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State: Judge is Wrong to Say It Must Protect Atmosphere

The Texas Commission on Environmental Quality is appealing a lawsuit that it has already won — and that was filed by children.

The Texas Commission on Environmental Quality is appealing a lawsuit that it has already won — and that was filed by children. Environmental advocates say the appeal shows that the state will go to any lengths to fight the suggestion that it address climate change.

As part of a national environmental movement, a group of youths in 2011 demanded that the commission enact steps to reduce greenhouse gases. The agency refused, and the youths’ parents sued on their behalf.

A year later, Travis County District Judge Gisela Triana ruled in the agency’s favor, saying it could use its own discretion and decide not to institute greenhouse gas regulations. But the commission still appealed, insisting that the court did not have jurisdiction over the case to begin with and that she made an “improper declaratory judgment” — that Texas is responsible for protecting “all natural resources of the State including the air and atmosphere.”

Triana agreed with the plaintiffs that a tenet of U.S. common law known as the “public trust doctrine” requires the government to protect the atmosphere as a resource for public use. The agency had disagreed, saying Texas’ duty to protect resources under public trust were “limited to the waters of the state.”

State lawyers late last month argued in front of the Texas 3rd Court of Appeals that Triana’s comments were beyond the scope of the case and should be “vacated.”

“Isn’t it a little disconcerting to have the state want that wiped off the books?” said Adam Abrams, an attorney for the plaintiffs. “Is it really so far-fetched to think that the air and the atmosphere belong to all of us?” Abrams called the appeal “a waste of taxpayer dollars.”

Terry Clawson, an agency spokesman, said its costs associated with the case are mostly “internal.”

“The TCEQ has concerns with how the district court opinion addressed the matter of public trust doctrine,” Clawson added. “The scope of this doctrine is a very important issue which deserves to be fully vetted.”

But David Spence, a professor of business and law at the University of Texas at Austin, said the scope of public trust is more symbolic than practical.

“In a sense it’s a kind of low-stakes argument,” Spence said. “The public trust doctrine in the U.S. is a fairly weak thing.”

Each state applies the principle differently, and few have used it with much force. The doctrine has generally been successful only at protecting open beaches for public use, Spence said.

Still, even if Triana’s statement does not mean much in practice, the environmental movement has seen it as symbolic — and the state has seen that as a threat. The agency complained to the court that Triana’s statements were seen by the plaintiffs “as a victory,” even noting that environmental groups had called her ruling a “blockbuster” for the movement to combat climate change in news releases.

Spence said the appeals court could vacate her statements, because her entire opinion is up for review. But the court may also say, “Look, this is dicta. Everybody calm down,” Spence said. (“Dicta” refers to a simple statement that cannot serve as precedent.)

That is what Abrams expects the court to say.

“How is the state harmed by this?” he said. “If this wasn’t centered around climate change and this statement that the air and the atmosphere belong to all of us, you have to question whether the state would waste its resources on appealing this.”

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This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/10/11/state-judge-wrong-say-it-must-protect-atmosphere/.

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