The state has a duty to protect the atmosphere under the public trust doctrine. An ancient Roman code that informed common law declared the air is ‘common to all mankind’

By Zachary T. Sampson in Tampa, 6/1/20

A Tallahassee judge on Monday ordered the dismissal of a climate change lawsuit brought by eight children who wanted to argue the governor and other top state leaders have promoted pollution that imperils their chances of living in Florida in the future.

“I still believe in my heart of hearts that the people through their elected representatives will eventually get this climate thing right,” said Leon County Circuit Judge Kevin Carroll. But he rejected the case before it could go to trial because he said it delved into matters better left for the Legislature. “We can’t rely on judges to be dictators of public policy because, at the end of the day, a dictator in a black robe isn’t any better than a dictator in a suit or in a military uniform.”

The case, Reynolds v. State of Florida, was filed in 2018 when Sen. Rick Scott was governor. Lawyers more recently added the current administration, including Gov. Ron DeSantis and Agriculture Commissioner Nikki Fried, to their complaint. State agencies filed multiple motions to dismiss, which were heard Monday.

The eight children, now between the ages of 12 and 22, contend that officials are endangering their constitutional right to life, liberty and the pursuit of happiness by supporting industries built on fossil fuel emissions, which scientists say worsen global warming.

Mitchell Chester, one of their lawyers, listed the state cabinet’s approval last year of a plan to convert part of the Big Bend Power Station on Tampa Bay from coal to natural gas as an example of how leaders continue to encourage pollution.

“It helps create another source of greenhouse gases,” he said, describing how seas could rise and flood land, while spiking temperatures could make it harder for people to live and grow food.

He further argued that the state has a duty to protect the atmosphere under the public trust doctrine, citing an ancient Roman code that informed common law and declared the air is “common to all mankind.”

“These children … cannot protect themselves against the system,” Chester said. “Where do they go, if not to you?”

Lawyer Mitchell Chester, representing eight children suing the State of Florida over climate change, speaks during a hearing conducted by Zoom video conference on Monday. [Screenshot from Zoom]

Lawyers for the state argued that the public trust doctrine in Florida only applies to certain waterways and parts of the shoreline, not the air, and that the assurances the children seek are issues for voters and lawmakers.

Karen Ann Brodeen, a lawyer in the Florida attorney general’s office, said even if the case went to trial and the children’s lawyers revealed the harm of man-made climate change through expert testimony, “legislation is the role of the legislative branch, not the judiciary.”

The hearing was conducted in a Zoom video conference because of the coronavirus pandemic.

Carroll, the judge, appeared in front of a seal and two flags, clad in a robe, shirt and tie, stroking his chin as the debate stretched for nearly three hours.

His decision delivered a blow to one of several cases led by the group Our Children’s Trust. A federal effort, Juliana v. United Stateswas rejected in an appeals court earlier this year.

Carroll acknowledged that the case is likely to go to an appeal. He told lawyers for the children they had made it “tempting” for him to allow the case to continue.

“I do wish you luck down the road,” he said. “I hope you’ll tell your clients that this is one step in our civic process here.”