We are living on the planet as if we have another one to go
In this article, we try to look at the importance of climate, the public trust
doctrine and jurisprudence corresponding to protection of climate. In particular
public trust doctrine in the field of climate litigation has been the focus of
study. It begins with ancient understanding and goes on to explore evolving
climate consciousness in the global arena. It also touches the position in the
United States, and where India stands today by looking at precedents, Atmosphere
Trust Litigation and judicial opinions. Finally on the concluding remark it ends
on a positive note with a personal view.
We are living on the planet as if we have another one to go
The PTD is a central tenet of many legal systems of countries around the world
and is recognized as an attribute of sovereignty itself. The origins of PTD come
from Roman and Anglo American jurisprudence. Four decades ago, Professor Joseph
Sax observed that the public trust duty underpins democracy itself, delimiting a
nation of citizens rather than of serfs.
Today the same tools are used in the form of citizen actions against the
governments to tackle climate change. A new phenomenon called Atmosphere Trust
evolved in which it can be seen that young minds voice their
concerns against the climate crisis. The basic premise of this argument is that
the resources should not be exhausted such that it is impossible for future
generations to sustain as a consequence of carbon emissions which in turn is
responsible for climate change. In this article, we try to understand the PTD,
its usage in the form of litigation and the climate crisis.
Climate Change And Risks
To begin the discussion, it would be appropriate to quote a famous public trust
scholar viz. Mary Christina Wood described the problem as follows:
Earth is in imminent peril,
on the verge of runaway climate heating that will
impose catastrophic conditions on generations to come.
Should business as usual continue even for a few more years, future humanity for
untold generations will be pummeled by floods, hurricanes, heat waves, fires,
disease, crop losses, food shortages, and droughts as part of a hellish struggle
to survive in deadly greenhouse conditions.
In a world of runaway climate
heating, these unrelenting disasters would force massive human migrations and
cause staggering numbers of deaths culminating in, as more and more analysts
predict, humanity's own self-destruction.
The Global risk report says that the prominent risks to humanity which are
impending are in the sphere of the environment. They are majorly:
- extreme weather events like floods and storms;
- failure of climate change mitigation and adaptation;
- major natural disasters like earthquakes, tsunamis,
- volcanic eruptions and geomagnetic storms;
- major biodiversity losses and ecosystem collapse;
- Human-made environmental damage and disasters
Carbon emission has grown by leaps and bounds and is the primary reason for
global warming. Therefore if the threshold also known as tipping point is
crossed, the problem of global warming will be beyond anyone's control. Other
associated externalities include rise in sea level, warming of atmosphere by
over two degree celsius, extinction of flora and fauna.
At a time when climate change is often overlooked by municipal governments for
short term goals the PTD has emerged as a tool in the hands of citizens to
remind the state that addressing carbon reduction and climate change is a
fiduciary responsibility of the governments in order to protect the public trust
given the fact that a situation like Global emergency is not too far sighted.
Global Response And Developments
In order to understand where we stand today it is important to look at the
historical development which occurred globally and the kind of response which
Taking cue from the Introduction:Ch. 1
of the book Climate Change and Global
by Tiago Sequeira and Liliana Reis:
||To this day IPCC assessments are the
scientific underpinning of international negotiations while also
providing unique insights into, for example, managing the risk of
extreme events and disasters.
||IPCC and Second World Climate Conference Call
for Global Treaty
||The IPCC releases the first assessment report
saying 'emissions resulting from human activities are substantially
increasing the atmospheric concentrations of greenhouse gases' leading
to calls by the IPCC and the second World Climate Conference for a
||UNGA Negotiations on a Framework Convention
||On 11 December 1990, the UN General Assembly
establishes the Intergovernmental Negotiating Committee (INC) for a
Framework Convention on Climate Change. The INC held five sessions where
more than 150 states discussed binding commitments, targets and
timetables for emissions reductions, financial mechanisms, technology
transfer, and 'common but differentiated' responsibilities of developed
and developing countries.
