Aji P. v. State Of Washington ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AJI P., a minor child by and
through his guardian HELAINA No. 80007-8-I
PIPER; ADONIS W., a minor child,
by and through his guardian DIVISION ONE
HELAINA PIPER; WREN W., a
minor child by and through her PUBLISHED OPINION
guardian MIKE WAGENBACH;
LARA F. & ATHENA F., minor
children by and through their
guardian MONIQUE DINH;
GABRIEL M., a minor child by and
through his guardians VALERY
and RANDY MANDELL; JAMIE
M., a minor child by and through
her guardians MARK and JANETH
MARGOLIN; INDIA B., a minor
child by and through her
guardians, JIM BRIGGS and
MELISSA BATES; JAMES
CHARLES D., a minor child by and
through his guardian DAWNEEN
DELACRUZ; KYLIE JOANN D., a
minor child, by and through her
guardian DAWNEEN DELACRUZ;
KAILANI S., a minor child, by and
through her guardian, JOHN
SIROIS; DANIEL M., a minor child,
by and through his guardian,
FAWN SHARP; and BODHI K., a
minor child, by and through his
guardian MARIS ABELSON,
Appellants,
v.
STATE OF WASHINGTON; JAY
INSLEE, in his official capacity as
Governor of Washington;
WASHINGTON DEPARTMENT
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80007-8/2
OF ECOLOGY; MAIA BELLON, in
her official capacity as Director of
the WASHINGTON
DEPARTMENT OF ECOLOGY;
WASHINGTON DEPARTMENT
OF COMMERCE; BRIAN
BONLENDER, in his official
capacity as Director of the
WASHINGTON DEPARTMENT
OF COMMERCE; WASHINGTON
STATE TRANSPORTATION
COMMISSION; WASHINGTON
DEPARTMENT OF
TRANSPORTATION; and ROGER
MILLER, in his official capacity as
Secretary of the WASHINGTON
DEPARTMENT OF
TRANSPORTATION,
Respondents.
SMITH, J. – The appellants are 13 youths (the Youths) between the ages of
8 and 18 who sued the State of Washington, Governor Jay Inslee, and various
state agencies and their secretaries or directors (collectively the State) seeking
declaratory and injunctive relief. The Youths alleged that the State “injured and
continue[s] to injure them by creating, operating, and maintaining a fossil fuel-
based energy and transportation system that [the State] knew would result in
greenhouse gas (“GHG”) emissions, dangerous climate change, and resulting
widespread harm.” To this end, the Youths asserted substantive due process,
equal protection, and public trust doctrine claims, among others. They asked the
trial court to declare that they have “fundamental and inalienable constitutional
rights to life, liberty, property, equal protection, and a healthful and pleasant
environment, which includes a stable climate system that sustains human life and
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liberty.” They further requested that the court “[o]rder [the State] to develop and
submit to the Court . . . an enforceable state climate recovery plan,” and that it
“[r]etain jurisdiction over this action to approve, monitor and enforce compliance”
therewith.
We firmly believe that the right to a stable environment should be
fundamental. In addition, we recognize the extreme harm that greenhouse gas
emissions inflict on the environment and its future stability. However, it would be
a violation of the separation of powers doctrine for the court to resolve the
Youths’ claims. Therefore, we affirm the superior court’s order dismissing the
complaint.
BACKGROUND
Climate change poses a very serious threat to the future stability of our
environment. Washington experienced the hottest year on record in 2020, and
“‘climate extremes like floods, droughts, fires and landslides are . . . affecting
Washington’s economy and environment.’” The parties to this case and this
court readily acknowledge the fact that the federal and state governments must
act now to address climate change. The Washington State Department of
Ecology (Ecology) said in December 2014, “Climate change is not a far off-risk.
It is happening now globally[,] and the impacts are worse than previously
predicted, and are forecast to worsen.”1 It concluded that “[i]f we delay action by
1 W ASH. DEP’T OF ECOLOGY, W ASHINGTON GREENHOUSE GAS EMISSION
REDUCTION LIMITS: PREPARED UNDER RCW 70.235.040, at vi (Dec. 2014),
https://apps.ecology.wa.gov/publications/documents/1401006.pdf
[https://perma.cc/VYA3-GT3E].
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No. 80007-8/4
even a few years, the rate of reduction needed to stabilize the global climate
would be beyond anything achieved historically and would be more costly.”2
According to the Joint Statement on “Human Rights and Climate Change” (Joint
Statement) signed by five United Nations human rights bodies, “[t]he adverse
impacts identified in the [2018 Intergovernmental Panel on Climate Change
(IPCC)] report[ ] threaten, among others, the right to life, the right to adequate
food, the right to adequate housing, the right to health, the right to water and
cultural rights.”3 “The risk of harm is particularly high for those segments of the
population already [marginalized] or in vulnerable situations[,] . . . such as
women, children, persons with disabilities, indigenous peoples and persons living
in rural areas.”4 “The IPCC report makes it clear that to avoid the risk of
irreversible and large-scale systemic impacts, urgent and decisive climate action
is required.”5 Prompted by this knowledge, groups of determined youths around
the United States have sought dramatic and necessary climate change action
from their executive and legislative branches. When unsatisfied with the results,
they have sought redress in the courts.
FACTS
In February 2018, the Youths filed a complaint against the State, Governor
2 Id.
3 Comm. on Elimination of Discrimination Against Women et al., Joint
Statement on “Human Rights and Climate Change,” UNITED NATIONS HUM. RTS.
OFF. OF HIGH COMMISSIONER (Sept. 16, 2019),
https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24998
&LangID=E [https://perma.cc/C23Q-TJYZ].
4 Id.
5 Id.
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Inslee, Ecology, the Washington State Department of Commerce, the
Washington State Department of Transportation, and the agencies’ directors and
secretaries. The Youths detailed the harmful and dire effects of climate change,
including serious threats to India B.’s 6 family farm, to salmon populations that
Wren W. considers “a source of spiritual and recreational beauty,” and to James
Charles D. and Kylie JoAnn D.’s home in the Taholah lower village of the
Quinault Indian Nation.
The Youths presented six claims for relief: (1) violation of their substantive
due process rights to “[a] stable climate system, . . . an essential component to
[their] rights to life, liberty, and property,” (2) violation of their substantive due
process rights under the state-created danger doctrine, (3) violation of their
“[f]undamental [r]ight to a [h]ealthful and [p]leasant [e]nvironment” under
RCW 43.21A.010 and article I, section 30 of the state constitution, (4) violation of
the public trust doctrine by “substantial impairment to essential Public Trust
Resources” through “[h]arm to the atmosphere[, which] negatively affects water,
wildlife, and fish resources,” (5) violation of their right to equal protection under
article I, section 12 of the state constitution “as young people under the age of
18,” who the Youths contend “are a separate suspect and/or quasi-suspect
class,” and (6) challenges to the constitutionality of RCW 70.235.020(1)(a) and
RCW 70.235.050(1)(a)-(c).7
6 Consistent with the parties’ briefing at the trial court and on appeal, we
refer to the Youths by their first name and the initial of their last name.
