Too Hot to Handle: Federal Public Trust Doctrine as Basis for United States Responsibility for Global Warming-Induced Migration of New England Cod

Abstract

Does the United States federal government have a fiduciary responsibility to protect the federally governed oceans and their resources for the citizens of the United States? Is this responsibility housed in a public trust theory where the government is the fiduciary trustee and the citizens are the trust beneficiaries? If not, where does the responsibility lie?Global warming has raised ocean temperatures such that Northwest Atlantic cod stocks are moving northward and deeper to reach cooler waters. This change is now a factor in the severely reduced groundfish populations in the United States’ New England Atlantic region. Deemed officially overfished with active overfishing, the New England Fishery Management Council recently voted to reduce cod catch rates by seventy-seven percent in the Gulf of Maine and by sixty-one percent in the Georges Bank area near Cape Cod, to become effective May 1, 2013. This paper argues, like others that have come before it, that long-overdue acceptance of a federal public trust doctrine recognizes a fiduciary responsibility in the federal government for protection of public trust assets, specifically the marine environment and its resources. However, it goes further to assert that this duty can provide the legal basis for a breach of trust claim against the federal government for failure to prevent and mitigate damages to marine resources from the ocean warming effects of greenhouse gas emissions. While the intent is to expedite and strengthen legislative and regulatory preventative action addressing the problem source, a recognized federal responsibility also provides a strong foundation for Congressional budgetary appropriations for remedies to the damaged fishers of the United States’ New England Atlantic region. This paper further suggests that a stronger, more decisive federal response to greenhouse gas emissions will instigate, in interplay with market principles, innovative formation of a permanent solution to the devastating impact of greenhouse gas emissions on our oceans and the living resources in them.