 4 and

Blackstone5 before its adoption within American law and jurisprudence.

This principle, although often expressed in terms of the inherent powers of a

legislature, also vindicates a more general notion of generational sovereignty.

Each sitting legislature derives its legitimate authority from the particular public

that elects it. Recognizing the rights and powers of later legislatures secures the

rights and powers of the later citizens who elect those later legislatures. 6 As

Thomas Jefferson once famously reminded James Madison, “between society and

society, or generation and generation, there is . . . no umpire but the law of nature,

one generation is to another as one independent nation to another.”7

3
Cicero, Letters to Atticus (“When you repeal the law itself, you at the same time
repeal the prohibitory clause which guards against such repeal.”)
4
Francis Bacon, The History of the Reign of King Henry VII (1622) (“One
Parliament may not by a precedent act . . . bind or frustrate a future [Parliament].")
5
William Blackstone, Commentaries on the Laws of England (1769) (“The
legislature, being in truth the sovereign power, is always of equal, always of
absolute authority: it acknowledges no superior upon earth, which the prior
legislature must have been if its ordinances could bind a subsequent parliament.”)
6
See Julian Eule, Temporal Limits on the Legislative Mandate: Entrenchment and
Retroactivity, 1987 Am. B. Found. Res. J. 379, 195 (1987) (explaining the rule as
an agent’s powers may not exceed the legitimate powers of the principal); Michael
J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO.
L.J. 491, 503 (1997) (today’s majority can control the present, but not the future);
David Dana & Susan Koniak, Bargaining in the Shadow of Democracy, 148 U. PA.
L.REV. 473, 533 (1999) (“If majority rule means anything, it means rule by the
current majority and not by a majority of the past. That is the point of elections.”).
7
Jefferson to James Madison, September 6, 1789, Papers of Thomas Jefferson, Ed.
Julian Boyd XV, 392-98 (1950).

8
 The Supreme Court has recognized reserved powers principles almost from

the nation’s inception. As early as 1810, in Fletcher v. Peck, the Supreme Court

recognized “[t]he principle . . . that one legislature is competent to repeal any act

which a former legislature was competent to pass; and that one legislature cannot

abridge the powers of a succeeding legislature. The correctness of this principle,

so far as respects general legislation, can never be controverted.” 10 U.S. 87, 135

(1810).

However, in Fletcher, the Supreme Court also recognized a limitation on the

reserved powers principle: “If an act be done under a law, a succeeding legislature

cannot undo it. . . . When, then, a law is in its nature a contract, when absolute

rights have vested under that contract, a repeal of the law cannot divest those

[vested] rights.” Id. (emphasis added). In Fletcher, the Court recognized that

contracts, including land grants, concerned core governmental powers and were

voidable and repealable under traditional reserved powers principles. For example,

in Stone v. Mississippi, the Supreme Court upheld a state legislature’s

criminalization of lotteries in the face of an earlier legislature’s grant of private

lottery franchises:

[T]he legislature cannot bargain away the police power of a State.

[N]o legislature can curtail the power of its successors to make such
laws as they may deem proper in matters of police. . . . No legislature
can bargain away the public health or the public morals. . . . The
supervision of both these subjects of governmental power is
continuing in its nature. . . . [T]he power of governing is a trust

9
 committed by the people to the government, no part of which can be
granted away.

101 U.S. 814, 817-20 (1879) (quotations omitted).

In Newton v. Commissioners of Mahoning County, the Supreme Court

limited the contracts exception further. 100 U.S. 548 (1879). There, the Court

sustained the Ohio legislature’s statutory relocation of a county seat over

objections that the prior statutory assignment of the seat to a different town was by

its terms perpetual. The Court noted that the contracts exception to the reserved

powers doctrine did not apply when “the statute in question is a public law relating

to a public subject within the domain of the general legislative power of the State,

and involving the public rights and public welfare of the entire community affected

by it.” Id. at 557. The Court proclaimed:

Every succeeding legislature possesses the same jurisdiction and

power with respect to them as its predecessors. The latter have the
same power of repeal and modification which the former had of
enactment, neither more nor less. All occupy, in this respect, a footing
of perfect equality. This must necessarily be so in the nature of
things. It is vital to the public welfare that each one should be able at
all times to do whatever the varying circumstances and present
exigencies touching the subject involved may require.

Id. at 559.

In Illinois Central, the Supreme Court applied this constitutional principle to

crucial public trust resources, reasoning that these resources, such as submerged

lands, were sufficiently governmental that the reserved powers doctrine barred

10
their full privatization. 146 U.S. 387. At issue was control of Chicago Harbor,

which the Illinois legislature had granted to a private railroad company. The Court

explained the history of the Public Trust Doctrine as applied to sovereign interests

in water and submerged lands, while adopting a theory of sovereign resources

extending beyond a narrow concern with such lands.

The state can no more abdicate its trust over property in which the
whole people are interested, like navigable waters and soils under
them, so as to leave them entirely under the use and control of private
parties. . . than it can abdicate its police powers in the administration
of government and the preservation of the peace. . . Any grant of the
kind is necessarily revocable, and the exercise of the trust by which
the property was held by the state can be resumed at any time. . . The
trust with which they are held, therefore, is governmental, and cannot
be alienated . . . .

Id. at 453-55 (emphases added).

The Illinois Central opinion directly grounded the Public Trust Doctrine in

the reserved powers analysis of Newton v. Commissioners:

In Newton v. Commissioners, . . . [the Court held] that . . . legislative

acts concerning public interests are necessarily public laws; that every
succeeding legislature possesses the same jurisdiction and power as its
predecessor; . . . ; that it is vital to the public welfare that each one
should be able at all times to do whatever the varying circumstances
and present exigencies attending the subject may require;. . . . The
legislature could not give away nor sell the discretion of its successors
in respect to matters, the government of which, from the very nature
of things, must vary with varying circumstances. . . . Every legislature
must, at the time of its existence, exercise the power of the state in the
execution of the trust devolved upon it.

Id. at 459-460 (emphasis added).

11
 In short, a sovereign’s public trust obligations lie in the legislature’s

incapacity to legitimately bind future legislatures in matters of crucial public

8
concern. Alienating or destroying essential resources would amount to

relinquishing sovereign powers in violation of the Constitution’s reserved powers

doctrine.9 As the Court admonished in Illinois Central, allowing the legislature to

convey submerged lands “would place every harbor in the country at the mercy of

a majority of the legislature of the state in which the harbor is situated.” Ill. Cent.

R.R. Co., 146 U.S. at 460-61. This focus on equal sovereignty of later generations

is a consistent part of public trust jurisprudence.

C. Application of the Reserved Powers and Public Trust Doctrines to the

Federal Government

Respondents and the district court erroneously argued and concluded that no

federal Public Trust Doctrine exists based on a misunderstanding of PPL

8
See Douglas Grant, Underpinnings of the Public Trust Doctrine: Lessons from
Illinois Central Railroad, 33 Ariz. St. L.J. 849, 874-79 (2001) (the Public Trust
Doctrine is grounded in constitutional reserved powers principles).
9
See Michael C. Blumm & Mary Christina Wood, The Public Trust Doctrine in
Environmental and Natural Resources Law 72 (Carolina Academic Press 2013)
(explaining the Illinois Central Court’s “view of the public trust as setting limits on
legislative sovereignty)”; see also id. at 234; Mary Christina Wood, Nature’s
Trust: Environmental Law for a New Ecological Age 131 (Cambridge University
Press 2013); see also Karl S. Coplan, Public Trust Limits on Greenhouse Gas
Trading Schemes: A Sustainable Middle Ground? 35 Colum. J. Envt’l L. 287, 311
(2010) (“The idea that public trust limits and powers inhere in the very nature of
sovereignty is one consistent thread in public trust cases. . . . Public trust principles
have been described as an essential attribute of sovereignty across cultures and
across millennia.”).

12
Montana’s holding. Justice Kennedy, for the Court, addressed the Public Trust

Doctrine only to contrast it with the equal footing rule concerning ownership of

submerged lands at statehood. The Court was not asked to consider the application

of reserved powers principles to natural resources of critical interest to the federal

government.

The reserved powers doctrine applies to the federal government for the same

reasons that it applies to the state governments. 10 As the Supreme Court

recognized in Reichelderfer v. Quinn: “The will of a particular Congress . . . does

not impose itself upon those to follow in succeeding years.” 287 U.S. 315, 318

(1932).

