A three-judge panel of the Oregon state Court of Appeals dismissed a lawsuit against then-Gov. John Kitzhaber filed in 2011 on behalf of two teenage girls asserting climate change was harming the state’s natural resources and the state government had an obligation to protect them.
The Court of Appeals ruled the state has no duty to protect natural resources from climate change, among other potential threats, as part of a public trust.
Public Trust Claim
In 2011, teenaged plaintiffs Kelsey Cascadia Rose Juliana and Olivia Chernaik sued 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, they argued, the government has a fiduciary duty to protect those resources for the use of current and future generations.
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.”
Lane County Presiding Judge Karsten Rasmussen rejected the youths’ arguments, granting the state’s motion for summary dismissal and ruling only “submerged and submersible lands”—the land between the high and low water marks—is part of the public trust. The state’s only obligation otherwise is to retain ownership of public lands.
The teens appealed Rasmussen’s decision to a state district court, which affirmed the lower court’s decision.
No State Climate Obligations
With the three-judge panel’s decision, Oregon’s appeals court affirms the state has no legally enforceable obligation to protect natural resources from climate change.
“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 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.
Plaintiffs’ attorney Courtney Johnson said the court missed an opportunity to clarify exactly what is included in the public trust, especially in light of the “urgency in the climate issue.”
Same Youth, Separate Case
Co-plaintiff Juliana is also the lead plaintiff in a similar case pending before the U.S. Ninth Circuit Court of Appeals.
In Juliana, et al. v. United States of America, et al., the environmental group Our Children’s Trust filed a lawsuit against the federal government, including former President Barack Obama and current President Donald Trump, on behalf of Juliana and 20 other teens, claiming the federal government is violating their constitutional rights to a healthy, livable environment through policies subsidizing and promoting the use of fossil fuels.
Juliana‘s plaintiffs argue the federal government knowingly approved policies that, based on its own science, threatened the habitability of the planet.
The plaintiffs in these youths’ climate cases are being used by anti-fossil-fuel activists as political pawns, relying on emotion, not evidence, in the hopes of forcing government action, says Paul Driessen, a senior policy analyst for the Committee for a Constructive Tomorrow and a policy advisor to The Heartland Institute, which publishes Environment & Climate News.
“Not one of these plaintiffs has presented any credible evidence the relatively tiny increases in atmospheric carbon dioxide since 1850 have driven any climate change or unprecedented weather,” Driessen said. “Instead, they design their computer models and recalculate real-world data to try to fit the facts to conform to their own theories.
“Children today are being indoctrinated—through slogans, images of drowning polar bears and dying colonies of honeybees, and fear-mongering about sea level rise and other imagined terrors—to believe ‘denying’ the official line on climate change is tantamount to treason,” said Driessen.
“Preventing climate change is not their real goal,” Driessen said. “Rather, they want to completely transform the U.S. energy sector of the economy on the basis of headlines, hype, hysteria, and computer models, when what we really need is nationwide, robust debate on the importance of the scientific evidence regarding ongoing changes in the Earth’s climate.”
‘Unfettered Government Control’
Requiring the government to develop plans to fight climate change based on the theory that humans can control the climate is an invitation to virtually limitless rule by judges, says Christopher C. Horner, a senior fellow at the Competitive Enterprise Institute.
“The demand for a court-ordered regulatory plan in the name of fighting climate change, in the face of those plans’ failure in Congress and through [the U.S. Environmental Protection Agency], is an invitation to unfettered government control over peoples’ lives,” said Horner. “Climate alarmists’ scenarios have been proven wrong repeatedly, and allowing the plaintiffs to prevail would open up our entire society to judicially imposed controls over peoples’ lives and liberty that have been rejected in Congress, all in the vain effort to control the world’s climate.
“These radical activists are using the courts to abandon our constitutional republican form of government, principally its separation of powers,” Horner said.
Duggan Flanakin ([email protected]) writes from Austin, Texas.