7 The Youths withdrew the appeal of their sixth claim for relief following
recent legislative amendments.
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The Youths asked the court to declare that they “have fundamental and
inalienable constitutional rights to life, liberty, property, equal protection, and a
healthful and pleasant environment, which includes a stable climate system that
sustains human life and liberty.” They alleged that the State placed them “in a
position of danger with deliberate indifference to their safety in a manner that . . .
violates [their] fundamental and inalienable constitutional rights to life, liberty, and
property.” Additionally, the Youths requested that the court
[o]rder Defendants to develop and submit to the Court by a date
certain an enforceable state climate recovery plan, which includes a
carbon budget, to implement and achieve science-based numeric
reductions of GHG emissions in Washington consistent with
reductions necessary to stabilize the climate system and protect the
vital Public Trust Resources on which Plaintiffs now and in the
future will depend;
. . . [and r]etain jurisdiction over this action to approve,
monitor and enforce compliance with Defendants’ Climate
Recovery Plan and all associated orders of this Court.
While acknowledging that the threats of climate change are serious, the
State moved for judgment on the pleadings under CR 12(c), contending that the
Youths’ claims and requested relief violated the separation of powers doctrine,
were nonjusticiable under the Uniform Declaratory Judgments Act (UDJA),
chapter 7.24 RCW, and should have been brought under the Administrative
Procedure Act (APA), chapter 34.05 RCW.
In its detailed order granting the State’s motion, the superior court held
that the Youths’ claims were nonjusticiable, that there is no fundamental
constitutional right to “a clean” or “‘healthful and pleasant environment,’” that the
Youths did not present a cognizable claim under the equal protection clause, and
that, “[f]or the reasons stated in [the State’s] motion and reply memorandum, all
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No. 80007-8/7
of [the Youths’] other claims must be dismissed.” The Youths appeal.
ANALYSIS
Standard of Review
We review a CR 12(c) motion for judgment on the pleadings de novo and
“‘identically to a CR 12(b)(6) motion’” to dismiss. Wash. Trucking Ass’ns v. Emp’t
Sec. Dep’t, 188 Wn.2d 198, 207, 393 P.3d 761 (2017) (quoting P.E., Sys., LLC v.
CPI Corp., 176 Wn.2d 198, 203, 289 P.3d 638 (2012)). “Dismissal under either
subsection is ‘appropriate only when it appears beyond doubt’ that the plaintiff
cannot prove any set of facts that ‘would justify recovery.’” Wash. Trucking, 188
Wn.2d at 207 (quoting San Juan County v. No New Gas Tax, 160 Wn.2d 141,
164, 157 P.3d 831 (2007)). To this end, “[a]ll facts alleged in the complaint are
taken as true, and we may consider hypothetical facts supporting the plaintiff’s
claim.” FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180
Wn.2d 954, 962, 331 P.3d 29 (2014). In addition, “[c]onstitutional questions are
questions of law and are subject to de novo review.” In re Det. of Morgan, 180
Wn.2d 312, 319, 330 P.3d 774 (2014).
Separation of Powers Doctrine
The Youths contend that the trial court erred in concluding that their claims
presented nonjusticiable political questions. Because the Youths’ claims
inevitably involve resolution of questions reserved for the legislative and
executive branches of government, we disagree.
“The nonjusticiability of a political question is primarily a function of the
separation of powers.” Baker v. Carr, 369 U.S. 186, 210, 82 S. Ct. 691, 706, 7 L.
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Ed. 2d 663 (1962). “Separation of powers create[s] a clear division of functions
among each branch of government, and the power to interfere with the exercise
of another’s functions [is] very limited.” Hale v. Wellpinit Sch. Dist. No. 49, 165
Wn.2d 494, 504, 198 P.3d 1021 (2009). “The judicial branch violates the
doctrine when it assumes ‘tasks that are more properly accomplished by [other]
branches.’” Id. at 506 (alteration in original) (internal quotation marks omitted)
(quoting Carrick v. Locke, 125 Wn.2d 129, 136, 882 P.2d 173 (1994)).
“Prominent on the surface of any case held to involve a political question
is” (1) “a textually demonstrable constitutional commitment of the issue to a
coordinate political department,” (2) “a lack of judicially discoverable and
manageable standards for resolving it,” (3) “the impossibility of” resolving a claim
“without an initial policy determination of a kind clearly for nonjudicial discretion,”
or (4) “the impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government” through,
for example, failing to attribute “finality to the action of the political departments.”
Baker, 369 U.S. at 217, 210. In our review of these factors, we must complete a
“discriminating inquiry into the precise facts and posture of the particular case.”
Id. at 217.
Here, the Youths’ claims ask us to address whether the State’s current
GHG emissions statutes and regulations sufficiently address climate change.8
8 The Youths “do not claim that any individual agency action exceeds
statutory authorization or, taken alone, is arbitrary and capricious.” See Juliana
v. United States (Juliana II), 947 F.3d 1159, 1167 (9th Cir. 2020) (emphasis
added). Rather, the Youths’ claims for relief challenge “the affirmative aggregate
acts of” the State and its agencies. Therefore, contrary to the State’s contention,
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The Youths request that the State be required to achieve a 96 percent reduction
of carbon dioxide (CO2) emissions by 2050, “transition almost completely off of
natural gas and gasoline and diesel fuel within the next 15 years,” and “generate
90% of its electricity from carbon-free sources by 2030.” We assume—for this
section’s analysis only—that the Youths have a fundamental right to a healthy
and pleasant environment. See, e.g., Juliana v. United States (Juliana II), 947
F.3d 1159, 1169-70 (9th Cir. 2020) (assuming that the plaintiffs’ asserted
constitutional rights existed for the purpose of analyzing redressability).
However, even assuming there is such a right, the Baker factors lead to the
conclusion that the question posed inevitably requires determination of a
nonjusticiable political question.
First, the resolution of the Youths’ claims is constitutionally committed to
the legislative and executive branches. “‘Article 2, section 1, of the Washington
State Constitution vests all legislative authority in the legislature and in the
people,’ through the power of initiative and referendum.” Nw. Animal Rights
Network v. State, 158 Wn. App. 237, 245, 242 P.3d 891 (2010) (quoting In re
Chi-Dooh Li, 79 Wn.2d 561, 577, 488 P.2d 259 (1971)). To provide the Youths’
requested relief, we would be required to order the executive branch, through the
power vested in it by the legislature, and the legislative branch to create and
implement legislation, or, as the Youths call it, a “climate recovery plan.” For all
intents and purposes, we would be writing legislation and requiring the legislature
to enact it. But we cannot force the legislature to legislate, and we cannot
the Youths were not required to bring their claims under the APA.
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legislate ourselves. In short, resolving the Youth’s claims would require the
judiciary to legislate, in contravention of the textually demonstrable constitutional
commitment of the legislative power to the legislative branch and to the people.
