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. Click here for more. Follow him on Twitter @Gaius_Publius and Facebook.

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  • SimonLeigh

    You’re right, of course. I was trying to get agreement on an obviously illegal act: deliberately releasing a toxic gas into the atmosphere, a la Saddam. From there, it’s rather a long legal step to letting everyone drive around in their cars with CO2 coming out the tailpipe, or making toast with electricity that’s coal-generated. Everyone wants and demands cheap gas and cheap electricity, even though it’s obvious that if the price were raised they’d use less.

  • EDS

    Maybe not poisonous at first glance, but poisonous enough so that the U.S. Supreme Court ruled in 2007 that greenhouse gases qualified under the Clean Air Act’s definition of a “pollutant.” And gaseous pollutants include sulfur dioxide (SO2), nitrogen oxides (NOx), ozone (O3), carbon monoxide (CO), volatile organic compounds (VOC), hydrogen sulfide (H2S), hydrogen fluoride (HF), and various gaseous forms of metals.

  • SimonLeigh

    Excellent approach. No state has the right to poison the air we all breathe, and though not poisonous, CO2 is destroying the sky and heating the earth, with disastrous consequences already obvious in Oregon and other parts of the USA.

  • KathleenKennettiel

    until I saw the paycheck which said $8694 , I didn’t
    believe that my sister was like trully erning money part time on there
    computar. . there friends cousin had bean doing this for only thirteen months
    and resantly repayed the dept on their home and bought themselves a Infiniti .
    check out the post right here F­i­s­c­a­l­p­o­s­t­.­C­O­M­

  • Badgerite

    The courts are the one branch of government where evidence counts. That is one of the reasons they are so important to our society.

  • lillianhoward

    as Julie
    replied I can’t believe that any one can profit $8334 in a few weeks on the
    internet . go right here

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  • KathleenKennettiel

    my buddy’s sister makes $87 every hour on the internet
    . She has been unemployed for 6 months but last month her payment was $19402
    just working on the internet for a few hours. go right here M­o­n­e­y­d­u­t­i­e­s­.­C­O­M­

  • RobT

    Good for them. They probably want a livable climate as they grow older!

  • sunmusing

    Selling “our” energy resources to other countries is not in our National security interest…same with oil and gas…living in and around such activities has become a local issue…the saying “privatize the profits, and socialize the pain” seems to be the ongoing theme of an energy industry who is starting to smell their bacon burning on the fire…The push to lift the ban on selling our oil and gas offshore, while we suffer the same high prices, and the same “clean up their mess”, cannot be allowed….anyone remember BP?? and we have a national threat of the XL pipeline…Canadian corporations using our Eminent Domain to do this???
    PS…this isn’t PBO’s decision…it is BLM, and their mission statement is to oversee the use of Federal Land as efficiently as possible…whether it is Mining, Drilling, Grazing, Timbering, Water Sheds etc….Yes, we might be able to get PBO to say something on this but he is a busy person these days…

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