||The text of the UNFCCC is adopted at the
United Nations Headquarters in New York.
||UNFCCC Opens for Signature at Rio Earth
||UNFCCC opens for signature at the Earth
Summit in Rio. The UNFCCC has two sister Conventions also agreed in Rio,
the UN Convention on Biological Diversity and the Convention to Combat
|March 21, 1994
||UNFCCC Enters into Force
||The UNFCCC enters into force. With 196
Parties, the UNFCCC has near-universal membership. Parties meet annually
at the Conference of the Parties (COP) to negotiate multilateral
responses to climate change.
||Parties agreed that commitments in the
Convention were 'inadequate' for meeting Convention objectives. The
Berlin Mandate establishes a process to negotiate strengthened
commitments for developed countries, thus laying the groundwork for the
|December 11, 1997
||Kyoto Protocol Adopted
||The 3rd Conference of the Parties achieves an
historical milestone with adoption of the Kyoto Protocol, the world's
first greenhouse gas emissions reduction treaty.
||EU Emissions Trading Launches
||The European Union Emissions Trading Scheme,
the first and largest emissions trading scheme in the world, launches as
a major pillar of EU climate policy. Installations regulated by the
scheme are collectively responsible for close to half of the EU's
emissions of CO2.
|February 16, 2005
||Kyoto Protocol Enters into Force
||History is made when the Russian Federation
submitted its instrument of ratification to the Kyoto Protocol, sealing
its entry into force.
||World leaders gather for the fifteenth
Conference of the Parties in Copenhagen, Denmark, which produced the
Copenhagen Accord. Developed countries pledge up to USD 30 billion in
fast-start finance for the period 2010-2012.
||The sixteenth Conference of the Parties
results in the Cancun Agreements, a comprehensive package by governments
to assist developing nations in dealing with climate change. The Green
Climate Fund, the Technology Mechanism and the Cancun Adaptation
Framework are established.
||At the 7th Conference of the Parties,
governments commit to a new universal climate change agreement by 2015
for the period beyond 2020, leading to the launch of the Ad Hoc Working
Group on the Durban Platform for Enhanced Action or ADP.
|December 6, 2011
||Momentum for Change Launched at COP 17 in
Durban, South Africa
||Momentum for Change, a special initiative of
the UNFCCC, shines a light on innovative and transformative climate
action taking place around the world.
||COP 21 - Historical Paris Agreement adopted
||195 nations agreed to combat climate change
and unleash actions and investment towards a low-carbon, resilient and
sustainable future, on 12 December 2015.
||COP 22 - Marrakech Partnership for Global Climate Action
||A crucial outcome of the Marrakech climate conference
was to move forward on writing the rule book of the Paris Agreement.
The Conference successfully demonstrated to the world that the
implementation of the Paris Agreement is underway, and launched the
Marrakech Partnership for Climate Action.
||COP23 - A Launch-Pad for Higher Ambition
||At the UN climate conference COP23 in Bonn, nations
agree the next steps towards higher climate action ambition before 2020.
Delegates launch the 'Talanoa Dialogue' to help set the stage for the
revising upwards of national climate action plans needed to put the
world on track to meet pre-2020 ambition and the long-term goals of the
||IPCC Confirms Importance of 1.5C Goal
||A special Global Warming of 1.5C report by the
Intergovernmental Panel on Climate Change confirms the need to maintain
the strongest commitment to the Paris Agreement's aims of limiting
global warming to stave off the worst impacts of climate change, which
include more frequent and more severe droughts, floods and storms.
||Governments Adopt Katowice Climate Package
||In Poland, governments adopt a robust set of guidelines
for implementing the landmark 2015 Paris Climate Change Agreement. The
agreed 'Katowice Climate Package' operationalizes the climate change
regime contained in the Paris Agreement, promotes international
cooperation and encourages greater ambition.
