Selling off or impairing public resources is not permissible under Oregon law. What about actions that lead to the impairment or contamination of those resources (e.g., the production of harmful levels of greenhouse gas emissions)? This is the argument at the core of an intense judicial fight to protect the environment.
On January 9, 2019, the Oregon Court of Appeals ruled against the “Climate Kids” in Chernaik v. Brown, but this is only one battle in an international fight to take on corporate polluters.
The young plaintiffs argued that actions contributing to climate change and endangering public trust resources—including the atmosphere, wildlife, and water—are a violation of their constitutional rights. Their goal was to compel the state of Oregon to create a climate recovery plan to protect its natural resources through reduction of carbon dioxide emissions.
The case, first filed in 2011 by plaintiffs Olivia Chernaik (18) and Kelsey Juliana (22), has been supported by the Eugene, Oregon-based nonprofit, Our Children’s Trust. The youth plaintiffs won a reversal of Judge Karsten Rasmussen’s 2012 dismissal of the case by the Oregon Court of Appeals in 2014, and secured the right for their case to be heard in the Lane County Circuit Court.
At that time, the appeals court’s ruling declared the need for the circuit court to determine whether “the atmosphere” is a public trust resource that the State of Oregon is responsible for protecting as in the case of beaches, islands, rivers, and wildlife.
In April 2015, the case came before Judge Karsten Rasmussen once again. Supporters of the youth plaintiffs packed the courthouse. With more than 400 people in attendance, the judge declared that the state is not responsible for protecting water, shorelands, wildlife, or the atmosphere for the youth and subsequent generations. He further argued that the atmosphere is not an “irreplaceable commodity” and thus, not a public trust resource. The 2016 appeal of this ruling was supported by 53 law professors and a multitude of organizations, including:
The January 9, 2019 Oregon Court of Appeals decision upheld Judge Rasmussen’s ruling against the youth plaintiffs. The court concluded that “the public-trust doctrine does not impose a fiduciary obligation on the state to take affirmative action to protect public-trust resources from the effects of climate change.”
But does it? Can we really make a distinction between impairing public resources and actions that lead to the impairment of resources, including the emission of harmful greenhouse gases?
While the Climate Kids may have lost this battle, the legislative war is just beginning. Read on to discover how international youth have made strides to fight climate change in courts across the U.S. and the world.
The landmark constitutional climate change lawsuit, Juliana v. the United States, was filed in 2015 by 21 youth plaintiffs from around the U.S. The case against the federal government targets national fossil fuel programs, claiming that ignoring the harmful impact of fossil fuels on climate change is a violation of the constitutional rights of children and a failure to protect public trust resources. Among the plaintiffs are Kelsey Juliana of Chernaik v. Brown (22) and Xiuhtezcatl Martinez (18), the youth director of Earth Guardians.
Since its inception, the lawsuit has been stalled by multiple attempts by the Drumpf administration and the fossil fuel industry to prevent it from being heard in court. Judge Ann Aiken of the U.S. District Court denied the defendants’ motions to have the case dismissed in an historic decision on November 10, 2016, upholding U.S. Magistrate Judge Thomas Coffin’s ruling in April of the same year. Judge Coffin subsequently ordered the release of the fossil fuel industry from the case in June 2017.
The government continued to seek dismissal of the case by issuing a “writ of mandamus” petition in July. After the district court and plaintiff’s attorneys responded, including eight briefs in support of the youth, the Ninth Circuit Court rejected the petition. The U.S. District and Ninth Circuit Court judges continued to reject the Drumpf administration’s attempts to have the case dismissed and in July 2018, the U.S. Supreme Court ruled unanimously in favor of the youth, denying the defendants’ application for stay and request for review of the case before the district court had heard all relevant facts in support of the plaintiff’s claims.
Later in 2018, the case took a turn. The President was released from the case in October and the scope of plaintiff’s claims limited by the District Court. In November 2018, the Ninth District Court of appeals granted the Drumpf administration a temporary stay on court proceedings for Juliana v. the United States. District Court Judge Ann Aiken approved the case for interlocutory appeal (i.e., reviewing an aspect of the case before the trial has concluded) two weeks later, continuing the stay on pretrial proceedings. The Ninth Circuit Court of Appeals granted the defendants’ petition for interlocutory appeal one month later, upholding the stay.
