Da – Court Packing Notes



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Court Packing DA
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Estrin ’16 [David; May 2016; Canada’s Senior Environmental Law Specialist, adjunct Professor at Osgoode Hall Law School; Centre for International Governance Innovation, “Limiting Dangerous Climate Change,” https://issuu.com/cigi/docs/paper_no.101; RP]
This ruling, like Urgenda, is an example of the new timeliness of climate litigation before domestic courts in which some judges will enthusiastically engage with the legal challenge and use creativity to provide an effective judicial remedy. Following the 2015 orders, Michael Gerrard, Director of the Sabin Center for Climate Change Law at Columbia Law School, noted that “[e]ach successful ruling motivates people in other countries to try it....[I]t is useful to be able to say to a judge that you are not the first one to do this. Others have already done it. Having a precedent is not binding, but it’s helpful.”111
Foster v Washington Department of Ecology: Washington State Superior Court (United States)
In a third significant 2015 decision, Foster v Washington Department of Ecology, 112 Judge Hollis Hill of the Washington State Superior Court, in ruling on a petition by American children seeking more stringent state GHG emissions rules for their generation and future generations, determined that the Washington State Ecology Department had a constitutional duty to diligently exercise its regulatory authority to “protect the public’s interest in natural resources held in trust for the common benefit of the people.”113 As in Urgenda and Leghari, the petitioners sought to have the court find a duty on government to act on climate change, stressing that doing so is timely because of the availability of clear climate science. This case, like the other two, “advances the fundamental duty of government today: to address the climate crisis based on scientific baselines and benchmarks, and to do so within timeframes determined by scientific analysis.”114
Judge Hill declared that “[the youths’] very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming… before doing so becomes first too costly and then too late.”115 Highlighting inextricable relationships between navigable waters and the atmosphere, and finding that separating the two is “nonsensical,” the judge found the public trust doctrine mandates that the state act through its designated agency “to protect what it holds in trust.” 116
While validating the youths’ claims that the “scientific evidence is clear that the current rates of reduction mandated by Washington law cannot...ensure the survival of an environment in which [youth] can grow to adulthood safely,”117 the court declined, in its November 2015 ruling, to order the Ecology Department to promulgate the youths’ proposed rule, having regard to the fact that the department by then was undertaking a review of its Clean Air Rule. However, the judge made clear that in that process the state has a “mandatory duty” to “[p] reserve, protect, and enhance the air quality for the current and future generations.”118 The judge ruled that “current scientific evidence establishes that rapidly increasing global warming causes an unprecedented risk to the earth, including land, sea, the atmosphere and all living plants and creatures.”119
The case is a primary example of how citizen litigation regarding climate harm can motivate and result in positive government actions, even where initially the specific litigation relief claimed was not granted. The youth petitioners first requested that the state initiate GHG rulemaking procedures in June 2014. After the state refused to do so in August of the same year, the youth appealed and in a June 2015 decision highlighting the urgency of the climate crisis, the judge ordered the state to reconsider the youths’ petition, taking into account current climate science. In July 2015, the youth plaintiffs met with the state governor to plead their case personally. Eleven days later, Governor Jay Inslee ordered the Department of Ecology to institute GHG rule making, which the youth had requested for more than a year. In August 2015, the department again refused the youths’ request for a science-based rule making because the department had initiated similar rule making at the governor’s request. Because the department also rejected the youths’ constitutional and public trust rights, the case was argued in front of Judge Hill on November 3, 2015. Attorney Andrea Rodgers of the WELC, who acted for the petitioners, said in a statement following the November 19, 2015, decision that, “Judge Hill has made it very clear what Ecology must do when promulgating the Clean Air Rule: preserve, protect and enhance air quality for present and future generations and uphold the constitutional rights of these young people.… We will hold Ecology accountable every step of the way to make sure that Judge Hill’s powerful words are put into action. This is a huge victory for our children and for the climate movement.”120

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