07.17.12
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Decision highlights creativity of environmentalists to create new grounds for natural resource protection.
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Texas Trial Court Recognizes Potential Application of
"Public Trust" Doctrine to Redress Climate Change

In statements that, to some, may represent a "shot heard 'round the world" in climate change litigation, a Texas state trial judge recently recognized that the "public trust" doctrine potentially required the Texas Commission on Environmental Quality (TCEQ) to take action to regulate greenhouse gas emissions. Despite the novelty of the court's remarks, serious questions remain unanswered before the environmental movement has legitimate reasons to celebrate.

In the underlying lawsuit, the Texas Environmental Law Center sued the TCEQ on behalf of a group of children and young adults. The Center asserted that the State of Texas had a fiduciary duty to reduce the emissions as the common law trustee of a "public trust" responsible for the air and atmosphere. Bonser-Lain v. Texas Commission on Environmental Quality, Case No. D-1-GN-11-002194 (201st Dist. Ct., Travis County, Texas). Similar to Massachusetts v. EPA, 549 U.S. 497 (2007)—a proceeding which successfully challenged the EPA's refusal to regulate greenhouse gases—the Texas lawsuit was brought after the TCEQ denied plaintiffs' petition for rulemaking related to greenhouse gas regulations. Plaintiffs then sought judicial review to force the TCEQ to regulate the emissions. They argued that the atmosphere is a "public trust" under the common law; a "fundamental natural resource necessarily entrusted to the care of our federal government...for its preservation and protection as a common property interest."

This was not a solitary lawsuit. According to a press release by one of the groups backing the plaintiffs, the Oregon based nonprofit Our Children's Trust, "The lawsuit is part of a campaign of legal actions—in both state and federal courts—being filed in Alaska, Arizona, California, Colorado, Iowa, Minnesota, Montana, New Jersey, New Mexico, Oregon, Texas, and Washington. According to Our Children's Trust, these suits are being brought "on behalf of youth to compel reductions of CO2 emissions that will counter the negative impacts of climate change."

The "public trust" doctrine is a legal principle derived from English Common Law. Traditionally applied to water resources, it recognizes that the waters of the state are a public resource owned by and available to all citizens equally for the purposes of navigation, conducting commerce, fishing, recreation, and similar uses. Such a "public trust" is not invalidated by private ownership of the underlying land—instead, it serves to limit the owner's land use to those that will not interfere with the public's use and interest in resources covered by the trust. Generally, the public trustee—usually the state—must act to maintain and enhance the trust's resources for the benefit of future generations.

Historically, American courts have applied the doctrine primarily to submerged lands on the shores of the ocean, lakes, substantial rivers and stream, to the waters above them, to groundwater, and to parklands. Although some decisions have extended protection to wildlife found in public areas, to migratory fowl, and to dry sand beaches just above the high tide water mark, others have refused to expand the doctrine beyond its traditional scope.

Despite the narrowness of the doctrine, environmental groups hope to use the elasticity of the "common law" to expand its application beyond its historic limitations. They argue that, like water, the atmosphere, which comprises the air we breathe, is a legitimate "public trust"—one which imposes fiduciary obligations upon the state as the trustee of the atmosphere for the public good. In many respects, these cases mark the "second wave" of climate change litigation. The "first wave" sought—so far unsuccessfully—to regulate emissions or obtain damages caused by greenhouse gas emissions using the ancient common law tort of public nuisance. See generally, Richard O. Faulk, Uncommon Law: Ruminations on Public Nuisance, 18 Mo. Envtl. L. & Pol'y Rev. 1, 13-22 (2011) (analyzing the propriety of public nuisance to redress climate change claims) (available here).

Many legal experts have been unsure whether an "atmospheric trust" can be created and used successfully to combat "atmospheric" problems, such as climate change caused by greenhouse gas emissions. Overall, courts have been unwilling to expand the public trust doctrine to impose public trust duties except in conjunction with a federal statute or as required by a statute itself. Not surprisingly then, courts in several states, including Colorado, Oregon, Arizona, Washington, Arkansas, and Minnesota have dismissed these types of cases early on, finding no basis for an "atmospheric trust" under state common law.

