Last year, eight Seattle kids took the state's Department of Ecology to court. The state wasn't doing enough to safeguard their futures, they argued. By failing to cap carbon emissions, the state was ignoring the best available climate science and a constitutional responsibility to protect Washington citizens.
Now, those eight plaintiffs are taking up the fight again.
The last battle established some groundbreaking legal precedent. Judge Hollis Hill eventually agreed that it was the state's duty to regulate greenhouse gas emissions under the Clean Air Act—something that an obstructionist legislature dominated by Senate Republicans had failed to do. Hill also agreed with the kids that the state had a responsibility to take action on climate change because of the eight kids' constitutional rights.
But Judge Hill didn't agree with the kids on one point. The eight plaintiffs wanted the Department of Ecology to take up a new rule-making process to cap carbon emissions, even though Governor Jay Inslee had already directed the agency to promulgate a rule. Hill thought that the type of action to take ought to be up to Ecology, not the kids.
Here's how Michael Burger, executive director of Columbia University's Sabin Center for Climate Change Law explained the decision to me last year:
"I would say that this is a partial victory, but it doesn't direct the state of Washington to ratchet up its ambition. But I think it's definitely a step in the right direction and it does lend support that there are legal, as well as political, as well as social reasons to fight climate change. Fighting climate change is a legal duty."
According to Andrea Rodgers, the lawyer for the eight kids, Judge Hill was under the impression that Ecology was going to make a rule to cap carbon emissions anyway. But on February 26, state regulators shut down the rule-making process to buy more time to talk to stakeholders, like industry and environmental groups.
Shutting down the rule-making process, even temporarily, gives the kids cause to go back to court, Rodgers told me. "We have filed a Rule 60(b) motion which allows you to go back to court if a party made any kind of misrepresentation that affected the outcome of the case," Rodgers said. "Because the judge made her decision regarding the rule-making, the situation has changed, and we are once again entitled to relief."
The Department of Ecology last said it still planned to have a draft rule this spring, to be finalized this summer. But now Rodgers and her eight clients are asking for a court-ordered schedule for the state to create a rule capping carbon emissions.
"Nobody's talking about the urgency," Rodgers said. "Ecology's been working on this for 26 years—that's the first time they found out that climate change is a problem that needs to be addressed—and here we are with nothing to show for it."
We've reached out to Ecology for comment and will update when we hear back.
UPDATE: Ecology spokesperson Camille St. Onge said that "addressing climate change and reducing carbon pollution is a top-priority for us" and "the notion that we’ve shutdown, even temporarily, is mistaken."
We haven’t stopped. We are working actively and quickly to update the rule to integrate feedback from environmental and industry stakeholders for a workable rule that makes real carbon reductions. We expect to release a new draft in the coming weeks and adopt the rule in late summer.