April 22, 2013:
Youth plaintiffs respond to TCEQ's request to throw out a Texas court decision that the atmosphere is a public trust resource.
On Earth Day, three youth plaintiffs filed a brief in response to the Texas Commission on
Environmental Quality’s (TCEQ) argument that the district court did not have jurisdiction to hear the their claims in a climate change lawsuit filed in 2011. Adam Abrams, with the Texas Environmental Law Center, filed the lawsuit, on behalf of the young plaintiffs, against the TCEQ in state court, seeking judicial review of the TCEQ’s denial of the plaintiffs’ petition for rulemaking to reduce the state’s greenhouse gas emissions.
The lawsuit is part of the TRUST Campaign, legal effort in 50 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. 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.
Last July, Judge Gisela Triana issued a written decision finding under common law and the state constitution that “the public trust doctrine includes all natural resources of the State including the air and atmosphere.” While the court deferred to the TCEQ’s decision to deny the plaintiffs’ petition for rulemaking while other ongoing litigation over greenhouse gas regulation ensues, the Judge concluded that the TCEQ’s determination that the public trust doctrine is exclusively limited to the conversation of water, was legally invalid.
Texas, however, has repeatedly tried to evade any obligation to limit or regulate greenhouse gas emissions in the state. In another recent case over greenhouse gas emissions, the TCEQ admits that, “Carbon dioxide remains unregulated under the Texas Clean Air Act. Indeed, if EPA’s GHG regulatory regime is overturned, either by court order or administrative action, CO2 will not be regulated at all in Texas.”(1) The youth plaintiffs are trying to change that and uphold their right to seek judicial review when the TCEQ fails to use its authority to regulate greenhouse gas emissions and abate climate change.
Texas is already experiencing the full gamut of early climate change impacts including drought, water shortages, agricultural losses, wildfires, sea-level rise, flooding, and severe storms, all of which will worsen as temperatures rise. Indeed, on March 22, 2013, Governor Perry issued another emergency disaster proclamation that “exceptional drought conditions pose a threat of imminent disaster in  counties in the State of Texas.”
The Appeals Court will decide in this case whether these youth plaintiffs had the right to take their case to court and whether the court, not TCEQ, is the proper government body to interpret the law.
(1) See pg. 6 of Appellant’s Response to Appellee’s Motion to Dismiss in TCEQ v. Public Citizen, No. 03-10-00296-CV (Tex. App.-Austin 2013).
For a PDF version of the Press Release, please click HERE.
Judge Gisela D. Triana in Travis County District Court issued a historic decision finding that all natural resources are protected under the Public Trust Doctrine and the state constitution of Texas. The final judgment of the court was issued August 2, 2012.
Check out the press release.
June 14, 2012:
Texas plaintiffs' attorney Adam Abrams argued in Travis County District Court today that Texas has a public trust duty to protect the atmosphere for present and future generations and that the denial of Plaintiffs' petition for rule making should be reversed.
Petitioners have completed briefing on judicial review of the agency denial of a rulemaking petition.
July 21, 2011:
Adam Abrams, Attorney with the Texas Environmental Law Center, filed a lawsuit (access it here) against the Texas Commission on Environmental Quality in state court, seeking judicial review of TCEQ denial of the petition for rule-making: press release.
June 24, 2011:
On June 24th, the Texas Commission on Environmental Quality denied the petition for rule making submitted by Our Children’s Trust.
May 4, 2011:
Petition for rule-making was filed against the Texas Commission in Environmental Quality on behalf of Texas youth.
June 27, 2011:
USDA Designates 213 Counties in Texas as Primary Natural Disaster Areas: article
April 29, 2011:
Interview with Larry Soward, former TCEQ Commissioner (excerpt): "Because I see the climate change issues as not for you and me. They’re for our grandchildren and our great-grandchildren, and I just don’t see us really thinking in that regard. We’re thinking about what’s it going to cost Exxon-Mobil today to reduce their carbon dioxide emissions, or what’s it going to cost to keep from building down to the seashore because the sea-level changes. We’re looking at today and I think we need to be looking at 50 to 100 years from now and doing what we can today to help mitigate what very likely will happen then if we don’t do something."
Climate Change Impacts in Texas
The following points are taken from the petition filed before the Texas Commission on Environmental Quality.
The Galveston area could be greatly harmed by sea level rise over the next 100 years due to climate change. A sea level rise of 1.5 meters could displace approximately 100,000 households and create more than $12 billion in infrastructure losses. In addition, a sea level rise of 1.5m could impact 16 waste water treatment plants, 3 superfund sites, 5 industrial and hazardous waste sites, and 9 municipal solid waste sites. A sea level rise of .69m could impact approximately 79,000 homes and 60 buildings. Additionally, a .69m sea level rise could still impact a good portion of the waste water treatment plants, superfund sites, industrial hazardous waste sites and municipal solid waste sites that were mentioned above.
Climate change will significantly reduce Texas' water supply. Longer periods of drought will decrease runoff and recharge to our water sources, resulting in a decrease in available water for our business, municipal and agricultural needs. Less water will mean an increase in groundwater costs. The United States Department of the Interior has indicated that annual flows in three prominent river basins--the Colorado, the Rio Grande and San Joaquin-- could decline as much as 8-14% over the next 4 decades as a result of climate change. These three rivers provide water to eight states, incliding Texas.
The proliferation of wildfires, like those seen in Texas in April of 2011, is likely to occur. The climate change adviser to the United States Forest Service indicated that "the fires aren't due to climate change, but the changing climate, I think, has been a contributing factor. I can't imagine that climate change hasn't had a deletrious impact."
The state's billion-dollar agriculture industry will be harmed by climate change. The Environmental Protection Agency projected that global warming could reduce wheat yeilds in Texas by 43-68%.
Climate change will likely threaten and endanger species in Texas. For example, those species living in the Great Plains range, which inclides a good portion of Texas, will be faced with the following:
Climate-driven changes are likely to combine with other human-induced stresses to further increase the vulnerability of natural ecosystems to pests, invasive species and loss of native species. Changes in temperature and precipitation affect the composition and diversity of native animals and plants through altering their breeding patterns, water and food supply, and habitat availability. In a changing climate, populations of some pests such as red fire ants and rodents, better adapted to a warmer climate, are projected to increase.
For more infomation on climate change in Texas, visit the Texas Climate Change Initiative.