Last week, a trial judge in Washington State, in Foster v. Washington Department of Ecology, ruled that the Public Trust Doctrine requires the State of Washington to address climate change more aggressively. Greenwire’s headline for its story on the decision was “Kids declare victory in Wash. warming lawsuit.” I’m here to throw a little cold water on all the excitement. Why?
- First, the Public Trust Doctrine, which dates back to the Emperor Justinian, generally asserts public ownership of – and a fiduciary duty with respect to – land below the high water mark. It protects the public interest in the shoreline. The court in Foster did not extend the public trust to include the atmosphere. Instead, it concluded that, because climate change will affect the shoreline, it implicates the state’s traditional public trust obligations. I don’t believe, for example, that Wyoming has a shoreline, so this argument won’t succeed there.
- Second, it is necessary to belabor the obvious and note that the Court actually denied the plaintiffs’ petition because the Department of Ecology is already working on regulations to tighten its greenhouse gas emissions rules. While the plaintiffs may count that as a victory in itself, the Court emphasized in three different places in its opinion that it cannot direct the content of the Department’s regulations. As the Court stated:
Now that Ecology has commenced rulemaking to establish greenhouse [sic] emission standards taking into account science and [sic] well as economic, social and political considerations, it cannot be found to be acting arbitrarily or capriciously.
If the Department of Ecology can take into account “economic, social and political considerations”, it is difficult to know what standards would ever fail so vague a test as the arbitrary and capricious standard.
As I’ve noted previously, at some point, there may be a tidal wave of public trust litigation. If that happens, this case may be seen in retrospect as the harbinger of that tidal wave. However, as I sit here today, Foster seems as likely to be a minor ripple, soon forgotten and leaving no trace, as it is an early warning of a tsunami.