The Sky’s the Limit: Applying the Public Trust Doctrine to the Atmosphere
Volume 86, No. 4, Summer 2014
By Jordan M. Ellis [PDF]

Extreme weather is becoming the norm . . . While state and national governments, as well as international organizations, have at least attempted to address global warming, many people feel that they have not done enough. As a result, concerned citizens have occasionally turned to the courts for relief, suing state and federal governments under various statutes and common law doctrines in an attempt to achieve immediate change. These measures have mostly failed.

In the spring of 2011, groups of environmental activists tried a new approach, filing lawsuits against the federal government and a dozen state governments for their failure to protect the atmosphere under the public trust doctrine . . .

This Comment argues that courts should apply the public trust doctrine to the atmosphere. Courts have previously applied the public trust doctrine to natural resources in order to accommodate society’s changing interests, promote commerce, and protect public access to and use of water resources. Protecting the atmosphere has become increasingly important to society, and a healthy atmosphere is essential to commerce and continued access to clean, safe water. Therefore, the public trust doctrine should apply to the atmosphere. This Comment also argues, however, that courts cannot use the public trust doctrine to compel their states to correct past atmospheric damage due to their failure to prevent it. For one, courts only use the public trust doctrine to correct state actions, not states’ failures to act. Second, ordering states to correct their failure to protect the atmosphere would require the courts to engage in scientific and political decision making for which they are ill equipped.