Oregon’s Court of Appeals ruled on 9th January that the public-trust doctrine does not impose a “fiduciary obligation” on the state to develop and implement a climate change mitigation program.
The plaintiffs, Olivia Chernaik and Kelsey Juliana, were minors when they first sued the state in 2011. Ms. Juliana is also lead plaintiff in the “Kids’ climate lawsuit” against the U.S. government, filed in September 2015 in the U.S. District Court in Eugene, Oregon.
The plaintiffs asked the court to grant them declaratory relief under Oregon’s common-law public-trust doctrine. Specifically, they asked the court to declare that: (1) Oregon has a “fiduciary obligation” to protect the atmosphere and other “public trust assets” from “substantial impairment” caused by greenhouse gas emissions in, or within the control of, the state; (2) atmospheric carbon dioxide (CO2) concentrations exceeding 350 parts per million (ppm) constitute “substantial impairment” of the atmosphere and, therefore, other public trust assets; (3) Oregon must do its part to return atmospheric CO2 concentrations to 350 ppm by 2100; and (4) the state has failed and is failing to meet those obligations.
Appellate Judge Karsten H. Rasmussen denied the petition, agreeing with the government of Oregon that “the public trust doctrine obligates the state to refrain from actions harmful to public-trust resources but does not impose affirmative, fiduciary-like trust duties upon the state.”
Petitioners’ base their understanding of the public trust doctrine on Geer v. Connecticut (1896) and Oregon v. Dickerson (2015). In Geer, the key statement quoted by plaintiffs “held only that the nature of property in game gives the state the authority to regulate the taking of game and to prohibit its shipment out of state; it did not make any holding regarding affirmative duties of the states with respect to game or the public trust.” Similarly, in Dickerson, the Oregon Supreme Court, summarizing earlier cases, “held that the state, as trustee, has authority to enact laws to protect wildlife.” However, those cases “did not hold that the state has a duty to enact such laws.”
Judge Rasmussen concluded: “There is nothing in our examination of Oregon’s common-law public-trust doctrine that suggests that the doctrine imposes ‘fiduciary obligations’ analogous to a legal ‘trust’ to which trust law would apply, such as advocated by plaintiffs and amici law professors. Rather, the public-trust doctrine uses the word ‘trust’ as an imperfect metaphor to capture the idea that the state is restrained from substantially impairing the common-law public right to use public-trust resources for certain purposes.”
Rasmussen remanded the case back to the lower court. If I read the decision correctly, plaintiffs no longer have a case under Oregon common law. Is that the end of the tale? Maybe the Oregon Supreme Court will review the case on appeal. Maybe the kids’ lawyers will try to spin Oregon’s constitution or environmental statutes into a mandate for 350 ppm. Or maybe plaintiffs will put all their effort into Juliana v. United States.