|September 23, 2019
||UNSG's Climate Action Summit to Boost Ambition
||To boost ambition and to accelerate actions to implement
the Paris Agreement, UN Secretary-General Antonio Guterres will host a
summit in New York. The Summit comes exactly one year before countries
are set to enhance their national climate pledges under the Paris
PTD And Indian Jurisprudence
The PTD is not a completely new term introduced in Indian jurisprudence
notwithstanding the fact the Ridhima case was the first of a kind in terms of
climate litigation. Earlier in cases like Kamalnath case, the supreme court
extended the meaning of A.21 of Indian Constitution by recognising the duty of
the state to protect the natural resources as a trustee of the people (public
trust) and imposed responsibility on the motel to restore the environment and
ecology. Quoting the relevant para from the judgement:
Our legal system - based on English Common Law- includes the public trust
doctrine as part of its jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use and enjoyment. Public at
large is the beneficiary of the sea- shore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for public use cannot be
converted into private ownership.
First, the court said that the court would consider the legislative intent
behind the statute which is nothing but a purposive interpretation method (which
deals with purposive and literal construction and purposive and strained
construction). However in case of absence of a legislation the court observed
that the PTD can be considered as a gap filler.
But in the absence of any legislation, the executive acting under the doctrine
of public trust cannot abdicate the natural resources and convert them into
private ownership or for commercial use. The esthetic use and the pristine glory
of the natural resources, the environment and the ecosystems of our country
cannot be permitted to be eroded for private, commercial or any other use unless
the courts find it necessary, in good faith, for the public goods and in public
interest to encroach upon the said resources.
In MI builders Private Limited v. Radhe Shyam Sahu,
fact that the underground shopping complex beneath the park was almost
completed, the court upheld the PTD and came down heavily on the Lucknow
In Fomento resorts and hotels Limited v. Minguel Martins
 the court in
the judgement, among many, cited a US decision viz., Illinois Central railroad
Co v. people of the state of Illinois which gave a very beautiful observation
that the title of the state in land in that impugned case is different in
character from land held by the state for sale in general. The court in the
Illinois case observed that the public trust assets are those that are subject
of concern to all people of the state and described them to be of special
character. It also opined,
(resources) cannot be placed entirely beyond the direction and control of the
state and that an overarching public interest prevents such resources from
being subject to private ownership. (emphasis supplied)
The Fomento resorts case dealt with the right of the public to pass through the
land to a public beach (similar to the right of way or easement right). Other
cited cases in Fomento resorts case held the state as the trustee of wetland
, water or lake .
The key takeaway points from the Fomento resorts case are:
- interferes with the right of the public;
- traditional right of people;
- being entitled to uninterrupted use;
- and natural resources like forest, water bodies, rivers, seashores, etc.
which provide sufficient ground to build up an argument for PTD in climate
Climate: A Public Trust?
To begin with, resources which are to be covered under public trust are those
so central to the well-being of the community that they must be protected by
distinctive, judge-made principles.
-Professor Charles F Wilkinson
In order to build an argument to encompass climate also within the ambit of PTD,
the closest sister of it would be the atmosphere since air comprises the
atmosphere and the climate associated with it which are critical resources
facing a historically unparalleled threat. Hence the concept of underlying
public trust in the air is rather an ancient concept which finds a reference in
many religious texts and spiritual learning. Legally speaking, the Roman concept
of res communes, or things which remain common are wildlife, sea, water and
air, which were considered under the public trust.
This was recognised in future decisions of various courts including the US
Supreme Court. For instance this approach was applied in Geer v.
Connecticutwhich corresponded to wildlife. Similarly Georgia v. Tennessee
dealt with a very interesting issue related to copper companies generating
transboundary air pollution. The court here made a very clear observation that
the interest of the state is standalone in all the Earth and air within its
domain and is behind the titles of the citizens.