The public trust aspect of the reserved powers doctrine—the requirement

that government protect sovereign resources needed by citizens over time—

applies to the federal government. Although some resources are primarily of local

significance, and therefore primarily matters of state trust responsibility, other

resources have interstate significance and give rise to federal trust obligations, as

10
See Grant, Underpinnings of the Public Trust Doctrine: . . . . supra note 11 at 33
Ariz. St. L.J at 877 (“[T]here is no reason why the reserved powers doctrine, with
its inalienability principle, should not apply at the federal level as well as the state
level”); Roberts and Chemerinsky, Entrenchment of Ordinary Legislation at 1795
– 1801; Karl S. Coplan, supra note 12 at 311 (“If . . . the public trust is essential to
the nature of sovereignty and encompasses rights reserved to the people generally,
then the doctrine applies equally to the sovereign federal government as it does to
the sovereign state governments.).

13
analyzed in U.S. v. 1.58 Acres of Land, 523 F. Supp. 120. 11 Drawing on the

reserved powers reasoning in Illinois Central, the court found an inherent federal

public trust obligation parallel to the state trust duty in the context of submerged

lands:

[T]he state’s administration of the public trust is subject to the

paramount rights of the federal government to administer its trust with
respect to matters within the federal power. The trust is of such a
nature that it can be held only by the sovereign, and can only be
destroyed by the destruction of the sovereign. . . . Since the trust
impressed upon this property is governmental and administered jointly
by the state and federal governments by virtue of their sovereignty,
neither sovereign may alienate this land free and clear of the public
trust. Id. at 124.

In addition to submerged lands on the nation’s coastline, other crucial

resources implicate joint federal and state interests. For instance, wild game is a

trust resource in virtually all of the states.12 In Geer, 161 U.S. at 534, the Court

declared the “duty of the state to preserve for its people a valuable food supply”

and stated, “[T]he ownership of the sovereign authority [over wild game] is in trust

for all the people of the state, and hence by implication it is the duty of the

legislature to enact such laws as will best preserve the subject of the trust and

secure its beneficial use in the future to the people of the state.” Id. at 533-34

11
See Blumm & Wood, supra note 12, at 335 (explaining the federal role in
international disputes, since states and tribes cannot effectively participate in
international legal negotiations).
12
See Michael C. Blumm & Aurora Paulsen, The Public Trust in Wildlife, 2013
Utah L. Rev. (2013), available at http://ssrn.com/abstract=2189134.

14
(quoting Magner v. People, 97 Ill. 320 (1881)). 13 A parallel federal duty

associated with migratory birds, was recognized in Missouri v. Holland:

Here, a national interest of very nearly the first magnitude is involved.

It can be protected only by national action in concert with that of
another power. The subject matter is only transitorily within the State,
and has no permanent habitat therein. But for the treaty and the
statute, there soon might be no birds for any powers to deal with. . . .
It is not sufficient to rely upon the States . . . .

252 U.S. 416, 435 (1920).

The same reasoning applies to the atmosphere. In Causby, for example, the

Court recognized that the traditional common law ad coelom doctrine that

extended land ownership in an infinite vertical fashion into the airspace above the

land had “no place in the modern world.” 328 U.S. at 261. “The airspace, apart

from the immediate reaches above the land, is part of the public domain.” Id. at

261, 266 Thus, there is an airspace servitude, quite similar to the navigable

servitude.14

Similar reasoning supports the treatment of the atmosphere as a federal

public trust resource. Since a stable atmosphere is a prerequisite to both a robust

commerce and human health, and because national protection of the atmosphere

13
But see Hughes v. Oklahoma, 441 U.S. 322, 335-39 (1979) (clarifying that
neither a particular state nor the public of that state have an ownership in the local
wildlife exclusive of the interests of other U.S. citizens) (“when a wild animal
“becomes an article of commerce . . . its use cannot be limited to the citizens of
one State to the exclusion of citizens of another State”).
14
Air Pegasus of D.C., Inc. v. U.S., 424 F.3d 1206, 1217-1218 (Fed. Cir. 2005).

15
can only be effectively managed at the national level, the atmosphere--like

navigable waters, migratory wildlife, and airspace-- is a federal sovereign resource,

subject to reserved powers and public trust principles.

D. Constitutional Foundations of the Reserved Powers and Public Trust

Doctrines

The idea that legislatures throughout time “all occupy in this respect a

footing of perfect equality,” Ill. Cent. R.R., 146 U.S. at 459-60, is a basic pillar of

American jurisprudence; an “attribute of sovereignty” itself. 15 Professor Gerald

Torres has described the public trust as the slate on which “all constitutions are

written.”16 In short, the public trust is inherent in sovereignty, functioning to limit

the power of all sovereigns to ensure that they do not betray the interests of current

and future generations of the public for short-term gains.

Despite (and perhaps because of) the almost axiomatic status of these

principles in Western jurisprudence, courts and commentators have rarely specified

the specific constitutional text that supports application of the principles. In light

of the scope and scale of the remedies requested by Appellants in this case, such an

analysis is warranted. Accordingly, Amici will outline the constitutional grounds

supporting both the reserved powers and public trust doctrines. The principles are

15
See, e.g., Geer, 161 U.S. at 525–528 (referring to the trust over wildlife as an
“attribute of government” and tracing it back “through all vicissitudes of
government.”); see also Blumm & Wood, supra note 12, at 4.
16
See Nature’s Trust, supra note 11, at 129 (“the trust forms the sovereign
architecture around which the Constitution and all laws meld.”).

16
implied in more than one of the federal Constitution’s core provisions. The most

significant of these provisions are the posterity clause of the Preamble, the vesting

clause in Article I, the prohibitions on nobility found in sections 9 and 10 of

Article I, the equal protection clause, and the due process clause of the Fifth

Amendment.

1. The Posterity Clause

The most explicit manifestation of intergenerational concern in the

Constitution occurs in the Preamble:

We the People of the United States, in Order to form a more perfect

Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America.

U.S. Const., Preamble (emphases supplied). “In expounding the Constitution . . .

every word must have its due force; for it is evident from the whole instrument,

that no word was unnecessarily used, or needlessly added.” Holmes v. Jennison,

39 U.S. 538, 570 (1840). This rule of construction especially applies to the

Preamble. “The preamble . . . cannot confer any power per se. . . Its true office is

to expound the nature, and extent, and application of the powers actually conferred

by the constitution . . .”17

17
1 J Story, Commentaries on the Constitution of the United States § 462 (2d ed.
1885).

17
 While the posterity clause does not itself confer substantive powers upon

government, it does indicate who the beneficiaries of the powers and rights

enumerated elsewhere in the Constitution should be—“ourselves and our

Posterity.” All subsequent constitutional provisions, including the due process and

equal protection clauses, and the provision of equitable jurisdiction to the federal

courts, should be construed, where possible, in an intergenerational light. A

conscientiously stewarded, trust corpus of crucial natural resources, including a

functioning atmosphere and stable climate, is an indispensable prerequisite if the

“blessings of liberty” are to be maintained for Posterity.18

2. The Prohibitions on Titles of Nobility

The framers were concerned that later generations not be wrongfully

prejudiced by earlier generations; accordingly, they drafted specific constitutional

18
See Jim Gardner, “Discrimination Against Future Generations: The Possibility of
Constitutional Limitation,” 9 ENVIRONMENTAL LAW 29, 35, 33 (1978) (“The
statement in the Preamble that the Constitution was established to secure the
blessings of liberty for 'posterity' bears [a] relationship to certain remaining
provisions in the Constitution: it articulates a constitutional policy which
subsequent provisions translate into specific guarantees and safeguards. . . .
[P]olicies such as the principle of intergenerational fairness may in certain
circumstances limit the power of state and federal governments to impose
disadvantages on future generations.”)

18
provisions to address occasions of generational overreaching. A prominent

example is the pair of prohibitions on “titles of nobility.”19

The framers understood that grants of nobility, along with other perpetual or

hereditary privileges, illegitimately limited the right of later generations to govern.

Titles of nobility typically conjoined dominion over land or other natural resources

with other political privileges and immunities. To the extent that such grants and

privileges purported to be perpetual, they constituted a form of legislative

entrenchment that violated both reserved powers and public trust principles. As

the Court explained in Illinois Central, the trust under which sovereign resources

are held “is governmental, and cannot be alienated . . . .” 146 U.S. at 455. The

conveyance of an absolute, inheritable private title to a sovereign, governmental

resource (or the destruction of that resource), if allowed, would constitute an

irrepealable alienation of reserved political power. Similar principles apply to

perpetual abdication of sovereign power over natural resources.

3. The Vesting Clause

Article I, section 1 of the Constitution provides: “All legislative Powers

herein granted shall be vested in a Congress of the United States . . . .”

Accordingly, Congress may not re-delegate its legislative powers to private parties

19
U.S. CONST., Art. I, § 9 (“No Title of Nobility shall be granted by the United
States . . .”) and § 10 (“No State shall . . . grant any Title of Nobility.”) Titles of
nobility had also been prohibited in Article VI of the Articles of Confederation.

