After Juliana—The Next Wave of Environmental Activist Lawsuits

While the Trump administration awaits a decision by the Ninth Circuit Court of Appeals on its petition to dismiss Juliana v. United States, they would be wise to investigate the much more aggressive—and potentially much more significant—wave of lawsuits that will immediately follow it.

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Juliana—the lawsuit brought by a group of young people against the United States, the White House, and numerous federal agencies, including the Environmental Protection Agency—alleges that the defendants "deliberately allow[ed] atmospheric CO2 concentrations to escalate to levels unprecedented in human history,” thereby failing to protect the atmosphere, which they argue is a “public trust” asset.

This lawsuit and the “public trust doctrine” that underpins it are at the heart of a global two-phase litigation strategy—pioneered by Mary Christina Wood, a professor of law at the University of Oregon, and a participant at the now-infamous 2012 La Jolla Conference—designed to hold the oil and natural gas industries liable for funding “a global effort to restore the atmosphere.”

According to Wood, the first phase of the strategy is the “Atmospheric Trust Litigation” campaign, in which the plaintiffs leverage the “public trust doctrine” to establish “a framework in which the government trustees are constitutionally responsible for restoring climate balance.” Juliana is the most notable of scores of such lawsuits currently underway nationwide and around the globe.

Once the courts have established this constitutional responsibility, the litigious activists will then launch the second phase of the strategy, the “Atmospheric Recovery Litigation” campaign, which would “seek a remedy asking for disgorgement of profits and assets retained by the fossil fuel industry” to fund “a global effort to restore the atmosphere.”

And that effort won’t be cheap.

“These restoration projects will be expensive in the aggregate, perhaps totaling over a trillion dollars,” Wood wrote. And the assessment of each corporation’s share of that trillion-dollar invoice will be based on “a major study by Richard Heede et. al [which] traces most of the historic carbon dioxide emissions to the fossil fuels produced by about 90 fossil fuel entities,” according to Wood. (It’s important to point out that Heede’s research is so shaky that even climate scientists themselves are calling it “flawed,” “overly simplistic,” and “not determinative in and of itself of any company’s or companies’ liability.”)

This blatant attempt to bankrupt the oil and natural gas industries utterly fails to take into account the millions of ways that oil and natural gas have made modern life possible, and the trillions of dollars of economic benefits they provide every year. But, as usual, activists are not letting reality slow them down.

In November of 2017, Wood and her team at the University of Oregon’s Environmental and Natural Resources Law Center and Conservation Trust Project produced a paper which offers an “operable blueprint” of the “global effort to restore the atmosphere” entitled: A Meta-Strategy for Atmospheric Recovery: Filing Suit Against the Carbon Majors, Forcing the Managed Decline of Fossil Fuels, and Funding Climate Restoration through Soil-based Carbon Sequestration.

They have already submitted a copy of this report to a working group of the Oregon State Legislature through the office of Rep. Ken Helm (D-Washington County), so we can expect this ludicrous attempt to litigate oil and natural gas out of existence to continue to be a threat in 2018.