Texas: A Leader in Environmental Protection

Created in 1970, the federal Clean Air Act promotes public health through its stated goal to protect and enhance the quality of the air in the United States.[1]  However, in 2008 56,618 deaths in the United States were attributed directly to the effects of air pollution,[2] and data link over sixty percent of respiratory diseases to air pollution.[3]  Clearly, the Act has not been responsive to all airborne threats, and regulations often fail to impose sufficiently strict standards to protect the public health and welfare of all Americans.[4]  Where federal legislation falls short, the states should act as responsible environmental trustees and provide adequate protection for the air.

This summer, the District Court of Travis County, Texas cleared the way for the state to protect its own air, ruling that the Public Trust Doctrine[5] protects the state’s atmosphere.[6]  The court found both that the Texas constitution codified the public trust[7] and that the Clean Air Act explicitly allows states to enforce standards more protective of the air than existing federal law.[8]

Hopefully, similarly situated states will line up behind the Texas court and be spurred to take a more active role as trustee for the benefit of their citizens.  For example, the Pennsylvania constitution states that, “the people have a right to clean air. . . . Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.  As trustee of these resources, the commonwealth shall conserve and maintain them for the benefit of all people.”[9]  Despite this wording, Pennsylvania state law precedent has not been friendly to public trust actions, and no court has actually used the constitution to overturn government actions allegedly not reflecting a trustee’s proper care.[10]  In practice, courts find compliance with a statute, such as the Clean Air Act, equivalent to fulfilling the constitutional public trust, and refuse to consider the necessity of supplementary action.[11]

Pennsylvania undeniably suffers from air quality issues, as both the Pittsburgh and Philadelphia metro areas are in nonattainment of the Clean Air Act’s standards.[12]  Hopefully the state, through either the courts or legislature, will reassess the power of its own constitution, and follow Texas’ lead in the near future.

-Nicholas Sciretta, Articles Editor


[1] 42 U.S.C. § 7401(b)(1) (2006).  The CAA’s primary goal is to attain “pollution prevention.” 42 U.S.C. § 7401(c) (2006).

[2] Global Health Observatory Data Repository, World Health Org., http://apps.who.int/ghodata/?vid=34300 (last visited Sept. 20, 2012).

[3] Kirk R. Smith et al., How Much Global Ill Health Is Attributable to Environmental Factors?, 10 Epidemiology 573, 583 (1999).

[4] The World Health Organization ozone guidelines recommend limiting ozone to a 100 µg/m3 eight-hour mean, or .0473 ppm.  World Health Org., WHO Air Quality Guidelines for Particulate Matter, Ozone, Nitrogen Dioxide and Sulfur Dioxide 14 (2006).  However, EPA regulations allow .075 ppm ozone levels.  40 C.F.R. § 50.10 (2011).

[5] Over 1,500 years ago the Roman Emperor Justinian created the underpinnings of the Public Trust Doctrine, proclaiming “by the law of nature these things are common to mankind–the air, running water, the sea, and consequently the shores of the sea.”  The Institutes of Justinian 158 (Thomas C. Sandars trans., Chicago, Callaghan & Co. 1st ed. 1876) (translating the Codex Justinian established in 529 A.D.).  In the contemporary United States, the Public Trust Doctrine is a legal theory in which citizens are regarded as sovereign owners of selected common natural resources which are held in a trust administered by the government.  See Joseph L. Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 477 (1970) (discussing the roles of sovereigns and trustees).

[6] Bonser-Lain v. Tex. Comm’n on Envtl. Quality, No. D-1-GN-11-002194 (D. Travis Cnty. Aug. 2, 2012).

[7] Id. at 1-2.

[8] Id. at 2-3.

[9] Pa. Const. art. I, § 27.

[10] Thirty-five cases discussing the foundational case Payne v. Kassab, 312 A.2d 86, 94-96 (Pa. Commw. Ct. 1973), aff’d, 361 A.2d 263, 273 n.23 (Pa. 1976) and amendment 27 were reviewed, all of which ruled against the claims of public trust litigants.  See, e.g., Szarko v. Dep’t of Envtl. Resources, 668 A.2d 1232, 1239–40 (Pa. Commw. Ct. 1995).

[11] See, e.g., Blue Mountain Pres. Ass’n v. Twp. of Eldred, 867 A.2d 692, 703 (Pa. Commw. Ct. 2005) (quoting Snelling v. Dep’t of Transp., 366 A.2d 1298, 1305 (Pa. Commw. Ct. 1976)) (holding that only statutory requirements “must be considered in evaluating” environmentally harmful projects).

[12] See 2008 Ground-level Ozone Standards —  Region 3 Final Designations, April 2012, EPA, http://www.epa.gov/ozonedesignations/2008standards/final/region3f.htm (last visited Sept. 14, 2012).

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