19
or to administrative agencies, although limited grants of rulemaking authority are

allowed. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928);

Schechter Poultry Corp. v. United States, 295 U.S. 495, 529-530 (1935).20

The Public Trust Doctrine vindicates this principle, often referred to as the

“delegation doctrine.” At times, it operates solely to protect the interests of the

present public in particular resources. This non-delegation aspect of the Public

Trust Doctrine is illustrated in portions of the Illinois Central opinion:

It is hardly conceivable that the legislature can divest the state of the
control and management of this harbor, and vest it absolutely in a
private corporation. Surely an act of the legislature transferring the
title to its submerged lands and the power claimed by the railroad
company to a foreign state or nation would be repudiated, without
hesitation, as a gross perversion of the trust over the property under
which it is held. . . . . It would not be listened to that the control and
management of the harbor of that great city-a subject of concern to the
whole people of the state-should thus be placed elsewhere than in the
state itself.

146 U.S. at 454-55.

In other instances, the Public Trust Doctrine operates as an aspect of both

the delegation doctrine and the reserved powers doctrine by protecting the

sovereign interests of later generations and their legislatures. Because Article I

legislative power vests equally to all legislative bodies succeeding one another

20
Potestas delegata non potest delegari. See John Locke, SECOND TREATISE OF
GOVERNMENT par. 142 (1689) (“The legislative neither must nor can transfer the
power of making laws to any body else, or place it any where, but where the
people have.”).

20
through time, one session of Congress may not infringe on the sovereignty of later

sessions and the public that they represent.21 Illinois Central also emphasizes the

future-oriented operation of the Public Trust Doctrine: “The legislature could not

give away nor sell the discretion of its successors in respect to matters, the

government of which, from the very nature of things, must vary with varying

circumstances.” Ill. Cent. R.R., 146 U.S. at 460.

The most serious possible constraint of future legislatures involves the loss

of resources that sustain citizen survival. Such a resource is at stake in this case.

See Appellants' Brief at 23-24. Such atmospheric harm and climate disruption

would impinge on future legislative sovereignty. Therefore, the reserved powers

and Public Trust Doctrines authorize the exercise of judicial review to “nullify a

legislative grant of a trust resource [that] threatens imminent, substantial and

irreparable environmental harm . . . [because] [u]nless the court acts, there might

be no public values left in the future for succeeding legislatures to manage.”22

21
See Roberts and Chemerinsky, ENTRENCHMENT OF ORDINARY LEGISLATION, 91
Cal L. Rev. at 1784 (explaining that legislative entrenchment – the quintessential
violation of the reserved powers doctrine – runs afoul of Art. I, secs. 1 and 7
because “a statute that prohibits its own repeal destroys the legislative power as to
that subject matter entirely”).
22
Douglas Grant, UNDERPINNINGS OF THE PUBLIC TRUST DOCTRINE, 33 Ariz. St.
L.J. at 885.

21
 4. Equal Protection

Equivalent standards of the equal protection clause of the Fourteenth

Amendment have long been recognized as applicable to the federal government

under the due process requirement of the Fifth Amendment. See Bolling v. Sharpe,

347 U.S. 497 (1954).

Equal protection for these youth plaintiffs, as well as future generations,

comports with the original purposes of the constitutional system. In Federalist 10,

James Madison famously decried the threat of “factionalism.” Madison defined a

faction as “a number of citizens . . . who are united and actuated by some common

impulse of passion, or of interest, adverse to the rights of other citizens or to the

permanent and aggregate interests of the community.”23 The present generation

constitutes such a faction as to certain ecological issues. The present generation is

united in interests adverse to the permanent interests of the community when, and

to the extent that, the present generation materially benefits from unsustainable

consumption, development, energy, or economic policies at the expense of later

citizens.

To eliminate temporal factionalism requires an extension of the temporal

sphere, i.e., some mechanism such as judicial review to ensure protection of later

generations’ interests. The constitutional reserved powers and public trust

23
THE FEDERALIST No. 10 at 78 (James Madison) (Clinton Rossiter ed., 1961)
(emphasis added).

22
doctrines can be understood as such mechanisms, judicially maintained bulwarks

to protect later generations from the most serious generational overreaching:

permanent encroachments on the equal sovereignty and survival interests of later

generations.

Posterity is the quintessential, politically powerless “discrete and insular

minority.” See United States v. Carolene Products, Co., 304 U.S. 144, 152 n. 4

(1938). Policies that permanently deprive later generations and legislatures of their

equal sovereignty, or that accomplish the same effect by causing the irreversible

destruction or irreversible impairment of sovereign resources, thereby effectively

“restrict those political processes which can ordinarily be expected to bring about

repeal of undesirable legislation.” Id. The Supreme Court has long treated this

sort of entrenchment of political disadvantages as relevant in its determinations as

to whether to exercise judicial review on behalf of threatened minority groups.

“Central both to the idea of the rule of law and to our own Constitution’s

guarantee of equal protection is the principle that government and each of its parts

remain open on impartial terms to all who seek its assistance.” Romer v. Evans,

517 U.S. 620, 633 (1996). Minors and future citizens are unable to employ the

voting franchise. If the constitutional guarantee of impartiality is to have any

meaning for these citizens, it must be given effect through the reserved powers and

public trust doctrines, as enforced by the judicial branch.

23
 5. Due Process

The due process clause of the Fifth Amendment incorporates unenumerated

rights applicable against the federal government in much the same way that the

Fourteenth Amendment due process clause incorporates such rights to apply

against the state governments. 24 In determining whether a constitutionally

unenumerated right or limitation should be deemed applicable as a matter of

substantive due process, the Court asks “whether the right . . . is fundamental to

our scheme of ordered liberty . . . or whether this right is ‘deeply rooted in this

nation’s history and tradition.’” MacDonald v. Chicago, 130 S. Ct. 3020, 3036

(2010), bench opinion 19 (internal citations omitted). The reserved powers

doctrine and the Public Trust Doctrine readily satisfy both of these standards.

The reserved powers doctrine and its component rule against legislative

entrenchment are implicit in the concept of ordered, democratic liberty. Any other

conclusion would be “inconsistent with the democratic principle that present

majorities rule themselves.”25 This understanding is based “on the most familiar

24
See Bolling, 347 U.S. 497 (applying equal protection principles to the federal
government); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (same);
Harris v. McRae, 448 U.S. 297, 317-18 (1980) (impliedly recognizing a federal
due process privacy right to abortion).
25
Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem,
85 Geo. L.J. 491, 509, n.1 (1997).

24
and fundamental principles, so obvious as rarely to be stated.” 26 As the Court

recognized in Fletcher v. Peck, “one legislature cannot abridge the powers of a

succeeding legislature. The correctness of this principle, so far as respects general

legislation, can never be controverted.” 10 U.S. 87, 135 (1810). 27

The application of this general principle to require the preservation of

critical natural resources and public control thereof is likewise fundamental to

ordered liberty. The resources subject to continuing governmental oversight are

those essential to the economic and physical health of society. These resources

form the natural infrastructure prerequisite to any stable political structure.

Therefore, their management cannot be surrendered to politically unaccountable

agents. As the Illinois Central Court explained: “The sovereign power . . . cannot,

consistently with the principles of the law of nature and the constitution of a well-

ordered society, make a direct and absolute grant of the waters of the state,

divesting all the citizens of their common right. It would be a grievance which

never could be long borne by a free people.” 146 U.S. at 456 (citations omitted).

26
Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82
Yale L.J. 189, 191 (1972).
27
See also Boyd v. Alabama, 94 U.S. 645, 650 (1876) (““We are not prepared to
admit that it is competent for one legislature, by any contract with an individual, to
restrain the power of a subsequent legislature to legislate for the public welfare . .
.”); Stone v. Mississippi, 101 U.S. 814, 819 (1879) (“No legislature can bargain
away the public health or the public morals.... Government is organized with a
view to their preservation, and cannot divest itself of the power to provide for
them.”); Newton v. Commissioners of Mahoning County, 100 U.S. 548 (1879).

25
 Because they are so central to effective government, the principles of

generational sovereignty and resource protection are abundantly evidenced in our

history. The founders of this country, having been faced with the philosophical

challenges associated with framing a Novus Ordo Seclorum, were especially well

versed in issues of generational sovereignty. Madison famously noted: “In framing

a system which we wish to last for ages, we should not lose sight of the changes

which ages will produce.”28

Perhaps most significant for purposes of a substantive due process analysis

is the extent to which the precise language of the due process clause is palpably

linked to two of the most seminal statements of reserved powers and generational

sovereignty principles: the Declaration of Independence, and the Virginia

Declaration of Rights.

