The Sky Is Now Legally Protected, Thanks to a Texas Judge
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The TCEQ argued the public trust doctrine applies only to water. Judge Gisela Triana, of the Travis County District Court disagreed. Her letter decision, issued on July 12, 2012 stated, "[t]he doctrine includes all natural resources of the State." The court went further to argue that 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.
The immediate impact of the case is limited. Noting that a number of climate change cases were wending their way up the judicial ladder, Judge Triana upheld the TCEQ decision not to exercise its authority.
But a few days after Judge Triana's ruling, Judge Sarah Singleton of the New Mexico District Court denied the state's motion to dismiss a similar case. That will now move forward.
The Texas court is the first to support the possibility that the "public trust" doctrine may justify the creation of an atmospheric trust. One Houston law firm advised its clients the decision “may represent a "shot heard 'round the world" in climate change litigation…Given the stakes involved in such cases, clients should monitor these suits carefully—and perhaps participate as amicus curiae to support the state's attorneys' arguments.” What a delicious irony if future generations could look back to Texas as the catalyst that ultimately afforded legal protection to the sky.