Second, there is no judicially manageable standard by which we can
resolve the Youths’ claims. The Youths’ climate recovery plan includes “a carbon
budget[ ] to implement and achieve science-based numeric reductions of GHG
emissions in Washington consistent with reductions necessary to stabilize the
climate system.” But as the Youths acknowledge, scientific expertise is required
to make a determination regarding appropriate GHG emission reductions, and
the determination necessarily involves including all stakeholders and balancing
the many implicated and varied interests affected by any GHG emission
reduction policies. To this end, the agencies employ and retain climate scientists
from the University of Washington to assist with their policy determinations.
Were we to make these determinations, we would decide matters beyond the
scope of our authority with resources not available to the judiciary. Accordingly,
we cannot imagine a judicially manageable standard available to create and
enforce the Youths’ asserted right, the related claims, or the extension of the
public trust doctrine to the atmosphere.
Third, the legislature and the agency respondents have already made an
initial policy determination concerning the Youths’ claims, pursuant to their
constitutionally and statutorily prescribed authority, and they created a regulatory
regime on that basis. The Youths ask us to discern and provide the State with
“the maximum safe level of CO2 concentrations and the timeframe in which that
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level must be achieved – and leave to Respondents the specifics of developing
and implementing a compliant plan.” But the political branches have already
made this policy determination: Ecology recently enacted its final clear air rule,
chapter 173-442 WAC, which regulates GHG emissions, following an extensive
analysis and utilizing all of the resources available to it, including public comment
and the work of renowned climate scientists. And despite the Youths’ assertions
to the contrary,9 we cannot create a regulatory regime to replace one already
enacted by the legislature and state agencies without an initial policy
determination of a kind clearly for nonjudicial discretion.
Finally, resolution of any of the Youths’ claims involves disrespecting the
coordinate branches. In particular, the Youths asked the trial court to “[r]etain
jurisdiction over this action to approve, monitor and enforce compliance with
Defendants’ Climate Recovery Plan and all associated orders of this Court.”
Such action by the court necessarily involves policing the legislative and
executive branches’ policymaking decisions and, thus, inherently usurps those
9 The Youths assert both that they did not request that we impose a
regulatory regime and that we can impose one. As to the latter assertion, case
law says otherwise. See, e.g., Nw. Animal Rights Network, 158 Wn. App. at 245
(declining to disturb the legislature’s determination that certain activities are not
abhorrent to our society and therefore legal); Nw. Greyhound Kennel Ass’n, Inc.
v. State, 8 Wn. App. 314, 319, 321, 506 P.2d 878 (1973) (declining to rule on
whether a statutory scheme forbidding parimutuel dog racing violates the equal
protection clause because doing so would require resolution of “a political
question in an area of almost complete legislative discretion”); Rousso v. State,
170 Wn.2d 70, 87-88, 239 P.3d 1084 (2010) (dealing with a dormant commerce
clause issue pertaining to online gambling, but finding that Rousso’s suggestion
that “the court force the legislature to trust in the regulatory systems of other
countries” and dismantle the State’s current regulatory scheme “bulldozes any
notion of a separation of powers between the judiciary and the legislature”). And
with regard to the former, the Youths’ complaint says otherwise.
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branches’ legislative authority. This is particularly true where, as is the case
here, the political branches already made an initial policy determination.
Accordingly, the relief and resolution of the Youths’ claims would require the
court to “bulldoze[ ] any notion of a separation of powers.” Rousso v. State, 170
Wn.2d 70, 87, 239 P.3d 1084 (2010).
Ultimately, by wading into the waters of what policy approach to take, what
economic and technological constraints exist, and how to balance all implicated
interests to achieve the most beneficial outcome, the court would not merely
“‘serve[ ] as a check on the activities of another branch.’” Cf. McCleary v. State,
173 Wn.2d 477, 515, 269 P.3d 227 (2012) (finding it necessary to check the
legislative branch’s compliance with the explicit constitutional duty of the State to
provide children an adequate education) (internal quotation marks omitted)
(quoting In re Salary of Juvenile Dir., 87 Wn.2d 232, 241, 552 P.2d 163 (1976)).
Rather, the judiciary would usurp the authority and responsibility of the other
branches. Furthermore, it would be inappropriate for the judiciary to assume it
can discern the appropriate GHG emissions reduction standard, “given the scale
and complexity of the climate challenge,” where “States must ensure an inclusive
multi-stakeholder approach, which harnesses the ideas, energy and ingenuity of
all stakeholders.”10 Therefore, we conclude that the Youths’ claims present a
political question to be determined by the people and their elected
representatives, not the judiciary.
This conclusion is supported by Juliana II. There, 21 youths sought “an
10 Joint Statement on “Human Rights and Climate Change,” supra.
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order requiring the government to develop a plan to ‘phase out fossil fuel
emissions and draw down excess atmospheric CO2.” Juliana II, 947 F.3d at
1164-65. They asserted substantive due process rights, equal protection
violations, rights under the Ninth Amendment, and a violation of the public trust
doctrine. Id. The Ninth Circuit assumed that the “broad constitutional right” to “‘a
climate system capable of sustaining human life’” existed. Id. at 1164.
Nevertheless, it concluded that the United States Constitution article III
requirement for redressability was not satisfied: the plaintiffs’ request for an order
to promulgate a GHG emissions reduction plan “ignores that an Article III court
will thereafter be required to determine whether the plan is sufficient to remediate
the claimed constitutional violation of the plaintiffs’ right.” Id. at 1173. The court
doubted “that any such plan can be supervised or enforced by an Article III
court,” and noted, “in the end, any plan is only as good as the court’s power to
enforce it.” Id. at 1173.
Similarly, in 2011, a group of youths (collectively Svitak) sued Washington
State, then Governor Christine Gregoire, and state agency directors alleging that
the defendants violated the public trust doctrine. Svitak ex rel. Svitak v. State,
No. 69710-2-I, slip op. at 1-2 (Wash. Ct. App. Dec. 16, 2013) (unpublished),
http://www.courts.wa.gov/opinions/pdf/697102.pdf. Svitak argued that the State
“failed to accelerate the pace and extent of [GHG] reduction.” Id. at 2. Svitak
sought declaratory judgment asking “th[e] court to create a new regulatory
program.” Id. at 5. On appeal, we held that the issue was a political question
because Svitak did “not point to any constitutional provision violated by state
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inaction regarding the atmosphere, [did] not challenge any state statute as
unconstitutional, and, absent such unconstitutionality, cannot obtain a remedy
under the [UDJA].” Id. at 2, 4-6. We concluded, “Because our state constitution
does not address state responsibility for climate change, it is up to the legislature,
not the judiciary, to decide whether[—and to what extent—]to act as a matter of
public policy.” Id. at 5. And as was the case then, “[t]his is particularly true here,
where the legislature has already acted.” Id. at 5-6.
