March 15th, 2019
Youth movement against climate change
We warmly welcome new ELF blog contributor Tabea Wilkes, who looks at
the youth movement against climate change and asks what legal avenues
can hold governments to account for our children’s future.
Fridays For Future
In August of last year, Greta Thunberg began a three week school strike for the climate. She has continued this strike every Friday since August, and has attracted a wealth of attention that has propelled her to speak before the UN Climate Change COP 24, where in an impassionate speech she famously called out the world’s leaders for being “childish”. She has now been nominated for the Nobel Peace Prize. Thunberg, who was named ‘Woman of the Year’ in Sweden last week, has become the almost accidental leader of a worldwide youth movement. Her FridaysForFuture campaign has inspired the Youth Strike 4 Climate, and thousands of students have joined this worldwide strike planned for the 15thMarch.
This is a movement that should not be dismissed lightly. As Thunberg said, “we have had 30 years of pep talking and positive ideas […]The one thing we need more than hope is action”. With over a thousand events planned internationally for Friday, it is perhaps time to consider how the momentum might fuel legal discussion, and how the law could be used to give this movement lasting impact. How can we legally hold the government accountable to protect the rights of our children – the future generation?
Protecting the rights of ‘future generations’
In the international sphere, the idea of future generations has been developed through the conception of sustainable development. This is defined in the Report of the World Commission on Environment and Development, more commonly known as the Brundtland Report, as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. It inherently establishes a relationship between the present and the future generations, where the interests of the future generation impose corresponding responsibilities for the present.
The established relationship between the present and future generation could be developed under one of two legal frameworks. The first framework creates a duty for the present generation to protect the rights of future generations. This framework bears some normative weight because the conception of “rights” is often held above other competing interests. The second framework positions the present generation as the guardian for the interests of the future generation, and requires the interest of the future to be weighed against the interests of the present.
Public Trust Doctrine
The trustee / beneficiary relationship set out in the second of these legal frameworks resurfaces in what Professor Mary Wood calls “the oldest doctrine in environmental law” - the Public Trust Doctrine. A concept taken from the Roman Law, where air, water, and sea were deemed as “common to mankind” and not subject to private ownership, the Public Trust Doctrine was incorporated into the Magna Carta to restrict the Crown’s proprietary control over natural resources and first appeared in UK common law in the 12thcentury in the case of Juliana the Washerwomen. Originally limited to protecting public resources for the purpose of navigation, fishing, and commerce, the doctrine could now evolve into a powerful legal tool for ecological preservation of public resources.
United States: Youth Climate Case
The connection between the Public Trust Doctrine and the rights of future generations has already been drawn in the United States, where, in a case that through an odd twist of fate is also called Juliana, a group of young people, through their guardian Dr James Hansen, have been suing the US Government to secure the legal rights to a stable climate and a healthy atmosphere for present and future generations. In 2015, Our Children’s Trust, along with EarthGuardian, filed the constitutional lawsuit. It argues that through it’s affirmative actions that contributed to climate change, the US Government failed to protect essential public trust resources and has violated the youngest generation’s constitutional rights to life, liberty and property. The argument is based on the legal theory developed by Professor Wood, known as Atmospheric Trust Litigation, which is rooted in the Public Trust Doctrine. As of March 1st2019, 32,000 young people had signed to supportJulianato go to trials.
Well-being of Future Generations (Wales) Act
In the UK, a step towards ensuring the safeguarding of future generations has come not in the form of case law, but in legislation. In 2015, the Welsh Government here in the UK passed a progressive bill. The Well-being of Future Generations (Wales) Act imposes a positive obligation on public bodies to consider the well-being of future generations, making it the first law of its kind in the world to incorporate an obligation to consider sustainable development in all decision making. Although it does not refer to it explicitly, as Paul Davies and Michael Green of Latham Watkins argue, the Act reflects the essence of the Public Trust Doctrine. Amongst other things, it establishes a statutory Future Generations Commissioner for Wales, a post taken up by Sophie Howe in 2016, who acts as legal guardian for the future generations of Wales.
The potential of the Public Trust Doctrine to restrain constitutional supremacy remains a critical discussion in the development of the legal protection of future generations in the UK. The loss of the supervision and scrutiny of the CJEU as a consequence of EU Exit may open a space for this discussion. As Marc Willers QC of Garden Court Chambers and Emily Shirley of Our Children’s Trust for UKELA write, the Public Trust Doctrine could allow UK Judges to “seal the gap” left by Brexit, and allow UK judges to scrutinize the government for any failure to safeguard the environment for both present and future generations.
Youth Strike 4 Climate
The strike planned for Friday is the first amplification of the interests of the future generations - in their own words. Protecting the interests of future generations by imposing corresponding responsibilities of generations today may be the first step for, in Thunberg’s words, “young people [to] hold older generations accountable for the mess they have created.”
https://www.gardencourtchambers.co.uk/news/the-public-trust-doctrines-role-in-post-brexit-britain
