Court tosses claim that requires Arizona lawmakers protect atmosphere as a state asset - East Valley Tribune: Politics

Court tosses claim that requires Arizona lawmakers protect atmosphere as a state asset

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Posted: Friday, March 29, 2013 4:00 pm | Updated: 7:21 pm, Fri Mar 29, 2013.

The state Court of Appeals will not order Gov. Jan Brewer to take action to reduce greenhouse gases that are 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 that the atmosphere is a public trust and that Brewer and her administration have an obligation to take affirmative action to protect that asset.

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

Put quite simply, 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 that Arizona courts can act when trust assets are wasted or improperly given away.

The judge said, though, the lawsuit does not assert that the state improperly disposed of a public trust resource. And Gemmill said the court found nothing to conclude there is a basis under trust law to order Brewer to do anything.

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

Gemmill said that history of cases, though, does not automatically preclude a court from concluding that 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, at least at this point, concluding that was unnecessary to its ruling.

The judges also rejected the specific claim that Brewer and DEQ acted contrary to their obligations with the repeal of "clean car'' regulations that had been 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 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 while the lawsuit mentions that legislative action, the challenger never detail how that statute is unconstitutional.

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