Arizona Appeals Court dismisses climate-protection suit; no basis for legal challenge, it says

2013-03-30T00:00:00Z Arizona Appeals Court dismisses climate-protection suit; no basis for legal challenge, it saysHoward Fischer Capitol Media Services Arizona Daily Star
March 30, 2013 12:00 am  • 

PHOENIX - The state Court of Appeals will not order Gov. Jan Brewer to take action to reduce greenhouse gases linked to climate change.

In a unanimous decision, the court threw out a claim filed by Jamescita Peshlakai on behalf of her daughter, Jaime Lynn Butler, asking the judges to declare the atmosphere is a public trust and the Brewer administration has an obligation to take affirmative action to protect that asset.

Judge John Gemmill, writing for the court, said the problem with the lawsuit is there is no basis for a legal challenge.

Gemmill said it would be one thing if Peshlakai and Butler were challenging some affirmative action taken by Brewer or her Department of Environmental Quality. Instead, the judge said, they are challenging the lack of action.

"Equally important, Butler does not give us any basis to determine that the state's inaction violates any specific constitutional provision on which relief can be granted," Gemmill wrote.

He said much of the lawsuit rests on the premise that the air is held in trust. And Gemmill said Arizona courts can act when trust assets are wasted or improperly given away.

But the judge said the lawsuit does not assert the state improperly disposed of a public-trust resource, and the court found nothing to conclude there is a basis under trust law to order Brewer to do anything.

The ruling may have left the door open for some future action against the state over the issue of climate change.

Attorneys for the state asked the court to rule the atmosphere is not, and cannot be, part of any public trust. They cited earlier court rulings that dealt with things like the land within navigable streams, saying that should be the limit of what is considered held in trust.

Gemmill responded that the history of cases does not automatically preclude a court from concluding the air also could be considered part of the public trust.

"Any determination of the scope of the (Public Trust) Doctrine depends on the facts presented in a specific case," the judge wrote.

But the court also chose not to answer that question regarding the atmosphere, concluding that was unnecessary to its ruling in this case.

The judges also rejected the claim that Brewer and the DEQ acted contrary to their obligations with the repeal of "clean car" regulations adopted during the administration of Janet Napolitano, Brewer's predecessor.

Those rules would have set new overall limits on greenhouse-gas emissions from vehicles sold in Arizona. Brewer, shortly after taking office, directed the DEQ to repeal those rules.

Lawmakers subsequently approved a measure specifically barring the state from adopting greenhouse-gas emission standards more stringent than required under federal law.

Gemmill said that while the lawsuit mentions that legislative action, the challenger never details how that statute is unconstitutional.

On StarNet: Read more environment-related articles at azstarnet.com/environment

The lawsuit "does not give us any basis to determine that the state's inaction violates any specific constitutional provision on which relief can be granted."

John Gemmill, State Court of Appeals judge

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