Earlier this week, we reported on an important ruling by a Dutch trial court. On June 24 The Hague District Court ruled that the Dutch government must ensure that Dutch greenhouse gas (ghg) emissions in the year 2020 will be at least 25% lower than those in 1990. The ruling is important not just because it requires a substantial and quick reduction in Dutch ghg emissions, but also because it could be used to persuade courts in other countries to follow suit.
Media coverage of the Dutch ruling almost completely overshadowed a June 23 decision of potentially equal import issued by an American court in Seattle, Washington.
The Seattle decision requires the Washington Department of Ecology to reconsider its denial of a petition by eight youths who asked the Department to adopt rules that would help restore global atmospheric carbon dioxide levels to 350 parts per million (ppm). Until 1950, carbon dioxide levels had not exceeded 300 ppm in the last 650,000 years, but they exceeded 400 ppm in 2013, and are still rising.
Background on the Seattle Decision
In April 2014, Washington Governor Jay Inslee directed the Department to report on recommended updates to Washington State’s current ghg emissions limits and to do so by July 15, 2014. In anticipation of the Department’s report, the youth petitioners filed a petition for rulemaking. In it, they requested that the Department promulgate a rule to “implement science-based emissions limits to put Washington on the global climate stabilization trajectory … [and] protect the integrity of Washington’s and the Earth’s atmosphere, oceans, and climate systems.”
The Department failed to meet the July 2014 deadline. Then in August 2014 it denied the youths’ petition “without challenging the underlying scientific basis for Petitioners’ plea,” as the court noted.
In December 2014, the Department finally issued the report required by Governor Inslee. The Department’s report took note of the reality and urgency of human-caused climate change and of the danger of postponing decisive action by even a few years. Nonetheless, the tardy report recommended “that no changes be made to the state’s statutory emission limits at this time.”
Meanwhile, the youth petitioners had already appealed the denial of their petition to the King County Superior Court in Seattle. They argued in their opening brief that the Department “has statutory and constitutional responsibilities to protect Youth Petitioners’ fundamental inalienable rights to a healthful and pleasant environment and essential natural resources including air and water.” For their legal authority, the youths relied primarily on the Public Trust Doctrine embodied in the Washington Constitution.
Superior Court Judge Hollis R. Hill accepted the argument made by the youths, and remanded the youths’ petition for reconsideration in light of the findings in the Department’s December 2014 report as well as a declaration the youths submitted from a noted climate scientist. Judge Hill also ordered the Department to advise her by July 8, 2015, whether it intends to affirm or deny its decision denying the youth’s petition.
Help from Our Children’s Trust
The youth petitioners received assistance from Our Children’s Trust, a non-profit organization that describes itself as “a game-changing, youth-driven, global climate recovery campaign, securing the legal right to a healthy atmosphere and stable climate.” It “supports youth in bringing legal action in courts, administrative agencies and local legislative bodies to enforce the Public Trust duty of government to protect natural resources, including the atmosphere, for the benefit of all present and future generations.”
A key supporter of Our Children’s Trust is noted climate scientist Dr. James Hansen.
Importance of the Decision
The importance of this decision cannot be overstated. In its 2011 decision in American Electric Power Co. v. Connecticut, the U.S. Supreme Court rejected a lawsuit seeking abatement of carbon dioxide emissions based on a federal common law theory, thereby dampening hopes for any litigation strategy in federal court to mitigate carbon dioxide emissions. The Seattle decision suggests that state courts could be the key to any future efforts in the United States to bring about climate change solutions through the judicial system.
–This article was contributed by Paul R. Kennedy, a lawyer in Boston, Massachusetts.