Oregon Youth Climate Case – Chernaik v. Brown
What's at Stake
The cornerstone of Chernaik v. Brown is that the state has a duty under the public trust doctrine to protect the atmosphere for the youth of today. They are calling on the courts to hold the other branches of government – and the generation that currently holds power – accountable for the dire situation they will otherwise pass on to our children. They are fighting for future Oregonians who don’t have a voice today, believing that everyone deserves clean air, clean water, and a healthy climate.
This case shares some features with Juliana v. U.S., the case brought by 21 youth against the U.S. government in the federal district court of Oregon. This case is distinct because it relies on Oregon’s laws and challenges the governor and the state’s failure to protect natural resources that all Oregonians depend on for our economy, recreation, and health.
The public trust doctrine adopted by the Oregon Supreme Court more than a century ago provides that the state holds certain natural resources in trust for the benefit of all Oregonians. For example, state waterways are held in trust for public uses such as navigation, recreation, and fisheries.
The state does not dispute that climate change is damaging Oregon’s natural resources and limiting the public’s use of those resources.
Although many Oregon cases have applied the public trust doctrine, the Oregon Supreme Court has never before been asked to declare whether that doctrine requires the state to protect shared resources from the destructive impacts of climate change.
Ollie and Kelsey are calling on the State of Oregon to develop and implement a climate recovery plan that puts Oregon on a path to a clean energy future. The Oregon Global Warming Commission has already developed many common sense solutions that can reduce greenhouse gas emissions and promote economic growth and green jobs. The solutions are at hand, we just need to act. The future of Oregon is at stake. We are proud to represent some the most passionate individuals in fighting for our state and our planet.
In 2011, we led the youths’ climate change lawsuit, which asked the state to take action in restoring the atmosphere to 350 ppm of carbon dioxide by the end of the century. The two youth plaintiffs were initially told by the Lane County Circuit Court that the court did not have jurisdiction, climate change should be left only to the legislative and executive branches, and their case was dismissed.
On June 10, 2014, the Oregon Court of Appeals overturned that decision, ruling that the children are entitled to their day in the court and ordering the lower court to declare their rights under the public trust doctrine.
Back before the circuit court, the judge once again ruled in favor of the state and against Kelsey and Ollie, questioning whether the atmosphere is a natural resource at all. Along with that, he also denied that water, fish, wildlife, beaches, shorelines are public trust resources. His opinion has come under heavy criticism, and we again sought review in the Oregon Court of Appeals.
In December 2016, we argued the case before the three-judge appellate panel, and on January 9, 2019, that court ruled that the common law public trust doctrine imposes no affirmative duty on the state to protect public trust resources like beaches, and declined to state which natural resources fall within the scope of the public trust, leaving the youth plaintiff’s questions unanswered.
In January 2019 the Court of Appeals issued a disappointing decision that would allow the state to sit back and allow the waters, wildlife, and other natural resources of the state to waste away in the face of climate change impacts. The court ruled that the common law public trust doctrine imposes no affirmative duty on the state to protect public trust resources like beaches. The court declined to state which natural resources fall within the scope of the public trust, leaving much of the youth plaintiffs’ questions unanswered.
In response to the most recent ruling by the Court of Appeals, youth plaintiff Ollie Chernaik said: “I am saddened to hear the decision that has been made. For almost a decade I have been part of this case, and I am upset that it has taken us so long to move through the courthouse on an issue that will not wait. I am upset that the government won’t preserve all of our resources for future generations. I am upset that the Court of Appeals ruled in our favor before, but has not done so again. This is one fight of many, victory isn’t impossible because of one loss.”
On May 23, 2019, the Oregon Supreme Court granted the youth plaintiffs’ request to review the January 2019 Court of Appeals decision. On July 31, 2019, Crag filed Kelsey and Ollie’s opening brief to the Supreme Court. The brief argues that the public trust doctrine is grounded in the people’s rights to shared essential natural resources and requires the state to protect those resources in trust for all Oregonians. Five other briefs from “friends of the court” were also filed in support of the youth’s case, representing Oregon legislators, Multnomah and Lane counties, businesses, conservation and justice organizations, faith groups, law professors, and the Oregon Trial Lawyers Association.
Courtney Johnson, Executive Director and Staff Attorney, argued the case in front of the Oregon Supreme Court in November, 13, 2019. The court was held at a local Portland high school, with hundreds of teenagers present. You can watch the argument here.
On October 22, 2020, the Oregon Supreme Court issued a divided ruling in which the Court agreed with the youth that navigable waters are subject to the public trust doctrine, but said the state has no affirmative duty to take care of its resources. In a powerful dissent, Chief Justice Martha Walters recognized the “ravages of climate change” and affirmed “the judicial branch has an important constitutional role to play and should declare the governing law.” Departing from the Supreme Court majority’s unwillingness to declare the law and duty of government at this urgent time of climate crisis, Justice Walters declared that “the time is now.”
Justice Walters said the courts “must not shrink from their obligation to enforce the rights of all persons to use and enjoy our invaluable public trust resources. How best to address climate change is a daunting question with which the legislative and executive branches of our state government must grapple. But that does not relieve our branch of its obligation to determine what the law requires.”
Justice Walters also soundly rejected the State’s separation of powers arguments (an issue not addressed by the majority) and said the State “confuses initial decisions about how to combat climate change — decisions only the legislative and executive branches can make — with a review of such decisions for their legality — a review that the judicial branch is charged to conduct.”
The Court left the door open for future claims. “The public trust doctrine in Oregon currently encompasses submerged and submersible lands underlying navigable waters and the navigable waters themselves. We do not foreclose the possibility that the doctrine could expand to include other resources in the future to include additional duties imposed on the state,” the ruling held.
“The dissenting opinion will one day be the majority opinion. But our climate, our waters, and our drying forests do not have years to wait. Children do not have years to wait. We are considering a petition for rehearing in light of the majority’s mischaracterization of our case and the errors of law addressed by the Chief Justice,” said Courtney Johnson, who represents the plaintiffs.
University of Oregon Law Professor Mary Wood, a public trust law expert, agrees with Johnson: “The dissent by Chief Justice Walters is written as a majority opinion. It clearly illuminates the constitutional duty of the courts to hold the political branches accountable — which is paramount before those branches walk this nation over the climate cliff. Justice Walters’ opinion will undoubtedly serve as a beacon to other judges nationwide, showing that the separation of powers principles requires a role for the court to compel the other branches of government to confront this existential climate threat before it is too late.”
Courtney Johnson is proudly leading our work on this case. Chris, our former Co-Executive Director, shared that “It has been an honor to work with Ollie and Kelsey to help elevate their voice. Our generation has a moral obligation to solve this problem on behalf of our kids and future generations. These youth are strong and courageous, and they are asking the courts to protect their futures where all other levels of government have failed.”
We would like to thank our partners in this work, including Ollie and Kelsey and their wonderfully supportive families. Former staff attorney Tanya Sanerib and former Co-Executive Director Chris Winter argued the case and invested untold hours in this issue. Liam Sherlock from Hutchinson, Cox, Coons, Orr & Sherlock, P.C. serves as co-counsel. The case is one of many related legal actions brought by youth in several states and countries, all supported by Our Children’s Trust, and all seeking science-based action by governments to stabilize the climate system. Our Children’s Trust also supports the climate lawsuit, Juliana v. United States, which was brought by 21 youth plaintiffs, including Chernaik v. Brown plaintiff Kelsey Juliana.