Defense Counsel Journal - International Association of Defense ...

More documents

Recommendations

Info

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
Newsletters Page 497“common law” solutions to problems thatface strong political opposition – such asthe continuing controversy overgreenhouse gas regulations.Even if most state courts are unlikelyto expressly recognize atmospheric trustsunder common law, it appears that somejudges might be willing to push theboundaries of ancient doctrines to addressnewly perceived harms. For the timebeing – at least until the preemptionissues raised by the Supreme Court’sremand of American Electric PowerCompany v. Connecticut are resolved – itwould be unwise to underestimate theenvironmental movement’s pursuit ofstate common law, statutes, andconstitutional provisions to combatclimate change.* * *
Page 4 and 5:
Page 380advanced in the world, yet
Page 6 and 7:
Page 3822013 midyear MeetingFebruar
Page 8 and 9:
Page 384Defense Counsel JournalBoar
Page 10 and 11:
Page 386Calendarof MeetingsMidyear
Page 12 and 13:
Page 388 DEFENSE COUNSEL JOURNAL-Oc
Page 14 and 15:
Page 16 and 17:
Page 18 and 19:
Page 20 and 21:
Page 22 and 23:
Page 24 and 25:
Page 28 and 29:
Page 30 and 31:
Page 32 and 33:
Page 34 and 35:
Page 36 and 37:
The Global Supply Chain: Understand
Page 38 and 39:
Page 40 and 41:
Page 42 and 43:
Page 44 and 45:
Page 46 and 47:
Page 48 and 49:
Page 50 and 51:
Page 52 and 53:
Page 54 and 55:
Page 56 and 57:
Page 58 and 59:
Page 60 and 61:
Page 62 and 63:
Fending off the Use of a Rule 12(f)
Page 64 and 65:
Page 66 and 67:
Page 68 and 69:
Page 70 and 71: Page 446 DEFENSE COUNSEL JOURNAL-Oc
Page 78 and 79: Predictability in Punitive Damages:
Page 114 and 115: CONNINGConning theIADC NewslettersI
Page 118 and 119: Newsletters Page 494TEXAS STATE COU
Page 136: U.S. Postal Service Statement of Ow
show all

Defense Counsel Journal - International Association of Defense ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?