Public Trust Climate Change Suits, Global Warming Reducing Crop Yields, Soil Erosion and Runoff Fears, China Airlines & EU ETS (by Bob Percival)

Last week an Oregon-based group called “Our Children’s Trust” filed lawsuits in federal court in California and many state courts alleging that the atmosphere is a public trust that the state and federal government have a fiduciary duty to protect on behalf of present and future generations. The lawsuits, which feature teenagers as plaintiffs, maintain that the governments have breached their duty to protect the public trust because they have failed to control emissions of greenhouse gases. The public trust doctrine was recognized by the U.S. Supreme Court in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), where it held that the state of Illinois held title to submerged lands within its borders in trust for the public. It has not been Citing an “atmospheric climate emergency,” the suits seek declaratory relief recognizing the public trust in the atmosphere and the duty of government officials to protect it from causing harm due to climate change. Links to copies of some of the complaints are available at: http://www.ourchildrenstrust.org/legal-action/lawsuits. There is considerable skepticism in the legal community concerning whether the lawsuits are likely to be successful as many courts have steered away from applying the public trust concept in environmental cases because of the difficulty of discerning objective standards to apply. Yet the underlying concept that courts should be available to intervene as a last resort if government officials are failing to prevent enormous harm to public resources has some appeal.

On May 5 the journal Science published a study finding that global corn and wheat production has declined by 3.8% and 5.5% respectively since 1980 due to global warming. An abstract of the study, “Climate Change and Global Crop Production Since 1980” by David Lobell and Wolfram Schlenker of Stanford University, and Justin Costa-Roberts of Columbia University, is available online at: http://www.sciencemag.org/content/early/2011/05/04/science.1204531. The study concluded that the effects of global warming on crop production vary from country to country. It has reduced wheat production in Russia by 10% and by a few percentage points each in China, France and India. Corn production has fallen by a few percentage points in Brazil, China and France. Surprisingly, overall crop productivity in the Midwestern U.S. have not yet been affected by climate change, the study found. Global rice and soybean productivity has not yet been significantly affected because losses in some parts of the world have been offset by gains in other areas. The study’s assessment of impacts is likely to be conservative because it excluded the effects of extreme weather events on crop yields. Justin Gillis, Global Warming Reduces Expected Yields of Harvests in Some Countries, Study Says, N.Y. Times, May 5, 2011.

A study by the Environmental Working Group entitled “Losing Ground” concludes that agricultural soil erosion and runoff in Iowa is occurring at nearly twice the rate of 5.2 tons per acre estimated by the U.S. Department of Agriculture. Using an aerial survey and data from Iowa State University researchers, the study concludes that recent storms have triggered alarming soil losses in some areas. A copy of the study is available online at: http://www.ewg.org/losingground/ The current flooding of the Mississippi River is exacerbating fears of Midwestern erosion and runoff. Jeffrey Ball, Floods Raise Runoff Concerns, Wall St. J., May 5, 2011, at A5.

Congress continues to debate the future of U.S. energy policy with the Republican-controlled House of Representatives trying to speed up domestic oil drilling, while the Senate considers a measure to eliminate tax breaks for large oil companies. Last week the Obama Administration established a seven-member panel led by MIT Professor and former CIA Director John Deutch to recommend ways of improving the safety of hydraulic fracturing as a means for extracting natural gas from shale formations. The U.S. Department of Energy’s announcement of the panel is available online at: http://www.energy.gov/news/10309.htm.

I arrived in Beijing this afternoon with my son, who was fascinated by crossing the International Date Line for the first time. He was intrigued to hear that Samoa has decided to switch to the western side of the dateline in order to make trade easier with New Zealand and Australia. American Samoa, which I visited in 1973 while sailing around the world, will stay east of the dateline, creating “exciting tourism opportunities” according to Samoa’s prime minister because with less than an hour’s flight “you can have two birthdays, two weddings and two wedding anniversaries on the same date.” Samoans to Jump Ahead One Day in Zone Shift, China Daily, May 10, 2011, at 10.

The China Air Transport Association (CATA) has threatened retaliation against the EU for insisting that all flights departing or landing at EU airports participate in the EU’s Emissions Trading System (ETS) beginning next January 1. Thirty-three airlines from the Chinese mainland, Hong Kong and Macao are covered by the EU rules, which also are being challenged by the U.S. Air Transport Association. The CATA estimates that Chinese airlines would have to pay nearly $2.7 billion over the next nine years to purchases emissions allowances from the ETS. Xin Dingding, Airlines Battling Costly EU Plan, China Daily, May 10, 2011 at 4.