The Fifth Amendment provides: “No person shall be . . . deprived of life,

liberty, or property, without due process of law . . . .” This language closely

mirrors the phrasing of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty, and the pursuit of
Happiness. . . . That whenever any form of Government becomes
destructive of these ends, it is the right of the People to alter or to
abolish it, and to institute new Government . . . .29

28
M. Farrand, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, I:422.
29
United States Declaration of Independence (1776), par. 2 (emphasis added).

26
This formulation was in turn based on Article I of Virginia’s Declaration of Rights,

which had been adopted just weeks before.30 The Virginia Declaration provided:

[A]ll men are by nature equally free and independent, and have
certain inherent rights, of which, when they enter into a state of
society, they cannot, by any compact, deprive or divest their posterity;
namely, the enjoyment of life and liberty, with the means of acquiring
and possessing property, and pursuing and obtaining happiness and
safety.31

This idea of unalienable and un-divestible rights was keenly familiar

amongst the framers. It was, essentially, an espousal of generational sovereignty, a

declaration of rights that posterity could not be divested of. The earliest

articulations of American discontent with England had been set forth as criticisms

of Parliament’s failure to honor the colonists’ intergenerational rights as British

subjects.32 The Americans claimed that certain “Rights of Englishmen” had been

30
Joseph Ellis, American Sphinx: The Character of Thomas Jefferson 56-65
(Random House, New York: 1998) (“On the eve of writing the Declaration,
Jefferson was thinking not about John Locke’s theory of natural rights or Scottish
common sense philosophy. He was thinking about Virginia’s new constitution.”)
31
Virginia Declaration of Rights (1776), Art. 1 (emphasis added). See also id.,
Preamble (“A Declaration of Rights made by the good people of Virginia in the
exercise of their sovereign powers, which rights do pertain to them and their
posterity, as the basis and foundation of government”) (emphasis added).
32
See “Declaration of Rights and Grievances” (1765) (Stamp Act Congress) in
Bernard Schwartz, The Roots of the Bill of Rights at I: 196, 197. (“His Majesty’s
liege subjects in these colonies are intitled to all the inherent rights and liberties of
his natural born subjects within the kingdom of Great Britain.”); Journals of the
House of Burgesses of Virginia, 1761-1765, ed. by Kennedy (Richmond, 1907)
302-304 (declaring in response to the Stamp Act that “As our Ancestors brought
with them every Right and Privilege they could with Justice claim . . . their

27
guaranteed to them in perpetuity by both charter and statute.33 The colonists also

espoused the proposition that certain types of rights could never be lost to later

generations through the action or inaction of earlier generations. 34 Such rights

were “indeprivable” or “unalienable.”

The “due process” protected in the Fifth Amendment is expressly made

applicable to the traditionally “unalienable rights” to life, liberty and property. In

light of the history behind that “unalienable rights” formulation, the reserved

powers doctrine is granted a central role in due process jurisprudence. This means

that posterity’s life and liberty interests must be accorded due protection.

Descendants may conclude, they cannot be deprived of those Rights without

Injustice”);
33
See First Charter of Virginia (1606) in B. P. Poore, The Federal and State
Constitutions, Colonial Charters and Other Organic Laws of the United States
(1878), Vol. 2, pp. 1888-93 (the king declares “for Us, our Heirs, and Successors . .
. that all [colonists] . . . and every of their children . . . shall have and enjoy all
Liberties, Franchises, and Immunities . . . to all Intents and Purposes, as if they had
been . . . within this our Realm of England”). See also similar or identical
guarantees in the charters of New England, Massachusetts Bay, Maryland,
Connecticut, Rhode Island, Carolina, and Georgia.
34
See Declarations and Resolves of the First Continental Congress (1774), in
Schwartz, supra n. 32 at 215, 216 (“That the inhabitants of the English Colonies in
North America . . . have the following Rights: Resolved . . . That they are entitled
to life, liberty, & property.”); The Rights of the Colonists and a List of
Infringements and Violations of Rights (1772), in H. A. Cushing, The Writings of
Samuel Adams (1906), ed., II: 350-69 ( “1. Natural Rights of the Colonists as Men
– “In short it is the greatest absurdity to suppose it in the power of one or any
number of men at the entering into society, to renounce their essential natural
rights, or the means of preserving those rights.)

28
 In addition to being “implicit in the concept of ordered liberty,” the Public

Trust Doctrine is also “so rooted in the traditions and conscience of our people as

to be ranked as fundamental.”35 Ancient Roman law held that “[b]y the law of

nature, the following are common to all mankind – the air, running water, the sea,

and consequently the shores of the sea.”36 That understanding carried over into

English law. The Magna Carta confirmed that ownership of wildlife, forests, and

similar resources, formerly vested exclusively in the king, would henceforth be

held in trust for the people. 37 This arrangement fits nicely with the American

principle that “when private property is affected with a public interest, it ceases to

be juris privati only.” Munn v. Illinois, 94 U.S. 113, 125-26 (1877) (internal

quotations omitted). Blackstone confirmed that within the English legal system,

certain categories of things must remain in common ownership, unsusceptible to

full privatization: “Such are the elements of light, air and water . . . also animals

ferae naturae, or of untamable nature . . . .”38

The framers were well acquainted with the principles of res communes; they

also recognized each generation’s fundamental obligation to preserve the value and

35
The substantive due process test as articulated in Snyder v. Massachusetts, 291
U.S. 97, 105 (1934).
36
Institutes of Justinian, J. INST., 2.1.1-2.1.6 at 55 (P. Birks & G. McLeod trans.
1987); see also Geer, 161 U.S. 519 (on the Roman treatment of wildlife and other
common property).
37
MAGNA CARTA pars. 33, 47 and 48 (1215). See Arnold v. Mundy, 6 N.J.L. 1, 50
(1821); Martin v. Waddell, 41 U.S. 367, 412-13 (1842)
38
Id. at II ch. 1, 222.

29
integrity of natural resources for later generations.39 The most succinct, systematic

treatment of intergenerational principles is that provided by Thomas Jefferson to

James Madison:40

The question [w]hether one generation of men has a right to bind

another. . . is a question of such consequences as not only to merit
decision, but place also among the fundamental principles of every
government. . . . I set out on this ground, which I suppose to be self-
evident, ‘that the earth belongs in usufruct to the living’. . . .

Jefferson based his entire argument regarding generational political and

economic relations upon the “self-evident” principle of usufructary ownership of

the earth.41 The legal concept of usufruct dates to ancient Roman law42 and has

changed little over the centuries. In Jefferson’s time, “usufruct” referred to “the

right to make all the use and profit of a thing that can be made without injuring the

substance of the thing itself.”43 A usufruct was a term used to describe the rights

39
Edmund Burke, Reflections on the Revolution in France 259 (1790), Ed. J.C.D.
Clark (2001).
40
Jefferson to James Madison, supra n. 7 at 392-98.
41
Jefferson would continue for the remainder of his life to characterize
intergenerational obligations, including natural resource obligations, in this way.
See Jefferson to Thomas Earle, September 24, 1823 (“That our Creator made the
earth for the use of the living and not of the dead; . . . that one generation of men
cannot foreclose or burden its use to another . . . . these are axioms so self-evident
that no explanation can make them plainer”).
42
See, e.g., W. Hamilton Bryson, The Use of Roman Law in Virginia Courts, 28
American Journal of Legal History 135 (1984); Herbert Sloan, Principles and
Interest Thomas Jefferson and the Problem of Public Debt 82 (1995).
43
Sir Robert Chambers, A Course of Lectures on the English Law, Delivered at the
University of Oxford, 1767-1773, ed. Thomas M. Curley, 2 vols. (Madison, Wis.
1986), 2:85.

30
and responsibilities of tenants, trustees, or other parties temporarily entrusted with

the use of an asset—usually land.

Usufructuary rights are limited by the doctrine prohibiting waste.44 Taken

together, the concepts of usufruct and waste provide that a present possessor is

entitled to the beneficial use of the natural estate and its fruits, but cannot prejudice

future interest holders by destroying or impairing the present estate’s essential

character or long-term productivity. The principle of intergenerational

stewardship, reinforced by the concepts of usufruct and waste, became ethical

bedrock by the late 1700's. Relying on this widely shared value, Jefferson

maintained that each individual, and each generation collectively, had the

obligation to pass on his, her, or its natural estate undiminished and unencumbered

to later generations:

[N]o man can by natural right, oblige lands he occupied . . . to the

payment of debts contracted by him. For if he could, he might, during
his own life, eat up the usufruct of the lands for several generations to
come, and then the lands would belong to the dead rather than the
living, which would be the reverse of our principal. What is true of
every member of the society individually, is true of them all
collectively, since the rights of the whole can be no more than the sum
of the rights of the individuals.45

44
Blackstone, supra n. 5 at 281 (defining waste as “a spoil or destruction in houses,
gardens, trees, or other corporeal hereditaments, to the disheison of him that hath
the remainder or reversion.”).
45
Jefferson to Madison, September 6, 1789, supra n. 7 (emphasis added). See
Sloan, supra n. 42 at 60.

