Kids claim win in legal fight over 'public trust'

Posted: Jul 13, 2012

Written by

LAWRENCE HURLEY, Greenwire

Children demanding that the federal and state governments take immediate action to combat climate change have won a first major battle in their national legal fight after a court in Texas ruled that the atmosphere is a public trust.

The victory is likely to be limited, however, as Judge Gisela Triana of the state district court in Travis County also held that ongoing litigation on climate change regulations means Texas does not need to take immediate action.

Our Children's Trust has filed separate lawsuits against various states, including Texas, in addition to the federal government. Until this week, judges have generally dismissed the lawsuits because courts are reluctant to entertain lawsuits requiring action on climate change under common law.

Attorneys for the children advocate the novel theory that the government has failed in its duty to protect the atmosphere as a "public trust" under common law.

In Monday's ruling, Triana became the first judge, according to the plaintiffs, to rule that the atmosphere is one of the natural resources that are protected under the public trust doctrine. The Texas Commission on Environmental Quality had claimed that only water was protected.

"The court will find that the commission's conclusion that the public trust doctrine is exclusively limited to the conservation of water is legally invalid," Triana wrote in a letter to the parties. "The doctrine includes all natural resources of the state."

Triana also held that there is nothing that prevents Texas from issuing climate rules that go further than national regulations set by U.S. EPA.

But she plans to deny the plaintiffs' request that the agency be forced to write new climate rules, in part due to ongoing litigation in two separate cases. One of those is a challenge, which Texas joined, to EPA's climate rules. Last month, the U.S. Court of Appeals for the District of Columbia Circuit upheld the rules, but many expect the challengers to seek Supreme Court review (Greenwire, June 27).

"Because the legal landscape is uncertain, the court will find, at this time, the commission's refusal to exercise its authority based on current litigation is a reasonable exercise of its discretion," Triana wrote.

Adam Abrams, an attorney for the plaintiffs, said in a statement that it is his hope that "the court's clear acknowledgement that the public trust doctrine encompasses all natural resources, including the atmosphere, will alter how we think and plan for our future."

A TCEQ spokesman said the agency was reviewing the decision and would "continue to evaluate the ruling" once Triana issues her final judgment.

Last month, a federal judge in Washington dismissed the plaintiffs' claims against the federal government (Greenwire, June 1).