Atmospheric Recovery Litigation

Reclaiming Climate Balance Through Sky Cleanup

Prof. Mary Wood’s Strategy for Financing the Drawdown of Carbon Air Pollution

When an oil spill happens, government agencies jump to action, and the public focuses its attention on the companies liable for creating the mess. Morally, ethically, and legally, oil companies are responsible for covering the costs of clean-up.

Now, turn the world upside down and look at our most vital resource above the land and sea, the air.

Problem

Uncontrolled greenhouse gas emissions have turned our sky into a hazardous waste dump, resulting in severe climate instability. While policy solutions like cap-and-trade and the Paris Climate Accords could, if implemented, limit production of air pollution, there has not been a means to hold polluters accountable for cleaning up their mess – until now.

Three-Part Solution

Environmental law professor Mary Christina Wood has developed a “three-gear” strategy to catalyze recovery of our carbon-flooded atmosphere, which she argues is the air-equivalent of an oil spill. These interlocking gears include:

1) Atmospheric Recovery Plan that organizes a global effort to draw down carbon dioxide through natural climate solutions.  These are established methods of soil sequestration through reforestation, improved agricultural practices, wetlands and mangrove restoration, and prairie/grassland/rangeland management.  

2) Natural Resource Damage Litigation strategy whereby state, county, or tribal sovereigns sue the fossil fuel companies (“carbon majors”) to recover natural resource damages to fund the Atmospheric Recovery Plan.

3) Sky Trust, a separate and independent entity to accept court-awarded damages and financially administer the Recovery plan, funding projects in the U.S. and throughout the world.

This approach aims to promote scientifically grounded, natural remediation efforts to clean the atmosphere, while legal actions hold the fossil fuel industry companies accountable for the costs of drawdown. As Sharon Eubanks, the former U.S. Department of Justice lawyer who led the federal civil racketeering case against the tobacco industry said, “The fossil fuel companies have damaged our climate system, and the courts should send them a bill for the cleanup.”

The Lesser Known Climate Imperative

“Drawdown is the other climate imperative.  It’s not enough to decarbonize – we have to also clean the atmosphere of the excess carbon that is causing the heating and havoc we see now,” said Dr. James E. Hansen, former chief climate scientist at NASA’s Goddard Institute for Space Studies. In 2011, as the United States’ top climate scientist, Hansen convened a scientific team to develop a climate prescription for the planet. It called for both de-carbonization and drawdown.  

Wood’s revolutionary legal theory, Atmospheric Trust Litigation, focused on the former. The non-profit organization Our Children’s Trust used Wood’s scholarship to launch a global atmospheric trust litigation campaign consisting of several cases in the U.S. and abroad on behalf of youth seeking emissions reduction.  That campaign, gaining significant momentum, received a sweeping victory in the Juliana v. United States case when the federal district court of Oregon found a constitutional right to a stable climate system.

But there has not yet been any organized global effort to achieve the necessary carbon drawdown – which is why Wood’s latest concept is crucial.

A landmark 2017 paper published in the Proceedings of the National Academy of Sciences developed a coherent scientific vision for removing atmospheric carbon through natural climate solutions. Wood has taken a key role in assembling leading scientists worldwide to develop an Atmospheric Recovery Plan that would translate this science into actual prescriptions for land managers – foresters, farmers, ranchers, and restoration crews -- designed to clean up the atmosphere while providing a substantial boost to local economies. The projects carry multiple co-benefits as well, such as flood control, water filtration, and augmented food production.  An envisioned Sky Trust would use this plan to evaluate and administer projects worldwide. 

Paying for the Cleanup:  A Constructive Analogy

“Scientists around the globe have been working on solutions to jump-start climate recovery through soil drawdown, but massive funding is needed to bring projects to a greater scale,” agreed Lucas Silva, of the Institute of Ecology and Evolution and the Soil, Plant, Atmosphere Lab at the University of Oregon. Professor Wood’s envisioned Atmospheric Recovery Litigation against fossil fuel companies could yield significant financing for global drawdown projects.  Wood, along with a team of UO law students, developed the litigation strategy across a several-year period, drawing on the public trust principle that holds governments responsible for protecting vital natural resources. An article laying out the strategy, co-authored by UO law alum Dan Galpern, was published in 2015 in the journal Environmental Law.

“This approach hits the nail on the head by asking fossil fuel companies to finance cleanup — just like an oil spill,” said Craig O’Connor, Natural Resources Section Chief and Special Counsel for NOAA with more than 30 years’ experience directing U.S.-led litigation against polluters, including the BP Deepwater Horizon and Exxon Valdez. As a guest lecturer for the UO’s Environmental and Natural Resources Law Center in 2017, he pointed out that while penalties for carbon pollution are not written into statute, the public trust principle can apply. In O’Connor’s words, a public trust claim for atmospheric damages is both “possible and feasible.”

The UO Role in Addressing a Global Crisis

In developing her approach, Wood reached out to UO scientists.  Silva, along with an interdisciplinary team of UO researchers, (biologists Scott Bridgham, Lauren Hallett and Krista McGuire, Earth scientists Matt Polizzotto and Josh Roering, and geographer Dan Gavin), are currently working on soil carbon sequestration and monitoring techniques. They helped connect Wood with scientists who could launch a framework Atmospheric Recovery Plan.

The vision is ambitious, and climate news is often dismal. But Wood says the drawdown imperative is hopeful. “We need to take excess carbon from the air – where it does not belong – and put it back in the ground, where it can boost natural systems and food production and stabilize our climate system. Atmospheric recovery can concurrently lead to long-term economic growth in the communities that need it most.”   

Wood acknowledges that this drawdown needs to be a world-wide effort – a daunting prospect –  but the originator of the theory behind atmospheric trust litigation now sweeping the globe says, “No one is taking charge of saving our climate system that supports our collective survival.  What better place is there to conceive the effort than right here in Eugene, Oregon?” She views the law as a tool to catalyze this historic undertaking.

In late October, the Juliana case, called the “biggest case on the planet” by some national media, will start trial, with the world watching. Wood hopes that, as the public trust theory she developed comes to life in that case, it will frame the next stage of climate recovery, carbon drawdown -- a cleanup of the sky.

“This groundbreaking legal approach on ‘how-to’ clean up the earth’s atmosphere is novel, exciting and unprecedented,” said Marcilynn Burke, dean of UO Law and former acting assistant secretary for land and minerals management of the U.S. Department of Interior. “This could be a breakthrough moment in global climate recovery.”