On January 7, 2019, the youth plaintiffs’ request to expedite the briefing schedule was granted and the appeal was fast-tracked. Jacob Lebel, a 21-year-old plaintiff in the case, spoke at a rally outside of an Oregon Department of State Lands hearing on January 13, along with other opponents of the Jordan Cove Energy Project, testifying against the fossil fuel pipeline and Coos Bay exit terminal project designated in the lawsuit.
On February 8, plaintiffs filed a motion of preliminary injunction (a court order) with the Ninth Circuit Court of Appeals seeking to prevent the federal government from approving new fossil fuel infrastructure; from issuing leases and permits for coal extraction on federal land; and from oil, gas, and extraction exploration and actions.
So what are the roots of this dynamic ongoing case?
Since 2011, Our Children’s Trust, advocating for climate recovery worldwide, has supported youth plaintiffs in similar cases throughout the U.S. and world. To date, all 50 states have filed lawsuits in court or brought petitions for administrative rule before state agencies with the mission of advancing science-based climate recovery at the state level.
In addition to Oregon, lawsuits are currently pending in Alaska, Colorado, Florida, Maine, Massachusetts, New Mexico, North Carolina, and Washington.
A constitutional climate change lawsuit filed by six young plaintiffs went before the Alaska Supreme Court in October of 2013. While the court affirmed the youth’s arguments for the atmosphere as a public trust resource, it did not agree to providing any concrete actions towards climate recovery.
A year later, the Court agreed that the State has an obligation to fight climate change, and that the atmosphere and corresponding ecosystems should be protected under the constitution without legal declaration by the court. It did not agree, however, to provide any relief as requested by the plaintiffs.
A rehearing of the case was denied, and in 2017, fifteen youth plaintiffs filed a petition for rulemaking to the Alaska Department of Environmental Conservation, calling for a reduction of CO2 emissions in the state and adoption of a climate action plan. The petition was denied, and in 2018, sixteen youth plaintiffs filed a lawsuit, Sinnok v. State of Alaska, against Governor Bill Walker, the State of Alaska, the Department of Environmental Conservation Commissioner Larry Hartig, and five other state agencies, calling for a plan to reduce emissions.
In a press release, Esau Sinnok, a 20-year-old plaintiff said, “With the state contributing to climate change, it has the duty to reduce greenhouse gas emissions and respect our human rights to live in a healthy, safe, and sustainable environment. Alaska is on the front lines of climate change. About every community in Alaska is affected by climate change and we need our state government to reverse course.”
Another youth plaintiff, Nelson Kanuk, is a member of the Alaskan Kipnuk community who began speaking to groups across the United States about climate change on behalf of native and indigenous groups. Kanuk speaks from experience as his own home was destroyed by flooding and melting permafrost the same year the case came before the Alaska Supreme Court. He told hundreds of students at Barrow High School, “It’s important that this case about our public trust is being unveiled in front of the students in Barrow, because it’s giving them an opportunity to truly see how serious this climate change battle is.”
Our Children’s Trust became involved in the Colorado anti-fracking case in July of 2014 when youth plaintiffs were denied a petition for rulemaking by the Colorado Oil and Gas Conservation Commission (COGCC) and the Colorado Department of Natural Resources.
Attorneys with Wild Earth Guardians, the Mountain States Legal Foundation, and then 13-year-old Xiuhtezcatl Martinez led initial anti-fracking efforts. OTC supported seven youth plaintiffs along with Colorado Environmental Law and MindDrive Legal Services in filing an appeal to the Denver District Court to overturn the COGCC’s denial of increased regulation of hydraulic fracturing.
The Court ruled in favor of the youth in December of 2014, and in April of the following year, Martinez et al., v. Colorado Oil and Gas Conservation Commission was brought before the Denver District Court to determine whether COGCC had a legal obligation to protect the health of Colorado residents from harm due to contamination of air, water, land, and wildlife from fracking and other oil and gas operations in the state.
