An Arizona appeals court has held that a plaintiff cannot pursue, under the public trust doctrine, claims that the state should regulate emissions which allegedly lead to global warming. Butler v. Brewer, No. 12-0347 (Ariz. Ct. App. 3/14/13) (unpublished). Details about an Iowa court ruling, Filippone v. Iowa DNR, rejecting the same argument appear in Issue 448 of this Update.
The Arizona court held that whether the atmosphere constitutes a part of the public trust depends on the specific facts before a judge and declined to resolve the question in the abstract. But it found that the doctrine operates only to restrict the state from taking action to dispose of resources that are part of the public trust and therefore could not support a challenge to state inaction. Accordingly, the court found there was no justiciable issue and upheld the lower court’s dismissal.