Foster v. Washington Department of Ecology (Order Affirming the Department of Ecology’s Denial of Petition for Rule Making)

In 2014, the Washington State Department of Ecology (department) (defendant) released two reports describing the consequences of climate change for Washington State, such as ocean acidification, fires, and droughts. Around the time the reports were issued, Zoe Foster, Stella Foster, and other youth (youth) (plaintiffs) petitioned the department to adopt stricter limits on greenhouse gas (GHG) emissions consistent with current science on global warming. The department denied the petition on grounds that state law did not require the department to adopt the measures requested and that the department had already adopted some less stringent emissions limits. The youth appealed to the Superior Court of Washington. Based on the department’s second report and an expert-witness report, the court ordered the department to reconsider the petition. The department again denied the petition but informed the court that it had begun a rulemaking to adopt new GHG emission limits under a directive from the state’s governor. The youth appealed the second denial to the same court, asking for a ruling requiring the department to adopt emission rules consistent with current science. The youth produced evidence that the emission limits proposed could not possibly achieve the reduction in GHGs needed to protect the environment. Several cases held that under the public-trust doctrine, state agencies must exercise their discretion to protect natural resources held in trust for citizens of the state. The department argued that this doctrine applied only to navigable waters, which were owned by the state, not to the atmosphere.