Is it the start of a losing streak for the state of Texas in its courthouse war against regulations to reduce emissions of climate-altering greenhouse gases?

Late last month, Texas and other opponents of federal climate rules suffered a major setback when federal appeals judges in Washington resoundingly slapped down their challenge of the Environmental Protection Agency’s national regulations.

This week in Austin, a state district court judge allowed Texas officials’ refusal to issue their own state-specific rules to stand for now, but also rejected key legal arguments by the state for refraining from doing so.

Most dramatically, District Court Judge Gisela D. Triana declared “legally invalid” the contention by the Texas Commission on Environmental Quality that the centuries-old “Public Trust Doctrine” for protecting natural resources applies only to water conservation. The judge said the doctrine includes air quality and the atmosphere.

Texas petitioners who asked the TCEQ to formulate and issue state rules to limit greenhouse emissions – part of a nationwide legal initiative launched by the Oregon-based Our Children’s Trust and California-based Kids vs. Global Warming – hailed the ruling as a big victory because of the possible ramifications of the Public Trust ruling.

“This may well be one of those judicial actions like Brown v. Board of Education [the U.S. Supreme Court ruling in 1954 the declared segregation in public schools was unconstitutional] that future generations will look to as a turning point for our planet,” said Brigid Shea, mother of one of the plaintiffs in the Texas case, Eamon Brennan Umphress, is a press release. Shea, a prominent Austin environmentalist and former City Council member, lost a bid to be elected Austin mayor in May.

The nationwide legal effort, which involves lawsuits and petitions in various states and a lawsuit against the U.S. government, is aimed at persuading judges to extend the Public Trust Doctrine to atmospheric protection in order to compel strong, mandatory limits on greenhouse gases.

In a feature story on the effort last year, Texas Climate News reported that a writer for the Columbia University Law School’s Climate Law Blog had observed that “all it takes to keep the issue alive is for one state court to recognize a new climate change-related cause of action under the Public Trust Doctrine. In filing cases in states around the country, the plaintiffs are hoping to find a judge willing to do just that.”

In Triana, they apparently found such a jurist. Adam Abrams, an attorney for the Texas plaintiffs, told the Associated Press that she was the first judge so far to back the litigants’ pro-regulation arguments in 12 states where lawsuits have been filed.

Abrams told the AP that he believes the Texas ruling can be used to advance state cases elsewhere: “I think it’s huge that we got a judge to acknowledge that the atmosphere is a public trust asset and the air is a public trust asset.”

Triana, in a letter to attorneys involved in the case on Monday, July 9, noted that Texas’ appeals-court loss in its own lawsuit against federal greenhouse regulations will probably be appealed to the U.S. Supreme Court.

“Because the legal landscape is uncertain, the court will find, at this time, the [TCEQ’s] refusal to exercise its authority [to issue state climate-protection rules] based on current litigation is a reasonable exercise of its jurisdiction,” she wrote.

But Triana firmly endorsed the litigants’ argument that the Public Trust Doctrine, which dates back to ancient Rome, does not apply only to water:

The doctrine includes all natural resources of the State. This doctrine is not simply a common law doctrine but was incorporated into the Texas Constitution at Article XVI, Section 59, which states: “The conservation and development of all the natural resources of this State … and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.” The protection of air quality is mandated by the Texas Legislature in the Texas Clean Air Act. … The Texas Legislature has provided the [TCEQ] with the authority to protect against adverse effects including global warming.

The AP reported that the TCEQ said by email “that it was reviewing the judge’s letter and is awaiting her final order, but it appears Triana will support the agency’s move to deny the request for new rules.”

Major Texas newspapers, meanwhile, have been praising the federal appelate judges’ rejection of Texas’ and others’ effort to block the EPA’s national rules that will limit atmosphere-warming pollutants.

An editorial in the Austin American-Statesman called the judges’ ruling a “laudable and timely decision,” adding that the time has come for “action” to fight global warming.

The Houston Chronicle’s editorial board likewise declared that it was time “that Texas accepted the science on global warming.” The Chronicle editorial also asserted that, given the “sharply worded” appeals court ruling, Texas’ fight against the federal rules is a “lost cause” and an appeal by the state to the Supreme Court “would be grandstanding, pure and simple.”

An editorial in the Dallas Morning News noted disapprovingly that Texas was the only state that refused to implement the EPA’s greenhouse-gas rules and instead had “squandered time in a losing legal fight.”

The Dallas newspaper argued:

Texas should be at the forefront of efforts to reduce emissions [of carbon dioxide and other greenhouse gases] that both endanger health and discourage businesses from locating or expanding in the state. Instead of opposing the tougher air quality rules, Austin would be wise to focus instead on how best to be a leader in a less carbon-dependent and cleaner economy.

– Bill Dawson

Image credit: State Bar of Texas