Thursday, July 12, 2012
Earlier this week, Texas trial court judge Gisela Triana ruled that the atmosphere is part of the common law public trust, such that the state bears the responsibility to preserve and protect it for future generations. Several scholars, including Mary Wood at the University of Oregon School of Law, have advocated this theory for some time; until this case, however, courts regularly have dismissed such claims as addressing public policy matters that are solely for consideration and action by the political branches of government.
Judge Triana’s interpretation of the public trust is particularly broad. In the face of the Texas Commission on Environmental Quality’s claim that the public trust doctrine is applicable only to water, Judge Triana wrote that the public trust doctrine “includes all natural resources of the state.” Nevertheless, she found appropriate the state’s “refusal to exercise its authority” to regulate greenhouse gases “a reasonable exercise of its discretion” in light of other ongoing climate litigation, including Texas’ joining multiple sister states in challenging the Environmental Protection Agency’s climate rules (which the D.C. Circuit recently upheld).
Nearly a dozen similar suits claiming that the atmosphere is protected under the public trust doctrine are proceeding in other states. Stay tuned to the Environmental Law Prof Blog for any important updates in this developing area of law.