Kelsey Juliana, right, is a plaintiff in a climate suit against Oregon and the federal government. Photo credit: Robin LoznakKelsey Juliana, right, is among the young plaintiffs suing Oregon and the federal government over climate change. Photo credit: Robin Loznak

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By Karen Savage

An Oregon court has ruled that the state is not required to protect public trust resources from the effects of climate change, a defeat for two young plaintiffs who had sued the state under the common law public trust doctrine.

The ruling, issued by the Oregon Court of Appeals on Wednesday, upholds a lower court’s decision that the state is only required not to sell its public resources and that the only lands included in the public trust are submerged and submersible lands. The appeals court declined to rule on which other natural resources are part of the public trust.

“This means, for example, that while the State of Oregon may not transfer the Williamette River to a private entity, the state has no duty to protect the river from polluters, even though such contamination would kill all the fish and make it impossible to recreate,” said Liam Sherlock, counsel for the plaintiffs.

In the suit, Chernaik v. Brown, Ollie Chernaik, now 18, and Kelsey Juliana, who is now 22 and also a plaintiff in the landmark federal climate lawsuit, Juliana v. United States, asked the state of Oregon to declare the atmosphere, water resources, navigable waters, submerged and submersible lands, islands, shorelands, coastal areas, wildlife and fish as public trust resources that must be protected by the state.

They also alleged the state had failed to protect those resources from the effects of climate change and asked the state to implement a plan to cut its carbon dioxide emissions, which would help stabilize the global climate.

The state argued that the suit contained political questions over which the court did not have jurisdiction, contending that climate change-related matters should be left to the legislative and executive branches. That argument convinced Lane County Circuit Court Judge Karsten Rasmussen to dismiss the case in 2012.

Chernaik and Juliana appealed and the Oregon Court of Appeals in 2014 reversed Rasmussen’s decision. The Appeals court said the trial court must decide whether the atmosphere is a public trust resource that the state of Oregon has a duty to protect and if so, what the state must do to protect it and other resources from the effects of climate change.

The case was remanded back to the Lane County Circuit Court, where Rasmussen again dismissed the case, ruling in 2015 that the state has no responsibility to protect its beaches, shorelands, islands, fish, wildlife or atmosphere for future generations. He said they are not public trust resources and questioned “whether the atmosphere is a ‘natural resource’ at all.” Rasmussen determined that submerged and submersible lands were part of the public trust, but ruled that the state’s only duty is to not sell those resources.

The young plaintiffs once again appealed and oral arguments were heard by the Court of Appeals in December 2016. Chernaik and Juliana waited nearly two years for Wednesday’s decision.

Julia Olson, executive director and chief legal counsel for Our Children’s Trust, which supports this and other youth-led climate change suits, said the young plaintiffs plan to appeal.

“The court’s decision is a real abdication of the authority and the trustee obligation of the state and it strips citizens of really important rights,” Olson said at a live-streamed press conference.

“It also strips the state of the ability to protect the resources of the state for the people and I think the Supreme court will be eager to reverse that misunderstanding of the law that came out in that decision today,” she said, adding that the state of Oregon has used the public trust doctrine to file suit against private entities.

Chernaik and Juliana said they are disappointed by the decision and the slow pace of the decision..

“For almost a decade I have been part of this case and I am upset that it has taken us so long to move through the courthouse on an issue that will not wait,” Chernaik said. “I am upset that the government won’t preserve all of our resources for future generations.”

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