As previously discussed in The Climate Report, a coalition of youth-oriented climate change advocacy and other groups filed suits in 2011 against federal and state officials in federal and state courts, and filed petitions for administrative rulemaking in all 50 states, seeking to use the so-called “public trust doctrine” as a means to address climate change. The plaintiffs-petitioners argued that the atmosphere is a public trust resource and that the governments in question therefore have a fiduciary duty to current and future generations to protect the atmosphere from greenhouse gas pollution.
The latest installment in the public trust litigation story is a March 13, 2013 decision by the Court of Appeals of Iowa declining to extend the public trust doctrine to include the atmosphere. In 2011, organizations called “Kids v. Global Warming” and “Our Children’s Trust,” along with Glori Dei Filippone, a minor, filed a petition for rulemaking with the Iowa Department of Natural Resources (“DNR”) requesting that Iowa DNR adopt new rules restricting greenhouse gas emissions. After a public hearing, Iowa DNR unanimously denied the request. On review, an Iowa district court affirmed Iowa DNR’s denial. Ms. Filippone appealed the district court’s decision to the state’s Court of Appeals.
A three-judge panel of the Court of Appeals affirmed the district court for two reasons. First, after ruling on a number of procedural points, the court found that Iowa DNR had given the proposal fair consideration, despite certain comments by Iowa DNR’s Environment Commission during the hearing, because the state agency had held a public hearing where presentations from both sides were given and had issued a written decision outlining specific reasons for the denial.
Second, as to the public trust doctrine, the Court of Appeals declined to extend the doctrine to include the atmosphere. Under Iowa law, the doctrine has always had a narrow scope. Indeed, the Iowa Supreme Court has previously declined to extend the public trust doctrine to natural resources other than water. As a result, the Court of Appeals held that Iowa DNR did not have a duty under the public trust doctrine to promulgate greenhouse gas regulations.
One of the three judges, however, concurred specially with the Court of Appeals’ decision because, although he agreed that there is no Iowa case law extending the public trust doctrine to include the atmosphere, he believed that there are sound public policy reasons to do so.