Another important and rather interesting explanation of the doctrine is the
public character of the property
, which pertains to the resources which
are owned by all the people in common and hence are required to be maintained,
preserved and protected by the state which is for the larger interest.
PTD In Atmospheric Trust Litigation
At the outset the PTD is a potent principle which says that the state is the
trustee of all natural resources and therefore is not entitled to simply
alienate the resources at even similar cost.
The concept of trust responsibility is nothing but the fiduciary duty to protect
the public resources from larger and irreversible damages. Legally speaking the
etymology of the term trustee means the duty to protect the property held in
trust against any form of destruction or damages.
Atmospheric Trust litigation on the other hand is a novel form of litigation
where the primary concern of the plaintiff is to assert that trust
responsibility is an attribute of sovereignty. Therefore the state's fiduciary
obligation to protect such natural resources is for larger interest.
Taking a broad look at the cases related to climate change:
- the Clean Air Act
- public nuisance doctrineand,
- more recently, the public trust doctrine
- in Canada for alleged violations of the UNFCCC and the Kyoto
- in Pakistan based on principles of sustainable development, precaution,
and inter-generational equity
- in Nigeria on the basis of human rights law;
- in Australia and New Zealandamong others, based on domestic
- in Netherlands based on breach of duty of care 
In January 2020, the Ninth Circuit Appeal Court in Juliana v. United States
remanded to the district court with instructions to dismiss for lack of Article
III standing in which the plaintiffs sought relief against governmental inaction
in regulating CO2 pollution. The relief was sought on explicit and implicit
violation of constitutional rights guaranteed by the US Constitution and the PTD.
Notwithstanding that fossil fuel combustion will wreak havoc on the earth's
climate if unchecked, the Court held that the judiciary holds no power to order
the US Government to prepare and implement an enforceable national remedial plan
to phase out fossil fuel emissions. However Judge Staton's dissent is
Judge Staton wrote that plaintiffs brought suit to enforce the most basic
structural principal embedded inour system of liberty: that the Constitution
does not condone the Nation's willful destruction. She would hold that
plaintiffs have standing to challenge the government's conduct, have articulated
claims under the Constitution, and have presented sufficient evidence to press
those claims at trial.
In 2017, Ridhima Pandey (Ridhima Pandey v. Union of India
) a 9 year old,
invoked sustainable development and Precautionary Principle under Section 20 of
the National Green Tribunal Act, 2010 supplemented by intergenerational equity
principle and PTD and filed a petition against the Indian Government, prompted
by the Uttarakhand floods of 2013. She had asked the government to prepare a
carbon budget, a climate recovery plan and to assess industrial projects in the
context of climate-related issues.
The prayer did not receive the outcome in its favour and initially the NGT said
that the government is diligent enough to conduct EIA and thereby dismissed the
petition. However today not much is known about the development of the case and
no appeals were perhaps filed thereupon.
Many scientists have acknowledged and there are proven studies that show that
the impact of climate change on Earth is a cause of concern and if not addressed
in near future it could be catastrophic and today climate change is one of the
biggest challenges facing countries across the globe. The effect was being
observed since the last few decades but in recent past the projections as well
as the predictions reveal that if it keeps going at the same place it could lead
to is repairable loss and affect the lives of people.
Hence climate change has been fairly described as a "super wicked problem"
because of the fact that time is not costless, so the longer it takes to address
the problem, the harder it will be to do so.
Today on the global stage, Greta Thunberg jolted the international consciousness
by highlighting the callous and selfish development at the cost of the
environment. More recently, sixteen child petitioners including Greta Thunberg
and Ridhima Pandey filed a complaint against Argentina, Brazil, France, Germany
and Turkey at the UN as these countries were unable to tackle the climate crisis
which constituted a violation of child rights (Convention on the Rights of the
The Indian legislature, unfortunately has not made any law and addressed climate
change as such (though there are some policies which are related to it). The
reason behind this is perhaps that the politicians do not consider climate
change in their political manifestos due to vote bank politics.
