Does Oregon’s public trust doctrine extend to the atmosphere? In Chernaik v. Kitzhaber, the Oregon Court of Appeals directed a Lane County circuit court to decide that question. The circuit court had concluded that it did not have subject-matter jurisdiction to make that determination or to direct the state to reduce atmospheric carbon dioxide levels as a consequence. The plaintiffs had asked the court to direct the state to reduce carbon dioxide levels to not more than 350 parts per million by the end of the century, and to do so by a specified percentage every year in order to achieve the desired level. The circuit court found, among other things, that plaintiffs’ requests would require the court to create and impose a new duty on the state, which the court did not have the authority to do, and would violate the separation-of-powers principles, because those requests would effectively strike down existing legislation and require the court to engage in lawmaking. The plaintiffs appealed to the Court of Appeals, but only on the issue of whether the state has an obligation to protect Oregon’s water supply and other public-trust resources from substantial impairment due to greenhouse gas emissions and, if so, whether the atmosphere is a trust resource. In June 2014, the Oregon Court of Appeals reversed the circuit court on the appealed issues. The Court of Appeals determined that the declarations sought by the plaintiffs were within the purview of the judiciary and that the circuit court erred by not ruling on them. The Court of Appeals likened the requested declarations to a 2009 case decided by the Oregon Supreme Court in which the Supreme Court determined that plaintiffs were entitled to a declaratory judgment as to what the state’s legal obligation was to fully fund the public school system.
The case was brought on behalf of two teenagers from Eugene, and is part of a larger effort by Our Children’s Trust to force additional action in the United States and around the world to respond to climate change.