The Sky Is The Limit

Can some one make a claim for the sky or is the sky truly the limit?   A "Texas judge rules atmosphere, air is a public trust," according to the Boston Globe.  As the Midwest continue to suffer from a major drought, the Texas legal system is dwelling on more important issues.  In 2007,  University of Oregon Professor Mary Wood pontificated "The trustee must defend the trust against injury. Where it has been damaged, the trustee must restore the property in the trust." In 2010 Wood and Julia Olson, executive director of Our Children's Trust organized a group of attorneys, youth, and media to address climate changes as "a whole system." Subsequently suits in 13 states have been filed arguing the atmosphere is a public trust.

Borrowing from English Common Law concerning public trust, the suits argue that public resources are owned by and available to all citizens equally for the purposes of navigation, fishing, recreation, and other uses. The owner cannot use that resource in a way that interferes with the public interest. The public trustee, usually the state, must act to maintain and enhance the trust's resources for the benefit of people.  In Texas, the Texas Environmental Law Center sued on behalf of a group of children and young adults asserting that the State of Texas had a fiduciary duty to reduce emissions.  "The atmosphere, including the air, is one of the most crucial assets of our public trust... Global climate change threatens to dry up most of these waters, turning them from gorgeous, life-giving springs into dangerous flash-flooding drainage when the rare, heavy rains do come. The outdoors will be inhospitable and the children will have few places to recreate in nature as the climate changes. They will be living in a world of drought... and restrictions..."

Judge Gisela Triana, of the Travis County District Court ruled on July 12, 2012: "[t]he doctrine includes all natural resources of the State... the public trust doctrine ... is not simply a common law doctrine but is incorporated into the Texas Constitution, which (1) protects "the conservation and development of all the resources of the State," (2) declares conservation of those resources "public rights and duties," and (3) directs the Legislature to pass appropriate laws to protect these resources." However, Judge Triana upheld the TCEQ decision not to exercise its authority. Yet, a few days later, Judge Sarah Singleton of the New Mexico District Court denied the state's motion to dismiss a similar case.

The Texas court decision to support the possibility that the "public trust" doctrine may justify the creation of an atmospheric trust. Consequently there may be a boom in climate change litigation.  In other words, if society chooses to leave global warming up to the lawyers,  there may be no need for future meteorologists predictions.