Texas Judge Rules ‘The Sky Belongs To Everyone’

Texas Judge Rules ‘The Sky Belongs To Everyone’ by David Morris, July 26, 2012, Common Dreams
The “public trust” doctrine is a legal principle derived from English Common Law. Traditionally it has applied to water resources. The waters of the state are deemed a public resource owned by and available to all citizens equally for the purposes of navigation, fishing, recreation, and other uses. The owner cannot use that resource in a way that interferes with the public’s use and interest. The public trustee, usually the state, must act to maintain and enhance the trust’s resources for the benefit of future generations. Back in 2001, Peter Barnes, a co-founder of Working Assets (now CREDO) and On the Commons as well as one of the most creative environmentalists around, proposed the atmosphere be treated as a public trust in his pathbreaking book, Who Owns the Sky: Our Common Assets and the Future of Capitalism (Island Press). In 2007, in a law review article University of Oregon Professor Mary Christina Wood elaborated on similar idea of a Nature’s Trust. “With every trust there is a core duty of protection,” she wrote. “The trustee must defend the trust against injury. Where it has been damaged, the trustee must restore the property in the trust.” She noted that the idea itself is not new. In 1892 “when private enterprise threatened the shoreline of Lake Michigan, the Supreme Court said, ‘It would not be listened to that the control and management of [Lake Michigan]—a subject of concern to the whole people of the state—should . . . be placed elsewhere than in the state itself.’ You can practically hear those same Justices saying today that ‘[i]t would not be listened to’ that government would let our atmosphere be dangerously warmed in the name of individual, private property rights.” … The lawsuit argued, “The atmosphere, including the air, is one of the most crucial assets of our public trust….Global climate change threatens to dry up most of these waters, turning them from gorgeous, life-giving springs into dangerous flash-flooding drainages when the rare, heavy rains do come. The outdoors will be inhospitable and the children will have few places to recreate in nature as the climate changes. They will be living in a world of drought, water shortages and restrictions, and desertification.” The TCEQ argued the public trust doctrine applies only to water. Judge Gisela Triana, of the Travis County District Court disagreed. Her letter decision, issued on July 12, 2012 stated, “[t]he doctrine includes all natural resources of the State.” The court went further to argue that the public trust doctrine “is not simply a common law doctrine” but is incorporated into the Texas Constitution, which (1) protects “the conservation and development of all the resources of the State,” (2) declares conservation of those resources “public rights and duties,” and (3) directs the Legislature to pass appropriate laws to protect these resources. … But a few days after Judge Triana’s ruling, Judge Sarah Singleton of the New Mexico District Court denied the state’s motion to dismiss a similar case. [Emphasis added]

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