31
The same experiences and authorities that shaped Jefferson’s conception of

intergenerational obligations also shaped the views of his contemporaries. “What

makes Jefferson’s views important . . . is not so much that he held them, but that

they were widely shared.” 46 These widely shared principles of usufructary

responsibility for natural resources were significant in shaping the early “traditions

and conscience of our people,” and they support recognition of public trust

principles as a matter of federal substantive due process. The same principles find

voice in state constitutions47 and federal statutes today.48

E. The Atmosphere as a Public Trust Resource

1. A Doctrine Adaptable to Changed Circumstances

The underlying rationale of the Public Trust Doctrine requires protection of

more than water and submerged lands:

The state can no more abdicate its trust over property in which the
whole people are interested, like navigable waters and soils under
them, so as to leave them entirely under the use and control of private
parties, . . . than it can abdicate its police powers. . . . So with trusts
connected with public property, or property of a special character, . .
. they cannot be placed entirely beyond the direction and control of
the state.”

46
Id. at 5.
47
See, e.g., PA. CONST. art. I, § 27; MONT. CONST. art. IX, § 1; HAW. CONST. art.
IX, § 1; and ILL. CONST. art XI, § 1.
48
See, e.g., National Environmental Policy Act of 1969, § 101(b)(1), 42 U.S.C. §
4331(b)(1) (1970) (“[I]t is the continuing responsibility of the Federal Government
to use all practicable means, consistent with other essential considerations of
national policy, to . . . fulfill the responsibilities of each generation as trustee of the
environment for succeeding generations . . . .”).

32
Ill. Cent., 146 U.S. at 453-54 (emphasis added). The intergenerational, reserved

powers aspect of the Public Trust Doctrine requires that the contours of the trust

obligation adapt to changes in circumstances over time. This attribute of the

doctrine reflects the conviction that every legislature (and generation of citizens)

should possess the necessary power “at all times to do whatever the varying

circumstances and present exigencies attending the subject may require . . . .” Id. at

459 (citing Newton v. Commissioners).

As the New Jersey Supreme Court explained, the doctrine of the Public

Trust Doctrine is not “‘fixed or static,’ but is to be ‘molded and extended to meet

changing conditions and needs of the public it was created to benefit.’” Matthews

v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (citation omitted);

see also Marks v. Whitney, 491 P.2d 374, 380 (1971). Consistent with this

principle, courts have expanded the navigable waters version of the doctrine from

its original tidal waters application to apply to inland waters that are navigable-in-

fact,49 and beyond.

Courts have also employed the doctrine to respond to new societal concerns,

including ecological and recreational interests. See Nat’l Audubon Soc’y v.

49
See The Genessee Chief v. Fitzhugh, 53 U.S. 443, 457 (1851); see also Michael
C. Blumm, The Public Trust Doctrine – A Twenty-First Century Concept, 16
Hastings W.N.W. J. Envtl. L. & Policy 105 (2010) available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1468601 (describing evolution
of the doctrine).

33
Superior Ct. of Alpine City, 658 P.2d 709, 724 (Cal. 1983). They have expanded

the reach of the Public Trust Doctrine to embrace other categories of public

resources as the integrity of those resources has come under threat, protecting

resources as diverse as non-navigable tributaries, groundwater, wetlands, dry sand

areas, and wildlife.50

Recognition of the atmosphere as a trust resource reflects ancient historical

understandings of the trust’s operation and purpose and does not require any

restructuring of public trust principles. In fact, a judicial exception for the

atmosphere from the doctrine’s reach would jeopardize the protection of other

traditional trust assets such as navigable waters and wildlife. As the Supreme Court

explained, the Public Trust Doctrine protects natural resources of significant public

concern. Ill. Cent., 146 U.S. at 453-54. Certainly the current condition of the

atmosphere satisfies the Court’s threshold.

2. Prior Recognition of Air and the Atmosphere as Common Trust

Resources

Despite recent judicial recognition of climate change as a threat to human

survival, the notion of air as a public trust resource is as old as our legal system.

50
See Nat’l Audubon Soc’y, 658 P.2d at 719 (non-navigable tributaries); Owsichek
v. State Guide Licensing & Control Bd., 763 P.2d 488, 493 (Alaska, 1988)
(wildlife); Matthews, 471 A.2d at 358 (dry sand area); Robinson v. Ariyoshi, 658
P.2d 287, 311 (Haw. 1982) (groundwater); Just v. Marinette Cnty., 201 N.W.2d
761, 769 (Wis. 1972) (wetlands); see Charles F. Wilkinson, The Headwaters of the
Public Trust: Some of the Traditional Doctrine, 19 Envtl. L. 425 (1989)
(describing expansion of the Public Trust Doctrine).

34
The Roman originators of the Public Trust Doctrine classified air – along with

water, wildlife, and the sea – as “res communes,” or “things which remain

common.” Geer, 161 U.S. at 525.

Relying on “res communes,” the Geer Court confirmed the continuing

public trust status of wildlife. 161 U.S. at 523-25. Just a few years later, the Court

recognized the states’ sovereign property interests in air and found such interests

paramount over private title. In Georgia v. Tennessee Copper, the Court upheld an

action by Georgia against Tennessee copper companies for transboundary air

pollution, declaring that “the state has an interest independent of and behind the

titles of its citizens, in all the earth and air within its domain.” 206 U.S. 230, 237

(1907) (emphasis added).

The notion of the atmosphere as a public resource subject to government

stewardship is now settled. Numerous state constitutions and codes recognize air

as a public trust resource. 51 Congress confirmed the public nature of the air

resource in the Air Commerce Act of 1926, recognizing that the United States “has

complete and exclusive national sovereignty in [its] air space.” 49 U.S.C.A.

§176(a). Federal law also recognizes air as a trust asset for which the federal

51
See, e.g., Her Majesty v. City of Detroit, 874 F.2d 332, 337 (6th Cir. 1989);
HAW. CONST. art. XI, § 1; R.I. CONST., art. I, § 17, interpreted as codification of
Rhode Island’s public trust doctrine in State ex. Rel. Town of Westerly v. Bradley,
877 A.2d 601, 606 (R.I. 2005); Nat’l Audubon Soc’y, 658 P.2d at 718-20.

35
government, states, and tribes may obtain recovery in the event of natural resource

damages. 52 Congress has treated the airwaves (electromagnetic broadcasting

frequencies) as a federal public trust asset.53

Treatment of the air and the atmosphere as sovereign resources subject to

public trust oversight follows from two primary analytic approaches courts have

employed to identify trust resources: 1) the fugitive nature of the resource, and 2)

its “public character.”

3. Fugitive Nature

In his discussion of propter privilegium, Blackstone explained that:

Qualified Property . . . may subsist in the very elements of fire or

light, of air and of water. A man can have no permanent property in
these, as he may in land, since they are of a fugitive nature, and can
admit only of a precarious and qualified ownership, which lasts while
they are in actual use and occupation, but no longer.54

Some things by their nature pass from place to place, and person to person. Law

recognizes only a partial, usufructary interest in such things. By way of example,

water that passes through a streamside landowner is, by nature, destined to flow to

the land of a downstream owner, and then to another. Because each landowner is

dependent on others, a riparian holder cannot impair the quantity or quality of the

52
See 42 U.S.C. § 9601 (CERCLA) (2006) (defining air among the natural
resources subject to trust claims for damages).
53
See Office of Comm’n of United Church of Christ v. F.C.C., 707 F.2d 1413,
1427-28 (D.C. Cir. 1983) (discussing “the public trust doctrine inherent in the
Act”).
54
Blackstone, supra n. 5 at 447; Geer, 161 U.S. at 529.

36
flowing water, and government, as representative of the public interest in the

resource, has a fiduciary responsibility for overseeing allocation of this trust

resource.

Like the oceans, the atmosphere is the concern of all humankind. But the air

does not just pass from person to person in the present; future citizens will inherit

the atmosphere and its effect on the climate. Sovereign management of the

atmosphere will have long-term consequences. Since the roots of the Public Trust

Doctrine lie in the constitutional reserved powers doctrine, temporal fugitivity is

entitled to as much consideration as more conventional geographic fugitivity, and

both weigh in favor of recognition of the atmosphere as a sovereign trust

resource.55

4. Public Character of the Covered Property

The Public Trust Doctrine requires governments to protect ecological

resources that are critical to public welfare. Historically, resources subject to trust

protection were those involving navigation, fishing, and water-borne commerce.

