A quixotic legal effort to push the state environmental agency to regulate greenhouse gases is moving forward just as the Legislature has signaled it wants the agency to turn a blind eye to them.
The lawsuit began as little more than an attention grabber by a coalition of environmental groups across the country, pitting children and teens against environmental agencies that were perceived as slow to act on greenhouse gases. But it got an unexpected small foothold last summer when a district judge in Travis County gave credence to one of the plaintiffs’ key arguments.
The plaintiffs, who ranged from toddlers to a 25-year-old, argued that the Texas Commission on Environmental Quality should regulate the emissions, which scientists have linked to climate change, as part of its duty to guard the public trust for current and future generations.
The agency countered that the common law public trust doctrine, as it’s known, applies exclusively to the conservation of water.
The judge found the public trust doctrine applies to all natural resources.
For now the case is rolling forward.
In no state have plaintiffs using the strategy been successful, and the ultimate fate of greenhouse gas regulations is likely to be decided through higher court skirmishes between the federal government and the state.
The Texas plaintiffs got no boost from the state Legislature, which passed a measure this session that essentially confirmed its opposition to federal greenhouse gas regulations, which they have argued would cost jobs and raise electricity rates.
Technically, the proposal, expected to be signed by Gov. Rick Perry, gives Texas more power to regulate greenhouse gases.
That’s because top Texas lawmakers would rather the state regulate emissions than the federal Environmental Protection Agency — if anyone has to regulate them at all.
While that would seem to nullify the state’s argument against the suit that the environmental agency lacks such authority, the proposal also strips 2-decade-old language from the state health and safety code that treats global warming gases as an air contaminant.
In February, the state attorney general’s office, acting on behalf of the environmental commission, filed a brief with the 3rd Court of Appeals arguing that the district judgment was misplaced because of the agency’s rulemaking discretion. And the judge’s take on the public trust doctrine should be, at best, taken as a nonbinding advisory opinion, it says.
A brief supporting the minors filed in May by former environmental commissioner Larry Soward and University of Texas environmental law professor Gerald Torres, among others, argues that Texans are already suffering the consequences of climate change. Scientists have said greenhouse gases such as carbon dioxide trap heat from the sun in Earth’s atmosphere, leading to more frequent, severe droughts in Texas.
The public trust doctrine has a history of being applied in cases beyond water, the brief says.
The minors filed their original challenge to Texas’ environmental policies in 2011 as part of a nationwide advocacy effort by West Coast-based Kids Versus Global Warming and Our Children’s Trust, as well as other groups.
The Texas petition requested that the Texas Commission on Environmental Quality adopt a plan that would cut carbon dioxide emissions at least 6 percent a year, beginning in January 2013, and publish annual progress reports, among other things.
Commissioners rejected a rulemaking proposal by the minors, arguing, among other things, that it would shut down business in Texas.