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An interesting, and potentially important, climate change precedent has come out of a US federal court.

We reported last year about a lawsuit launched by Our Children’s Trust, a group of youth seeking to invoke the public trust doctrine and the principle of intergenerational equity to push state and federal action on climate change in the courts.

The public trust doctrine has yet to be tested in the climate change context. The doctrine recognizes the responsibility of governments to act as trustees of common public resources such as fisheries, parks, and waters. It is not difficult to see how the idea could be extended from the earth and water to the atmosphere, which is being damaged from manmade greenhouse gas emissions. Although this doctrine has been around in the US for many years, and has been used to successfully extend protection of a variety of environmental resources, it is far less developed in Canada.

Last week, Our Children’s Trust plaintiffs won an important victory, when a federal court refused the federal government’s request to dismiss the suit for lack of standing. This has cleared the way for the case to proceed to trial.

The outcome of last week’s US presidential election has induced anxiety over the anticipated changes in American climate policy and the potential impacts this may have upon global efforts to curb greenhouse gas emissions. The potential changes make the litigation efforts of these young people, and perhaps others like them, of particular importance. After a ground-breaking Dutch decision last year, wherein the Hague District Court ordered the government to cut the country’s greenhouse gas emissions by at least 25 % by 2020, hopes have been on the rise around the world that a similar victory can be replicated in courts elsewhere.

Unfortunately, even if Our Children’s Trust ultimately obtains a positive result at trial, the decision would likely be appealed to the Supreme Court of the United States.

Our Children’s Trust has launched similar lawsuits in a number of US states and several countries around the word. Two of these suits recently also achieved positive initial results in state courts.

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