Posted on June 16, 2014 by Rick Glick
On June 11, the Oregon Court of Appeals held that two teens are entitled to a judicial declaration of whether there exists a “public trust” obligation in state officials to “protect the State’s atmosphere as well as the water, land, fishery, and wildlife resources from the impacts of climate change.” In Chernaik v. Kitzhaber, the court reversed the trial judge’s dismissal of the case and remanded for a decision on the merits.
This case is one of dozens brought in the name of kids across the country to force government to act more aggressively to combat climate change. The young activists—with a little help from the environmental advocacy groups Crag Law Center, Center for Biological Diversity and Western Environmental Law Center—argued that the state has displayed a frustrating lack of urgency: “I don’t want to live in a wasteland caused by climate change,” Olivia Chernaik told the Eugene Register-Guard.
Who could argue with that? As it happens, no one did at this stage of the proceedings. Rather, the case turned on whether a judiciable controversy exists under the Uniform Declaratory Judgments Act. Plaintiffs asked for a declaration that a public trust obligation exists and that Oregon officials have violated that trust by not preventing climate change, and they asked for an injunction to reduce greenhouse gas emissions by a prescribed amount, which plaintiffs characterize as the “best available science.” The state countered that such declarations could not lead to practical relief by the court, and that if they did, the court would be intruding on the legislature’s prerogative to determine whether current policies are adequate and what additional measures may be needed.
The court rejected the state’s arguments, holding that such declarations could stand on their own, which would lead the legislature to take appropriate steps without an injunction. In other words, the kids should get their day in court to show that a fiduciary duty exists under the public trust doctrine to protect against climate change and which duty the state has failed to properly discharge.
The public trust doctrine stems from English common law, which states that some resources are so central to the well-being of citizens that they cannot be freely alienated and must be protected. The doctrine was adopted by the U. S. Supreme Court in its 1892 decision Illinois Central Railway v. Illinois, which held that the state could not convey outright title to a substantial segment of the Chicago lakefront.
Many such cases followed, but in 1983 the influential California Supreme Court, in National Audubon Society v. Superior Court, extended the doctrine to overlay ongoing public trust obligations to limit vested water rights. In that case, the issue was whether the state must act to limit the Los Angeles Department of Water and Power’s appropriation of water from tributaries to Mono Lake in the face of declining lake levels.
The expansive reading given the public trust doctrine by the California Supreme Court sets the stage for court imposition of regulatory controls to protect the environment. When the Chernaik case is restarted by the trial judge on remand, we will see if Oregon courts will pick up the baton.
Doing so could mean big problems for the state, and perhaps lead to unintended consequences. It would be one thing for the court to order the state to do more to limit greenhouse gas emissions, and another to force the state to find the funds. In a zero sum budget process, which other essential programs would need to be cut? And do we want state court judges prescribing and monitoring remedial measures? Despite the slow pace and inefficiency of the legislative process, wouldn’t we prefer our elected leaders to develop the complex and coordinated suite of measures to address climate change?
My guess is the courts won’t go there. But to Olivia Chernaik and co-plaintiff Kelsey Juliana, congratulations on your win and for elevating climate change on the state’s agenda.