Plaintiffs Add “Public Trust” Doctrine to Toolbox

The “public trust” doctrine is a legal principle derived from English Common Law.  Environmental groups are now seeking to expand the application of the public trust doctrine to require states to address climate change.  The concept is a new and potentially valuable addition to plaintiffs’ toolbox in climate change litigation.  Until recently, the public trust doctrine has mostly been applied to protect the waters of the state – as a public resource – for purposes of commerce, fishing and recreation. 

In an Environmental Alert (July 17, 2012) titled, “Texas Trial Court Recognizes Potential Application of  “Public Trust” Doctrine to Redress Climate Change,” Richard O. Faulk, a partner at Gardere Wynne Sewell LLP, discusses the origin of the public trust doctrine and how it is being utilized in Texas and elsewhere to create a new cause of action for environmentalists seeking natural resource protection through court action. 

Mr. Faulk’s Environmental Alert reports on a lawsuit brought by the Texas Environmental Law Center against the Texas Commission on Environmental Quality (“TCEQ”) to demand that the agency take action to regulate greenhouse gas emissions.  The Texas lawsuit Bonser-Lain v. Texas Commission on Environmental Quality, Case No. D-1-GN-11-002194 (201^st Dist. Ct., Travis County, Texas), followed in the wake of TECQ’s denial of plaintiff’s petition for rulemaking related to greenhouse gas regulations.  Plaintiffs sought judicial review to force the TECQ to regulate emissions arguing that the atmosphere is a “public trust” under common law and a fundamental natural resource entrusted to the care of the government for preservation and protection.

Despite the “displacement” or preemption of common law remedies in the climate change arena recognized by the U.S. Supreme Court in American Electric Power Company v. Connecticut, 564 U.S. _____ (2011), the Texas district judge in Bonser-Lain stated in a letter that he disagreed with TECQ’s position that the public trust doctrine should be limited to water issues.  Rather, the Court concluded that all natural resources of the State fell within the ambit of the doctrine. 

This morning, Bloomberg BNA Toxics Law Reporter (27 TXLR 815) reported that a climate change suit against New Mexico brought pursuant to the public trust doctrine has been permitted to proceed. The article referenced the July 14, 2012 ruling in the case of Sanders-Reed v. Martinez, N.M. Dist. Ct., No. D-101-CV-2011-1514, in which plaintiffs’ petition, prepared by WildEarth Guardians, sought to compel the State of New Mexico to recognize the application of the public trust doctrine to greenhouse gas emissions and to take action to reduce those emissions

In her ruling in Sanders-Reed, the Hon. Sarah Singleton did not address the public trust doctrine specifically,  In a very short opinion, she stated that the State’s motion was "well taken to the extent the Complaint attempts to assert claims based on the New Mexico Legislative’s failure to act with respect to the atmosphere, but that Defendants’ other arguments are not appropriate for disposition at the pleading stage". She further held that Plaintiffs had made a substantive allegation that the process by which the legislature sets air quality standards, the "process has gone astray and the state is ignoring the atmosphere with respect to greenhouse gas emissions."  Apparently this was enough to keep Plaintiffs’ Amended Petition alive. Defendants memo of law in support of the motion is linked here as is Plaintiffs’ response and Defendants’ reply.

As these and similar pending cases wend their way through the appellate courts, it should be interesting to see whether the reach of the public trust doctrine is permitted to expand beyond protection of water resources into climate change.

Seth Jaffee, a lawyer following these issues at Foley Hoag in Boston, reported on both the New Mexico case and a case in federal district court in the District of Columbia before the Hon. Robert Wilkins.  In a Memorandum Decision, dated May 31, 2012,  Judge  Wilkins dismissed the federal public trust climate change suit, Alec L. v. Jackson on two alternative grounds. First, he held that there was no federal public trust doctrine. Second, he held that, even if there ever had been, the public trust doctrine had been displaced by the federal Clean Air Act.

Mr. Jaffee observes that first ground for dismissal in Alec L. v. Jackson was not relevant to Sanders-Reed and would not have impacted the New Mexico motion practice. However, it is worth noting that the State’s lawyers at the law firm of Keleher & McLeod attached Alec L. v. Jackson to Defendants’ Notice of Additional Authority.  Alec L. v. Jackson makes clear that the public trust doctrine is a creature of state law. Therefore, New Mexico law would have to be examined in deciding whether to apply the public trust doctrine to protect New Mexico public trust assets.  Even so, the states can certainly argue that climate change is more appropriately regulated through federal legislation and regulation rather than through the individual state action.