Like in Juliana II and Svitak, we are without power “to order, design,
supervise, or implement the plaintiffs’ requested remedial plan” because such a
plan “would necessarily require a host of complex policy decisions entrusted, for
better or worse, to the wisdom and discretion of the executive and legislative
branches.” Juliana II, 947 F.3d at 1171. And we are “not equipped to legislate
what constitutes a ‘successful’ regulatory scheme by balancing public policy
concerns, nor can we determine which risks are acceptable and which are
not. . . . [W]e lack the tools.” Rousso, 170 Wn.2d at 88. For these reasons, we
conclude that resolving the Youths’ claims would violate the separation of powers
doctrine; the issues that the Youths’ claims present and the implementation and
monitoring of the requested climate action plan require us to resolve political
questions reserved for the executive and legislative branches.
The Youths disagree and rely on Seattle School District No. 1 v. State, 90
Wn.2d 476, 585 P.2d 71 (1978), and McCleary for the proposition that they are
merely asking the court “to engage in its traditional and core duty to interpret and
enforce Washington’s Constitution.” In Seattle School District, the District sued
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the State, alleging that the State failed to discharge its constitutional duty under
article IX, sections 1 and 2 of the state constitution to provide ample funding for
education. 90 Wn.2d at 481-82. On appeal, our Supreme Court determined that
article IX, section 1 imposes a mandatory affirmative duty on the State, which
creates a “jural correlative” right in children to receive an adequate education. Id.
at 500-01, 511-12. In concluding that the court’s interpretation and construction
of article IX, sections 1 and 2 do not violate the separation of powers doctrine,
the court reasoned “that the judiciary has ample power to protect constitutional
provisions that look to protection of personal ‘guarantees.’” Id. at 502, 510.
However, the court declined to specify standards for program requirements,
concluding that “the general authority to select the means of discharging [the
constitutional] duty should be left to the Legislature.” Id. at 520.
Applying Seattle School District, in McCleary, our Supreme Court revisited
the issue of whether the State was adequately discharging its affirmative,
constitutionally prescribed duty to provide for children’s education. McCleary,
173 Wn.2d at 512. In concluding that the State was not adequately discharging
its duty, the court highlighted two aspects of article IX, section 1. First, because
article IX, section 1 imposes a duty on the “State,” the court concluded that it
“contemplates a sharing of powers and responsibilities among all three branches
of government.” Id. at 515. Second, because article IX, section 1 creates a “true
right” in children to receive education, the “federal limit on judicial review such as
the political question doctrine or rationality review are inappropriate.” Id. at 519.
The court reasoned that in the context of a positive right, “we must ask whether
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the state action achieves or is reasonably likely to achieve ‘the constitutionally
prescribed end.’” Id. (quoting Helen Hershkoff, Positive Rights and State
Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131,
1137 (1999)). Our Supreme Court noted:
While we recognize that the issue is complex and no option may
prove wholly satisfactory, this is not a reason for the judiciary to
throw up its hands and offer no remedy at all. Ultimately, it is our
responsibility to hold the State accountable to meet its
constitutional duty under article IX, section 1.
Id. at 546.
This case is distinguishable from Seattle School District and McCleary
because, in both cases, the court found that the State has an affirmative,
constitutionally prescribed duty to provide—and that children have a
corresponding true right to receive—an adequate education. Accordingly, there
was a judicially appropriate question concerning what satisfied that explicit duty.
But “our state constitution does not address state responsibility for climate
change,” Svitak, No. 69710-2-I, slip op. at 5, and, in particular, provides no true
right to a healthful and pleasant environment. Thus, neither case is persuasive.
The Youths disagree and cite Brown v. Plata, 563 U.S. 493, 131 S. Ct.
1910, 179 L. Ed. 2d 969 (2011), contending that “[a]s in Plata, the Superior Court
can set the constitutional floor necessary for preservation of the Youth’s rights.”
The Youths’ reliance on Plata is misplaced. In Plata, the United States Supreme
Court relied on the Prison Litigation Reform Act of 1995 in determining that a
three-judge panel had authority to order California to reduce its prison population.
Plata, 563 U.S. at 512. Here, we have no similar statute empowering the court’s
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review of the legislative and executive actions at issue. Accordingly, Plata does
not control.
The Youths also contend that “it is entirely premature at this early stage to
speculate as to the propriety of any relief that may ultimately be awarded.” If the
Youths’ assertion were true, courts would consistently resolve political questions
only to find out after considerable expenditure of court resources that the case
must be dismissed or the court will violate the political question doctrine. Thus,
we are not persuaded by the Youths’ assertion.
Similarly, the Youths cite Martinez-Cuevas v. Deruyter Bros. Dairy, Inc.,
__ Wn.2d __, 475 P.3d 164 (2020), to support their assertion that their
“constitutional claims should be decided on a full factual record as opposed to a
motion to dismiss.” Because Martinez-Cuevas does not discuss the standard of
review on CR 12(c) motions or the propriety of developing a factual record
thereunder, we disagree. Moreover, this is not the standard on a CR 12(c)
motion to dismiss,11 and factual development is not required to dismiss a political
question. Accordingly, the Youths’ assertion fails.
Finally, the Youths rely on a number of dissimilar cases for their position
that the court may resolve their claims without violating the separation of powers
doctrine. Because those cases concern distinct and distinguishable
constitutional issues, we are not persuaded. See Milliken v. Bradley, 433 U.S.
267, 279-80, 97 S. Ct. 2749, 53 L. Ed. 2d 745 (1977) (addressing whether a
court can order, as an equitable remedy, education programs in a desegregation
11 Wash. Trucking, 188 Wn.2d at 207.
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decree and holding that “the nature of the desegregation remedy is to be
determined by the nature and scope of the constitutional violation” (emphasis
added)); Rousso, 170 Wn.2d at 92 (addressing whether a statute violated the
dormant commerce clause); In re Flint Water Cases, 960 F.3d 303, 324 (6th Cir.
2020) (addressing the substantive due process right to bodily integrity); Martinez-
Cuevas, 475 P.3d at 167 (addressing a statute’s provision “exempting
agricultural workers from the overtime pay requirement set out in the Washington
Minimum Wage Act, ch. 49.46 RCW” and concluding it violates article I,
section 12 of our state constitution).
The Uniform Declaratory Judgments Act
The Youths contend that their claims are justiciable under the UDJA.
Because the court’s resolution of this case would not be final or conclusive, we
disagree.
The UDJA provides a means by which a party may bring a claim for
declaratory relief. It states that “[a] person . . . whose rights, status or other legal
relations are affected by a statute . . . may have determined any question of
construction or validity arising under the . . . statute . . . and obtain a declaration
of rights, status or other legal relations thereunder.” RCW 7.24.020. But “‘before
the jurisdiction of a court may be invoked under the act, there must be a
justiciable controversy.’” To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27
P.3d 1149 (2001) (quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811,
814-15, 514 P.2d 137 (1973)). A justiciable controversy is one which presents
“(1) . . . an actual, present and existing dispute, or the mature
seeds of one, as distinguished from a possible, dormant,
18
No. 80007-8/19
hypothetical, speculative, or moot disagreement, (2) between
parties having genuine and opposing interests, (3) which involves
interests that must be direct and substantial, rather than potential,
theoretical, abstract or academic, and (4) a judicial determination of
which will be final and conclusive.”
