Da Beers!

Da Beers!

Thursday, June 19, 2014

Future generations gets their day in court (at least in Oregon)

The Oregon Court of Appeals has held that two teens are entitled to a judicial declaration of whether Oregon officials have a “public trust” obligation to “protect the State’s atmosphere as well as the water, land, fishery, and wildlife resources from the impacts of climate change.”

In Chernaik v. Kitzhaber, the court reversed the trial judge’s dismissal of the case and remanded for a decision on the merits.  This is one of dozens of similar actions brought in the name of kids across the country to force government to act more aggressively to combat climate change. The young activists—with a little help from environmental advocacy groups Crag Law Center, Center for Biological Diversity and Western Environmental Law Center—argued that the state has displayed a frustrating lack of urgency:  “I don’t want to live in a wasteland caused by climate change,” Olivia Chernaik told the Eugene Register-Guard.

The public trust doctrine stems from English common law, which states that some resources are so central to the well-being of citizens that they cannot be freely alienated and must be protected. The doctrine was adopted by the U. S. Supreme Court in its 1892 decision Illinois Central Railway v. Illinois, which held that the state could not convey outright title to a substantial segment of the Chicago lakefront.

In 1983 the California Supreme Court greatly expanded the doctrine in National Audubon Society v. Superior Court, extending the public trust doctrine to limit already-vested water rights. In that case, the issue was whether the state must act to limit the Los Angeles Department of Water and Power’s appropriation of water from tributaries to Mono Lake in the face of declining lake levels.  The expansive reading given the public trust doctrine by the California Supreme Court set the stage for court imposition of regulatory controls to protect the environment, even if doing so might upset settled property rights in a natural resource.

When the Chernaik case is re-heard on remand, we'll find if if Oregon courts will pick up the public trust baton.  Among other things, the state could be ordered to do more to limit greenhouse gas emissions —even if that comes at the expense of other political priorities.

No comments:

Post a Comment