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By Brian Park, Summer Legal Intern

seal-39732_640On June 11th, 2014, the Oregon Court of Appeals in Chernaik v. Kitzhaber reversed an Oregon trial court’s dismissal of a climate change challenge mounted under the public trust doctrine. The Court of Appeals ruled that the trial court was required to reach the merits of plaintiffs’ contentions that atmospheric resources constitute a public trust and that the state of Oregon, as a trustee, has failed to fulfill its fiduciary obligation to protect them from adverse impacts of climate change. Although it may seem a minor victory, this opinion represented a meaningful outcome to plaintiffs, coming as it did just six days after the outright denial of a federal public trust doctrine claim by the U.S. Court of Appeals for the D.C. Circuit in Alec L. v. Gina McCarthy.

This Oregon case is one of many across the country brought by Atmospheric Trust Legal Actions (ATL), a coordinated legal effort under the public trust doctrine supported by Our Children’s Trust (OCT) and other non-profit organizations on behalf of youth to compel governments to protect the atmosphere from the dangerous effects of climate change. The public trust doctrine, a common law doctrine that long predated modern environmental law, imposes a duty on governments to protect certain natural resources. The scope of coverage under the doctrine varies considerable from state to state, but in some states water, soil, ocean, seashores, and parklands can neither be privatized nor substantially damaged, but have to be held by the government in trust for the benefits of its citizens, at least unless the state legislature explicitly declares otherwise. ATL advocates are asking courts to apply the doctrine to recognize and protect the collective right to a stable and habitable climate, requiring the protection of the atmosphere as property of present and future generations.

ATL began in May 2011, as youth plaintiffs filed lawsuits and petitions across the nation against governments and agencies making the same demand: that governments immediately plan for climate recovery according to the scientific prescription of leading climatologists that will restore the atmosphere to 350 parts per million (ppm) of CO2 by the end of this century and avoid the catastrophic scenarios of global warming. Since then, ATL has been successful in attracting nationwide attention and obtaining support in the form of amicus curiae briefs from a variety of groups—scientists, businesses, political leaders, legal scholars, agricultural and faith groups, native communities, national security experts, government officials, and social justice, human rights, and conservation organizations. This broad-based support has not, however, translated into widespread judicial relief. State-level lawsuits have resulted in mixed outcomes to date:

 

  • Alaska:A complaint was filed, asking the state court to recognize that the state of Alaska owes a fiduciary duty to manage atmospheric resources for the common good of the beneficiaries, present, and future generations of Alaskans under the public trust doctrine codified in Article VIII of the Alaska Constitution. The Anchorage Superior Court granted the State’s motion to dismiss, essentially ruling that climate policy is not an issue for the courts, but for the legislature and the executive branch. The case is now on appeal to the Alaska Supreme Court.
  • New Mexico: The trial court initially recognized the atmosphere as a public trust resource for the citizens of New Mexico and moved forward to rule on merits. Finding that the legislature had enacted the New Mexico Air Quality Act to protect the atmosphere and that the New Mexico’s Environmental Improvement Board had acted on the matter by examining and determining that there would be no appreciable benefit to New Mexico from a statewide greenhouse gas regulation, the court ruled that the issue was a political one best left to the executive and the legislative branches. The court granted the state government summary judgment. The case is now on appeal to the New Mexico Court of Appeals.
  • Texas: A petition for rulemaking was denied by the Texas Commission on Environmental Quality, and a lawsuit was filed in state court to seek judicial review of the denial. The state court determined that all natural resources, including the air and atmosphere and not just the state’s waters, are protected under the public trust doctrine and the Texas Constitution at Article XVI, Section 59. The court further found that the protection of air quality has been mandated by the Texas Legislature in the Texas Clean Air Act. However, the court found that it was a reasonable exercise of the state government’s discretion not to proceed with the requested petition at this time. The case is now on appeal to the Third Court of Appeals in Texas.
  • Pennsylvania: A petition for rulemaking was filed, asking the state of Pennsylvania to strictly regulate fossil fuel CO2 emissions and to establish an emissions reduction strategy that will achieve safe atmospheric concentrations of CO2 by 2100. The petition is legally grounded in the Pennsylvania Commonwealth’s public trust responsibilities enshrined in Article I, Section 27 of the State’s Constitution, also known as the “Environmental Rights Amendment,” which the Pennsylvania Supreme Court relied upon in Robinson Township v. Commonwealth, where it invalidated a state statute that precluded municipalities from regulating hydraulic fracturing. The court made clear that the Amendment’s requirement to “conserve and maintain” the state’s natural resources imposes upon the Commonwealth the negative duty “to refrain from permitting or encouraging the degradation, diminution, or depletion of public natural resources” and the positive duty “to act affirmatively to protect the environment” by legislative or regulatory action. The CO2 petition was denied by the Pennsylvania Department of Environmental Protection (DEP). The plaintiff filed a Petition for Review of Final Agency Action in the Commonwealth Court of Pennsylvania and a Notice of Appeal with the Environmental Hearing Board, an administrative appeals board. The DEP determined that the petition met its petition policies, and the Pennsylvania Environmental Quality Board (EQB) voted to accept the petition. The DEP’s written report and the petitioner’s comments in response are being reviewed by the EQB to determine whether to proceed with rulemaking or deny it.

 

In addition to these state lawsuits, ATL advocates also pursued relief at the federal level, demanding creation of a national plan to respond to the risks presented by climate change to current and future generations and to our nation’s security. On June 5th, 2014,in Alec L. v. Gina McCarthy, the U.S. Court of Appeals for the D.C. Circuit refused to grant relief, holding that because the public trust doctrine does not stem from the U.S. Constitutional or federal statutory provisions, the court lacked federal subject matter jurisdiction. The court cited the recent U.S. Supreme Court opinion in PPL Montana, LLC v. Montana, which found that “the public trust doctrine remains a matter of state law” and that “the contours of that public trust do not depend upon the Constitution.”

The D.C. Circuit’s dismissal on jurisdictional grounds makes the Oregon Court of Appeals’ decision in Chernaik v. Kitzhaber appear encouraging in contrast. In reversing the grant of defendant’s motion to dismiss, the Oregon Court of Appeals is requiring the trial court to rule on the merits of the scope of Oregon’s public trust doctrine and defendants’ obligations under it. The trial court initially denied any relief, believing that the court was being asked to extend the law by creating a new obligation rather than to interpret an existing law, which would be violating the principle of separation of powers. The Court of Appeals disagreed, finding that “to the extent that the [trial] court ruled that no source of law imposes the duties on defendants that plaintiffs describe, that was a ruling on the merits of plaintiff’s theory—a ruling that went beyond what defendants claimed to request in their dismissal motion.” The court thereby affirmed the plaintiff’s right to a judicial determination as to the scope of the state’s public trust doctrine.

It remains to be seen whether Oregon courts will find that the state’s public trust doctrine includes the right to a stable atmosphere. However, as someone eager to see governments forced to advance their climate policies, I am excited by the possibility that ATL advocates may, as in the Civil Rights cases where federal courts had to intervene to ensure that fundamental rights were protected, push courts to recognize the public trust doctrine’s ability to provide a legal basis for protecting the atmosphere from the irreparable harms of climate change.

 

 

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Image from pixabay

One comment

  1. What a great summary of the current state of play in respect of atmospheric trust litigation.

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