To-Ro Trade Shows, 144 Wn.2d at 411 (alteration in original) (quoting Diversified
Indus. Dev. Corp., 82 Wn.2d at 815).
Here, at the very least, the fourth element is lacking. Specifically, the
Youths requested that the trial court retain jurisdiction over the matter to monitor
and enforce the State’s implementation of a climate recovery plan. This would
include ensuring that the defendant agencies enact rules in accordance with
legislation the court deems satisfactory. Such a remedy is necessarily
provisional and ongoing, not final or conclusive. While the declaratory relief
would be final, it is inextricably tied to the retention of jurisdiction and to the order
to implement the climate recovery plan. And a trial court order would not result in
the atmospheric carbon levels required to either stabilize the future global climate
or to protect the Youths’ asserted right because the world must act collectively in
order to stabilize the climate.12 See Juliana II, 947 F.3d at 1173. Therefore, the
Youths’ claims are not justiciable under the UDJA.
The Youths assert that “[n]o new laws are necessary to remedy past and
ongoing constitutional violations,” and that, therefore, their claims are justiciable
under the UDJA. However, in their complaint, and throughout this appeal, the
12
We recognize that this is not a reason to resist the opportunity to
implement advanced climate change policies. It does, however, provide
evidence that judicial resolution would not be final or conclusive and, therefore,
inappropriate.
19
No. 80007-8/20
Youths requested that the court order the State to create a climate plan, i.e., new
legislation regarding the reduction of GHG emissions, and that we determine the
appropriate GHG emission reductions. Therefore, the Youths’ assertion is
implausible and unpersuasive.
In short, the separation of powers doctrine and the lack of justiciability
under the UDJA are dispositive with regard to all of the Youths’ claims.
Therefore, the trial court did not err by dismissing them. We next address the
merits of the Youths’ various claims to foreclose any assertion that their
resolution should alter our conclusion.
Substantive Due Process
The Youths assert that the trial court erred when it concluded that there is
no fundamental right “to a healthful and pleasant environment,” which includes
“the right to a stable climate system that sustains human life and liberty.”
Because the Youths fail to provide a basis for the court to find the unenumerated
right to a healthful environment and because we must exercise the utmost care in
extending the liberties protected by the due process clause, we disagree.
“An individual seeking the procedural protection of the Fourteenth
Amendment's due process clause must establish that [their] interest in life,
liberty, or property is at stake.” In re Pers. Restraint of McCarthy, 161 Wn.2d
234, 240, 164 P.3d 1283 (2007). But “[t]he Due Process Clause guarantees
more than fair process, and the ‘liberty’ it protects includes more than the
absence of physical restraint.” Washington v. Glucksberg, 521 U.S. 702, 719,
117 S. Ct. 2258, 2267, 138 L. Ed. 2d 772 (1997) (quoting Collins v. Harker
20
No. 80007-8/21
Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L.Ed.2d 261 (1992)). “Modern
substantive due process jurisprudence requires a ‘careful description of the
asserted fundamental liberty interest.’” Braam v. State, 150 Wn.2d 689, 699, 81
P.3d 851 (2003) (internal quotation marks omitted) (quoting Glucksberg, 521
U.S. at 721). But “[t]he identification and protection of fundamental rights . . .
‘has not been reduced to any formula.’” Obergefell v. Hodges, 576 U.S. 644,
663-64, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015) (quoting Poe v. Ullman, 367
U.S. 497, 542, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961) (Harlan, J., dissenting)).
“[I]t requires courts to exercise reasoned judgment in identifying interests of the
person so fundamental that the State must accord them its respect,” and
“[h]istory and tradition guide and discipline this inquiry but do not set its outer
boundaries.” Id. at 664.
As an initial matter, it is important to articulate the Youths’ claimed right
and legal bases. The Youths assert a fundamental right to “a healthful and
peaceful environment, which includes a stable climate system.” In support of this
alleged right, the Youths cite Washington Constitution article I, section 3 and
section 30, and RCW 43.21A.010.13 These provisions do not provide for the
13 The Youths also cite the United Nations Joint Statement on “Human
Rights and Climate Change” as evidence of their substantive due process right to
a peaceful environment. However, they failed to provide authority to support the
proposition that a UN joint statement may be used as a basis for substantive due
process rights. We therefore do not address it as such a basis. See City of
Seattle v. Levesque, 12 Wn. App. 2d 687, 697, 460 P.3d 205 (“‘Where no
authorities are cited in support of a proposition, the court is not required to search
out authorities, but may assume that counsel, after diligent search, has found
none.’” (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372
P.2d 193 (1962))), review denied, 195 Wn.2d 1031 (2020).
21
No. 80007-8/22
asserted right. In particular, unlike the constitutional mandate creating an
affirmative duty in Seattle School District and McCleary, none of these provisions
provide a true right, created by a positive constitutional grant, which the State
cannot invade or impair.
Article I, section 3 of the state constitution states that “[n]o person shall be
deprived of life, liberty, or property, without due process of law,” mimicking the
Fourteenth Amendment. “The types of interests that constitute ‘liberty’ and
‘property’ for Fourteenth Amendment purposes are both broad and limited[:] The
interest must rise to more than ‘an abstract need or desire’” “and must be based
on more than ‘a unilateral hope.’” In re Pers. Restraint of Lain, 179 Wn.2d 1, 14,
315 P.3d 455 (2013) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Conn. Bd. of Pardons v.
Dumschat 452 U.S. 458, 465, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981)). The
court should expand substantive due process protections in very limited
circumstances “‘because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.’” Glucksberg, 521 U.S. at 720(quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061,
117 L. Ed. 2d 261 (1992)). And in “extending constitutional protection to an
asserted right or liberty interest, we, to a great extent, place the matter outside
the arena of public debate and legislative action.” Id. Therefore, the court must
“‘exercise the utmost care whenever we are asked to break new ground in this
field,’ . . . lest the liberty protected by the Due Process Clause be subtly
transformed into the policy preferences of the [judiciary].” Id. (quoting Collins,
22
No. 80007-8/23
503 U.S. at 125).
An examination of “our Nation’s history, legal traditions, and practices”14
presents no evidence of a liberty interest in a healthful and peaceful environment.
