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Children, and State, Get Lesson on Ecology

SEATTLE (CN) - Ten students who petitioned the Washington state Department of Ecology to adopt stricter greenhouse gas emissions lost an appeal but won recognition for arguing that their "very survival depends upon the will of their elders to act now."

The children asked state officials to adopt stricter rules to curb global warming based on "current science."

The Department of Ecology denied the petition but King County Superior Court Judge Hollis Hill ordered reconsideration. When the department denied the petition again, the students filed an appeal in Superior Court. The 10 child plaintiffs are 10 to 15 years old.

Hill denied their appeal on Nov. 19, but agreed with some of the children's arguments.

"In fact, as Petitioners assert and this court finds, their very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming by accelerating the reduction of emission of GHG's [greenhouse gas] before doing so becomes first too costly and then too late. The scientific evidence is clear that the current rates of reduction mandated by Washington law cannot achieve the GHG reductions necessary to protect our environment and to ensure the survival of an environment in which Petitioners can grow to adulthood safely. In fact, in its 2014 report to the Legislature the Department stated: 'Washington's existing statutory limits should be adjusted to better reflect the current science. The limits need to be more aggressive in order for Washington to do its part to address climate risks,'" Hill wrote.

The Department of Ecology has a mandatory duty under the Clean Air Act to protect air quality for current and future generations, but current emissions standards do not fulfill the mandate, the judge said.

Governor Jay Inslee on July 28 ordered officials to adopt new greenhouse emissions rules that set a regulatory cap on carbon dioxide and reduce emissions.

"Petitioners find the ongoing rulemaking inadequate because the governor's correspondence with the Director of the Department of Ecology regarding the directive refers to the creation of a binding cap on emissions in order to help meet the state's statutory greenhouse gas emission limits contained in that statute rather than requiring a cap based on current science," Hill wrote.

But Hill found that the court cannot "dictate the parameters of that procedure."

"Ecology argues that since the Public Trust Doctrine has not been expanded by the courts beyond protection of navigable waters it cannot be applied to protection of the 'atmosphere.' But this misses the point, since current science makes clear that global warming is impacting the acidification of the oceans to alarming and dangerous levels, thus endangering the bounty of our navigable waters. Ecology's own Preproposal Statement of Inquiry identifies as reasons for the ongoing rulemaking 'loss of coastal lands due to sea level rise' and 'an increase in diseases and mortality in freshwater fish (salmon, steelhead and trout) because of warmer water temperatures in the summer and more fluctuation of water levels.' Governor lnslee's communication office quotes the governor as saying, 'Carbon pollution and the climate change it causes pose a very real and existential threat to our state. ... Shellfish growers on the coast know this.' The navigable waters and the atmosphere are intertwined and to argue a separation of the two, or to argue that GHG emissions do not affect navigable waters is nonsensical. Therefore, the Public Trust Doctrine mandates that the State act through its designated agency to protect what it holds in trust. The Department of Ecology is the agency authorized both to recommend changes in statutory emission standards and to establish limits that are responsible. The current rulemaking is toward that end."

But Hill found the new rules do consider current science as well as "economic, social and political considerations" and meet legal standards.

Lawyers for Our Children's Trust, which represented the children, called the ruling a victory. Its executive director Julia Olson said in a statement: "This Washington decision establishing constitutional public trust protections for the atmosphere, together with the decision earlier this year doing the same in New Mexico, evidences a wake-up by the judiciary that our collective right to a habitable future is at stake and must be protected by the courts before it is too late. Judge Hill did not mince words on the need for science-based climate action now."

Department of Ecology Director Maia Bellon said in a statement that the court "recognizes that the rule-making directed by Governor Inslee will meet Ecology's obligation to protect our climate from harmful greenhouse gas emissions."

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