Chapter 16: Atmospheric recovery litigation around the world: gaining natural resource damages against carbon majors to fund a sky cleanup for climate restoration
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The planet's climate emergency requires a full transition away from carbon-intensive fossil fuels as rapidly as possible. But, as ambitious as that is, decarbonization alone is not sufficient. The global mean temperature rise of over one degree Centigrade is a result of excess carbon dioxide already flooding the atmosphere, due to roughly 150 years of greenhouse gas emissions. Achieving climate recovery requires large-scale drawdown of legacy carbon - accomplishing, in effect, a Sky Cleanup. Scientists urge "natural climate solutions" (NCS) projects to scrub the atmosphere of this excess carbon and sequester it in soils and vegetation. NCS projects involve reforestation, improved agricultural methods, mangrove restoration, and regenerative grazing, among other techniques. While promising, NCS solutions are expensive, and funds are elusive. This Chapter maps a legal strategy of Atmospheric Recovery Litigation to hold the major fossil fuel corporations ("carbon majors") liable for funding such atmospheric cleanup. Public trust law traditionally holds polluters liable for natural resource damages to public trust assets, such as marine waters, obligating sovereign trustees to seek recovery of such damages to fund restoration of the public's damaged ecology. This article applies these established principles to the atmosphere, a public trust asset. While atmospheric recovery on a global scale is unprecedented, the underlying legal principles parallel the approach traditionally applied to discrete resources. The analysis in this Chapter draws upon emerging litigation involving other types of pollution (caused by PCB, MTBE and PFAS chemicals) that shows early success in holding manufacturer corporations responsible for funding public cleanup efforts.

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