The U.S. Supreme Court has raised even greater obstacles to the doctrine's expansion. Even if a court is willing to consider expanding the "public trust" doctrine to address climate change, it must address the "displacement" or preemption of common law remedies recognized in American Electric Power Company v. Connecticut, 564 U.S. ___ (2011). In that decision, the Supreme Court held that the Clean Air Act and EPA's implementation of the Act displaced any federal common law right to seek abatement of carbon dioxide emissions from fossil fuel fired power plants. The High Court then remanded the suit to the Second Circuit to consider whether the complaining parties' remedies under state law were preempted by the same federal statutes and regulations. See Richard O. Faulk and John S. Gray, Defendants Win "Round One" of Climate Change Litigation in United States Supreme Court, 32 Westlaw Envtl. J. 1 (Aug. 17, 2011) (available here).

Notwithstanding the Supreme Court's decision, the Texas district judge presiding over the Bonser-Lain case made a number of troubling statements in a letter ruling on July 9, 2012. Although the court ultimately followed the Supreme Court's precedent—by deferring to the TCEQ's denial of the plaintiffs' petition for rulemaking while the state is pursuing litigation over the federal greenhouse gas regulations—the court flatly disagreed with TCEQ's position that the public trust doctrine is limited to water. In its letter ruling, the court found that TCEQ's "conclusion that the public trust doctrine is exclusively limited to the conservation of water, was legally invalid." Moreover, the court stated that "[t]he doctrine includes all natural resources of the State." In reaching this decision, the court expressly stated that the public trust doctrine "is not simply a common law doctrine" but is incorporated into the Texas Constitution, which (1) protects "the conservation and development of all the resources of the State," (2) declares conservation of those resources "public rights and duties," and (3) directs the Legislature to pass appropriate laws to protect these resources. The court also relied upon the Texas Clean Air Act as an additional ground of the TCEQ's authority to act "to protect against adverse effects, including global warming."

Not surprisingly, environmental activists are hailing the court's expansive dicta regarding the "public trust" doctrine's inclusion of air and all other natural resources. They believe that, if accepted elsewhere, this decision can affect environmental policy decisions in all 50 states. Although the court's dicta have no true value as precedent, the court's endorsement of the plaintiffs' reasoning will probably encourage further litigation. Until this reasoning is disapproved by an authoritative appellate court, the Bonser-Lain court's dicta will probably be cited in climate change litigation cases around the country.

The Bonser-Lain court is the first tribunal to support the possibility that the "public trust" doctrine may justify the creation of an atmospheric trust. According to Adam Abrams, one of the attorneys arguing the case against TCEQ, "I think it's huge that we got a judge to acknowledge that the atmosphere is a public trust asset and the air is a public trust asset... It's the first time we've had verbiage like this come out of one of these cases."

This decision highlights the creativity of environmentalists to create new grounds for natural resource protection—and the potential diversity of the "public trust" doctrine. Although the Bonser-Lain court probably will not order the TCEQ to set limits on greenhouse gas emissions, the ruling illustrates the continuing resolve of the environmental movement to invoke and advocate "common law" solutions to problems that face strong political opposition—such as the continuing controversy over greenhouse gas regulations.

Even if most state courts are unlikely to expressly recognize atmospheric trusts under common law, it appears that some judges might be willing to push the boundaries of ancient doctrines to address newly perceived harms. For the time being—at least until the preemption issues raised by the Supreme Court's remand of American Electric Power Company v. Connecticut are resolved—it would be unwise to underestimate the environmental movement's motivation to pursue lawsuits based on state common law, statutes, and constitutional provisions to combat climate change.

Given the stakes involved in such cases, clients should monitor these suits carefully—and perhaps participate as amicus curiae to support the state's attorneys' arguments. Gardere's environmental and government relations lawyers have extensive experience in amicus curiae representations at all levels of Texas' trial and appellate courts as well as in the federal courts of appeal and the U.S. Supreme Court. For more information regarding our amicus curiae practice, contact Richard O. Faulk or Leslie Ritchie Robnett.

This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is general and does not constitute legal advice. This complimentary newsletter is sent to clients and friends of the Firm.

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