Should states be responsible for protecting the atmosphere?

A youth-led climate action campaign in Oregon gets its days in court.

 

Kelsey Juliana's habit of turning off lights in empty classrooms earned her the middle-school nickname of “Eco-girl,” she told Bill Moyers in September 2014. From hallway environmentalist, Juliana, now 19, ascended to courtroom crusader as a co-plaintiff with another Oregon teenager to force her state government to reduce carbon emissions and halt climate change.

In what’s known as an atmospheric trust lawsuit, the teens have argued, since 2011, that the state government is responsible for protecting the planet and its atmosphere. The case is one of dozens in states across the country pressing for courts to recognize the atmosphere as a “public-trust” resource that governments are obligated to protect for the welfare of people. But courts, including a judge in Oregon, have mostly rejected that tack.

Kelsey Juliana (center) and other youth plaintiffs from atmospheric trust lawsuits (Photo via Sam Beebe, Ecotrust).
The public-trust doctrine dates back to ancient Rome and holds that natural resources – such as water, air, and wildlife – belong to the public and need to be managed and preserved for the sake and benefit of humanity. Mary Christina Wood, a law professor at the University of Oregon, has suggested the doctrine extends to the atmosphere and climate, sparking a courtroom movement to sue states to address climate change. An Oregon-based nonprofit, Our Children’s Trust, has run with the strategy, recruiting working with Juliana and other teenagers and spearheading lawsuits against states and the federal government.

Juliana’s case seeks to force Oregon to reduce carbon emissions in line with broader goals within the environmental movement to lower global carbon levels to 350 parts per million, the level scientists say is necessary to avoid warming above 1 degree Celsius. The lawsuit claims that Oregon’s carbon reduction targets, set in 2007, are far too modest by those measures; not to mention, the state is falling far short of achieving its goals.

But despite the Oregon roots of the atmospheric trust movement, at least one state judge is taking a very different legal view. Lane County Circuit Court Judge Karsten Rasmussen wrote in a May 11 decision, “This court questions whether the atmosphere is a ‘natural resource’ at all, much less one to which the public trust doctrine applies.” The judge also denied that water, fish and wildlife, and beaches and shorelines qualify as public-trust resources, a narrow legal interpretation that received ridicule from critics and environmental law experts.

“The decision that was handed down is really an embarrassment to the judiciary,” says Michael Blumm, a professor at Lewis and Clark Law School in Portland, who coauthored an amicus brief on behalf of the plaintiffs.

Despite the latest setback in Oregon, Wood says the movement is “gaining tremendous momentum.” Notably, this March, a New Mexico appeals court was the first to specifically recognize the atmosphere as a public-trust natural resource to be protected. Also, a 2013 Pennsylvania court decision, while not specific to atmospheric trust, overturned a legislative fracking measure because it violated the public trust and “inherent” environmental rights of people. That decision is a landmark for atmospheric trust cases in many states, Wood says, because many states’ constitutions have similar language on the public’s inherent rights.

The acknowledgment in New Mexico was a big win for the campaign, but the judges also ruled the state was meeting its trust responsibilities through its air-quality law. “That’s a step that judges really have to gnaw on a little more,” Wood says. She believes atmospheric trust enables courts to go further and compel other branches of government to reduce greenhouse gas emissions and meet carbon reduction goals that often just serve as unenforceable guidelines. She cites the civil rights and gay marriage movements as cases when legislatures failed to protect “the fundamental rights of citizens,” but the courts stepped up to usher in change.

“Courts are still having a tough time figuring out their role in protecting the constitutional rights of youth to a habitable planet. They still think the legislatures will do their jobs,” Wood says, adding that environmental laws have “failed miserably” in terms of averting climate change.

Chris Winter, of the Crag Law Center, who represented Kelsey Juliana and the Oregon plaintiffs, says they will file an appeal of the decision.  In a press release, Juliana said the judge’s opinion sent a “devastating message to all citizens that none of the three branches of government can be trusted to ensure our future.”

“We have to look at this case and campaign not as isolated in the courts, but as a real platform for the public to assert its rights,” Wood says.

Joshua Zaffos is a contributing editor for HCN. You can follow him on Twitter.