Superior Court of the State of Washington for King County
No. 14-2-25295-1 SEA, Order affirming the Department of Ecology’s denial of petition for rulemaking
19 November 2015
Article XVII, Section 1 of the Washington state Constitution
The Department of Ecology of Washington state is obliged to periodically make recommendations on whether the state’s greenhouse gas emission reduction targets need to be updated. In 2014 a report by the Department recommended that no changes should be made to the state’s previously established targets, despite recognising that additional action to reduce greenhouse gases is necessary to prevent environmental damage caused by climate change.
A group of eight children made a ‘petition for rulemaking’ to the Department (a mechanism which allows citizens to ask a public authority to develop or modify its rules on a particular subject). They asked the Department to adopt a rule which mandates that, among other things, limitation of greenhouse gases should be consistent with the current scientific assessment of the required measures to stem the tide of global warming on the basis that such a rule would better protect their rights to a healthy climate and atmosphere.
The Department denied this petition and refused change the way it makes decision on the emission targets recommendations. The children then turned to the Court to review the Department’s denial of their petition. They argued that prompt and decisive action by the Department is necessary to protect the state’s natural resources and the children who depend on them from the effects of climate change and ocean acidification. The Department argued that the petitioners cannot demand that it sets stricter emissions standards by invoking the rulemaking procedure, which would require public hearings and input. Before the current judgement was handed down, the Department initiated a new procedure for determining a cap on emissions under the directive of the state Governor.
Issue and resolution:
Right to a clean and healthy environment. Whether the Department was correct in rejecting the children’s petition asking it to introduce a rule which requires that emissions standards are based on the latest scientific data. The Court ruled in favour of the Department, saying that it cannot order them to adopt the rule which the children requested, but recognised that the state has a duty under the public trust doctrine to protect natural resources from climate change.
At the outset, the Court noted that the climate change is a threat to the survival of the children and future generations and that it is necessary to reduce the emissions of greenhouse gases which contribute to global warming. Further, the Court said that the Department has a responsibility under the public trust doctrine as expressed in the Constitution of the state of Washington.
The public trust doctrine has been interpreted by the court to impose a duty on the state, through its various agencies, such as the Department of Ecology, to protect public resources. The Court rejected the Department’s argument that the public trust doctrine only covers navigable waters and cannot be extended to the atmosphere, saying that the atmosphere and the Earth’s waters are intertwined and separating them would be nonsensical.
Finally, the Court also recognised a right to the preservation of healthful and pleasant atmosphere The main question for the Court was to review the legality of the Department’s rejection of the children’s petition for rulemaking. The Court noted that the Department has the authority given by law to establish greenhouse gas emission standards, but it did not act in that regard until after the suit was brought when directed by the state Governor. Nonetheless, the Court because the Department is currently considering a cap on emissions, the Court cannot rule that they are failing to fulfil their duty to exercise that authority. The Court also cannot tell the Government how to decide on an emissions cap, therefore, the children’s request to order the Department to use the best science available in the decision making process was rejected.
This case is part of a series of challenges based on the public trust doctrine brought with the assistance of NGO Our Children’s Trust. For more information, read our case study and special edition Children in Court CRINmail.
Link to full judgement: http://ourchildrenstrust.org/sites/default/files/15.11.19.Order_FosterV.Ecology.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.