AKILAH SANDERS-REED, by аnd through her parents Carol and John Sanders-Reed, and WILDEARTH GUARDIANS v. SUSANA MARTINEZ, in her official capacity as Governor of New Mexico, and STATE OF NEW MEXICO
NO. 33,110
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
March 12, 2015
Sarah M. Singleton, District Judge
Opinion Number: ___________
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
WildEarth Guardians
Samantha Ruscavage-Barz
Santa Fe, NM
for Appellants
Keleher & McLeod, P.A.
Sean Olivas
Gary J. Van Luchene
Albuquerque, NM
Hector H. Balderas, Attorney General
Santa Fe, NM
Stephen R. Farris, Assistant Attorney General
Albuquerque, NM
for Appellees
Western Environmental Law Center
Erik Schlenker-Goodrich
Taos, NM
for Amici Curiae Law Professors Mary Christina Wood, Philip H. Knight, Denise D. Fort, Eileen Gauna, Reed Benson, Michael Blumm, John Davidson, Gerald Torres, Burns Weston, Kevin J. Lynch, Erin Ryan, Timothy P. Duane, Deepa Badrinarayana, Ryke Longest, Jacqueline P. Hand, Zygmunt Plater, Charles Wilkinson, Patrick C. McGinley, Craig Anthony Arnold, Patrick Parenteau, James R. May, Alyson C. Flournoy, David Takacs, William H. Rodgers, Jr., Karl Coplan, John Dernbach, Maxine Burkett, James Gustave Speth, and Eric T. Freyfogle
Steven C. Sugarman
Cerrillos, NM
for Amici Curiae State Representative Gail Chasey, Amigos Bravos, Sierra Club, Dine Citizens Against Ruining Our Environment, Climate Change Leadership Institute, and Chaco Alliance
OPINION
GARCIA, Judge.
{1} Plaintiffs,
BACKGROUND
A. The Original Complaint and the Amended Complaint
{2} This is one of several cases identified nationwide asking courts to recognize that states have a common law duty under the public trust doctrine to protect the atmosphere by regulating greenhouse gas emissions. See, e.g., Kanuk ex rel. Kanuk v. State Dep‘t of Natural Res., 335 P.3d 1088 (Alaska 2014); Butler ex rel. Peshlakai v. Brewer, No. 1 CA-CV 12-0347, 2013 WL 1091209 (Ariz. Ct. App. Mar. 14, 2013) (non-precedential); Filippone ex rel. Filippone v. Iowa Dep‘t of Natural Res., 829 N.W.2d 589 (Iowa Ct. App. 2013) (utilizing a table format to address the issue); Aronow v. State, No. A12-0585, 2012 WL 4476642 (Minn. Ct. App. Oct. 1, 2012) (non-precedential); Chernaik v. Kitzhaber, 328 P.3d 799 (Or. Ct. App. 2014); Svitak ex rel. Svitak v. State, 178 Wash. App. 1020, No. 69710-2-I, 2013 WL 6632124 (Wash. Ct. App. Dec. 16, 2013) (non-precedential).
{3} Plaintiffs’ original complaint asked the district court to declare that the State has a public trust duty to protect the atmosphere to the extent defined by “the best available science” аnd that the State‘s failure to do so constitutes a breach of its public trust duty. Plaintiffs later amended their complaint to avoid dismissal by the district court on the State‘s motion. In their amended complaint, Plaintiffs asked the district court to declare that the State has a public trust duty to protect the atmosphere, and that its “failure
B. The Shifting Status of New Mexico‘s Greenhouse Gas Regulations While This Action Was Pending in the District Court
{4} At the time that Plaintiffs filed their original complaint in May 2011, the State, through the Environmental Improvement Board (the EIB)—the agency charged by the Legislature with protecting New Mexico‘s аir and other natural resources—had promulgated regulations limiting greenhouse gas emissions. See
{5} Two months later in July 2011, entities involved in New Mexico‘s energy industry, with the support of the New Mexico Environment Department (NMED)—the department responsible for maintaining, developing, and enforcing New Mexico‘s air quality management regulations—petitioned the EIB to repeal the State‘s greenhouse gas regulations. See
{6} Other environmental groups began the process of initiating judicial review of the EIB‘s decision as provided under the Air Quality Control Act and the Rules of Appellate Procedure. See
{7} Plaintiffs did not appeal the EIB‘s decision to repeal the regulations pursuant to the process provided under
{8} The district court eventually granted summary judgment in favor of the State. In doing so, it concluded that the public trust doctrine would apply to the atmosphere if “the Legislature or the agencies charged with implementing environmental laws had ignored the atmosphere[.]” It further concluded that the public trust doctrine did not apply in this case because (1) the Legislature has established a statutory and administrative scheme for protecting the atmosphere; (2) the undisputed facts showed that the EIB did not ignore the atmosphere when it concluded that regulаting greenhouse gas emissions in New Mexico would have no impact on climate change; and (3) Plaintiffs did not claim that “the [political] process was tainted” or that “the public was foreclosed from pursuing the issue.”
