Saturday, 4 August 2012

Breathing our last free air?

The Hollies sang "All I need is the air that I breathe" but maybe they would change the words to their tune today.  It's not often that I could see myself in agreement with an American. However there are the odd exceptions. Peter Barnes is one of the most creative environmentalists around. 

At the turn of the millennium he proposed that the atmosphere should be treated as a public trust in his book, Who Owns the Sky: Our Common Assets and the Future of CapitalismNot exactly a book title that grabs the imagination. But is this such a strange concept after all?  

Nature has already been subverted a number of times for commercial gain by big companies. Your human DNA does not belong to you. Genetically modified crops are here and they are owned by large companies. Now I understand that plants modified genetically to be resistant to disease is a good idea. Not only that but using less pesticides should also be reason enough for their development.

However, let me paint a scenario. Lets just suppose I develop a new form of wheat. It is resistant to all known pests and diseases. Not only that, but it grows well in dry as well as wet conditions. The typical yield is four times that of the normal wheat. How can I as a company ensure that my new all singing and dancing wheat is protected. 

I would also genetically engineer the seed so that after the first generation the seed is then sterile. You would have to come back to my company year after year to purchase seed for your next years harvest. You would have to pay my price or go elsewhere. This might be OK for us in the more affluent parts of the world, but what about the poor nations around the world. Not only that could the genetics be carried over (cross contamination) to the original strains of wheat. 

The "public trust" doctrine is a legal principle derived from English Common Law. Traditionally it has only ever been applied to water resources. The waters of the state are deemed a public resource owned by and available to all citizens equally for the purposes of navigation, fishing, recreation and other uses. The owner cannot use that resource in a way that interferes with the public's use and interest. The public trustee, usually the state, must act to maintain and enhance the trust's resources for the benefit of future generations.
It seems that big business wants to avoid getting embroiled in global warming beyond funding pseudo research to match the wanted criteria that "Air pollution as a significant cause of global warming is a myth."

In the USA, the Texas Environmental Law Center has sued on behalf of a group of children and young adults. The Center asserted the State of Texas had a fiduciary duty to reduce emissions as the common law trustee of a "public trust" responsible for the air and atmosphere.

The lawsuit arguedThe atmosphere, including the air, is one of the most crucial assets of our public trust... Global climate change threatens to dry up most of these waters, turning them from gorgeous, life-giving springs into dangerous flash-flooding drainages when the rare, heavy rains do come. The outdoors will be inhospitable and the children will have few places to recreate in nature as the climate changes. They will be living in a world of drought, water shortages and restrictions, and desertification.

Call me old if you must and I admit being endowed with a good dose of down to earth British cynicism. But this sound so much like the UK has become over the last few years. It certainly seems to be a scenario that we should all be working to avoid!

The state however argued the public trust doctrine applies only to water. Judge Gisela Triana, of the Travis County District Court disagreed. Her decision, stated, "The doctrine includes all natural resources of the State." 

The court went further to argue that the public trust doctrine "is not simply a common law doctrine" but is incorporated into the Texas Constitution, which 
(1) protects "the conservation and development of all the resources of the State."
(2) declares conservation of those resources "public rights and duties."
(3) directs the Legislature to pass appropriate laws to protect these resources. 

The Texas court is the first to support the possibility that the "public trust" doctrine may justify the creation of an atmospheric trust. 

One American law firm has already advised its big business clients the decision "may represent a shot heard all around the world in climate change litigation. Given the stakes involved in such cases, clients should monitor these suits carefully and perhaps participate as "amicus curiae" to support the state's attorneys' arguments." 

An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it. The information provided may be a legal opinion in the form of a brief (which is called an amicus brief when offered by an amicus curiae), a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision on whether to admit the information lies at the discretion of the court. The phrase amicus curiae is legal Latin and literally means "friend of the court."

So now we know just where big business stands with regard to the air that we all need to breathe.


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