Atmospheric Justice Litigation in the United States: Pipe Dream or Pipeline to Justice for Future Generations?

Climate justice litigation has exploded in U.S. courts in the past decade. Although courts are not the most effective mechanism to achieve proper regulation of climate change, the common law can be a powerful mechanism to goad proper regulatory responses to climate change impacts. The U.S. climate justice movement began with public nuisance lawsuits that sought injunctive relief and damages for climate change impacts. The movement has now shifted its jurisprudential focus to another effective common law tool, the public trust doctrine. Atmospheric trust litigation (ATL) involves a creative expansion of the public trust doctrine in suits primarily against state governments alleging that the state has a duty to manage its atmospheric resources to protect the interests of future generations. This presentation discusses ATL as a valuable next step in the evolution of climate justice litigation. Drawing on recently decided ATL cases in federal and state courts in the U.S., the presentation evaluates ATL’s strengths and limitations and concludes that ATL is a valuable tool in the climate justice arsenal.

Randall S. Abate is a Professor of Law, Director of the Center for International Law and Justice, and Project Director of the Environment, Development & Justice Program at Florida Agricultural and Mechanical University College of Law in Orlando, Florida. Professor Abate teaches International Environmental Law, Environmental Justice, Natural Resources Law and Indigenous Peoples, Climate Change Impacts on Ocean and Coastal Law, Public International Law, Constitutional Law, and Animal Law. Professor Abate joined the Florida Agricultural and Mechanical University College of Law faculty in 2009 with fifteen years of full-time law teaching experience at Vermont Law School, Widener Law School–Harrisburg, Rutgers School of Law–Camden, Florida Coastal School of Law, and Florida State College of Law. He has taught international and comparative environmental law courses in Argentina, Canada, Cayman Islands, China, Kenya, India, Spain, and Ukraine.

Professor Abate has published and presented widely on environmental law topics, with a recent emphasis on climate change law and justice. His articles on climate change law and justice have appeared in the Stanford Environmental Law Journal, Cornell Journal of Law and Public Policy, Connecticut Law Review, Duke Environmental Law and Policy Forum, Washington Law Review, William and Mary Environmental Law and Policy Review, Tulane Journal of International and Comparative Law, Seattle Journal of Environmental Law, Ottawa Law Review, Tulane Environmental Law Journal, Fordham Environmental Law Review, and UCLA Journal of International Law and Foreign Affairs. He is the editor of Climate Justice: Case Studies in Global and Regional Governance Challenges (ELI Press, forthcoming Jan. 2017), What Can Animal Law Learn from Environmental Law? (ELI Press 2015), Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives (Oxford University Press 2015) and co-editor of Climate Change and Indigenous Peoples: The Search for Legal Remedies (Edward Elgar 2013). Early in his career, Professor Abate handled environmental law matters at two law firms in Manhattan. He holds a B.A. from the University of Rochester and a J.D. and M.S.E.L. (Environmental Law and Policy) from Vermont Law School.