Public-Trust Theory for Climate-Change Regulation Wins Support in Washington State Court

An opinion from a Washington state court came out Thursday which could strengthen the hand of global-warming activists. The opinion in Foster v. Washington Department of Ecology, No. 14-2-25295-1 (Sup. Ct. Wash. Nov. 19, 2015), is the latest in ongoing litigation by a group of youths seeking more stringent carbon dioxide regulations on the theory that the state’s public-trust obligations require swifter action to combat climate change.


The plaintiffs in Foster originally petitioned the Washington Department of Ecology last year to pass more stringent regulations on CO2 emissions. Last August, Ecology denied the petition, claiming that its regulations were already sufficient under the Clean Air Act and the relevant provision of the state implementing statute, RCW 70.235.020. But in December, Ecology released a report which found that “sea level is rising on most of Washington’s coast, ocean acidification has increased, . . . [and] climate extremes like floods, droughts, fires and landslides are already affecting Washington’s economy and environment.” In June, the Superior Court ordered Ecology to reconsider its denial of Foster et al.’s petition in light of the new report and other evidence supplied during the proceeding.

Political events swiftly caught up with the litigation, however. A month after the first Foster decision, Washington Gov. Jay Inslee, who has supported stronger emissions regulations, directed Ecology to begin a new rulemaking process to strengthen CO2 emissions regulations pursuant to the state’s Clean Air Act. After beginning the rulemaking process, the department again denied plaintiffs’ position, this time on the ground that the new rule would satisfy the youths’ demands. The petitioners brought the case back to the Washington Superior Court, arguing that the rulemaking process would be insufficient to achieve “climate stability and ocean protection” (which they argued requires an atmospheric concentration of 350 ppm CO2).


The petitioners were in the awkward position of requesting almost exactly what Ecology’s rulemaking claimed to be working toward: establishing more stringent regulations for CO2 emissions in the state. The court acknowledged the possibility that Ecology’s rulemaking would include “non-science related considerations,” but (unsurprisingly) held that this was not something the court could prevent, so long as the rulemaking had sufficient basis in fact to meet an arbitrary-and-capricious standard.

More interesting are the arguments the petitioners raised—and the judge accepted—to demonstrate Washington’s duty to mitigate the impacts of climate change, based on the state’s Clean Air Act, a somewhat creative reading of the state constitution alongside Ecology’s organic statute, and the doctrine of public trust. The first is fairly straightforward: the Act declares a “public policy to preserve, protect, and enhance the air quality for current and future generations”; the court considered this a “mandate” which the department had failed to fulfill.

The constitutional argument is a little more interesting, although obviously less useful in other jurisdictions. Washington’s constitution provides that some rights beyond those enumerated in the document are “retained by the people.” Ecology’s enabling statute asserts “a fundamental and inalienable right . . . to live in a healthful and pleasant environment.” The court rather generously reads this provision as implying an environmental right as a non-enumerated “right to preservation of a healthful and pleasant atmosphere,” which could be violated by insufficient action on climate change.

But the most intriguing argument made—and vindicated—in the Foster litigation is that climate change implicates the public-trust doctrine. In Washington, this doctrine is grounded in a constitutional provision that the state owns “the beds and shores of all navigable waters in the state,” which ownership is interpreted as carrying a duty to preserve these resources. In response to Ecology’s objection that climate change is an atmospheric, rather than oceanic issue, the court pointed to the impact of sea-level rise and the risk to freshwater fish posed by warming water—both of which had been observed by Ecology in its own regulatory proceedings. Ultimately, the court argued, “[t]he 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.”


The Foster petitioners’ demands had been more or less met by Gov. Inslee’s decision to strengthen CO2 limits in August, so the court’s denial of their petition is neither surprising nor problematic. Far more interesting, and potentially helpful even to plaintiffs in less environmentally friendly states, is the judge’s claim that both a right to a healthy environment and a duty to protect the environment could be rooted in fairly broad language in the Washington constitution. The public-trust argument is particularly portable, since the inclusion of navigable waters in the public trust is universally accepted.

The ruling should certainly be considered a win for Our Children’s Trust, one of the organizations behind the Foster litigation, which is involved in similar suits in North Carolina, Oregon, and here in Massachusetts. Although the Massachusetts case focuses on the Global Warming Solutions Act, the plaintiffs in the other two cases have relied heavily on the public-trust argument, and are both going to appeals courts, where the Foster opinion will lend extra force to their theory.