In particular, only one court has ever held that there exists a fundamental right to
a climate system capable of sustaining life. See Juliana v. United States
(Juliana I), 217 F. Supp. 3d 1224, 1250 (D. Or. 2016) (holding that there is a
fundamental right to a climate system capable of sustaining life), rev’d and
remanded, 947 F.3d 1159 (9th Cir. 2020); cf. Clean Air Council v. United States,
362 F. Supp. 3d 237, 250 (E.D. Pa. 2019) (holding that there is no “fundamental
right to a life-sustaining climate system”); SF Chapter of A. Philip Randolph Inst.
v. U.S. EPA, No. C07-04936 CRB, 2008 WL 859985, at *7 (N.D. Cal. Mar. 28,
2008) (court order) (holding that the right to be free from climate change pollution
is not a fundamental right under the Fourteenth Amendment); Nat’l Sea
Clammers Ass’n v. City of New York, 616 F.2d 1222, 1238 (3d Cir. 1980)
(holding that “there is no constitutional right to a pollution-free environment”),
vacated on other grounds sub nom. Middlesex County Sewerage Auth. v. Nat’l
Sea Clammers Ass’n, 453 U.S. 1, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981);
Concerned Citizens of Neb. (CCN) v. U.S. Nuclear Regulatory Comm’n (NRC),
970 F.2d 421, 427 (8th Cir. 1992) (holding that under the Ninth Amendment and
the equal protection clause, CCN does “not have a fundamental right to be free
from non-natural radiation”).15 While the lack of a historical and legal tradition
14See Glucksberg, 521 U.S. at 710.
15The Swinomish Indian Tribal Community, Suquamish Tribe, and
Quinault Indian Nation assert that the right to a healthful environment is
23
No. 80007-8/24
protecting the environment for future generations almost certainly led us to the
position we are in now, there simply is no historical basis for the determination
that a right to a healthful or stable environment exists. Moreover, were we to
create such an interest, we would transform substantive due process rights into
the policy preferences of the court. Therefore, we conclude that article I,
section 3 does not provide a fundamental right to a healthful and peaceful
environment.
Article I, section 30 provides that “[t]he enumeration in this Constitution of
certain rights shall not be construed to deny others retained by the people.”
More specifically, article I, section 30 is a declaration that the statement of
“certain fundamental rights belonging to all individuals and made in the bill of
rights shall not be construed to mean the abandonment of others” that the
fundamental because it is the “prerequisite to the free exercise of specific,
enumerated rights,” specifically, life and liberty. To this end, they liken the
Youths’ alleged right and the rights to life and liberty to the right to municipality
employment and the right to travel. They cite Eggert v. City of Seattle, 81 Wn.2d
840, 841-44, 505 P.2d 801 (1973), for the proposition that a court looks to
“whether [the asserted] right is implicit and necessary to the exercise of
enumerated rights, and whether the right is deeply embedded in societal values.”
In Eggert, the court held that the city of Seattle’s one year residency requirement
for employment violated the constitutionally protected right to travel. Id. at 848.
The court chose not to address whether the right to employment was
fundamental. Id. While the right to life and liberty may be connected to the right
to a healthful and pleasant environment, as discussed, we must be weary of
extending due process liberty interests into new arenas. More importantly, the
right to employment or to one’s chosen occupation has historically been viewed
as a protected interest. See Fields v. Dep’t of Early Learning, 193 Wn.2d 36, 46,
434 P.3d 999 (2019) (noting that the plaintiff had a “protected interest, but not a
fundamental right, to pursue her chosen, lawful occupation”). However, the right
to a healthful environment—for better or worse—has not been embedded in our
societal values such that it is considered a protected interest. Accordingly, we
are not persuaded.
24
No. 80007-8/25
constitution does not express but that “inherently exist in all civilized and free
states.” State v. Clark, 30 Wash. 439, 443-44, 71 P. 20 (1902).
As noted above, the Youths point to no legal or social history to support
their asserted right, and the State is not required to “disprove the existence of
[the asserted] right” under article I, section 30. Halquist v. Dep’t of Corr., 113
Wn.2d 818, 820, 783 P.2d 1065 (1989). Without a showing of how the asserted
right inherently exists and has existed in civilized states, the Youths’ contention
fails. Accordingly, we conclude that article I, section 30 does not provide the
right to a healthful and peaceful environment or to a stable climate system.
RCW 43.21A.010 provides:
The legislature recognizes and declares it to be the policy of this
state, that it is a fundamental and inalienable right of the people of
the state of Washington to live in a healthful and pleasant
environment and to benefit from the proper development and use of
its natural resources. The legislature further recognizes that as the
population of our state grows, the need to provide for our increasing
industrial, agricultural, residential, social, recreational, economic
and other needs will place an increasing responsibility on all
segments of our society to plan, coordinate, restore and regulate
the utilization of our natural resources in a manner that will protect
and conserve our clean air, our pure and abundant waters, and the
natural beauty of the state.
(Emphasis added). RCW 43.21A.010 is merely a policy declaration “explain[ing]
goals, or designat[ing] objectives to be accomplished.” Cf. Seattle School Dist.,
90 Wn.2d at 499 (holding that because article IX, section 1 explicitly provides a
constitutionally mandated duty and a correlative right for children to receive an
adequate education, it is not merely a policy declaration). While the statute
articulates the policy of the legislature, it does not provide an interest and cannot
provide for a fundamental right. Therefore, RCW 43.21.010 does not provide a
25
No. 80007-8/26
basis for the asserted right.
The Youths disagree and contend that the trial court failed to “undertake
the proper analysis for identifying unenumerated fundamental rights.”
Specifically, they assert that the trial court failed to recognize that an
unenumerated fundamental right may be created by statute. While this is true,
the relied on statutory provision cannot be a policy statement. See, e.g., State v.
Hand, 192 Wn.2d 289, 302, 429 P.3d 502 (2018) (Madsen, J., concurring)
(holding that where the statute established “only aspirational timelines” and
procedures, the asserted fundamental right did not exist). As discussed,
RCW 63.21A.010 is a policy statement. Therefore, we are not persuaded.
As a final matter, to the extent that the amici curiae focus on the right to a
stable climate system, that focus is not entirely aligned with the Youths’ claim.
Specifically, the Youths’ claim is much broader, and in their opposition to the
State’s motion to dismiss, the Youths discuss only the right to a healthful and
peaceful environment. Nonetheless, even if the Youths asserted the narrow right
to a stable climate system, their reliance on Juliana I, 217 F. Supp. 3d at 1250,
which concluded that a fundamental right to “a stable climate system” exists, is
unpersuasive for three reasons. First, Juliana I was reversed based on the
nonjusticiability of the question presented and therefore is not a final order with
persuasive authority. See Juliana II, 947 F.3d at 1175. While the Ninth Circuit
did not address whether there exists a constitutional right, we are not persuaded
by Juliana I’s conclusion. Second, Juliana I is an outlier in finding that the right
26
No. 80007-8/27
exists.16 Finally, Juliana I’s and the Youths’ reliance on Obergefell is misplaced
because Obergefell dealt with a right it described as a “keystone of our social
order” and a liberty interest deeply rooted in our Nation’s and the judiciary’s
history and traditions. Obergefell, 576 U.S. at 669. Because the Youths fail to
proffer similar history with regard to a healthful environment or a stable climate
system, neither Obergefell nor Juliana I is persuasive. See, e.g., Lake v. City of
Southgate, No. 16-10251, 2017 WL 767879, at *4 (E.D. Mich. Feb. 28, 2017)
(court order) (concluding that the plaintiff did not have a fundamental right “in
health or freedom from bodily harm” because she failed to provide a “‘careful
description’” as required under Glucksberg and provided no “evidence that [the]
alleged right is rooted in our nation’s traditions or implicit in the concept of
ordered liberty” (quoting Glucksberg, 521 U.S. at 720-21)).
