Climate win: Appeals court in Oregon rules state court must decide if atmosphere is a “public trust”

Two teenagers from Eugene, Ore. filed suit against Governor Kitzhaber and the State of Oregon for failing to protect the “atmosphere, state waters, and coast lines, as required under the public trust doctrine.”

They lost the first round, where the state court said that climate relief was not a judicial matter. But they won on appeal. The case goes back to the original court, which now has orders to decide the case on its merits and not defer to the executive or legislature.

The gist of the appeals court decision:

Their lawsuit asked the State to take action in restoring the atmosphere to 350 ppm of CO2 by the end of the century. The Oregon Court of Appeals rejected the defenses raised by the State, finding that the youth could obtain meaningful judicial relief in this case.

That’s quite a nice victory. Here’s the full story, from the Western Environmental Law Center (my emphasis throughout):

The march of CO2 in parts-per-million. We're at 400. We need 350 for human civilization to survive.

The march of CO2 in parts-per-million. We’re at 400. We need 350 for human civilization to survive.

In a nationally significant decision in the case Chernaik v. Kitzhaber, the Oregon Court of Appeals ruled a trial court must decide whether the atmosphere is a public trust resource that the state of Oregon, as a trustee, has a duty to protect. Two youth plaintiffs were initially told they could not bring the case by the Lane County Circuit Court. The trial court had ruled that climate change should be left only to the legislative and executive branches. Today, the Oregon Court of Appeals overturned that decision.

Two teenagers from Eugene, Kelsey Juliana and Olivia Chernaik, filed the climate change lawsuit against Governor Kitzhaber and the State of Oregon for failing to protect essential natural resources, including the atmosphere, state waters, and coast lines, as required under the public trust doctrine. Their lawsuit asked the State to take action in restoring the atmosphere to 350 ppm of CO2 by the end of the century. The Oregon Court of Appeals rejected the defenses raised by the State, finding that the youth could obtain meaningful judicial relief in this case. …

In reversing the Lane County trial court, the Oregon Court of Appeals remanded the case ordering the trial court to make the judicial declaration it previously refused to make as to whether the State, as trustee, has a fiduciary obligation to protect the youth from the impacts of climate change, and if so, what the State must do to protect the atmosphere and other public trust resources.

The implications of this are broad, and similar cases are pending in other states, as the article describes.

Make no mistake; decisions like this matters. It places the court squarely in the mix as a power player in the climate war, the fight for “intergenerational justice” as James Hansen puts it — or the war against intergenerational betrayal, as I put it.

This is a cornerstone decision from the Oregon Court of Appeals in climate change jurisprudence. The court definitively ruled that the question of whether government has an obligation to protect the atmosphere from degradation leading to climate change is a question for the judiciary, and not for the legislative or executive branches. The Court did not opine as to how that question should be answered, only that it should be answered by the judiciary.

We can win this; it’s not over. If we reach 450 ppm and we’re still not stopping with the CO2, then it’s over and I become a novelist full-time. But we’re not there yet, and please don’t surrender as if we were.

The courts are now a powerful tool, as is divestment. James Hansen has a way to restore the atmosphere to 350 ppm CO2 in time to stop slow feedbacks from kicking in. It’s a doable plan, but we’ll need to use force. Using the courts, as with using divestment campaigns, counts as force. Stay tuned.

(Want to use force at the national level? Find a way to challenge Obama publicly to stop leasing federal land to coal companies. He’s a hypocrite until he stops federal coal from being mined and sold abroad. A simple and obvious challenge for him. You too can be the activist.)

GP

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Gaius Publius is a professional writer living on the West Coast of the United States.

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