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Page 496 DEFENSE COUNSEL JOURNAL–October 2012power plants. The High Court thenremanded the suit to the Second Circuit toconsider whether the complaining parties’remedies under state law were preemptedby the same federal statutes andregulations. 5Notwithstanding the SupremeCourt’s decision, the Texas District Judgepresiding over the Bonser-Lain case madea number of troubling statements in aletter ruling on July 9, 2012. Althoughthe court ultimately followed the SupremeCourt’s precedent – by deferring to theTCEQ’s denial of the Plaintiffs’ petitionfor rulemaking while State is pursuinglitigation over the Federal greenhouse gasregulations – the court flatly disagreedwith TCEQ’s position that the public trustdoctrine is limited to water. In its letterruling, the court found that TCEQ’s“conclusion that the public trust doctrineis exclusively limited to the conservationof water, was legally invalid.” Moreover,the court stated that “[t]he doctrineincludes all natural resources of theState.” In reaching this decision, the courtexpressly stated that the public trustdoctrine “is not simply a common lawdoctrine” but is incorporated into theTexas Constitution, which (1) protects“the conservation and development of allthe resources of the State,” (2) declaresconservation of those resources “publicrights and duties,” and (3) directs theLegislature to pass appropriate laws toprotect these resources. The court alsorelied upon the Texas Clean Air Act as anadditional ground of the TCEQ’s5 See Richard O. Faulk and John S. Gray,Defendants Win “Round One” of ClimateChange Litigation in United States SupremeCourt, 32 WESTLAW ENVTL. J. 1 (August 17,2011).authority to act “to protect againstadverse effects, including globalwarming.”Not surprisingly, environmentalactivists are hailing the court’s expansivedicta regarding the “public trust”doctrine’s inclusion of air and all othernatural resources. They believe that, ifaccepted elsewhere, this decision caneffect environmental policy decision in all50 states. Although the court’s dicta haveno true value as precedent, the court’sendorsement of the Plaintiffs’ reasoningwill probably encourage further litigation.Until this reasoning is disapproved by anauthoritative appellate court, the Bonser-Lain court’s dicta will probably be citedin climate change litigation cases aroundthe country.Although a New Mexico courtrecently allowed a similar case to goforward, the Bonser-Lain court is the firsttribunal to support the possibility that the“public trust” doctrine may justify thecreation of an atmospheric trust.According to Adam Abrams, one of theattorneys arguing the case against TCEQ,“I think it’s huge that we got a judge toacknowledge that the atmosphere is apublic trust asset and the air is a publictrust asset. It’s the first time we’ve hadverbage like this come out of one of thesecases.”This decision highlights the creativityof environmentalists to create newgrounds for natural resource protection –and the potential diversity of the “publictrust” doctrine. Although the Bonser-Lain court probably will not order theTCEQ to set limits on greenhouse gasemissions, the ruling illustrates thecontinuing resolve of the environmentalmovement to invoke and advocate