Equal Protection Claim
The Youths contend that the State violated their right to equal protection of
the law under article I, section 12.17 Because the Youths failed to establish that a
fundamental right has been implicated or that they received disparate treatment
because of their membership in a suspect or quasi-suspect class with immutable
characteristics, we disagree.
“The Equal Protection clause of the Washington State Constitution,
article I, section 12 . . . require[s] that ‘persons similarly situated . . .’ receive like
16See supra note 9.
17They further assert that the trial court erred because it did not address
their equal protection claim pertaining to discrimination with regard to a
fundamental right. But because we conclude that no fundamental right to a
peaceful and stable environment exists, we do not address this contention.
27
No. 80007-8/28
treatment.”18 Kustura v. Dep’t of Labor & Indus., 142 Wn. App. 655, 684, 175
P.3d 1117 (2008) (quoting State v. Coria, 120 Wn.2d 156, 169, 839 P.2d 890(1992)), aff’d on other grounds, 169 Wn.2d 81, 233 P.3d 853 (2010). To assert
an equal protection claim, the Youths must first establish that a fundamental right
has been implicated or that the Youths “received disparate treatment because of
membership in a class of similarly situated individuals, and that the disparate
treatment was the result of intentional or purposeful discrimination.” Thornock v.
Lambo, 14 Wn. App. 2d 25, 33, 468 P.3d 1074 (2020). Stated differently, the
State must have implicated “a fundamental right” in taking discriminatory action
or drawn a “suspect or semisuspect classification.” Kustura, 142 Wn. App. at
684.
The Youths contend that “[t]he affirmative aggregate acts of Defendants
reflect a de facto policy choice to favor the present generation’s interests to the
long-term detriment of” the Youths. The Youths’ contention is unpersuasive.
First, “[a] suspect class ‘must have suffered a history of discrimination, have as
the characteristic defining the class an obvious, immutable trait that frequently
bears no relation to ability to perform or contribute to society, and show that it is a
minority or politically powerless class.’” Kustura, 142 Wn. App. at 685 (quoting
Andersen v. King County, 158 Wn.2d 1, 19, 138 P.3d 963 (2006) (plurality
opinion), abrogated by Obergefell, 576 U.S. 644 (2015)). Here, youth is not an
18 “The equal protection clause of the Fourteenth Amendment and article I,
section 12 of the Washington State Constitution are ‘substantially identical and
subject to the same analysis.’” Thornock v. Lambo, 14 Wn. App. 2d 25, 33, 468
P.3d 1074 (2020) (quoting State v. Osman, 157 Wn.2d 474, 483 n.11, 139 P.3d
334 (2006)).
28
No. 80007-8/29
immutable characteristic. “[I]mmutable” is defined as “not capable or susceptible
of change.” W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1131 (2002). As
the superior court correctly noted, “each [Youth], like every human, will grow
older.” And while children are “socially, emotionally, physically, and
psychologically vulnerable and different from adults in manners beyond their
control,” this status does not last forever and inevitably changes. Accordingly,
the Youths are not a suspect class.
Second, the Youths contend that they will be disparately affected in the
future, not that they are suffering a discriminatory deprivation of their right to a
healthful or stable environment today. But case law does not support the
proposition that an equal protection claim can be premised on a future
deprivation, and the Youths provide no persuasive authority to convince us to
conclude otherwise.
Lastly, the aggregate acts of the State do not show any discrimination or
discriminatory intent. Accordingly, the Youths fail to establish that the State has
treated them disparately. For these reasons, we conclude that, as a matter of
law, the Youths failed to present a valid equal protection claim.
The Youths disagree and assert that they are a suspect class. The
Youths assert that they are suspect or semisuspect because they will be the
most affected by climate change, they are unable to vote, and they “do not have
economic power to influence the state’s energy and transportation system.” To
this end, they cite Miller v. Alabama, which states, “‘[Y]outh is more than a
chronological fact.’ It is a time of immaturity, irresponsibility, ‘impetuousness[,]
29
No. 80007-8/30
and recklessness.’ It is a moment and ‘condition of life when a person may be
most susceptible to influence and to psychological damage.’” 567 U.S. 460, 476,
132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (second alteration in original) (citations
omitted) (quoting Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 71 L.
Ed. 2d 1 (1982); Johnson v. Texas, 509 U.S. 350, 368, 113 S. Ct. 2658, 125 L.
Ed. 2d 290 (1993)). The Miller court did not address age in the context of equal
protection or youths’ statuses as a suspect class. Id. at 479 (concluding that
mandatory life sentences without the possibility of parole for juvenile offenders
are unconstitutional pursuant to the Eighth Amendment). Accordingly, Miller is
not persuasive.
The Youths also rely on Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2832, 72
L. Ed. 2d 786 (1982), to support their contention that they are a suspect class. In
Plyler, the United States Supreme Court applied heightened scrutiny to Texas
laws that withheld funding for public education where the school allowed
undocumented children to attend. Id. at 220. In applying heightened scrutiny,
the Court reasoned that while undocumented status is not “an absolutely
immutable characteristic,” laws discriminating against undocumented children
place a “discriminatory burden on the basis of a legal characteristic over which
children can have little control.” Id. But here, the characteristic at issue is age
only, not undocumented status as a child. Furthermore, the children in Plyler
provided evidence that Texas was discriminating based on this status
characteristic. Therefore, Plyler does not control.
30
No. 80007-8/31
State-Created Danger Claim
The Youths claim that the trial court erred in dismissing their state-created
danger claim. Because the Youths fail to show that the State’s actions put them
in a worse position, we disagree.
To succeed on a state-created danger claim, the Youths “must show not
only that the [State] acted ‘affirmatively,’ but also that the affirmative conduct
placed [them] in a ‘worse position than that in which [they] would have been had
[the state] not acted at all.’” Pauluk v. Savage, 836 F.3d 1117, 1124 (9th Cir.
2016) (some alterations in original) (quoting Johnson v. City of Seattle, 474 F.3d
634, 641 (9th Cir. 2007)).
Here, the Youths cannot show that the State acted affirmatively to create
the danger. Rather, despite their contentions to the contrary, the Youths alleged
injuries stemming from the State’s failure to act more aggressively with regard to
regulating GHG emissions.19 Nonetheless, any affirmative actions by the State
did not put the Youths in a worse position than that in which they would have
been without the State’s action: the State’s regulation of GHG emissions,
although it fails to provide for the reductions that the Youths claim are necessary
19 In their complaint, the Youths contended that the State pursued and
implemented policies “that result in dangerous levels of GHG emissions.” They
went on to explain, however, that the State “placed [them] in a position of danger
with deliberate indifference to [the Youths] safety” by its “ongoing act of omission
in not reducing Washington’s GHG emissions consistent with rates that would
avoid dangerous climate interference.” (Emphasis added.) The Youths further
asserted that the State failed to implement its “own laws, plans, policies, and
recommendations for climate stabilization or any other comprehensive remedial
measures.” In short, the Youths’ claims, despite their characterization below and
on appeal, revolve around omissions or actions, which the Youths perceive are
not adequate to remedy climate change.
