The Supreme Court of Oregon has rejected claims brought on behalf of youth plaintiffs that the state’s public trust doctrine imposes broad duties on it to protect the environment from greenhouse gas emissions.
The case, Chernaik v. Brown, is brought on behalf of Kelsey Juliana and Ollie Chernaik, among other youths, by the climate litigation group Our Children’s Trust. In the case, six of the seven justices of the state Supreme Court ruled Oregon’s public trust doctrine applies to navigable waters and submerged lands under those waters, but not to wildlife or the atmosphere.
“In this case, therefore, we do not impose broad fiduciary duties on the state, akin to the duties of private trustees, that would require the state to protect public trust resources from effects of greenhouse gas emissions and consequent climate change,” the court said in the October 22 opinion.
Affirms Lower Court Ruling
In 2011, teen plaintiffs Juliana and Chernaik sued then-Governor John Kitzhaber in Lane County Circuit Court, claiming Oregon had a legal duty to protect “vital natural resources,” such as land, water, and the atmosphere, which they argued the state holds in public trust. As with other public trust obligations, the government has a fiduciary duty to protect those resources for the use of current and future generations, Chernaik and Juliana argued.
The plaintiffs argued Oregon’s fiduciary obligation extends to protecting natural resources for “conservation, pollution abatement, maintenance, and enhancement of aquatic and fish life, habitat for fish and wildlife, ecological values, in-stream flows, commerce, navigation, fishing, recreation, energy production, and the transport of natural resources.”
The county court that initially heard the case rejected plaintiff’s claims, as did a three-judge panel of the state Court of Appeals.
“We conclude that the public trust doctrine does not impose a fiduciary obligation on the state to take affirmative action to protect public trust resources from the effects of climate change,” wrote Judge Rex Armstrong on behalf of the Appeals Court panel. “The Oregon public-trust doctrine is rooted in the idea that the state is restrained from disposing or allowing uses of public-trust resources that substantially impair the recognized public use of those resources.
“We can find no source under the Oregon conception of the public-trust doctrine for imposing fiduciary duties on the state to affirmatively act to protect public-trust resources from the effects of climate change,” Armstrong ruled.
Oregon’s Supreme Court has now affirmed the determination of the state Court of Appeals that state has no duty to protect natural resources from climate change as part of a public trust.
Follows Previous Loss in Federal Court
The Oregon Supreme Court’s ruling represents the second loss this year for the youth plaintiffs. On January 17, a three-judge panel of the federal Ninth Circuit Court of Appeals, based in San Francisco, rejected a climate lawsuit filed against the federal government by Our Children’s Trust on behalf of the same group of youths.
In that case, the Trump administration, as had the Obama administration before it, argued that the plaintiffs lacked standing to sue the federal government for climate harms. Going further, the Trump administration said, even if the court determined the youths had standing to sue, the legislature and the executive, not the courts, were the appropriate branches of government for determining the nation’s energy policies and responses to climate change.
In a 2-to-1 decision, a three-judge panel of the Ninth Circuit Court agreed on both points.
The youths lacked standing to sue the federal government, and the court didn’t have the authority to dictate climate policy, wrote Ninth Circuit judge Andrew Hurwitz, an Obama administration appointee, in his majority opinion.
The plaintiffs lacked standing to sue, said Hurwitz, because their injuries were not “concrete and particularized.”
“The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2,’” Hurwitz wrote. “Reluctantly, we conclude that such relief is beyond our constitutional power.
“Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government,” Hurwitz wrote. “[A]ny effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”