Protecting Washington's Atmosphere as a Public Trust (WA)

In 2014, on behalf of several youth climate activists and working in collaboration with Plant for the Planet, Climate Change for Families and Our Children’s Trust, WELC filed a petition for rulemaking with the Washington Department of Ecology. In the petition, the youths argued that under existing law, the Department of Ecology has a mandatory statutory obligation to regulate carbon dioxide emissions and to put the state on a path towards climate stability by the end of the century. The public’s inherent and inalienable rights to protected natural resources, including tidelands, shorelands, shellfish, state waters, and the atmosphere, are directly implicated and impacted by the Department of Ecology’s failure to implement its legal authority to regulate carbon dioxide. To protect the youth petitioners’ fundamental and constitutional rights, the Department of Ecology must adopt carbon dioxide emission reductions and make equivalent recommendations to the legislature based upon public input and the best available climate science.

In August 2014, the Department of Ecology denied the petition for rulemaking, claiming that it was already taking steps to address climate change, even though its own experts, and others, have stated publicly that the state is currently not on track to meet the modest greenhouse gas emission reductions enacted by the legislature, let alone to put the state on a path towards climate stability. Because the Department of Ecology’s decision to deny the petition does not comply with the law, we have appealed the denial to King County Superior Court. The Department of Ecology has admitted to the scientific allegations contained in the petition for rulemaking, recognized that it has the legal authority to regulate carbon dioxide emissions, but continues to argue that it has no mandatory duty to act.  Oral argument was held in the case before the Honorable Hollis Hill on May 15.

The court remanded the Department of Ecology's decision denying our petition for rule making with instructions to consider a December 2014 report that makes it clear that immediate action is needed to draw down carbon dioxide emissions to stem the tide of climate change. That means the Department of Ecology is presented with a choice: Either face the music and write a rule that protects the atmosphere, or ignore the science and be held accountable in court.

UPDATE: Late on November 19, the night before Universal Childrens' Day, King County Superior Court Judge Hollis R. Hill issued a groundbreaking ruling in the unprecedented case of eight youth petitioners who requested that the Washington Department of Ecology write a carbon emissions rule that protects the atmosphere for their generation and those to come.

In a landmark decision, Judge Hill declared “[the youths’] very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming…before doing so becomes first too costly and then too late.” Highlighting inextricable relationships between navigable waters and the atmosphere, and finding that separating the two is “nonsensical,” the judge found the public trust doctrine mandates that the state act through its designated agency “to protect what it holds in trust.”

The court confirmed what the Washington youths and youths across the nation have been arguing in courts of law, that “[t]he state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.”

Update: VICTORY!!! After Ecology withdrew its proposed rule, we went back to court to argue for a court order. Judge Hill agreed with our case so fervently she issued a surprise ruling from the bench ordering Ecology to write a climate rule before the end of the year, and to report to the Washington legislature on the issue in the next session (news release here). Now, Gov. Inslee must do the right thing and use the best available science to write a strong rule that protects our climate -- officially ruled a public trust resource -- for the sake of the youth petitioners and their peers. Please sign our petition to Gov. Inslee telling him to rely on the best available science for the forthcoming rule.

Update: In December, Judge Hollis Hill ruled that the case can again move forward, now with a constitutional climate rights claim that adds the state of Washington and Gov. Jay Inslee as defendants. We'll update this page as the case progresses.

(WELC project #706)