Because of the “public character of the property,” Illinois Central, 146 U.S. at 455-

56, the sovereign must manage those resources to protect public trust resources,

insure preservation policy options for later legislatures, and maintain equivalent

55
See Grant, 33 ARIZ. ST. L.J. at 878 (“Arguably a public trust doctrine based on
the reserved powers doctrine should enable revocation of governmental permits or
licenses that will affect air quality in ways harmful over time to public health.”);
Gerald Torres, Who Owns the Sky?, 19 Pace Envtl. L. Rev. 515, 533 (2002).

37
opportunities for ensuing generations to manage those resources. These resources

“cannot be placed entirely beyond the direction and control of the state” and, for

the sake of public welfare, should not be subject to private ownership. Illinois

Central, 146 U.S. at 454. Courts look to the evolving needs of the public in

defining the scope of these trust resources.

5. Navigation and Commerce

Like waterways, airspace is subject to monopoly control, making it subject

to the Public Trust Doctrine. See Illinois Central, 146 U.S. at 452. In Causby, the

Supreme Court warned, “To recognize private claims to the airspace would clog

these highways, seriously interfere with their control and development in the

public interest, and transfer into private ownership that to which only the public

has a just claim.” 328 U.S. at 261 (emphasis added). The public nature of the

airspace recognized in Causby is equally applicable to the airsheds that EPA has

allowed to be polluted with GHG emissions.

6. Subsistence

In Missouri v. Holland, 252 U.S. 416 (1920), the Court emphasized the

fugitive nature of the relevant resource, its critical subsistence value, and the need

for federal oversight of the resource: “Here, a national interest of very nearly the

first magnitude is involved . . . . ” 56 Later courts, relying on similar considerations,

56
252 U.S. at 435.

38
recognized the right of the federal government to recover damages under a public

trust theory for destroyed migratory waterfowl.57 As is explained in the instant

Complaint, the climate disruption being caused by unsustainable carbon emissions

poses more serious implications for agriculture and food security than the

unregulated hunting of migratory waterfowl.

7. Security and the Necessity of National Oversight

The atmosphere is a natural resource similar to other resources that the

federal government has a trust obligation to protect – such as the ocean. In

Alabama v. Texas, Justice Douglas explained the federal sovereign trust involving

the nation’s coastline:

[W]e are dealing here with incidents of national sovereignty. The

marginal sea is . . . more than a mass of water; it is a protective belt
for the entire Nation over which the United States must exercise
exclusive and paramount authority. The authority over it can no more
be abdicated than any of the other great powers of the Federal
Government. It is to be exercised for the benefit of the whole . . . .

347 U.S. 272, 282 (1954) (Douglas, J., dissenting).

The federal trust protects national interests in resources that transcend state

borders. To entrust the management and preservation of such resources solely to

the states would invite ineffective, piecemeal management on the part of the

various state legislatures and judiciaries. As the Court explained in Missouri v.

57
See, e.g., In re Complaint of Steuart Transportation Co., 495 F. Supp. 38, 40
(E.D. Va. 1980).

39
Holland, “[i]t is not sufficient to rely upon the States. The reliance is vain.” 252

U.S. at 435. The national character of the atmosphere obliges the sovereign to

administer the trust “for the benefit of the whole people.” Utah Division of State

Lands, 482 U.S. 193, 196 (1987). Judicial recognition of the atmosphere as a

federal trust resource ensures the government preserves its stewardship role over

the integrity of the climate system through time; absence of a trust obligation risks

the welfare of both the present generation and posterity.

The rationale that the public trust applies to protect the atmosphere is the

same as the Supreme Court used in Illinois Central:

We cannot, it is true, cite any authority where a grant of this kind has
been held invalid, for we believe that no instance exists where the
harbor of a great city and its commerce have been allowed to pass into
the control of any private corporation. But the decisions are numerous
which declare that such property is held by the state, by virtue of its
sovereignty, in trust for the public.

Ill. Cent., 146 U.S. at 455. Our rapidly heating atmosphere implicates public trust

principles to a far greater degree than did the submerged lakebed of Illinois

Central. The critical difference, making recognition of the atmospheric trust all

the more imperative, is that its degradation poses a threat to human society of a

magnitude unimaginable in the day when Justice Field invoked the doctrine to

protect Chicago Harbor.58

58
Commentators increasingly point to the logic and necessity of applying the
public trust doctrine to the climate crisis. See, e.g., Torres, supra note 68, at, 533

40
F. Affirmative Constitutional Duties and the State Action Doctrine

The Public Trust Doctrine holds that: certain crucial natural resources

remain the common property of all citizens; those resources cannot be entirely

privatized; and they must be preserved and protected by the government. See

Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective

Judicial Intervention, 68 Mich. L. Rev. 471 (1970). The essence of a trust

responsibility is the sovereign’s fiduciary duty to protect the beneficiary’s crucial

assets from irrevocable damage. Private trustees have a basic duty not to sit idle

and allow damage to the trust property. “The trustee has a duty to protect the trust

property against damage or destruction.” George G. Bogert, et al., Bogert’s Trusts

and Trustees, § 582 (2011).

The same principle applies to public trustees. As trustee of sovereign

resources, our government has a fiduciary obligation to protect the trust resources

for the beneficiaries, including both the present generation and posterity. See

Geer, 161 U.S. at 533-34 (“[I]it is the duty of the legislature to enact such laws as

(“Properly understood . . . the traditional rationale for the public trust doctrine
provides a necessary legal cornerstone . . . to protect the public interest in the
sky.”); Joseph L. Sax, supra at 556-57 (urging application of doctrine to
“controversies involving air pollution”); Wood, Advancing the Sovereign Trust of
Government, supra at 80-91; Patrick Parenteau, Come Hell and High Water
Coping with the Unavoidable Consequences of Climate Disruption, 34 Vt. L. Rev.
957, 963-64 (2010); Robin Kundis Craig, Adapting to Climate Change: The
Potential Role of State Common-Law Public Trust Doctrines, 34 Vt. L. Rev. 781
(2010).

41
will best preserve the subject of the trust, and secure its beneficial use in the future

to the people of the state.”) quoting Magner v. People, 97 Ill. 320, 334 (Ill. 1881);

see also In re water Use Permit Applications, Waihole Ditch Combined Contested

Case Hearing (hereinafter Waihole Ditch), 9 P.3d 409, 455 (Haw. 2000) (“The

beneficiaries of the public trust are not just present generations but those to

come.”); State v. City of Bowling Green, 313 N.E. 2d 409, 411 (Ohio 1974)

(“[W]here the state is deemed to be the trustee of property for the benefit of the

public it has the obligation to bring suit . . . to protect the corpus of the trust

property.”); Nat’l Audubon Soc’y, 658 P.2d at 724 (expressing the “duty of the

state to protect the people’s common heritage of streams, lakes, marshlands and

tidelands”); City of Milwaukee v. State, 214 N.W. 820, 830 (Wis. 1927) (“The

trust reposed in the state is not a passive trust; it is governmental, active, and

administrative [and] requires the lawmaking body to act in all cases where action is

necessary, not only to preserve the trust, but to promote it . . ..”); Just v. Marinette

Cnty., 201 N.W.2d at 768-70 (emphasizing “active public trust duty” on the part of

the state that requires the eradication of pollution and the preservation of the

natural resource held in trust).

The legislature is the primary trustee; the executive, as an agent of the

trustee, has the same public trust obligation. See Ctr. For Biological Diversity v.

FPL Grp., 166 Cal.App.4th 1349, 1365-66 (Cal. App. 1 Dist. 2008) (discussing

42
public trust obligations of “public agencies”); Waihole Ditch, 9 P.3d 409 (applying

public trust obligations to state agency.)

Respondents in the instant case invoke two general constitutional principles

to support their contention that, even if there is a constitutionally mandated federal

public trust interest in the atmosphere, the trust cannot support Appellants' claims

for relief. The first of these principles is that the Constitution imposes no

affirmative obligations on the federal government to act. The second is that the

Constitution’s restrictions apply to limit government conduct only, not private

conduct. Both claims are unfounded.

1. Affirmative Duty

Relying on the premise that the Constitution does not require government to

act,59 Respondents conclude that a federal Public Trust Doctrine, even if grounded

in the Constitution, cannot impose an affirmative duty on government to protect

the atmosphere or other sovereign resources. But as Justice Jackson said, the

Constitution is not “a suicide pact." Terminiello v. City of Chicago, 337 U.S. 1,

37 (1949). The instant case is not controlled by the general admonition against

affirmative duties because an exception applies when government has placed limits

on the ability of citizens to act on their own behalf. As the Court explained in

DeShaney v. Winnebago:

59
DeShaney v. Winnebago Cnty. Dep’t of Soc Servs., 489 U.S. 189, 195 (1989).

43
 The affirmative duty to protect arises . . . from the limitation which
[the government] has imposed on [the citizen’s] freedom to act on his
own behalf . . . .