It won't be wrong to say perhaps that at the time when ecological crisis is
impending upon the whole world the governments are deviating, abdicating and
ignoring the public trust responsibility (which is sovereign to them) to act and
safeguard the climate for current and future generations.
Coming to judiciary, taking cue from other countries and also from the evolving
constitutional understanding of Indian Supreme court by expanding the meanings
of A.48A and A.51 read with the fundamental right guaranteed under A.21 a valid
argument clubbed with PTD can perhaps be a game changer in this regard.
It has been observed in the recent past that the position of Indian Supreme
Court vis a vis age old laws corresponding to LGBTQ rights or gender equality in
terms of entering temples for instance which deserved no presence in the 21st
century has been worth appreciating. Hence it would be a great opportunity for
the courts to deal with this issue and balance larger public interests on the
lines of intergenerational equity with that of the private interests.
Finally, an effective implementation of the Paris Agreement and climate change
action plans would certainly strengthen India's position in the international
arena in years to come. And this article has tried to convey that this
ancient doctrine as it has evolved to create modern governmental fiduciary trust
obligations is perhaps a rational and viable vehicle to apply to this
extraordinary crisis like climate change.
Earth provides enough to satisfy every man's need, but not every man's
- Mahatma Gandhi
- Two sections of this commentary, Evolution of the Public Trust
Doctrine and The Atmosphere as Public Trust Asset, contain extensive
quotes and citations from the Brief for Amicus Curiae Law Professors, Alec
L., et al. v. Jackson, 863 F.Supp.2d 11, 15 (D.D.C., 2012) in the drafting
of which Professor McGinley participated
- ISBN 978-3-030-02662-2 (eBook), https://doi.org/10.1007/978-3-030-02662-2
- 2019 SCC Online NGT 843
- MC Mehta v. Kamal Nath (1997) 1 SCC 388, p 413
- MC Mehta v. Kamal Nath, https://indiankanoon.org/doc/1514672/
- (2009) 3 SCC 571
- 146 US 387(1892)
- Supra note 1
- Robbins v. Department of Public Works 244 NE2d 577
- National Audubon Society v. Superior Court of Alpine County 33 Cal 3d
- 161 U.S. 519 (1896)
- 206 U.S. 230, 237 (1907)
- Daniel Bodansky, The Role of the International Court of Justice in
Addressing Climate Change: Some Preliminary Reflections, 49 Arz. ST. L.J.
689, 696 (2016)
- Massachusetts v. EPA, 549 U.S. 497 (2007)
- Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011)
- Juliana v. United States, No. 6:15-cv-1517-TC, 2016 WL 183903
- Friends of the Earth v. Canada,  F.C. 1183 (Can. Fed. Ct.)
- Leghari v Fed'n of Pakistan, W.P. No. 25501/2015 (Lahore High Ct.)
(Sept. 4, 2015) (Pak.).
- Gbemre v. Shell Petroleum Dev. Co. Nigeria  AFR. HUM. RTS. L. REP.
151 (F.H.C. Nigeria)
- Greenpeace New Zealand v. Northland Reg'l Council  NZHC CIV 2006-
404-004617 at  per Williams J. (N.Z.); Genesis Power Ltd. v. Franklin
Dist. Council  NZRMA 541 (N.Z.).
- Urgenda Found. v. Netherlands (Neth.)
- 339 F. Supp. 3d 1062 (2018)
- Richard J. Lazarus, Super Wicked Problems and Climate Change:
Restraining the Present to Liberate the Future, 94 Cornell L. Rev. 1153
- Arindam Basu,Grasping Climate Technology Transfer: A Brief Discussion on
indian Practice, Vol 23 pp 51-59, JIPR, January 2018
- P. Leelakrishnan, Environmental Law in India, 3rd Ed, 2010
- SCC Online