Appeals court tosses Oregon suit over climate change

The Chetco Bar fire in Oregon burned over 177,000 acres. (Photo: USFS)

PORTLAND, Ore. (CN) – Oregon has no duty to protect natural resources as part of a public trust, a state appeals court ruled Wednesday, tossing claims that the state hasn’t done enough to stop climate change.

Two teenage girls sued the state in 2011, in one of the first flush of suits using a novel legal approach to challenge government inaction over climate change: the claim that the government holds natural resources like the land, water and atmosphere in a public trust, and that, like other trust obligations, the government has a fiduciary duty to protect those resources for the use of current and future generations.

Similar cases in other states have been dismissed, but such cases are still pending in Colorado, Florida, Maine, Massachusetts, North Carolina, New Mexico and Pennsylvania. Also pending is a federal case filed in the U.S. District of Oregon, which has survived two trips to the U.S. Supreme Court and is now awaiting a ruling from the Ninth Circuit Court of Appeals.

In the current case, then-teenagers Olivia Chernaik and Kelsey Cascadia Rose Juliana sued former Gov. John Kitzhaber in Lane County Circuit Court, claiming the state had a legal duty to protect “vital natural resources” of the state for the benefit of its citizens.

They also claimed the state has a fiduciary obligation to protect and pre­serve those 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.”

Lane County Presiding Judge Karsten Rasmussen granted the state’s motion for summary judgment, finding that only “submerged and submersible lands,” or the land between the high and low water mark, were part of the public trust. Rasmussen further found that the state has no fiduciary obligation to protect such land from climate change, only that it has to retain ownership of the land.

After two appeals, the state’s Court of Appeals on Wednesday agreed with the trial court.

“On appeal, 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,” Judge Rex Armstrong wrote for a three-judge panel.

Courtney Johnson, who presented oral arguments on appeal, told Courthouse News that the ruling was frustratingly narrow and didn’t even define which natural resources fell under the public trust doctrine.

“The court of appeals had a pretty clear path to clarify what exactly is included in public trust and it declined to do that,” Johnson said. “Given the urgency in the climate issue, it’s frustrating not to have much clarity at this point.”

But Johnson isn’t done fighting in state court.

“All options are on table right now,” she said. “There’s possibility for an appeal to the Oregon Supreme Court on whether there’s an affirmative duty under public trust doctrine. Or a new complaint. This case was really about the state’s failure to act enough. That potentially leaves an opening for a case challenging what the state is affirmatively doing.”

That argument is currently at issue in the federal case pending before the Ninth Circuit. In that case, the same lead plaintiff – KelseyCascadia Rose Juliana – and nearly two dozen other youth claim the federal government violated their constitutional rights by actively stoking climate change through policies subsidizing and promoting the use of fossil fuels. They claim the government knew, based on its own science, that such policies threatened the habitability of the planet.

The plaintiffs in that case argue that living on a planet capable of supporting human life is a civil right protected under the Constitution. The government, meanwhile, has argued that no such constitutional right exists, that the problem of climate change is too big for the U.S. government to solve and that asking a federal court to issue a ruling ordering the government to substantially slow climate change threatens the separation of powers.

Usually, a trustee is responsible for the protection of whatever is in the possession of the trust they administer. But the appeals court focused on Oregon law prohibiting the sale or “alienation” of public trust land and noted that no alienation is at issue in this case.

“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,” Judge Armstrong wrote. “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.”

Such language is worrisome, according to Johnson.

“Here, the court seems to be saying the state could sit back and let those resources be destroyed,” she said.