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PORTSIDE  July 2012, Week 5

PORTSIDE July 2012, Week 5

Subject:

Texas Judge Rules 'The Sky Belongs To Everyone'

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Date:

Tue, 31 Jul 2012 21:46:52 -0400

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text/plain (156 lines)

Texas Judge Rules 'The Sky Belongs To Everyone'

Is this a "shot heard round the world" for fight against
climate change?

by David Morris

Published on Thursday, July 26, 2012 
by On the Commons

http://www.commondreams.org/view/2012/07/26-2

"Texas judge rules atmosphere, air is a public trust",
reads the headline in the Boston Globe. A tiny
breakthrough but with big potential consequences.
(Wikipedia/Creative Commons)

And as we continue to suffer from one of the most extended
heat waves in US history, as major crops have withered and
fires raged in a dozen states, we need all the tiny
breakthroughs we can get.

The "public trust" doctrine is a legal principle derived
from English Common Law. Traditionally it has applied to
water resources. The waters of the state are deemed a
public resource owned by and available to all citizens
equally for the purposes of navigation, fishing,
recreation, and other uses. The owner cannot use that
resource in a way that interferes with the public's use
and interest. The public trustee, usually the state, must
act to maintain and enhance the trust's resources for the
benefit of future generations.

Back in 2001, Peter Barnes, a co-founder of Working Assets
(now CREDO) and On the Commons as well as one of the most
creative environmentalists around, proposed the atmosphere
be treated as a public trust in his pathbreaking book, Who
Owns the Sky: Our Common Assets and the Future of
Capitalism (Island Press).

In 2007, in a law review article University of Oregon
Professor Mary Christina Wood elaborated on similar idea
of a Nature's Trust. "With every trust there is a core
duty of protection," she wrote. "The trustee must defend
the trust against injury. Where it has been damaged, the
trustee must restore the property in the trust."

She noted that the idea itself is not new. In 1892 "when
private enterprise threatened the shoreline of Lake
Michigan, the Supreme Court said, 'It would not be
listened to that the control and management of [Lake
Michigan]--a subject of concern to the whole people of the
state--should . . . be placed elsewhere than in the state
itself.' You can practically hear those same Justices
saying today that '[i]t would not be listened to' that
government would let our atmosphere be dangerously warmed
in the name of individual, private property rights."

In 2010 Wood, along with Julia Olson, Executive Director
of Our Children's Trust "had the vision to organize a
coordinated international campaign of attorneys, youth,
and media around the idea that the climate crisis could be
addressed as a whole system," Peter Barnes observes,
replacing a situation in which "legal solutions were
fragmented, focused on closing down a particular power
plant or seeking justice for a particular endangered
species, threatened neighborhood or body of water impacted
by our fossil fuel abuse."

On behalf of the youth of America, Our Children's Trust,
Kids Versus Global Warming and others began filing suits
around the country, arguing the atmosphere is a public
trust. So far cases have been filed in 13 states.

In Texas, after a petition to the Texas Commission on
Environmental Quality (TCEQ) to institute proceedings to
reduce greenhouse gases was dismissed, the Texas
Environmental Law Center sued on behalf of a group of
children and young adults. The Center asserted the State
of Texas had a fiduciary duty to reduce emissions as the
common law trustee of a "public trust" responsible for the
air and atmosphere.

The lawsuit argued, "The atmosphere, including the air, is
one of the most crucial assets of our public trust....Global
climate change threatens to dry up most of these waters,
turning them from gorgeous, life-giving springs into
dangerous flash-flooding drainages when the rare, heavy
rains do come. The outdoors will be inhospitable and the
children will have few places to recreate in nature as the
climate changes. They will be living in a world of
drought, water shortages and restrictions, and
desertification."

The TCEQ argued the public trust doctrine applies only to
water. Judge Gisela Triana, of the Travis County District
Court disagreed. Her letter decision, issued on July 12,
2012 stated, "[t]he doctrine includes all natural
resources of the State." The court went further to argue
that the public trust doctrine "is not simply a common law
doctrine" but is incorporated into the Texas Constitution,
which (1) protects "the conservation and development of
all the resources of the State," (2) declares conservation
of those resources "public rights and duties," and (3)
directs the Legislature to pass appropriate laws to
protect these resources.

The immediate impact of the case is limited. Noting that a
number of climate change cases were wending their way up
the judicial ladder, Judge Triana upheld the TCEQ decision
not to exercise its authority.

But a few days after Judge Triana's ruling, Judge Sarah
Singleton of the New Mexico District Court denied the
state's motion to dismiss a similar case. That will now
move forward.

The Texas court is the first to support the possibility
that the "public trust" doctrine may justify the creation
of an atmospheric trust. One Houston law firm advised its
clients the decision "may represent a 'shot heard 'round
the world' in climate change litigation...Given the stakes
involved in such cases, clients should monitor these suits
carefully--and perhaps participate as amicus curiae to
support the state's attorneys' arguments."

What a delicious irony if future generations could look
back to Texas as the catalyst that ultimately afforded
legal protection to the sky.

--------------
This work is licensed under a Creative Commons License

David Morris is Vice President and director of the New
Rules Project at the Institute for Local Self-Reliance,
which is based in Minneapolis and Washington, D.C.
focusing on local economic and social development.

___________________________________________

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