Oregon Supreme Court Affirms Dismissal of Climate Change Lawsuit

This drone photo shows the Oregon Capitol building, with its “Oregon Pioneer” bronze sculpture statue atop the dome, with skies filled with smoke and ash from wildfires as a backdrop in Salem, Ore., on Sept. 8, 2020. (Michael Mann via AP)

(CN) — A divided Oregon Supreme Court on Thursday affirmed an appeals court’s decision to strike claims that the state evaded its responsibility to stop climate change, finding that a duty to protect natural resources doesn’t exist under the public trust doctrine. 

Oregon residents Olivia Chernaik and Kelsey Cascadia Rose Juliana sued former Governor John Kitzhaber in 2011.

The lawsuit in Lane County Circuit Court argued state inaction on halting the climate crisis violated a legal duty to hold natural resources like the land, water and atmosphere in a protected trust for current and future generations.

Plaintiffs sought an injunction that would require officials to produce annual reports on Oregon’s greenhouse gas emissions and both develop and implement a plan that drop atmospheric concentrations of carbon dioxide to 350 parts per million by 2100.

Lane County Presiding Judge Karsten Rasmussen struck down the claims in 2015, granting summary judgment and finding Oregon officials have no fiduciary obligation to protect such land from climate change.

Only “submerged and submersible lands,” or the land between the high and low water mark, were part of the public trust, the court found.

Rasmussen also said in the ruling that the doctrine didn’t extend to navigable waters, beaches, islands, wildlife or the atmosphere.

In 2019, the state Court of Appeals sided with the trial court but declined to decide what resources are protected under the doctrine.

A divided Oregon Supreme Court panel on Thursday affirmed the appeals court decision, outlining in an opinion by Justice Lynn Nakamoto what lands fall under the public trust doctrine. 

The panel said the trial court erroneously found that only “submerged and submersible state lands” are subject to the public trust doctrine.

“We hold that the public trust doctrine currently encompasses navigable waters and the submerged and submersible lands underlying those waters,” the opinion said. “Although the public trust is capable of expanding to include more natural resources, we do not extend the doctrine to encompass other natural resources at this time.”

The high court declined to adopt the plaintiffs’ position that the state has the same fiduciary duty as a common-law private trust to “prevent substantial impairment” of trust resources. 

The panel agreed with the plaintiffs’ argument that the doctrine can be modified to meet society’s needs over time, but said the legal grounds for such an expansion were not established in the case.

“We reject plaintiffs’ contention that this court should adopt an expansive test for determining protected trust resources and, applying that test, should hold that the public trust doctrine extends to all the waters of the state, wild fish and other wildlife, and the atmosphere in Oregon,” the opinion said. 

“In this case, therefore, we do not impose broad fiduciary duties on the state, akin to the duties of private trustees, that would require the state to protect public trust resources from effects of greenhouse gas emissions and consequent climate change.” 

The matter is remanded to the trial court with instructions to enter judgment declaring navigable waters as a public trust resource.

Plaintiff’s counsel Courtney Johnson of the Crag Law Center said in an emailed statement the realities of climate change are not abstract for Oregon residents, especially in the wake of massive wildfires last month.

“It’s disappointing that the court acknowledged the ‘recognized duty that the state has to protect public trust resources for the benefit of the public’s use of navigable waterways’ but declined to give that duty any meaning with respect to climate change’s devastating impacts,” Johnson said. 

“While the court explicitly left the door open for future claims related to public trust resources and the state’s duty to protect them, as Chief Justice Walters noted in dissent, the time is now. Our forests, our waters, and our children cannot wait.”

A spokesperson for the Oregon Attorney General did not immediately respond to an emailed request for comment.

In her dissenting opinion, Chief Justice Martha Walters said the court should have declared that Oregon has a duty to prevent “substantial impairment” of natural resources in a public trust. 

“Because the purpose of the public trust doctrine is to ensure the public’s rights to use and enjoy public trust resources now and into the future, the doctrine must impose an obligation to protect and preserve them,” Walters’ opinion said. “To ensure the future use and enjoyment of public trust resources, the state must do more than refrain from selling public trust resources and restricting their use.”

If the state were emitting pollutants that interfere with the public’s right to enjoy resources in a public trust, the court could enter an injunction stopping such action, Walters said, adding that the action should be the same if a third party emits pollutants. 

“When an entity has a duty to protect a person or property from harm, the entity breaches that duty when it causes such harm,” the opinion said. “And an entity can cause harm either by acting or failing to act.”

Justices Rebecca Duncan, Adrienne Nelson, Thomas Balmer, Meagan Flynn and Senior Judge pro tempore Rives Kistler rounded out the panel.

Justice Christopher Garrett did not participate in consideration of the case.

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