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Climate Change Hero

Climate Change Blog

  • 13
  • May
  • 2016

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Washington Department of Ecology Ordered to Develop a GHG Emissions Reduction Plan

On April 29, 2016, a group of children suing the Washington Department of Ecology (“DOE”) won a big victory when a King County Superior Court judge ordered DOE to develop a greenhouse gas (“GHG”) emissions reduction plan by the end of the year. The case shows that citizen groups are continuing to try to use the Public Trust Doctrine as a way to force agency action on climate change.

The lawsuit, Zoe and Stella Foster, et al., v. Washington Department of Ecology, was filed in September 2014, but the underlying dispute began in June 2014, when the youths filed a petition for rulemaking asking DOE to promulgate a rule that: (1) makes recommendations to the State legislature to update statutory GHG emissions limits to reflect the best available climate science; and (2) develops and implements an overall CO2 emission reduction plan for the state. The Agency denied the petition in August 2014, and shortly thereafter, the youths filed a Petition for Review in King County Superior Court. Petitioners asked the court to set aside DOE’s decision denying their rulemaking petition. They argued that DOE has a legal obligation to promulgate a rule “that establishes, and recommends to the legislature, an […] amendment of the GHG emissions reduction requirements.” In particular, they argue that the “best available climate science” dictates “setting a CO2 emission reductions trajectory to 4 percent per year” and achieving “80% reduction in CO2 emissions from 1990 levels by 2050.”

In support of their argument, petitioners point to DOE’s statutory obligation under Wash. Rev. Code § 70.235.040 to make recommendations to the legislature, based upon the best available science, on required GHG emissions reductions. They also point to a State executive order in which the Governor ordered DOE to “review the State’s enacted greenhouse gas emissions limits and recommend any updates to the limits by July 15, 2014.” Additionally, they argue that the State has a constitutional duty to protect its natural resources—including its lands, navigable waters, atmosphere, oceans, and wildlife—for the benefit of its citizens under the Public Trust Doctrine.

The petitioners contend that the Public Trust Doctrine requires “all sovereign governments, including the State of Washington, to act to prevent degradation of essential natural resources held in trust on behalf of present and future generations.” Traditionally, the doctrine protected the public’s right to access water for the purposes of navigation, fishing, and commerce and required the government to protect that right. However, in recent years, environmental groups and others have sought to extend the doctrine to cover “atmospheric trust” claims related to climate change. As described in previous posts, here and here, such efforts have generally met with jurisdictional challenges in federal court but have had some success in state court. And more recently, developments in a case pending in federal court in Oregon suggest that the case may overcome the expected jurisdictional issues.

In June 2015, the court ordered the state to reconsider the petition for rulemaking. In August 2015, DOE notified the court that it was affirming its denial of the petition, but that it was initiating a separate rulemaking to adopt a GHG emissions rule pursuant to a directive from the Governor. They reported that the rule would set a regulatory cap on GHG emissions and implement emissions reductions using the Agency’s existing authority. The petitioners appealed, and in November 2015, the court issued an Order Affirming the Department of Ecology’s Denial of Petition for Rule Making, in which the court denied the plaintiffs Petition for Rulemaking in light of DOE’s ongoing rulemaking process. 

Some elements of the judge’s order were favorable to petitioners’ position. The judge concluded that DOE had a mandatory duty to adopt rules establishing GHG emissions standards that preserve, protect, and enhance the air quality for the current and future generations and that the state’s existing standards did not satisfy this obligation. Moreover, the order stated that “[t]his mandatory duty must be understood in the context not just of the Clean Air Act itself but in recognition of the Washington State Constitution and the Public Trust Doctrine.” In response to DOE’s contention that “the Public Trust Doctrine has not been expanded […] beyond protection of navigable waters” to protection of the atmosphere, the court stated that the: 

current science makes clear that global warming is impacting the acidification of the oceans to alarming and dangerous levels, thus endangering the bounty of our navigable waters. […] The navigable waters and the atmosphere are intertwined and to argue a separation of the two, or to argue that GHG emissions do not affect navigable waters is nonsensical. Therefore, the Public Trust Doctrine mandates that the State act through its designated agency to protect what it holds in trust.

That was not the end of the matter, however, because in February 2016, DOE withdrew its proposed rulemaking process, and the petitioners asked the court intervene yet again. On April 29, 2016, the judge ruled from the bench in favor of the petitioners ordering DOE to promulgate a rule by the end of 2016 and to make recommendations to the legislature during the 2017 legislative session.

Conclusion

Despite early set-backs in federal court, this suit shows that citizen groups are continuing to try to use the Public Trust Doctrine to force the government to take action to prevent climate change. This court’s willingness to consider climate impacts together with impacts to resources that were traditionally governed by the Public Trust Doctrine could signal a shift.

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