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Newsletters Page 494TEXAS STATE COURT JUDGERECOGNIZES POTENTIALAPPLICATION OF “PUBLICTRUST” DOCTRINE TO REDRESSCLIMATE CHANGEBy: Richard O. Faulk andJohn GrayThis article originally appeared in theAugust 2012 Environmental and EnergyLaw Committee Newsletter.In statements that, to some, mayrepresent a “shot heard ‘round the world”in climate change litigation, a Texas statetrial judge recently recognized that the“public trust” doctrine potentiallyrequired the Texas Commission onEnvironmental Quality (“TCEQ”) to takeaction to regulate greenhouse gasemissions. Despite the novelty of thecourt’s remarks, serious questions remainunanswered before the environmentalmovement has legitimate reasons tocelebrate.In the underlying lawsuit, the TexasEnvironmental Law Center sued theTCEQ on behalf of a group of childrenand young adults. The Center assertedthat the State of Texas had a fiduciaryduty to reduce the emissions as thecommon law trustee of a “public trust”responsible for the air and atmosphere. 1Similarly to Massachusetts v. EPA– 2 aproceeding which successfully challenged1Bonser-Lain v Texas Commission onEnvironmental Quality, Case No. D-1-GN-11-002194 (201st Dist. Ct. Travis County,Texas).2 549 U.S. 497 (2007).Richard O. Faulkchairs the firm-wideLitigation Departmentof Gardere WynneSewell LLP in Dallas,Houston, Austin andMexico City. He alsoleads the firm’senvironmentalpractice. John Grayis a partner in theenvironmentalpractice group ofGardere WynneSewell LLP inHouston, Texas.the EPA’s refusal to regulate greenhousegases – the Texas lawsuit was broughtafter the TCEQ denied Plaintiffs’ petitionfor rulemaking related to greenhouse gasregulations. Plaintiffs then soughtjudicial review to force the TCEQ toregulate the emissions. They argued thatthe atmosphere is a “public trust” underthe common law; a “fundamental naturalresource necessarily entrusted to the careof our federal government … for itspreservation and protection as a commonproperty interest.”Bonser-Lain is not a solitary lawsuit.According to a press release by one of thegroups backing the plaintiffs, the Oregonbasednonprofit Our Children’s Trust,“The lawsuit is part of a campaign oflegal actions – in both state and federalcourts – being filed Alaska, Arizona,California, Colorado, Iowa, Minnesota,Montana, New Jersey, New Mexico,Oregon, Texas and Washington.”According to Our Children’s Trust, thesesuits are being brought “on behalf ofyouth to compel reductions of CO2
Newsletters Page 495emissions that will counter the negativeimpacts of climate change.”The “public trust” doctrine is a legalprinciple derived from English CommonLaw. Traditionally applied to waterresources, it recognizes that the waters ofthe state are a public resource owned byand available to all citizens equally forthe purposes of navigation, conductingcommerce, fishing, recreation and similaruses. Such a “public trust” is notinvalidated by private ownership of theunderlying land – instead, it serves tolimit the owner’s land use to those thatwill not interfere with the public’s useand interest in resources covered by thetrust. Generally, the public trustee –usually the state – must act to maintainand enhance the trust’s resources for thebenefit of future generations.Historically, American courts haveapplied the doctrine primarily tosubmerged lands on the shores of theocean, lakes, substantial rivers andstream, to the waters above them,groundwater, and to parklands. Althoughsome decisions have extended protectionto wildlife found in public areas,migratory fowl and to dry sand beachesjust above the high tide water mark,others have refused to expand thedoctrine beyond its traditional scope.Despite the narrowness of thedoctrine, environmental groups hope touse the elasticity of the “common law” toexpand its application beyond its historiclimitations. They argue that, like water,the atmosphere, which comprises the airwe breathe, is a legitimate “public trust” –one which imposes fiduciary obligationsupon the state as the trustee of theatmosphere for the public good. In manyrespects, these cases mark the “secondwave” of climate change litigation. The“first wave” sought – so farunsuccessfully – to regulate emissions orobtain damages caused by greenhouse gasemissions using the ancient common lawtort of public nuisance. 3Many legal experts have been unsurewhether an “atmospheric trust” can becreated and used successfully to combat“atmospheric” problems, such as climatechange caused by greenhouse gasemissions. Overall, courts have beenunwilling to expand the public trustdoctrine to impose public trust dutiesexcept in conjunction with a federalstatute or as required by a statute itself.Not surprisingly then, courts in severalstates, including Colorado, Oregon,Arizona, Washington, Arkansas, andMinnesota have dismissed these types ofcases early on, finding no basis for an“atmospheric trust” under state commonlaw.The United States Supreme Court hasraised even greater obstacles to thedoctrine’s expansion. Even if a court iswilling to consider expanding the “publictrust” doctrine to address climate change,it must address the “displacement” orpreemption of common law remediesrecognized in American Electric PowerCompany v. Connecticut. 4 In thatdecision, the Supreme Court held that theClean Air Act and EPA’s implementationof the Act displaced any federal commonlawright to seek abatement of carbondioxide emissions from fossil-fuel fired3 See generally, Richard O. Faulk, UncommonLaw: Ruminations on Public Nuisance, 18MO. ENVTL. L. & POL’Y REV. 1, 13-22 (2011)(analyzing the propriety of public nuisance toredress climate change claims).4 564 U.S. ___ (2011).
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