Summary: A glimmer of (false) hope for public trust plaintiffs. The Alaska Supreme Court suggested Alaskans might have a right to atmosphere, but declined to provide a remedy. Adam Murray, of the U.W. Arctic Law & Policy Institute, explains why.
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By Adam Patrick Murray
Atmospheric public trust plaintiffs are running out of options. The public trust doctrine usually includes state obligations to manage submerged lands and navigable waters for a public purpose. [1] Certain states, including Alaska, wrote individualized versions the public trust into their constitutions, laws, and court decisions. The resulting variations can draw additional resources into the public trust ambit. In those instances, enforcement might be a problem courts cannot solve.
The Alaska Supreme Court denies relief, but signals that Alaskans may have a public trust right to preservation of the atmosphere
The Alaska Supreme Court suggested that Alaskans might have a public trust right to atmospheric preservation. In Kanuk v. Alaska , [2] the Court implied that Alaska’s obligation might extend to atmosphere, and that state courts can answer the question conclusively. But it found no reason to do so absent a legislative or executive delineation of state rights and obligations regarding climate change. Even if the right exists, the Kanuk decision suggests Alaska courts cannot provide a remedy.
The case was part of a national campaign by Our Children’s Trust (OCT). [3]
This Oregon-based non-profit joins youth plaintiffs in “strategic atmospheric trust litigation
to compel governments
to adopt and implement enforceable science-based Climate Recovery Plans.” [4] The Alaska plaintiffs include Nelson Kanuk, a 17-year old Alaska Native from Kipnuk. Kanuk asked the courts to find and enforce a state obligation to enact new climate policies to protect his subsistence lifestyle. [5]
The appeal reviewed a lower court decision that the judiciary cannot answer Kanuk’s claims. [6] Kanuk requested two general kinds of relief. He wanted the Court to order specific climate policies, [7] and to declare Alaska in violation of a public trust obligation to preserve the atmosphere. [8] The Court affirmed that Kanuk’s specific policy requests are non-justiciable political questions. [9] It also denied declaratory relief, but suggested plaintiffs may succeed on nonpolitical claims. [10] This incremental victory probably still signals the end of the road for Alaska atmospheric trust actions.
Alaskan law probably extends the State’s public trust duty to the atmosphere
State law determines the scope of the public trust doctrine. Most states retain a traditionally narrow function, with slight expansions that relate directly to only water or aquatic species. [11] Alaska’s Constitution, statutes, and courts went further, which is why OCT gained some traction there.
The Alaska Constitution establishes: a state policy of making resources available for maximum use consistent with the public interest ; utilization, development, and conservation of all resources for the maximum benefit of Alaskans; reservation of fish, wildlife, and waters for common uses; and sustained-yield management of all ” replenishable resources .” [12] Alaska statutes expressly declare a state policy to manage water, land, and air “as trustee of the environment for the present and future generations”; and to “conserve, improve, and protect its natural resources and environment and control water, land, and air pollution , in order to enhance the health, safety, and welfare” Alaskans. [13] The Alaska Supreme Court expressly recognized a state “fiduciary duty” to manage these resources for public benefit, [14] and uses trust principles to define state duties. [15]
The Court admitted “plaintiffs do make a good case.” [16] The Justices suggested that plaintiffs have a basis to proceed if they manage to allege claims that are justiciable under the political question doctrine. [17] Reviewing an earlier case that denied damages in a public trust context, Brady v. State , [18] the Court said, ” Brady cannot reasonably be read as holding that violations of the public trust doctrine are without remedy.” [19]
The Alaska Supreme Court declined to provide any kind of relief
However, where the plaintiffs sought specific climate policies, the Court declined. [20] The Alaska Supreme Court would not make a “science- and policy-based inquiry” reserved for the executive or legislature under Baker v. Carr . [21]
Where the plaintiffs sought declaratory relief, the Justices were more equivocal. Under declaratory judgment rules that parallel federal practice, Alaska courts have discretion, but no duty, to issue declarations in “actual controversies.” [22] Alaskan touchstones for “actual controversy” include: ”definite and concrete, touching the legal relations of parties having adverse legal interests . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'” [23] As a matter of prudence, according to the decision, Alaska courts should deny declaratory relief when it will not “clarify and settle legal relations” or “terminate and afford relief from the uncertainty, insecurity, and controversy.” [24]
The Alaska Supreme Court denied declaratory relief under these prudential concerns. [25] The Court would not declare the existence of an atmospheric trust obligation after denying the request for a judicially-determined standard to measure state performance. Such a declaration, the Court reasoned, would not “advance the plaintiffs’ interests any more than it will shape the future conduct of the State.” [26]
A right without a remedy?
