Oral arguments in Chernaik v. Brown, before Oregon Court of Appeals judges Rex Armstrong, Douglas Tookey and Scott Shorr begin December 9. Last year, Kelsey Juliana and Olivia Chernaik, two young women from Eugene, Oregon, appealed Circuit Court Judge Karsten Rasmussen’s adverse decision to their climate lawsuit. Now, they are turning to the Court of Appeals to correct that decision and protect their public trust rights in Oregon’s essential natural resources, which they depend on for their survival and well-being.
Juliana and Chernaik are appealing Judge Rasmussen’s adverse decision from last year. In its decision, the court ruled that the State of Oregon has no responsibility to protect the atmosphere, water or wildlife for present and future generations because they are not public trust resources. Without considering any of the evidence presented in expert declarations supporting the youth, which include declarations from the state’s own experts, the court questioned “whether the atmosphere is a ‘natural resource’ at all.”
In 2014, Judge Rasmussen was reversed by the Oregon Court of Appeals in the same case brought by Juliana and Chernaik.
Given the alarming climate change and ocean acidification impacts Oregon is already experiencing, which will only get much worse in the future, and the failure of the legislative and executive branches to adequately protect Oregon’s resources, plaintiffs are hoping that the Oregon Court of Appeals will correct the trial court’s legal errors and find that the State is responsible for addressing its contributions to the climate crisis. Plaintiffs are asking that the State adopt a science-based prescription to ensure that Oregon does its share to return the atmospheric concentration of carbon dioxide to 350 ppm by 2100.
Attorneys for Juliana and Chernaik will argue that the public trust doctrine includes the atmosphere, water, wildlife and beaches and that the state has an affirmative obligation to protect such resources.
In a similar lawsuit, 21 young people from across the country filed a case against the federal government in a U.S. District Court in Oregon. On November 10, Judge Ann Aiken decided in favor of the 21 plaintiffs and completely rejected all arguments to dismiss the case raised by the federal government and the fossil fuel industry (intervener-defendants), determining that the young plaintiffs’ constitutional and public trust claims could proceed to trial. As Judge Aiken wrote: “The government, as trustee, has a fiduciary duty to protect the trust assets from damage so that current and future trust beneficiaries will be able to enjoy the benefits of the trust.”
Juliana, 20, a plaintiff in both the federal lawsuit and the Oregon state lawsuit said:
“As a young person, I am fully aware of the consequences of climate change and I am seeking justice and aid from my state government – one that is elected to protect my interest, and the interest of all Oregonians. Oregon needs a scientifically viable climate recovery plan to reduce CO2 emissions. We need our government to work with the same amount of urgency and might that this climate catastrophe demands. Governor Kate Brown doesn’t dispute the threat of climate change, the current science, or that it is human-caused. But Oregon’s actions are still inadequate to protect my rights. Between this case and the landmark federal climate lawsuit I brought against the United States with my 20 co-plaintiffs, filed in federal court in Eugene, the world is looking to the state of Oregon to be a leader on climate justice. The time to be courageous and just is now.”
Plaintiffs know that their lives, and those of future generations, will be disproportionately impacted by the compounding effects of inadequate policies to address climate change. Juliana and Chernaik have spent five years in court fighting to have the State of Oregon recognize its public trust responsibilities and take the requisite actions to protect them and all Oregonians from catastrophic climate impacts. On Friday, they hope the Oregon Court of Appeals will recognize the important role it has to play in determining their futures and the safety of all Oregonians.
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Youth plaintiffs are represented by Crag Law Center and Liam Sherlock at Hutchinson, Cox, Coons, Orr & Sherlock, P.C. Kelsey and Olivia’s lawsuit was filed with the help of Our Children’s Trust.
Our Children’s Trust is a nonprofit organization, elevating the voice of youth, those with most to lose in the climate crisis, to secure the legal right to a healthy atmosphere and stable climate on behalf of present and future generations. We lead the global human rights and environmental justice campaign to implement enforceable science-based Climate Recovery Plans that will return atmospheric carbon dioxide concentration to levels below 350 ppm. Youth have secured judicial rulings in their favor in WA, NM and MA, and in their landmark U.S. federal climate lawsuit, and have multiple other cases pending. www.ourchildrenstrust.org/
Crag Law Center is a public interest law firm that provides legal aid for the environment to protect and sustain the natural legacy of the Pacific Northwest. www.crag.org
