Look to Windward: The Michigan Environmental Protection Act and the Case for Atmospheric Trust Litigation in the Mitten State

Failure to address climate change or even slow the growth of carbon emissions has led to innovation in the methods activists are using to push decisionmakers away from disaster. In the United States, climate activists frustrated by decades of legislative and executive inaction have turned to the courts to force the hand of the state. In their most recent iteration, climate cases have focused on the public trust doctrine, the notion that governments hold their jurisdictions’ natural resources in trust for the public. Plaintiffs have argued that the atmosphere is part of the public trust and that governments have a duty to protect it.These types of lawsuits, known as Atmospheric Trust Litigation, have foundered on the shoals of courts wary of exceeding their powers, whether granted by Article III or state constitutions. The trouble in many cases, including Juliana v. United States, has been standing. Courts balk at declaring that any one actor has the power to affect climate change. Since they usually think one actor can’t fix the climate, redressability is out the window. Even if courts get past redressability, they believe the scale of any potential relief is just beyond the ability of a court to order. The number of lawsuits that have been filed suggests that that reasonable minds can differ, but most judges have found plaintiffs do not have standing before clearing the cases off their dockets.This Note contends that at least one state remains fertile ground for an atmospheric trust lawsuit. Michigan’s 1963 Constitution implies that the atmosphere is within the public trust, and the Michigan Environmental Protection Act, passed to carry out the state’s constitutional duties towards the natural world, does away with most, if not all, of the standing issues that have stymied climate cases across the nation. Motions, briefs, and equitable relief are not the only way to avoid the onset of what could be the greatest calamity in the history of humanity, but in Michigan, at least, Atmospheric Trust Litigation may well be what breaks and rolls back the carbon tide.