The Kanuk decision leaves the state of Alaska close to an atmospheric public trust obligation. By constitution, statute, and precedent, Alaska’s duty to preserve natural resources probably does extend to air, and maybe to airborne effects on more traditional trust elements. Yet Kanuk also indicates that enforcement of an expanded obligation depends on the political branches. In other words, atmospheric trust plaintiffs need a statute or administrative rule providing a remedy for any state failure to reduce its contribution to climate change. Degrading the trust corpus does not violate any law. So even if there is a right to atmosphere, it is a right without a remedy. As first year law students will tell you, that is no right at all.
For more information on the lead plaintiff, please see: http://vimeo.com/33921321 .
Adam Murray is the University of Washington School of Law’s Arctic Law & Policy Institute Research Fellow. His work focusses on international and U.S. environmental and ocean policy. After his fellowship, he will move to Anchorage, Alaska for two federal clerkships; one in the U.S. District Court, District of Alaska, and another in the Ninth Circuit. Mr. Murray is an avid whitewater kayaker, proud father of two daughters, and a fourth-generation Pacific Northwesterner. Find more work by Adam Murray, including an expanded version of this post, at http://ssrn.com/author=2290160.
[1] See Phillips Petroleum Co. v. Mississippi , 484 U.S. 469 (1988).
[2] Kanuk ex rel. Kanuk v. State, Dept. of Natural Resources , No. S-14776, 2014 WL 4494394 (Alaska Sept. 12, 2014).
[3] See http://ourchildrenstrust.org (last visited Sept. 26, 2014).
[4] Id.
[5] See http://vimeo.com/33921321 (last visited Sept. 26, 2014).
[6] Kanuk v. State of Alaska, Dept. of Natural Resources , No. 3AN1107474, 2012 WL 8262431 826431 (Alaska Super. March 16, 2012) ( Kanuk I ).
[7] (1) Require use of the” best available science”; (2) reduce greenhouse gas emissions by 6% per year; and (3) order an accounting of current CO2 emissions.
[8] Kanuk at *1.
[9] Id. at *7.
[10] See id. at *8, *9, *10.
[11] See Robin Kudnis Craig, A Comparative Guide to the Western States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust , 37 Ecology L.Q. 53 (2010).
[12] AK Const. art. VIII, §§ 1-4.
[13] Alaska Stat. § 46.03.010.
[14] Baxley v. State , 958 P.2d 422, 434 (Alaska 1998).
[15] E.g. , State v. Weiss , 706 P.2d 681 (Alaska 1985) (trust principles define State duties with regard to federal land grants).
[16] Kanuk at *9.
[17] Id. at *10.
[18] 965 P.2d 1 (Alaska 1998).
[19] Id. at 14.
[20] Kanuk at *6 (quoting Baker v. Carr , 369 U.S. 186, 217 (1962)).
[21] Kanuk at *7.
[22] Alaska Stat. § 22.10.020(g); Alaska R.Civ. P. 57(a); see also Lowell v. Hayes , 117 P.3d 745,755 (Alaska 2005).
[23] Kanuk at *8 (quoting Jefferson v. Asplund , 458 P.2d 995, 998-99 (Alaska 1969)).
[24] Id. at *9 (quoting Lowell v. Hayes , 117 P.3d 745, 755 (Alaska 2005)).
[25] Id. at *11.
[26] Id. at *10.
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