{9} The district court further noted that Plaintiffs and other members of the public had the opportunity to participate in the EIB proceedings that led to the repeal of the greenhouse gas regulations, and that they сould propose their own greenhouse gas regulations under
D. Arguments on Appeal
{10} On appeal, Plaintiffs assert that the district court erred when it concluded as a matter of law that “the threshold inquiry in a public trust case is whether the [d]octrine applies rather than whether the State is fulfilling its . . . duty as trustee of the [atmosphere]” when it does not regulate “unlimited greenhouse gas emissions[.]” (Emphasis added.) They ask that we formally recognize that the public trust doctrine is operative in New Mexico, “that the atmosphere is a public trust resource[,]” thаt the State, as trustee, has a duty to “prevent substantial impairment to the atmosphere,” and that we remand the case to the district court for further proceedings on its amended complaint. Although Plaintiffs do not ask us to evaluate on appeal any of the other claims for relief that they made in their amended complaint that would flow from the conclusion that the State has a public trust duty to protect the atmosphere, we consider all of the claims in the amended complaint as a whole in addressing whether summary judgment was proper in this case. See generally State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d 684 (“Under the ‘right for any reason’ doctrine, we may affirm the district court‘s order on grounds not relied upon by the district court if those grounds do not require us to look beyond the factual allegations that were raised and considered below.” (internal quotation marks and citation omitted)).
{11} We distill Plaintiffs’ claims down tо this: (1) that the common law public trust doctrine provides an alternative process, separate from and without regard to the process established by the Legislature under the Air Quality Control Act, by which the judicial branch of government would hold hearings, weigh evidence, and make findings and conclusions involving interwoven scientific, technical, and economic factors surrounding climate change; and (2) in the event the judiciary concludes that the public trust doctrine requires a different action than that taken by the EIB under the Air Quality Control Act, the judiciary‘s decision would take precedence over the EIB‘s decision. For the reasons discussed below, we reject Plaintiffs’ claims.
DISCUSSION
A. Standard of Review
{12} A district court‘s decision to grant summary judgment is an issue of law that we review de novo. Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971. Summary judgment is appropriate where the parties do not genuinely dispute any material facts, and the movant is entitled to judgmеnt as a matter of law. Roth v. Thompson, 1992-NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241 (“If the facts are not in dispute, and only their legal effects
B. Public Trust Doctrine
{13} The public trust doctrine is a common law doctrine that has traditionally applied to “public navigation and fishing rights over tidal lands and in the state laws of this country.” PPL Montana, LLC v. Montana, __ U.S. __, __, 132 S. Ct. 1215, 1234 (2012). The doctrine is “a matter of state law,” and “the States retain residual power to determine the scope of the public trust[.]” Id. at 1235. New Mexico courts have never referred to the public trust dоctrine, but they have recognized that common law public trust principles apply in the context of public waters and public trust lands. See, e.g., State ex rel. Bliss v. Dority, 1950-NMSC-066, ¶ 11, 55 N.M. 12, 225 P.2d 1007 (“The public waters of this state are owned by the state as trustee for the people[.]“); Forest Guardians v. Powell, 2001-NMCA-028, ¶¶ 8-9, 13, 130 N.M. 368, 24 P.3d 803 (concluding that “the lands granted under the [Enabling] Act as well as the profits to be derived from these lands are to be held in trust for the benefit of named institutions[,]” and applying charitable trust law in holding that plaintiff school сhildren did not have standing to sue to enforce the trust).
