Losing the Battle, but Winning the War: Implications of the Air as a “Public Trust”

By now, most of you will have already heard about a ruling from a State District Court Judge that determined that an old established part of English Common Law that seeks to protect resources in the name of a "public trust" applied to the air we breathe, as well as the water we drink.

This is a revolutionary concept only in the offices of the Texas Commission on Environmental Quality, which argued that air was not deserving of that status. For the rest of us, it strikes us as very common sense indeed and the basis of the Clean Air Act and just about every other piece of federal clean air regulations passed in the last 40 years. "We all live downwind," isn't just a bumper sticker. It's a physical fact.

Often overlooked in the hoopla surrounding the decision over the last 24 hours is the fact that the groups bringing suit against TCEQ for not writing new Greenhouse gas pollution rules actually lost their case to compel the Commission to do so. The Judge ruled that as long as the state was challenging EPA greenhouse gas rules, she could not force TCEQ to follow through. So the status quo on the ground doesn't change right away.

But here's why the groups – the fledgling and semi-mysterious Texas Environmental Law Center and its Mothership, Our Children's Trust, out of Oregon – actually won by losing. In denying the group's immediate request for action, the Judge found that the basis for demanding action – that air is a shared resource even more than water, and should be protected as such – was justified.

With that language, a new standard of public health protection was established in Texas. One that could have implications for all kinds of air pollutants, not just Greenhouse Gases. It's not a standard the TCEQ wanted because they don't get to define it. The courts do. Its effect isn't immediate, but over the long haul it may be the biggest challenge to TCEQ in decades. This comes just at the moment as TCEQ is moving rapidly to close down most public participation in permitting and put all of the power to affect policy and facilities back in Austin. It throws a huge monkey wrench into closing-off new avenues that citizens can use to challenge TCEQ. This is what makes this decision truly dangerous to the Powers-That-Be. You can bet they'll be hundreds of thousands of dollars in high-priced lawyers' fees spent by TCEQ and the petrochemical industry to try to undermine, overturn, or otherwise sabotage it.

This turning of the tables wasn't accomplished by established Texas environmental groups. None of the usual suspects were within 50-miles of this long-shot, guerilla-law gambit. This was a team of younger lawyers from outside the state bringing the fight directly to Austin's doorstep as part of an ambitious national legal strategy modeled on the NAACP's state-by-state challenge of segregation in the 1950's and 60's. It took imagination to pull this off, and lead lawyer Adam Abrams should be congratulated for succeeding in what many of his peers probably took to be a fool's errand. 

You can download the official press release from Our Children's Trust here. As of Thursday, the TCEQ still hadn't issued one of its own.