Foster v. Washington Department of Ecology

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A Washington Superior Court denied a request by eight children who asked that the Washington Department of Ecology be found in contempt for failing to comply with earlier court orders requiring Ecology to issue a rule regulating carbon dioxide emissions. However, the court sua sponte granted leave for the children to add claims that Ecology, the State of Washington, and Washington’s governor had violated the Washington State Constitution and the public trust doctrine by failing to protect the children from climate change. The court acknowledged that an unpublished decision issued by the Washington Court of Appeals four years earlier affirmed dismissal of climate change-related public trust doctrine claims. The court said, however, that the appellate decision was not binding and that it did not find the decision persuasive “considering the alleged emergent and accelerating need for science based response to climate change and the governmental actions and inactions” since the decision was issued. The Superior Court also said that since 2013 courts had recognized “the role of the third branch of government in protecting the earth’s resources that it holds in trust,” citing the November 2016 decision of an Oregon federal district court in Juliana v. United States denying a motion to dismiss constitutional claims against federal respondents for failing to act to reduce carbon emissions. In the instant case, the Superior Court concluded that it was “time for these youth to have the opportunity to address their concerns in a court of law.” The youth petitioners submitted a proposed supplemental and amended petition for review on December 6, 2016.

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In a ruling from the bench, a Washington Superior Court said it would require the Washington Department of Ecology (Ecology) to issue a final rule by the end of 2016 setting limits on greenhouse gas emissions. The court indicated that it would also require Ecology to make recommendations to the state legislature during the 2017 session on what changes should be made to statutory emission standards to make them consistent with current climate science. The court vacated portions of a November 2015 order that had denied relief to petitioners (who were minor children) on the grounds that Ecology was not acting arbitrarily and capriciously because it was undertaking a rulemaking. The petitioners asked the court to vacate the earlier order after Ecology withdrew its proposed rule in February 2016. The court said there were “extraordinary circumstances” that justified vacating the earlier order and imposing a court-ordered schedule “because this is an urgent situation. This is not a situation that these children can wait on. Polar bears can't wait, the people of Bangladesh can't wait.”

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The Washington Superior Court issued a decision in which it affirmed that climate change affects public trust resources in the state, but ultimately held that the state was fulfilling its public trust obligations because it was engaged in rulemaking to establish more comprehensive greenhouse gas standards. The court said that Washington’s current regulatory regime, which requires technological controls for a small number of sources but does not address greenhouse gas emissions from transportation, would not fulfill its statutory mandate under state air laws, a mandate that the court said must be understood in the context of the Washington State Constitution and the public trust doctrine. The court did not expand the definition of “public trust resources” protected under the Washington State Constitution to encompass the atmosphere. Instead, the court explained that climate change poses a threat to the state’s navigable waters, a traditional public trust resource that the state has an obligation to protect from harm. The court concluded that the State was not acting arbitrarily and capriciously because it had commenced a rulemaking process, at the direction of the governor, to set a regulatory cap on greenhouse gas emissions.

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The Washington Superior Court ordered the Washington Department of Ecology (Ecology) to reconsider its denial in August 2014 of a rulemaking petition submitted by eight children that asked Ecology to recommend to the state legislature that greenhouse gas emissions be limited “consistent with current scientific assessment of requirements to stem the tide of global warming.” The court remanded to Ecology for consideration of a December 2014 report prepared by Ecology at the direction of the governor and an affidavit submitted by the petitioners that reviewed the report. The court noted that the December 2014 report concluded that effects of climate change would be costly unless additional actions were taken to reduce greenhouse gas emissions but recommended no change to the state’s greenhouse gas emissions limits.

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