Citizen Action Monitor

Blockbuster legal decision: Texas judge asserts all natural resources should be protected under the public trust doctrine

“The case reinforces that the air outside is a ‘Public Trust’ that ought to be managed for quality.”

No 534 Posted by fw, July 27, 2012

“It’s long been established that open bodies of water are “in trust” of the public, and therefore must be managed for protection in perpetuity by the government. The case is huge. It expands (or reaffirms) that air is also a public trust, and therefore falls under protection for all.”Michael Cote

Texas Court Recognizes The Atmosphere As A Public Trust Resource In Climate Change Lawsuit by Michael Cote, [July 10, 2012]

Along with other concerned groups, Our Children’s Trust brought a very important climate change lawsuit against the Texas Commission on Environmental Quality to (basically) begin regulating CO2. “The lawsuit is part of legal action in 49 states, the District of Columbia, and against the federal government on behalf of youth to compel reductions of CO2 emissions that will counter the negative impacts of climate change.”

What’s really interesting to me is the case reinforces that the air outside is a “Public Trust” that ought to be managed for quality. The concept of the “Public Trust” is one of the oldest and most important legal doctrines in human existence. The public trust is embedded into US law, was formalized from English Common Law, and can be traced back to the Greeks. Several international treaties, and ocean and coastal policies are based on the public trust doctrine.

Scholarly articles argue (and as I’ve argued at law conferences) that the public trust doctrine will be the ultimate referee in climate change policy in the years to come.

Our Children’s Trust, which won the lawsuit and put out a press release just moments ago, states, “The case relies upon the long established principle of the public trust doctrine, which requires all branches of government to protect and maintain certain shared resources fundamental for human health and survival.”

It’s long been established that open bodies of water are “in trust” of the public, and therefore must be managed for protection in perpetuity by the government. The case is huge. It expands (or reaffirms) that air is also a public trust, and therefore falls under protection for all. It probably affects all SEPAs in 50 states, territories, and DC. From the press release:

Austin, TX – Yesterday, Judge Gisela Triana issued a written decision finding that all natural resources are protected under the Public Trust Doctrine and the state constitution of Texas in a climate change lawsuit brought by youth (Angela Bonser-Lain, et al. v Texas Commission on Environmental Quality, Case No. D-1-GN-11-002194). In deferring to the Texas Commission on Environmental Quality’s (TCEQ), decision to deny the Plaintiffs’ petition for rulemaking while other ongoing litigation over regulations ensues, the Judge concluded that the TCEQ’s determination that the Public Trust Doctrine is exclusively limited to the conservation of water, was legally invalid. The three Texas youth sought judicial review in a lawsuit against the TCEQ for rejecting Plaintiffs’ proposed rule that would require reductions in statewide carbon dioxide (CO2) emissions from fossil fuels consistent with what current scientific analysis deems necessary to avoid catastrophic climate change.

“This is a blockbuster move for a Texas judge to take the position that all natural resources should be protected under the public trust doctrine. This may well be one of those judicial actions like Brown v. Board of Education that future generations will look to as a turning point for our planet. I am grateful to Judge Triana on behalf of my children and all future generations,” said Brigid Shea, mother of plaintiff, Eamon Brennan Umphress.

Michael Cote is a for hire environmental consultant specializing in climate adaptation, land-use law, and urban planning. For “fun,” he researches, publishes, and lectures on how cities can adapt to climate change. He’s published in the Int’l Journal of Climate Change, Berkeley Planning JournalThe New Planner, etc. And is an expert reviewer on the IPCC WG2 AR5. Follow Michael at Climate Adaptation

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