Texas state court judge recognizes potential application of "public trust" doctrine to redress climate change.

• Author: Faulk, Richard O.
• Position: Newsletters

This article originally appeared in the August 2012 Environmental and Energy Law Committee Newsletter.

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. (1) Similarly to Massachusetts v. EPA--(2) 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."

Bonser-Lain is 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 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...