Climate case stumbles in Ore.

Source: Benjamin Hulac, E&E News reporter • Posted: Friday, January 11, 2019

An Oregon court ruled yesterday that the public trust doctrine, a maxim that governments are bound to protect natural resources for citizens, does not require Oregon to defend the environment from climate change.

That legal concept has been applied for decades to state governments, preventing them from selling off or ceding public lands and waters to outside interests.

Plaintiffs in the Oregon case, filed by two minors in 2011, want to expand the public trust doctrine to an active principle that could be used to prod state agencies to slash heat-trapping carbon emissions.

“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,” says the ruling by the Oregon Court of Appeals.

The judges said they “can find no source” under the concept of Oregon’s public trust doctrine that would force the state to “affirmatively act” to protect public resources from climate change.

Attorneys for the plaintiffs said they would appeal the ruling to the Oregon Supreme Court.

The public trust doctrine has surfaced in numerous court cases involving climate change.

Judges in a handful of states, including Iowa, New Mexico and Texas, have ruled that the doctrine applies to the atmosphere, a victory for plaintiffs who fear the effects of rising temperatures (Climatewire, Nov. 20, 2018).

“The public trust doctrine includes all natural resources of the State including the air and atmosphere,” Gisela Triana, a judge in Travis County, Texas, said in a 2012 ruling for the plaintiffs, who sued state agencies to cut emissions.

The Oregon plaintiffs demanded that the state work quickly to cap emissions and then bring them down to 350 parts per million by 2100. The plaintiffs argued that the state failed to protect natural resources, like beaches and waterways, under the public trust doctrine.

“Unfortunately, the Court’s ruling effectively says that while the state is restricted from selling off its natural resources under the public trust doctrine, it has no affirmative duty to protect them,” Liam Sherlock, an attorney for the plaintiffs, said in a statement. “It means that while the state cannot sell Oregon’s elk herds to private corporations or persons, it has no duty to prevent poaching or disease from wiping out those same herds.”

The case is Chernaik v. Brown.