As previously reported in this blog, two nonprofit organizations and children represented by guardians ad litem filed lawsuits in federal district court and in numerous state courts to compel the federal and various state governments to adopt policies that would reduce greenhouse gas emissions consistent with the recommendations of leading climate scientists. The plaintiffs are generally seeking a declaration that the earth’s atmosphere is a public trust resource that the federal and state governments, acting through named agency and executive branch defendants, have a legal duty to protect on behalf of all its citizens, including children. While the public trust doctrine has been recognized in protecting navigable waters and certain natural resources, it has never been applied to protect the atmosphere.

On May 31, 2012, United States District Judge Robert L. Wilkins granted the defendants’ and defendant-intervenors’ motions to dismiss the federal case. Many of the state cases have been dismissed as well. However, on July 9, 2012 in Texas and on July 14, 2012 in New Mexico, state court judges have denied motions to dismiss and have allowed the children’s cases filed there to proceed.  Importantly, the judges in both Texas and New Mexico found that the atmosphere is a natural resource protected under the public trust doctrine and that the state government has a legal duty to protect it.

In the Texas case, the ruling declaring the atmosphere to be a natural resource protected by the public trust doctrine is perhaps unlikely to lead to any change in state regulations. The court there denied the plaintiffs’ request to force the Texas Commission on Environmental Quality (TCEQ) to write new climate rules. Texas is currently one of many states appealing EPA’s climate rules. The Texas state court judge reasoned that the TCEQ’s refusal to exercise its authority to write new state climate rules is a reasonable exercise of discretion given the uncertainty of federal regulation and climate regulation as a whole.

Finally, in the New Mexico case, the action will proceed on the issue of whether the state agency charged with protecting the atmosphere has met its public trust obligation. Thus, this is likely to be the first case in the country that will yield findings of fact and conclusions of law addressing the boundaries of a governmental duty to address global warming by regulating greenhouse gas emissions. With respect to the discharge of this duty, the change in administrations from Democratic (Governor Richardson) to Republican (Governor Martinez) is significant. The plaintiffs allege (and these allegations are likely not to be in serious dispute) that  New Mexico is essentially taking no action to manage and protect the atmospheric trust at this time because Governor Martinez has worked to repeal existing greenhouse gas regulations and to prevent New Mexico from joining a regional cap-and-trade program for greenhouse gas emissions. Governor Martinez is likely to argue that action by a single state to regulate greenhouse gas emissions is futile and that only tools that are reasonably useful to address climate change are federal legislation, regulation, or executive orders. Thus, the ultimate issue in the case may be whether a state government with a duty to protect the atmosphere from the adverse effects of unrestricted greenhouse gas emissions can defer to or rely solely on federal actions to discharge its duty.

Stay tuned.