Along with other concerned groups, Our Children’s Trust brought a very important climate change lawsuit against the Texas Commission on Environmental Quality to (basically) begin regulating CO2. “The lawsuit is part of legal action in 49 states, the District of Columbia, and against the federal government on behalf of youth to compel reductions of CO2 emissions that will counter the negative impacts of climate change.”

What’s really interesting to me is the case reinforces that the air outside is a “Public Trust” that ought to be managed for quality. The concept of the “Public Trust” is one of the oldest and most important legal doctrines in human existence. The public trust is embedded into US law, was formalized from English Common Law, and can be traced back to the Greeks. Several international treaties, and ocean and coastal policies are based on the public trust doctrine.

Scholarly articles argue (and as I’ve argued at law conferences) that the public trust doctrine will be the ultimate referee in climate change policy in the years to come.

Our Children’s Trust, which won the lawsuit and put out a press release just moments ago, states, “The case relies upon the long established principle of the public trust doctrine, which requires all branches of government to protect and maintain certain shared resources fundamental for human health and survival.”

It’s long been established that open bodies of water are “in trust” of the public, and therefore must be managed for protection in perpetuity by the government. The case is huge. It expands (or reaffirms) that air is also a public trust, and therefore falls under protection for all. It probably affects all SEPAs in 50 states, territories, and DC. From the press release:

Austin, TX – Yesterday, Judge Gisela Triana issued a written decision finding that all natural resources are protected under the Public Trust Doctrine and the state constitution of Texas in a climate change lawsuit brought by youth (Angela Bonser-Lain, et al. v Texas Commission on Environmental Quality, Case No. D-1-GN-11-002194).

In deferring to the Texas Commission on Environmental Quality’s (TCEQ), decision to deny the Plaintiffs’ petition for rulemaking while other ongoing litigation over regulations ensues, the Judge concluded that the TCEQ’s determination that the Public Trust Doctrine is exclusively limited to the conservation of water, was legally invalid. The three Texas youth sought judicial review in a lawsuit against the TCEQ for rejecting Plaintiffs’ proposed rule that would require reductions in statewide carbon dioxide (CO2) emissions from fossil fuels consistent with what current scientific analysis deems necessary to avoid catastrophic climate change.

“This is a blockbuster move for a Texas judge to take the position that all natural resources should be protected under the public trust doctrine. This may well be one of those judicial actions like Brown v. Board of Education that future generations will look to as a turning point for our planet. I am grateful to Judge Triana on behalf of my children and all future generations,” said Brigid Shea, mother of plaintiff, Eamon Brennan Umphress.

You can read the rest, here.

“Though most attention last week focused on the Supreme Court ruling upholding federal reform of the health-care system, the U.S. Court of Appeals for the District of Columbia issued the most important judicial decision on climate change in five years.  That decision upholds the Environmental Protection Agency’s power to regulate greenhouse gases, and it is very good news for those who favor this approach.

In 2007 the U.S. Supreme Court ruled, in the landmark case of Massachusetts v. Environmental Protection Agency, that a statute enacted by Congress in 1970 — the Clean Air Act — authorizes EPA to regulate greenhouse gases, including carbon dioxide. Not much happened for the balance of the Bush administration, but shortly after Barack Obama took office in January 2009, EPA issued an “endangerment finding” — a formal determination that greenhouse gases pose a danger to public health and welfare.  That finding is a prerequisite to further regulation.
      With that in hand, EPA proceeded to issue a set of major new rules. Among other things, it and the National Highway Traffic Safety Administration issued new standards (the first in decades) for fuel economy of automobiles and light trucks.  EPA also required major stationary sources of air pollution, such as power plants and factories, to obtain permits for their greenhouse-gas emissions.
      Industries (led by the fossil fuel lobby) and states (led by Texas) that oppose such regulation reacted furiously. They filed more than 100 lawsuits against EPA.  Some claimed that the “Climategate” e-mails and a handful of errors in reports of the Intergovernmental Panel on Climate Change had cast doubt on the integrity of the climate science underlying the endangerment finding.  They also took an opposite tack, and said EPA’s regulations of stationary sources were too lax, because they regulated only the largest sources and not the millions of small sources that exceed certain statutory thresholds.
      The court held a highly unusual two days of argument on February 28-29, 2012, in its largest courtroom, but still, many would-be spectators could not get in. The fate of the regulations hung in the balance as legions of lawyers argued before the three-judge panel — one appointed by President Reagan and two by President Clinton.
      The suspense ended on June 26, with the unanimous opinion in what came to be known as Coalition for Responsible Regulation v. EPA.  It was a complete win for EPA.”

Good read of the day at Columbia Earth Institute

I went to Vermont Law School and it was both brutal and exhilarating. VLS is the number one environmental law school in the nation - acceptance is competitive and, er, nasty expensive. But, I learned from some of the best lawyers and professors in the country. I got published, was a delegate to the COP15 in Copenhagen, and met the woman of my dreams. There’s an old joke about lawyers, “99% of lawyers give the profession a bad name.” I was privileged enough to attend with the remaining 1%, the good guys.

I get a lot of questions from budding environmentalists and other readers about going to law school. Should I go? Will I get a job? Can I not be a lawyer?

At the end of the day, I really don’t know. On the one hand, there is a glut of lawyers in the market, becoming an attorney is difficult in a saturated field. So, you have to balance a lowered pay expectation with over $100k in student debt. On the other hand, I cannot think of a more intellectually fulfilling profession that gets shit done. When you win (or lose) a decision, you are shaping legal history. It’s in the books for all posterity. Future cases will hinge on decisions you made while you petitioned the court. To me, this is a deeply profound and tangible contribution to your community and your country (and of course your client, be it fish, fowl, NGO, or man).

But, law school is not for everyone. VLS throws their students into the fire in their first year. Here is glimpse of what we went through: