Description: Challenge to denial of rulemaking petition that asked Department of Ecology to recommend restrictions on greenhouse gas emission to state legislature.
-
Foster v. Washington Department of Ecology
Case Documents:
Filing Date Type File Action Taken Summary 09/05/2017 Opinion Download Unpublished opinion issued reversing trial court order that granted relief from judgment. Washington Appellate Court Reversed Trial Court Order Requiring State Agency to Set Greenhouse Gas Standards by End of 2016. The Washington State Court of Appeals reversed a May 2016 trial court decision ordering the Washington Department of Ecology (Ecology) to issue a final rule setting limits on greenhouse gas emissions by the end of 2016 and to make recommendations to the state legislature for changes to statutory emission standards. The May 2016 decision came after Ecology withdrew a proposal to set greenhouse gas standards and vacated in part the trial court’s November 2015 judgment denying the youth petitioners’ appeal from Ecology’s denial of their request that the agency Ecology mandate greenhouse gas emission reductions. The November 2015 decision found that Ecology was fulfilling its obligations under the Clean Air Act, as well as the Washington constitution and public trust doctrine, because it had commenced rulemaking to establish greenhouse gas standards. As an initial matter, the appellate court found that Ecology’s appeal was not moot despite Ecology having completed the tasks the trial court ordered May 2016. On the merits of the appeal, the appellate court held that the trial court had abused its discretion in granting the petitioners’ motion for relief from the November 2015 judgment. The appellate court said the trial court had not found a violation of the Administrative Procedure Act and that the granting of affirmative relief to the petitioners was a misuse of the procedure for granting relief from a judgment. In addition, the appellate court said the petitioners had not demonstrated “extraordinary circumstances” warranting relief from the judgment—the appellate court said climate change could not be considered extraordinary circumstances for purposes of relief from the judgment because the trial court had already considered climate change as well as Ecology’s alleged inaction in addressing climate change, climate change’s “urgent and serious” nature was a component of the November 2015 judgment, and the parties did not contest the seriousness of climate change. Nor did Ecology’s withdrawal of a proposed rule constitute extraordinary circumstances. -
Foster v. Washington Department of Ecology
Case Documents:
Filing Date Type File Action Taken Summary 04/19/2017 Order Order issued granting petitioners' motion for leave to file supplemental brief and amended pleadings and granting RAP 7.2(e) Leave to Seek Permission of Court of Appeals for Formal Entry of this Order. The court allowed the petitioners to amend their petition to plead a complaint regarding their claims that the Washington Department of Ecology and other parties were violating the petitioners' rights to a healthy environment. The court said it took this action "due to the emergent need for coordinated science based action by the State of Washington to address climate change before efforts to do so are too costly and too late." 04/12/2017 Opposition Download Opposition filed by petitioners to respondent's motion for reconsideration of the court's December 19, 2016 order. 04/05/2017 Opposition Download Response filed by Department of Ecology in opposition to petitioners' motion to file amended and supplemental pleadings. 01/17/2017 Opposition Download Opposition filed by petitioners to respondent's motion for reconsideration of the court's December 19, 2016 order. 12/29/2016 Motion Download Motion filed by Department of Ecology for reconsideration of the court's December 19, 2016 order. 12/19/2016 Order Download Order issued denying motion for order of contempt and granting sua sponte leave to file amended pleading. Washington Trial Court Allowed Children to Allege Public Trust Doctrine Climate Claims, Found Earlier Appellate Decision Affirming Dismissal of Such Claims Unpersuasive. A Washington Superior Court denied a request by eight children who asked that the Washington Department of Ecology be found in contempt for failing to comply with earlier court orders requiring Ecology to issue a rule regulating carbon dioxide emissions. However, the court sua sponte granted leave for the children to add claims that Ecology, the State of Washington, and Washington’s governor had violated the Washington State Constitution and the public trust doctrine by failing to protect the children from climate change. The court acknowledged that an unpublished decision issued by the Washington Court of Appeals four years earlier affirmed dismissal of climate change-related public trust doctrine claims. The court said, however, that the appellate decision was not binding and that it did not find the decision persuasive “considering the alleged emergent and accelerating need for science based response to climate change and the governmental actions and inactions” since the decision was issued. The Superior Court also said that since 2013 courts had recognized “the role of the third branch of government in protecting the earth’s resources that it holds in trust,” citing the November 2016 decision of an Oregon federal district court in Juliana v. United States denying a motion to dismiss constitutional claims against federal respondents for failing to act to reduce carbon emissions. In the instant case, the Superior Court concluded that it was “time for these youth to have the opportunity to address their concerns in a court of law.” The youth petitioners submitted a proposed supplemental and amended petition for review on December 6, 2016. 12/06/2016 Motion Download Motion filed by petitioners for leave to file supplemental brief and amended and supplemental petition for review in response to court's questions at show cause hearing. 12/06/2016 Petition for Review Download Proposed supplemental & amended petition for review & for declaratory judgment & injunctive relief. 11/18/2016 Response Download Response filed by Department of Ecology to order to show cause re: contempt. 10/20/2016 Motion Download Rule 60(b) motion filed by petitioners for relief from judgment. 06/15/2016 Notice of Appeal Notice of appeal filed. Washington Department of Ecology Said It Would Appeal Order Requiring Final Greenhouse Gas Rule by End of Year. On June 15, 2016, the Washington Department of Ecology (Ecology) filed a notice of appeal in Washington Superior Court in a lawsuit brought by children to compel the State to take action to reduce greenhouse gas emissions. The filing came a month after the court issued an order requiring Ecology to issue a final rule setting limits on greenhouse gas emissions by the end of 2016. Ecology released a draft of the rule on June 1, but Our Children’s Trust, an organization that represents the children in the lawsuit, said that the proposed rule “defie[d]” the court’s order because it was based on outdated emissions data and would not require emission reductions sufficient to place the state “on a path toward climate stability.” 06/15/2016 Response Download Response filed by Department of Ecology to petitioners' motion for attorney fees. 05/26/2016 Motion Download Motion for attorneys' fees and costs filed by petitioners. 05/16/2016 Order Download Order issued. 04/29/2016 Transcript Download Ruling issued from bench vacating portion of previous order. Washington Court Said Department of Ecology Must Issue Greenhouse Gas Rule by End of 2016. In a ruling from the bench, a Washington Superior Court said it would require the Washington Department of Ecology (Ecology) to issue a final rule by the end of 2016 setting limits on greenhouse gas emissions. The court indicated that it would also require Ecology to make recommendations to the state legislature during the 2017 session on what changes should be made to statutory emission standards to make them consistent with current climate science. The court vacated portions of a November 2015 order that had denied relief to petitioners (who were minor children) on the grounds that Ecology was not acting arbitrarily and capriciously because it was undertaking a rulemaking. The petitioners asked the court to vacate the earlier order after Ecology withdrew its proposed rule in February 2016. The court said there were “extraordinary circumstances” that justified vacating the earlier order and imposing a court-ordered schedule “because this is an urgent situation. This is not a situation that these children can wait on. Polar bears can't wait, the people of Bangladesh can't wait.” 04/27/2016 Reply Download Reply brief filed by petitioners in support of Rule 60(b) motion. 11/19/2015 Order Download Court issued order affirming Ecology's denial of petition for rulemaking. Washington Court Said State’s Ongoing Greenhouse Gas Rulemaking Was Fulfilling Its Mandate to Protect Air Quality and Public Trust Resources. The Washington Superior Court issued a decision in which it affirmed that climate change affects public trust resources in the state, but ultimately held that the state was fulfilling its public trust obligations because it was engaged in rulemaking to establish more comprehensive greenhouse gas standards. The court said that Washington’s current regulatory regime, which requires technological controls for a small number of sources but does not address greenhouse gas emissions from transportation, would not fulfill its statutory mandate under state air laws, a mandate that the court said must be understood in the context of the Washington State Constitution and the public trust doctrine. The court did not expand the definition of “public trust resources” protected under the Washington State Constitution to encompass the atmosphere. Instead, the court explained that climate change poses a threat to the state’s navigable waters, a traditional public trust resource that the state has an obligation to protect from harm. The court concluded that the State was not acting arbitrarily and capriciously because it had commenced a rulemaking process, at the direction of the governor, to set a regulatory cap on greenhouse gas emissions. 10/22/2015 Motion Download Motion for leave to file reply brief filed by youth petitioners. 10/02/2015 Response Download Response filed by Department of Ecology to petitioners' response to the court's order to show cause and motion to strike new evidence. 08/26/2015 Response Download Response filed by petitioners to court's August 12, 2015 order to show cause. 08/07/2015 Response Download Response filed by Department of Ecology to June 23, 2015 court order. 06/23/2015 Order Download Court issued order remanding Ecology's denial of petition for rulemaking. Washington Court Ordered Department of Ecology to Reconsider Denial of Greenhouse Gas Rulemaking Petition in Light of December 2014 Report Regarding Costly Climate Change Impacts. The Washington Superior Court ordered the Washington Department of Ecology (Ecology) to reconsider its denial in August 2014 of a rulemaking petition submitted by eight children that asked Ecology to recommend to the state legislature that greenhouse gas emissions be limited “consistent with current scientific assessment of requirements to stem the tide of global warming.” The court remanded to Ecology for consideration of a December 2014 report prepared by Ecology at the direction of the governor and an affidavit submitted by the petitioners that reviewed the report. The court noted that the December 2014 report concluded that effects of climate change would be costly unless additional actions were taken to reduce greenhouse gas emissions but recommended no change to the state’s greenhouse gas emissions limits. 05/13/2015 Opposition Download Opposition filed by petitioners to respondent's motion to strike. 04/08/2015 Brief Download Amended response brief filed by Department of Ecology. 04/06/2015 Brief Download Response brief filed by Department of Ecology. 03/16/2015 Brief Download Opening brief filed by petitioners. 09/15/2014 Petition for Review Download Petition for review filed for denial of rulemaking petition. Eight children filed a petition in Washington Superior Court seeking review of the denial in August 2014 of a rulemaking petition that asked the Washington Department of Ecology to recommend to the state legislature that greenhouse gas emissions be limited “consistent with current scientific assessment of requirements to stem the tide of global warming.”