Court's Climate Order Demands State Make "A Recommendation"

May 19, 2016

It was touted as a "Massive Victory" in the effort to reduce carbon emissions. King County Superior Court Judge Hollis Hill ruled in favor of seven children who argued, "The climate crisis presents an urgent situation that the youth petitioners cannot wait on." The Governor issued a statement praising, ironically, the court's ruling against his administration. In a statement, he noted, "This case is a call to act on climate, and that call is one that has been a priority for me since taking office."

At the time of the announcement, the judge did not release the final order, asking the parties for their input. The order was finally released this week. The order has two requirements.

First, the state should do what it is already doing - engage in a rulemaking process on carbon emissions. The judge wrote the Department of Ecology "shall issue the rule by the end of calendar year 2016." Ironically, the only standard set by the judge is timing, not that the rule must actually be effective. Indeed, Ecology pulled their initial propsal because it had to be reworked entirely due to concerns it would cause more harm than benefit. If Ecology finds its new rule has significant flaws, should they simply push forward?

As an aside, it is worth noting that the word "shall" actually means "may" in a legal context. Federal Government guidelines tell rulemakers to "Use ‘must’ instead of ‘shall’ to impose a legal obligation on your reader." The climate ruling consistently uses the word "shall," implying that it is actually at Ecology's discretion if and when to issue the rule.

Second, "Ecology shall provide a recommendation to the 2017 legislature on greenhouse gas limits." Of course, the agency has already done this in the past and the legislature has repeatedly rejected their proposals, including last year when House Democrats refused to move the Governor's bill out of committee.

Ultimately, talk of a "climate crisis" has bred a crisis mentality, where the appearance of action is more important than thoughtful and effective policy. In his statement on the ruling, Governor Inslee again highlighted his leadership, saying "Our state is helping lead the way" on climate policy. This is perhaps the ultimate irony. The Governor cites a ruling that says he isn't doing enough as evidence he is a leader. Such is the convoluted logic of our climate policy.

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