{14} New Mexico appellate courts have not had an opportunity to consider whether common law public trust principles apply to New Mexico‘s atmosphere. In looking to other jurisdictions, we note that some have declined to extend the public trust doctrine to the atmosphere. See Filippone, 829 N.W.2d 589, at *2-3 (declining to extend the public trust doctrine to the atmosphere beсause the Iowa Supreme Court had previously declined to extend the doctrine to forested areas and public alleyways); Aronow, No. A12-0585, 2012 WL 4476642, at *2 (declining to apply the public trust doctrine to the atmosphere because no court in Minnesota or any other jurisdiction has done so, and because it had previously held that the public trust doctrine did not apply to land). Plaintiffs have cited no cases—and we have found none—where another jurisdiction‘s appellate court has concluded that common law public trust principles independently apply to management of the atmosphere.
{15} Plaintiffs assert that the public trust doctrine, as applied to the atmosphere, has been adequately “expressed” in Article XX, Section 21 of the New Mexico Constitution that reads:
The protection of the state‘s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety[,] and the general welfare. The [L]egislature shall provide for control of pollution and control of despoilment of the air, water[,] and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people.
We agree that
{16} First, although the common law has been adopted in New Mexico, see
When the Legislature in 1876 adopted the common law as the rule of practice and decision, the whole body of that law . . . came into this jurisdiction. Where it found a statute counter to its provisions, it yielded to the statute, but it gave way only in so far as the statute conflicted with its principles. In so far as it was possible[,] it operated in conjunction and harmony with the statutes. If the statutes conflicted with it, it bided its time, and upon repeal of the statute became again operative. In other words, the common law, upon its adoption, came in and filled every crevice, nook, and corner in our jurisprudence where it had not been stayed or supplanted by statutory enactment, in so far as it was applicable to our conditions and circumstances.
1919-NMSC-067, ¶ 36, 25 N.M. 459, 185 P. 780.
{17} Second, the Legislature has enacted the Air Quality Control Act, which charges the EIB with preventing and abating the emission of “gas” into the “outdoor atmosphere” in a way that “with reasonable probability” injures humans, plants, or animals or unreasonably interferes with the public welfare. See
{18} Third, our conclusion is consistent with established separation-of-powers principles. See New Energy Econ. Inc. v. Shoobridge, 2010-NMSC-049, ¶ 10, 149 N.M. 42, 243 P.3d 746 (recognizing that “the relationship between administrative proceedings and declaratory judgment actions [is] controlled by the doctrine of separation of powers“); Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 15, 142 N.M. 786, 171 P.3d 300 (cautioning “against using a declaratory judgment action to challenge or review administrative actiоns if such an approach would foreclose any necessary fact-finding by the administrative entity, discourage reliance on any special expertise that may exist at the administrative
CONCLUSION
{19} We conclude that the courts cannot independently intervene to impose a common law public trust duty upon the State to regulate greenhouse gases in the atmosphere. The Air Quality Control Act has established adequate procedures to address and implement any regulation of greenhouse gases in the atmosphere. Plaintiffs do not dispute that the EIB considered the effect of greenhouse gas emissions on the atmosphere, along with all of the other factors required by our constitution and the Air Quality Control Act, when it made its recent decisions regarding New Mexico‘s greenhouse gas regulations. Plaintiffs had an opportunity to participate in that administrative process before the EIB, they continue to have the right to propose new regulations with the EIB and to appeal any of the EIB‘s decisions, they have the opportunity to participate in the legislative process during New Mexico‘s legislative sessions, and voters have the opportunity to exercise their desire for political change regarding complex environmental issues at the ballot box during eаch election cycle. Therefore, where the State has a duty to protect the atmosphere under
{20} IT IS SO ORDERED.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
MICHAEL E. VIGIL, Chief Judge
J. MILES HANISEE, Judge