No matter what the kids say these days, the sky is not the sea
In a 10-page decision brimming with dicta, Judge Hollis R. Hill of the King County Superior Court resolved a dispute between the Washington Department of Ecology and youthful conscripts in a movement called “Our Children’s Trust” (Foster et al. v. Washington Dept. of Ecology).
The youths in question were a precocious bunch. They demonstrated an improbable familiarity with both the writings of Byzantine Emperor Justinian – whose understanding of public spaces, they incorrectly believed, undergirded their argument – and the finer points of administrative law. Indeed, their case has a certain impetuous charm to it.
The youths maintained that the Public Trust Doctrine — holding navigable waterways in trust to benefit the public and empower commerce – should be extended to the atmosphere, specifically to address climate change. Their goal is to compel Washington and other U.S. states (they are litigating across the country) to restrict greenhouse gas emissions on the basis of an expansive understanding of what nature the states must hold in trust.
Lofty aspirations aside, the question before the court was a narrow one of administrative law. It was whether a petition should be granted that would appeal the state Department of Ecology’s refusal to initiate rulemaking on stricter emissions restrictions. Judge Hill found the department’s failure to promulgate more exacting emissions standards was a violation of the Clean Air Act, the Washington State Constitution and the Public Trust Doctrine.
The only trouble for the judge was that, in what must have been a frustrating development, Ecology actually is in the process of reevaluating its emissions rules. Thus, the petitioner’s appeal had to be denied.
But instead of confining her analysis to that inquiry, Judge Hill opted not to disappoint the youthful petitioners. She included in her decision a lengthy exposition on the DOE’s affirmative responsibilities relative to the various bodies of law to which it is subject. Specific to the Public Trust Doctrine, she had this to say:
‘(The Department of) Ecology argues that since the Public Trust Doctrine has not been expanded by the courts beyond protection of navigable waters it cannot be applied to protection of the ‘atmosphere.’ But this misses the point since current science makes clear that global warming is impacting the acidification of the oceans to alarming and dangerous levels, thus endangering the bounty of navigable waters.’
‘The navigable waters and the atmosphere are intertwined and to argue a separation of the two, or to argue that GHG (Greenhouse Gas) emissions do not affect navigable waters is nonsensical.’
Judge Hill’s assertion that the Public Trust Doctrine should be expanded to encompass emissions is based on the belief that protecting the atmosphere is a necessary precondition to protect navigable waterways. While there’s no doubt that atmospheric activity does impact navigable waterways, it’s certainly not “nonsensical” to argue otherwise in the context of what is only a trivial connection between Washington-specific emissions and the changes to the state’s waterways. Judge Hill overstates both how and to what degree they are linked, given the purpose of the Public Trust Doctrine, which is to maintain public access to waterways, historically, toward commercial ends.
Perhaps out of a moribund desire to adhere to the doctrine’s traditional purpose, Judge Hill makes an effort to find an economic nexus between emissions and the threat posed by acidification to the “bounty of navigable waterways.” But claiming that the atmosphere and navigable waterways are “inextricably linked” or are “intertwined” does not mean that they are so similar as to be governed by the same common law precedent.
At bottom, there is an unambiguous gulf between the law and Judge Hill’s desired policy outcome. Climate change is a serious threat to the American way of life and to the larger global community. But no threat, however great, should compel us to revert to governing tendencies best suited to an emperor. Reform doesn’t require obfuscation.
If Washingtonians desire to reduce the emission of greenhouse gasses in their state, they will soon have an opportunity to vote in favor of ballot initiatives that will accomplish just that.
 Justinian’s famous AD 350 quote, “By the law of nature these things are common to mankind – the air, running water, the sea, and consequently the shores of the sea,” is better understood in the context of his larger theory of public ownership. The quotation’s sentiment refers only to state of seashores prior to their private appropriation and improvement. See “Property and the Public Trust Doctrine” by Randy T. Simmons for further background material on the Roman understanding of the concept.