January 2016 Bar Bulletin
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January 2016 Bar Bulletin

Turning up the Heat to Combat Global Warming

By Gene Barton


What is the opposite of the proverbial Pyrrhic victory?1 You know, when you win, but you really feel like you lost. So, what do you call it when you lose, but you feel like you’ve won? How about Foster, et al. v. Washington Dep’t of Ecology.

On November 19, King County Superior Court Judge Hollis Hill issued her order denying a Petition for Review brought by eight teenagers seeking to overturn an August 2014 ruling by the Washington Department of Ecology (“Ecology”), which rejected the youths’ Petition for Rulemaking. The petitioners had sought to compel Ecology to act more promptly to effect cuts in greenhouse gas (“GHG”) emissions based upon “best available science,” i.e., “to undertake actions that are necessary, and legally required, to protect the state’s natural resources, and the children who depend on them, from the injurious effects of climate change and ocean acidification.”2 A month later, in September 2014, they appealed Ecology’s denial in Superior Court

While the petitioners fared no better with Judge Hill from a strictly legal standpoint, she did acknowledge in her ruling that the State “has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.”3

Her denial was based on actions taken by Gov. Jay Inslee and Ecology since the original petition was filed with Ecology in June 2014, including initiating a rulemaking process advocated in the petition. This essentially mooted the Superior Court appeal.4

At the same time, however, Judge Hill urged the State to act promptly to fulfill its constitutional mandate, stating:

Petitioners assert, the Department does not dispute and this court finds, that current scientific evidence establishes that rapidly increasing global warming causes an unprecedented risk to the earth, including land, sea, the atmosphere and all living plants and creatures. The Department’s Preproposal Statement of Inquiry regarding the ongoing rulemaking states as reasons why rules on this subject are needed that “Washington faces serious economic and environmental disruptions from the effects of climate change.”

In fact, as Petitioners assert, and this court finds, their very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming by accelerating the reduction of emissions of GHG’s before doing so becomes first too costly and then too late. The scientific evidence is clear that the current rates of reduction mandated by Washington law cannot achieve the GHG reductions necessary to protect our environment and to ensure the survival of an environment in which Petitioners can grow to adulthood safely.5

The Petition stemmed from Gov. Inslee’s executive order in April 2014, stating that “Washington needs to take additional actions now” to address GHG emissions and their adverse impacts. In so doing, Gov. Inslee directed that Ecology “maximize coordination and effectiveness of local and state climate initiatives” and “inform affected and interested parties, and the general public … and solicit comments and involvement, as appropriate.”6

Given the lack of immediate action, the youths’ Petition for Rulemaking followed in June 2014, but was rejected by Ecology two months later, “[w]ithout addressing any of the scientific allegations contained in the petition or (Ecology’s) legal responsibility to manage essential natural resources such as air and water,” for three reasons:

(1) Nothing in RCW 70.235 (Global Warming Act) requires Ecology to adopt different emissions reductions, develop a plan to ensure those reductions, or implement the monitoring requirements in the proposed rule; (2) Washington “is working to achieve the reductions” set forth in RCW 70.235 and “the measures it is taking are an alternative approach to (petitioners’) proposed rule;” and (3) None of the additional cited sources in the petition (including the Public Trust Doctrine) require Ecology to adopt the proposed rule.7

As Judge Hill found, Ecology denied the petition “without challenging the underlying scientific bases for Petitioners’ plea,”8 noting that RCW § 70.235.020 “indisputably cannot achieve results protecting the state’s environment from catastrophic global warming.”9 She further stated, “Ecology does not dispute that it has the authority to set stricter emission standards; it maintains that Petitioners cannot require it to do so by invoking the rulemaking procedure which would require public hearings and input.”10

As noted above, in a strongly worded section, Judge Hill also agreed with the petitioners that the Public Trust Doctrine, as embodied in Article XVII, Section I of the Washington Constitution, does buttress Ecology’s obligation to address global warming and the reduction of greenhouse gases. She held:

Article XVII, Section 1 of the Washington State Constitution asserts state ownership of, “the beds and shores of all navigable waters in the state up to and including the line or ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line or ordinary high tide within the banks of all navigable rivers and lakes…”

Washington courts have found that this provision requires the State through its various administrative agencies, to protect trust resources under their administrative jurisdiction…. This means “that the sovereignty and dominion over this state’s tidelands and shore lands, as distinguished from title, always remains in the state and the state holds such dominion in trust for the public.” …

Ecology argues that since the Public Trust Doctrine has not been expanded by the courts beyond the protection of navigable waters it cannot be applied to protection of the “atmosphere.” But this misses the point since current science makes clear that global warming is impacting the acidification of the oceans to alarming and dangerous levels, thus endangering the bounty of our navigable waters…. The 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. Therefore, the Public Trust Doctrine mandates that the State act through its designated agency to protect what it holds in trust. The Department of Ecology is the agency authorized both to recommend changes in statutory emission standards and to establish limits that are responsible.11

While the Superior Court appeal was ongoing, Ecology issued a report in December 2014, which Judge Hill emphasized at the outset of her Order in addressing “The Imminent Threat of Global Warming” and the department’s legal obligation.

(Ecology) is required by law to periodically report to the legislature summarizing human-caused climate change and to make recommendations regarding whether the greenhouse gas (GHG) emissions reductions required by Washington statute need to be updated. In December 2014 Ecology released the required report which states,

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