November 30, 2015

Washington court rejects environmentalist show trial, but with a scary opinion

By Brian T. Hodges Senior Attorney

It has come to this … using children as a stalking horse for a radical eco-technocratic agenda.

Last year, a couple of well-heeled environmentalist organizations filed a petition, purportedly on behalf of eight school-age children, asking the court to force the Department of Ecology to write a climate change rule based on the science offered up by their environmentalist puppeteers. The lawsuit, which sought to limit the agency’s rulemaking authority, lacked any legal merit and was dismissed.

But that wasn’t the point of the show trial, was it?

Nope.

The “youth petition” was part of a concerted nationwide effort to use children’s faces in order to advance the avant-garde argument that the public trust doctrine—a common law doctrine that recognizes that certain waters must remain open to the public for commerce, navigation, fishing, and so on—should apply to the atmosphere. The purpose for such an argument is readily transparent: if the government was deemed to hold the atmosphere “in trust” like it does certain waters, then it would have an obligation to “preserve” the air from degradation. And such a conclusion would allow the environmentalists to use the courts to force government to adopt rules consistent with the most radical and protective conclusions cherry-picked from current science, without political or popular constraints.

The problem with the “youth petition” is threefold:

Courts have no authority to tell an agency how to act, so long as the agency is acting within its statutory authority. Strike one.

There is no “public trust” in the air. Strike two.

There is no constitutional right to live in a healthful and pleasant environment, as asserted by the “youths.” Strike three.

[Imagine the sound of car brakes squealing]

That’s what the order dismissing the “youth petition” should have said. But it didn’t. Instead, the court handed the environmentalists exactly what they wanted.

While the court properly dismissed the petition as trying to interfere with Ecology’s rulemaking authority, the court considered that the public trust doctrine—which is expressly limited to navigable waters by the terms of our state constitution—may arguably extend to the atmosphere. The logic is facile: global warming could lead to increased acidification of water and eventually impact the trust held in certain navigable shorelines. Ummm. By that logic, everything that exists outside a vacuum could fall within the purview of the public trust.

Okay, moving on.

The court next concluded that the Washington State Constitution may recognize an unenumerated right to live in a healthful and pleasant environment. Typically, unenumerated rights are those fundamental rights inferred from the language, history and structure of the Constitution, like the rights to travel, privacy, etc. But, unsurprisingly, the court couldn’t find a right to live in a healthful and pleasant environment in the cabinet that normally contains such rights.

So where to look?

Aha! The court found a fragment from Ecology’s enacting statute that reads, “it is a fundamental and inalienable right to the people of the State of Washington to live in a healthful and pleasant environment,” and held it out as evidence of a Constitutional right. The opinion concludes, “If ever there were a time to recognize through action this right to preservation of a healthful and pleasant atmosphere, the time is now.”

What that right would look like, and how it could be enforced is unknown.

Thankfully, this is a trial court opinion and has no precedential sway.

What to read next