489 U.S. at 200. By failing to address the threat posed by carbon emissions to the

climate, the federal government has imposed limits on the public’s ability to act on

its own behalf. The Clean Air Act (“CAA”) provides the Environmental

Protection Agency (“EPA”) with the authority and the means to permit and limit

carbon emissions. Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2537-38

(2011). However, due to the displacing and preemptive effect that federal courts

have read into that statute, the public has had no legal recourse against polluters

under a federal common law nuisance theory when the EPA fails to act to reduce

emissions scientifically determined to be necessary to preserve a stable climate.

See Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 865 (S.D. Miss. 2012)

aff’d, 718 F.3d 460 (5th Cir. 2013).

The Supreme Court has held that the CAA also displaces any federal

common law nuisance action to seek abatement of carbon-dioxide emissions from

fossil fuel fired power plants. Am. Elec. Power Co., 131 S. Ct. at 2537. On similar

grounds, courts have denied states relief based on state common law claims. See,

e.g., N. Carolina, ex rel. Cooper v. Tennessee Valley Authority, 615 F.3d 291, 303

(4th Cir. 2010). Federal courts have also rejected local and state legislative

attempts to curtail emissions. See, e.g., Ophir v. City of Boston, 647 F. Supp.2d 86

44
(D. Mass. 2009) (holding local ordinance requiring taxis to be hybrid vehicles is

preempted by a federal statute).

Because the federal government has effectively imposed severe limits on the

right of citizens and the states to take action to protect the atmosphere, the usual

presumption against imposing affirmative constitutional duties does not apply. As

noted in DeShaney, an affirmative duty arises from the limitations imposed. The

constitutionally cognizable sovereign interest of later legislatures and later

generations of United States citizens in a stable atmosphere, an interest underlying

all national political and economic interests, requires vindication through

affirmative government action, or through removal of the statutory and doctrinal

barriers preventing citizens from acting on their own behalf. As the preeminent

climatologist, Dr. James Hansen, has warned, “Failure to act with all deliberate

speed in the face of the clear scientific evidence of the long term dangers posed is

the functional equivalent of a decision to eliminate the option of later generations

and their legislatures to preserve a habitable climate system.”60

“A constitution is framed for ages to come, and is designed to approach

immortality as nearly as human institutions can approach it. Its course cannot

always be tranquil.” Cohens v. Virginia, 19 U.S. 264 (1821). The “government

60
James E. Hansen et al., Scientific Case for Avoiding Dangerous Climate Change
to Protect Young People and Nature, NASA (Jul. 9th, 2012), available at
http://pubs.giss.nasa.gov/abs/ha08510t.html

45
imposed limitations” exception to the usual presumption against affirmative

constitutional duties has most often been invoked in defense of individual rights,

but it has even greater force in defense of common, publicly shared rights.

Governmental officials have breached their sovereign responsibility to secure

citizens’ lives, liberty, and property and must be held to account.

2. State Action

Of course, the presumption against affirmative constitutional duties is

relevant only if we assume that that the federal government has been a passive

actor in regards to carbon emissions and climate change. On the other hand, if the

federal government is actively engaged in the destruction of the climate, it would

trigger the exception to the presumption. In fact, as alleged in the instant

Complaint, the federal government has been and remains directly involved in

climate destruction in several ways. Complaint at 53-65, 145-150.

The federal government has hardly been a neutral bystander concerning

GHG emissions from fossil fuels. In fact, the government has actively promoted

the extraction and consumption of fossil fuels and, the resulting greenhouse gas

emissions. The federal government, therefore, is not entitled to invoke the general

presumption against affirmative constitutional duties.

46
G. The Role of the Federal Judiciary in the Public Trust Context

1. Enforcement of Trust Obligations

For any trust to function effectively, judicial enforcement is essential.61 This

principle applies to sovereign resource trusts just as to private trusts. See Ariz. Ctr.

For Law in Pub. Interest v. Hassell, 837 P.2d 158, 169 (Ariz. App. 1991), petition

dismissed 1992 Ariz. LEXIS 82 (Ariz. 1992) (“Just as private trustees are

judicially accountable to their beneficiaries for dispositions of the res, so the

legislative and executive branches are judicially accountable for their dispositions

of the public trust.”) (citation omitted).

Although the modern climate crisis was unimaginable when the Supreme

Court first acknowledged the public trust over water and submerged lands as a

sovereign obligation, the rationale and purpose behind the trust apply even more

clearly now. Courts are being called upon in the same manner as they always have

been in public trust cases – not to exercise direct management over the res of the

trust, but to ensure that the political branches fulfill their trust obligation to avoid

destruction or irreparable harm to an asset that must sustain future generations.

61
As James Madison noted, “[i]n Framing a government which is to be
administered by men over men the great difficulty lies in this: you must first enable
the government to control the governed; and in the next place oblige it to control
itself.” James Madison, Federalist 51.

47
 2. Application of the Public Trust Doctrine Does Not Invoke the
Separation of Powers and the Political Question Doctrines

Whenever the federal courts are called upon to hold the legislative and

executive branches to their constitutional duties, this implicates the separation of

powers question. Relying upon the unelected branch of the government to correct

the policy decisions of either of the elected branches must generally be treated as

an unwelcome option. See Massachusetts v. E.P.A., 549 U.S. 497, 535 (2007)

(redress of grievances such as deficient global warming policy “is the function of

Congress and the Chief Executive, not the federal courts.”) (Roberts, C.J.,

dissenting) (citations omitted). Courts, citing “political question” concerns, have

declined to provide affirmative relief from the federal government’s current energy

policy and (largely non-existent) climate change policy, despite growing scientific

consensus that such relief is imperative. See, e.g., Am. Elec. Power, 131 S. Ct.

2527; Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 871

(N.D. Cal. 2009).

In none of these cases was a court called upon to determine whether the

government had a fundamental constitutional obligation to oversee the atmosphere

as a sovereign trust resource, and no court has considered the proper role of the

judiciary when confronted with unconstitutional conduct concerning that resource.

When unconstitutional conduct is at issue, and that conduct threatens not only

fundamental economic interests, but the baseline habitability of the planet, a

48
practical separation of powers calculus must take those circumstances into account.

“It is a proposition too plain to be contested, that the Constitution controls any

legislative act repugnant to it . . . . It is emphatically the province and duty of the

judicial department to say what the law is . . . . If two laws conflict with each

other, the courts must decide on the operation of each.” Marbury v. Madison, 5

U.S. at 137, 177 (1803). In this case, court action is not only appropriate, but

essential to protect the sovereign interests of later legislatures and the life and

liberty interests of the public whom those legislatures will represent.

The political question doctrine rests on the notion that where widely shared

public concerns are at issue, interested parties should generally be encouraged to

pursue their goals through the normal, majoritarian political process. However,

because the reserved powers and public trust doctrines are designed to protect the

rights and sovereign powers of later generations from infringement by earlier

generations, the political question doctrine does not apply in the same way to

public trust cases. The underlying logic of the political question doctrine supports

more generous availability of judicial review for the protection of posterity’s

sovereign interests. Because existing minors and future generations have no vote,

they are not in a position to pursue their goals through the normal, majoritarian

political process. If their interests are to be protected, they must be protected

vicariously. Future generations and legislatures are the quintessential

49
unrepresented “minority,” in need of judicial protection from careless inaction of

the present political majority. Claims of intergenerational injustice actually

constitute an effort to protect the ultimate majority, since our successors will surely

dwarf the population of today. Thus, the judicial choice to remove itself from the

process on political question or other grounds would disregard majority self-rule—

the relevant majority being those yet to be born.

As intergenerational harms continue into perpetuity—as in the case of global

warming—the number of people harmed, and consequently the overall severity of

the harm, is potentially infinite. When intergenerational harms—environmental or

otherwise— are serious enough, they can jeopardize society’s capacity for self-

government and unjustifiably restrict future generations’ policy options. Harms on

this scale will infringe on future generations’ sovereignty. The reserved powers

doctrine aims to prevent this long term, counter-majoritarian behavior. As one

commentator has explained:

[T]he constitutional policy of intergenerational fairness is of

fundamental, if not singular, importance and . . . judicial review on the
basis of such a policy would be justified. Far from vitiating the
primacy of the principles of government by consent and majority rule
. . . [b]y, in effect, rationing and restricting the decision-making
prerogatives of earlier generations, such a judicial approach would
tend to maximize and equalize the prospects for effective majority
rule across a multi-generational expanse of time.62

62
Jim Gardner, Discrimination Against Future Generations: The Possibility of
Constitutional Limitation, 9 Envtl. L. 29, 59 (1978).

50
 Federal courts need not overrule the other branches’ policies in every case

where the nation’s future interests are significantly implicated. But that is not what

Appellants or Amici advocate. Here, where federal policies threaten to destroy or

seriously and irreparably injure essential natural resources, Appellants ask the

court to order Respondents to produce and implement a climate recovery plan that

establishes measures to reduce carbon dioxide pollution as required by the best

available science, followed by regular carbon accountings to ensure that this plan is

carried out. Judicial oversight can allow the other branches full latitude in

deciding which measures are appropriate to meet the prescription. Requiring the

other branches of government to fulfill their fiduciary duty to protect inalienable

public rights in sovereign trust property has never been declared to be a “political

question” inappropriate for a judicial remedy. “The check and balance of judicial

review provides a level of protection against improvident disposition of an

irreplaceable res.” See Waihole Ditch, 9 P.3d at 455.

IV. CONCLUSION

The reserved powers doctrine makes clear that the Public Trust Doctrine

applies to protect the nation’s air and atmosphere, both of which are crucial

resources needed for the survival and welfare of present and future generations.

Respondents thus owe a fiduciary obligation under the Public Trust Doctrine to

51
take immediate action to abate dangerous GHG pollution that threatens the air,

atmosphere, and climate system.

DATED this 12th day of November, 2013.

Respectfully submitted,

On the Brief:

/s/ William H. Rodgers Jr. __/s/ John Davidson__________

William H. Rodgers, Jr.
Stimson Bullitt Professor of
Environmental Law
University of Washington
School of Law
3026 NW Esplanade
Seattle, WA 98117
T: (206) 783-9497
E-mail: whr@u.washington.edu
Counsel for Applicants
Amici Curiae Law Professors
John Davidson
Professor of Constitutional Law
University of Oregon
Dep’t of Political Science
936 Prince Lucien Campbell Hal
University of Oregon
Eugene, OR 97403
T: (541) 346-4540
E-mail: davidson@uoregon.edu

On Behalf Of:

Mary Christina Wood

Philip H. Knight Professor
Faculty Director, Environmental and
Natural Resources Law Program
University of Oregon School of Law

Erwin Chemerinsky
Dean of the School of Law
Distinguished Professor of Law

Raymond Pryke Professor of First Amendment Law
University of California, Irvine School of Law

Michael Blumm
Jeffrey Bain Faculty Scholar and Professor of Law

52
Lewis and Clark Law School

John Davidson
Professor of Constitutional Law
University of Oregon Department of Political Science

Gerald Torres
Marc and Beth Goldberg Distinguished Visiting Professor of Law
Cornell Law School
Professor and Bryant Smith Chair in Law
University of Texas School of Law

Burns Weston
Bessie Dutton Murray Distinguished Professor of Law and Emeritus Senior
Scholar, UI Center for Human Rights; Co-Director, Commons Law Project,
The University of Iowa College of Law

Stuart Chinn
Assistant Professor
Faculty Director, Public Law and Policy Program
University of Oregon School of Law

Kevin J. Lynch
Assistant Professor of Law
University of Denver Sturm College of Law

Maxine Burkett
Associate Professor of Law
William S. Richardson School of Law
University of Hawai'i

Erin Ryan
Associate Professor of Law
Lewis & Clark Law School

Timothy P. Duane
Visiting Professor of Law
University of San Diego

53
Professor of Environmental Studies
University of California, Santa Cruz

Deepa Badrinarayana
Associate Professor
Dale E. Fowler School of Law
Chapman University

Ryke Longest
Clinical Professor of Law
Duke University School of Law

Jacqueline P. Hand
Professor of Law
University of Detroit Mercy Law School.

Zygmunt Plater
Professor of Law
Boston College Law School

James Gustave Speth

Professor of Law
Vermont Law School

Charles Wilkinson
Distinguished Professor
Moses Lasky Professor of Law
University of Colorado Law School

Patrick C. McGinley
Charles H. Haden II Professor of Law
West Virginia University College of Law

Eric T. Freyfogle
Swanlund Chair and Professor of Law
University of Illinois at Urbana-Champaign

Craig Anthony Arnold

54
Boehl Chair in Property and Land Use Professor of Law
Affiliated Professor of Urban Planning
Brandeis School of Law
Chair of the Center for Land Use and Environmental Responsibility,
 University
of Louisville

Patrick Parenteau
Professor of Law
Senior Counsel, Environmental and Natural Resources Law Clinic
Vermont Law School

Federico Cheever
Professor of Law and
Senior Associate Dean for Academic Affairs
Sturm College of Law
University of Denver

Mark S. Davis
Senior Research Fellow and Director
Tulane Institute on Water Resources Law and Policy
Tulane Law School

James R. May, B.S.M.E., CEIT, J.D., LL.M, Esq.

Professor of Law
Co-Director, Environmental Law Center
Professor of Graduate Engineering (Adjunct)
Widener University

Denise Antolini
Professor & Associate Dean
William S. Richardson School of Law
University of Hawaii at Manoa

Professor Edith Brown Weiss

Francis Cabell Brown Professor of International Law
Georgetown University Law School

55
Alyson C. Flournoy
Professor & Alumni Research Scholar
University of Florida Levin College of Law

David Takacs
Associate Professor of Law
University of California, Hastings School of Law

Michael Robinson-Dorn
Clinical Professor of Law
University of California, Irvine School of Law

Karl Coplan
Professor of Law
Co-Director, Environmental Litigation Clinic
Pace Law School

Oliver Houck
Professor of Law
Tulane University Law School

Joseph Sax
James H. House and Hiram H. Hurd Professor of
Environmental Regulation (Emeritus)
University of California Berkeley Law School

Douglas L. Grant
Professor Emeritus
William S. Boyd School of Law
University of Nevada – Las Vegas

56
57
58
 APPENDIX 1

The Amicus professors include some of the most respected and

accomplished constitutional and environmental law scholars in the nation and have

written profusely on the function of the public trust doctrine in environmental law

and the role of the constitution in American law and democracy. Many have

authored books and other writings on climate change.

Dean Erwin Chemerinsky is one of the nation’s most accomplished and

esteemed constitutional law scholars. He has authored seven books and textbooks

on constitutional law and federal jurisdiction, as well as nearly 200 law review

articles on constitutional law and other subjects. Professor Joseph L. Sax is widely

recognized as the grandfather of public trust scholarship. His prolific writings on

the public trust are cited widely in American courts and in the courts of other

nations. Professor William H. Rodgers, Jr. has authored the nation’s leading

hornbook and treatise on environmental law, textbooks on environmental law,

climate change, and energy, and over 45 articles and book chapters on

environmental law. Professors Michael C. Blumm and Mary Christina Wood are

co-authors of a textbook on public trust law, and both have written law review

articles, book chapters, textbooks, and general-audience books on a broad range of

natural resource law issues.

59
 Professor Gerald Torres, a former president of the Association of American

Law Schools (AALS), served as deputy assistant attorney general for the

Environment and Natural Resources Division of the U.S. Department of Justice

and as counsel to former U.S. attorney general Janet Reno. He has produced a

profuse body of scholarship on constitutional law, federal Indian law, and the

public trust. Professor Charles F. Wilkinson is an award-winning author of many

books on natural resources law and federal Indian law, has produced two leading

textbooks in the area, and has served as co-editor of the Handbook of federal

Indian law. Professor Burns H. Weston is a widely acclaimed grandfather of the

field of human rights law, having founded human rights programs and produced

scholarship and books in the area, most recently focusing on environmental law

and inter-generational justice and human rights.

The collective scholarship authored by the amicus professors throughout

their respective careers represents a vast and far-reaching body of work. Over a

third of the amicus professors have produced textbooks on environmental law,

constitutional law, or natural resources law subjects. Over a third have produced

books for the general audience probing the field of environmental law or

constitutional law. All have produced leading law review articles or book

chapters on specific environmental or constitutional law issues, including a vast

body of work focusing on the public trust doctrine.

60
 The amicus professors bring a combined experience of hundreds of years of

teaching, many in the leading environmental law programs in the country. Over a

third are chaired professors, and several are program directors or deans in their law

schools. Representing a wealth of experience and scholarship in the fields of

environmental and constitutional law, these amicus professors have joined in this

brief out of concern over the failure of environmental statutes to force an urgent

climate response. Their shared conviction, lodged in sustained study and

scholarship over the years, is that the public trust doctrine constitutionally obliges

the federal government, as a sovereign trustee of the atmosphere, to immediately

reduce greenhouse gas emissions that threaten the future habitability, security, and

welfare of this nation.

61