The petition was denied in February of 2016 by Judge Eric Elliff. In response to Judge Elliff’s declaration that COGCC “is required to strike a balance” between the regulation of fracking and the protection of public health and environmental resources, 15-year-old youth plaintiff, Xiuhtezcatl Martinez stated in a press release, “It’s a preposterous idea that the Commission needs to strike a balance between regulation of oil and gas operations and protecting the health of Coloradans. The Commission’s priority should be the health and safety of us, the people. Right now, our government is putting their profits above our futures and that needs to stop.” An appeal was filed in August of 2016.
The day after the #YouthvGov March that drew over 300 people to the steps of the Colorado capitol building on February 20, 2017, Julia Olson, executive director of OCT, went before the Colorado Court of Appeals on behalf of the Colorado youth plaintiffs. This resulted in a reversal of the COGCC and lower court’s denial of the rulemaking petition against fracking in a 2-1 decision on March 23, 2017.
Colorado Attorney General Cynthia Coffman filed a petition asking for review of the decision on January 29, 2018. By May, the youth plaintiffs had filed their answer brief to the Colorado Supreme Court along with “friend of the court” briefs from dozens of powerful supporters (e.g., Northwest Colorado Council of Governments, the Colorado PTA, the Colorado League of Women Voters, Sierra Club, Conservation Colorado, and the Alliance of Nurses for Healthy Environments & Physicians for Social Responsibility) and several local government offices.
Despite admission that the youth plaintiff’s interpretation of the Oil and Gas Conservation Act, calling for the prioritization of public health over oil and gas development, was “reasonable,” the Colorado Supreme Court reversed the Court of Appeals decision on January 14, 2019, stating that COGCC did not have the authority do so if it impeded oil and gas development. Chief Legal Counsel, Julia Olson, filed an “extraordinary motion” ten days later on behalf of the youth plaintiffs citing the judicial misconduct of Judge Laurie Booras and requesting an annulment of related court decisions.
In her declaration, Counselor Olson cited a racist email Judge Booras sent the day after oral arguments were presented to a packed courtroom targeting Judge Fox’s Mexican heritage, plaintiff Martinez’s indigenous heritage, and disclosing her decision on the case over a month before the decision was made by the Court of Appeals. Counselor Olson also cited a conflict of interest in that Judge Booras’s son is a fracking consultant.
Lead plaintiff Xiuhtezcatl Martinez responded in a separate declaration:
While it is very disappointing to see our Supreme Court read this law in such a dangerous way, it is devastating to know that in so doing, all seven Justices on this Court agreed to refer to and rely upon an opinion written by a judge on the Court of Appeals who was racially biased against her colleague who wrote the majority opinion in our case, and was likely racially biased against me and my brother for our indigenous and Latino heritage. In addition to bias against us, that same judge also violated her duty to not discuss our case with third parties before the Court of Appeals ruled on our case, but instead she pre-judged how she would rule and did not allow for any back and forth with the written majority opinion or her dissent to see if she might change her mind. I understand from my attorneys and the recommendations for her removal made to this Court that what she did was illegal and violated her ethical responsibilities as a judge.
Notably, Judge Booras resigned from the court in January 2019.
Youth efforts supported by Our Children’s Trust have resulted in government action to support climate recovery in countries across the globe. Successes include Norway’s constitutional climate amendment, Holland’s mandated national emissions reductions, and the allowance of youth Raba Ali’s climate case by the Pakistani Supreme Court. Other countries with youth-led climate change actions pending include Australia, Belgium, Canada, Colombia, France, India, the Philippines, Uganda, the Ukraine, and the United Kingdom.
International youth also made a recommendation to the UN Committee on the Rights of the Child in 2016 outlining the obligations of all world nations towards children with regards to climate change. The submission was filed through the collaboration of Our Children’s Trust, Earth Guardians, and the Global Initiative for Economic, Social and Cultural Rights, and advocates for the adoption of a science-based climate standard. It was accompanied by a declaration of support by expert climate scientist, Dr. James E. Hansen and argues adamantly for the return of atmospheric CO2 levels to below 350 parts per million by 2100.
The urgency of the mandate is threefold, stating the necessity of this climate standard in order to:
Overall, this legal battle is ongoing and intense, pitting some of the world’s wealthiest energy producers and their government supporters against the Climate Kids.
Given the overwhelming scientific consensus that humans are causing climate change, when will the courts take a firm stand for the future of our planet? Only time will tell—hopefully sooner rather than later.