our childrens trustOn November 19, the Washington State Superior Court issued a decision in which it affirmed that climate change affects public trust resources in the state, but ultimately held that the state was fulfilling its public trust obligations by engaging in rulemaking to establish more comprehensive greenhouse gas (GHG) standards. The decision was a partial victory for Our Children’s Trust, an organization that has been pursuing a nationwide litigation campaign to protect the earth for current and future generations.

Notably, the court did not expand the definition of “public trust resources” protected under the Washington State Constitution to encompass the atmosphere.[1] Rather, the court explained that climate change poses a threat to the state’s navigable waters, a traditional public trust resource, and the state has an obligation to protect those waters from harm.

The court also discussed the state’s Clean Air Act, which requires the state to “[a]dopt rules establishing air quality standards” for GHG emissions in a manner that “[p]reserves, protect[s] and enhance[s] the air quality for the current and future generations.”[2] The court noted that Washington’s current GHG emissions standards do not fulfill this mandate to preserve, protect, and enhance air quality for current and future generations. This is because the current regulations only address a small proportion of the state’s GHG emissions, and totally fail to address transportation-related emissions (which constituted 44% of the state’s total emissions in 2010).

Despite these findings, the court ultimately held in favor of the state. Specifically, it found that the State Department of Ecology has commenced a rulemaking to establish GHG emission standards that account for science as well as economic, social and political considerations, and thus the state is not acting arbitrarily or capriciously with respect to its statutory and public trust obligations.

This decision follows a similar ruling in New Mexico, where the State Court of Appeals held that the atmosphere is a public trust resource that must be protected under the New Mexico Constitution. In that case, the court also denied relief on the grounds that the state legislature had established an adequately statutory framework for protecting the atmospheric public trust resource (the Air Quality Control Act), and the judiciary should not “independently regulate” GHG emissions “based solely upon a common law duty established under the public trust doctrine.” [3]


 

[1] The state’s public trust obligations are derived from Article XVII, § 1 of the Washington State Constitution, which asserts state ownership of “the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high tide within the banks of all navigable rivers and lakes.”

[2] Revised Code of Washington, §§ 70.94.331(2)(a)(b), 70.94.011.

[3] Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221, 1227 (N.M. Ct. App. 2015).

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