It’s Time to Let Go: Why Atmospheric Trust Won’t Help the World Breathe Easier

BY Caroline Cress

The time for debating whether the climate is changing is long over. As climate variability increases, society must take action to mitigate the impacts of increased greenhouse gases in the atmosphere and to adapt to the changes that cannot be avoided. In the ongoing effort to combat climate change, one facially compelling proposal is the Atmospheric Trust, which contemplates expanding upon state common law—specifically the public trust doctrine—to recognize the atmosphere as an asset to be held in trust by the government for the benefit of current and future generations.

Unfortunately, the laudable intentions behind the Atmospheric Trust proposal are outweighed by its limitations. It would face a variety of political obstacles in a state like North Carolina, where the public trust doctrine is already quite limited, the courts are unlikely to adopt such an expansive interpretation of precedent, and the legislature would likely step in to prevent such an expansion even if adopted by the courts. And North Carolina is not unique: Even if the Atmospheric Trust proposal were adopted by a handful of states, it would at best create a loose patchwork of varying protection, unsuited for management of such a trans-boundary resource.

Because of these and other drawbacks to the theory, this Comment posits that the Atmospheric Trust is not a viable solution to the climate crisis. Given the current state of the climate, time is of the essence—we cannot allow societal apathy or political inertia to hold us back from doing something before it is too late. Time and effort should not be diverted away from developing other, more practical, approaches that may be better suited to the legal and political realities that exist today.

DOWNLOAD PDF | 92 N.C. L. Rev. 236 (2014)