31
No. 80007-8/32
to protect the environment, still places the Youths in a position of lesser danger
than that which they would be in if the State chose not to regulate GHG
emissions at all. Accordingly, the state-created danger exception does not apply,
and the Youths’ claim fails.
The Youths disagree and inappropriately rely on Pauluk and Munger v.
City of Glasgow Police Dep’t, 227 F.3d 1082 (9th Cir. 2000), for the proposition
that the State has a duty to protect the Youths from climate change. In Pauluk,
the court held that Daniel Pauluk’s family established a valid state-created
danger claim where Pauluk died from exposure to toxic mold in a county health
office after county officials transferred Pauluk, over his objections, to a building
known to contain toxic mold. 836 F.3d at 1119, 1125. In Munger, the Ninth
Circuit held that summary judgment was improper for a state-created danger
claim where Lance Munger died after police officers ejected him from a Montana
bar at night when the outside temperatures were subfreezing. 227 F.3d at 1087,
1090. In both cases, state actors affirmatively placed the individuals in known
danger, which resulted in the individuals’ deaths. Here, the State has not
affirmatively placed the Youths in a worse position or injured them.
In addition, the Youths’ reliance on Braam is misplaced because, there,
the State acted affirmatively as “the custodian and caretaker” of children in the
foster care system. Braam, 150 Wn.2d at 703-04. Despite the Youths’
contentions, the State’s role as a custodian and caretaker of foster children is not
analogous to “the State’s role in energy and transportation system[s].”
Therefore, these cases are not persuasive.
32
No. 80007-8/33
Public Trust Doctrine
The Youths contend that they alleged valid public trust doctrine claims.
Because the Youths’ complaint alleges a violation of the public trust doctrine in
relation to the climate system as a whole, including the atmosphere, and
because Washington has not yet expanded the public trust doctrine to
encompass the atmosphere, we disagree.
The public trust doctrine is based on the common law, but article XVII of
our constitution “partially encapsulate[s]” the public trust doctrine. Rettkowski v.
Dep’t of Ecology, 122 Wn.2d 219, 232, 858 P.2d 232 (1993). Specifically,
article XVII, section 1 asserts state ownership of “the beds and shores of all
navigable waters in the state up to and including the line of ordinary high tide, in
waters where the tide ebbs and flows, and up to and including the line of ordinary
high water within the banks of all navigable rivers and lakes.”
The public trust doctrine has never been applied to the atmosphere. To
this end, Rettkowski is instructive. There, a group of cattle ranchers brought a
claim against Ecology based on Ecology’s failure to prevent the depletion of a
creek that the ranchers used to water their cattle. Rettkowski, 122 Wn.2d at 221-
22. The ranchers contended and, after performing studies, Ecology discovered
that groundwater withdrawals from irrigation farmers negatively affected the
creek’s flow. Id. at 221. In dicta, the court discussed the application of the public
trust doctrine to groundwater, noting that one problem with applying the doctrine
to the ranchers’ claim was that Washington has “never previously interpreted the
doctrine to extend to non-navigable waters or groundwater.” Id. at 232. It
33
No. 80007-8/34
therefore declined to extend the doctrine thereto. Id. Similarly, Washington
courts have never extended the public trust doctrine to the atmosphere, and we
decline to do so now.
The Youths contend that, in Rettkowski, our Supreme Court “intentionally
avoided delineating the scope of the” public trust doctrine. The court stated, “We
similarly do not need to address the scope of the doctrine today.” Id. at 232 n.5.
The Youths contend that this avoidance amounts to an implicit statement that the
public trust doctrine applies to the atmosphere. But it is a legal fallacy to rely on
the court declining to address an issue to prove the existence of the principle not
addressed, i.e., what resources fall under the public trust doctrine. Therefore,
the Youths’ reliance on Rettkowski is misplaced.
More generally, the Youths contend that “‘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.’” To this end, the
Youths cite the Code of Justinian from 6th Century Rome as the basis for the
public trust doctrine’s application to the air. However, “the interconnectedness of
natural resources . . . does not mean that all natural resources, including the
atmosphere, must be considered public trust resources under . . . [the] public
trust doctrine.” Chernaik v. Brown, 367 Or. 143, 165, 475 P.3d 68 (2020). And
we decline “to expand the resources included in the public trust doctrine well
beyond its current scope” to include the atmosphere. Id. at 166.
The Youths and amici rely heavily on the superior court’s order in Foster v.
Department of Ecology, affirming the Department of Ecology’s Denial of Petition
34
No. 80007-8/35
for Rulemaking. No. 14-2-25295-1 SEA (King County Super. Ct., Wash. Nov. 19,
2015). There, the court declared that the public trust doctrine applies to the
atmosphere. Id. But we are not bound by a trial court’s decision,20 and our
analysis does not lead us to the conclusion that the public trust doctrine applies
to the atmosphere. Accordingly, we are not persuaded.
Finally, the Youth assert that they “alleged impairment to traditional Public
Trust Resources such as navigable waters and submerged lands.” But in their
complaint, the Youths asserted that “[t]he overarching public trust resource is the
climate system, which encompasses the atmosphere, waters, oceans, and
biosphere.” They explained, “The dangerous levels of [GHG] emissions that
Defendants have allowed into the atmosphere have a scientifically demonstrable
effect on the public’s ability to use, access, enjoy and navigate the state’s
tidelands, shorelands, and navigable waters and other Public Trust Resources.”
Therefore, we are not persuaded by the Youths’ attempt to recharacterize their
allegation.21
20 See In re Estate of Jones, 170 Wn. App. 594, 605, 287 P.3d 610 (2012)
(“Stare decisis is not applicable to a trial court decision because ‘the findings of
fact and conclusions of law of a superior court are not legal authority and have no
precedential value.’” (quoting Bauman v. Turpen, 139 Wn. App. 78, 87, 160 P.3d
1050 (2007))).
21 The Sauk-Suiattle Indian Tribe contends that the Quinault youth, as
members of the Quinault Indian Nation, have constitutionally protected treaty
rights under the Quinault Treaty.21 But the Youths did not raise this argument.
Therefore, we do not address it. City of Seattle v. Evans, 184 Wn.2d 856, 861
n.5, 366 P.3d 906 (2015) (A court “‘will not address arguments raised only by
amicus.’”) (quoting Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d
622, 631, 71 P.3d 644 (2003)).
35
No. 80007-8/36
CONCLUSION
The Youths deserve a stable environment and a legislative and executive
branch that work hard to preserve it. However, this court is not the vehicle by
which the Youths may establish and enforce their policy goals. Because
resolution of the Youths’ claims would require this court to violate the separation
of powers doctrine, we affirm.
WE CONCUR:
36