Court to climate change kids: Get off our lawn

The Oregon Supreme Court on Thursday refused to rock the boat when it comes to questioning the legality of politicians' and bureaucrats' actions, or rather their inaction, pertaining to the environment.

Granted, it was a long shot on the part of the people asking the questions. Some young people had sued, requesting the court to declare that the state has a duty to take care of the environment, and to declare that the state had failed in that duty, particularly as it affects climate.

The plaintiffs' theory was based on the public trust doctrine, whereby the state is deemed to be the trustee of public natural resources. The Supreme Court refused to extend the trust beyond navigable waters and associated submerged lands. Six of the seven judges ruled (the opinion is here) that although the public trust doctrine "can be modified to protect changes in the society's needs," they would not expand its scope to dry land, wildlife, or the atmosphere.

That decision let the state attorney general off the hook on a major inconsistency. In another case, involving the cleanup of pollution in the Portland harbor, the state had asserted in court that it is "the trustee of all natural resources – including land, water, wildlife, and habitat areas in trust for all Oregonians." I guess that applies only when it's convenient for the state. You can't hold them to it.

Limiting the public trust doctrine to water and submerged lands might have been enough to throw out the kids' case, I think, but the court said a couple of additional things that will horrify environmentalists and delight the other two branches of government. 

First, the opinion declared that although a line of cases establishes that the state is the public trustee over wildlife, that doesn't mean the state has any duty to protect and conserve the birds and the bees. The wildlife trust isn't really a trust, the court said; that's just a "metaphor." And so it works only in the state's favor, apparently. The public has no rights under it.

Finally, the court said that even as to navigable waters and associated submerged lands, the public trust doctrine isn't an actual trust, either. The rules that govern trustees and beneficiaries of "private" trusts don't apply. The only duty the state has as trustee over the waters and submerged lands is "to protect public trust resources for the benefit of the public use of navigable waters for navigation, recreation, commerce, and fisheries."

Wow. A slam dunk for the legislature and the state agencies. Maybe even more than the government lawyers asked for. That'll teach those young whippersnappers.

I feel sorry for the plaintiffs. I've been there, too, a whippersnapping loser.

Chief Justice Martha Walters (third from left in the official photo) wrote a thoughtful dissent, which, with $2.50 and a face mask, will get you on a Tri-Met bus. She would have ruled that the state does have an affirmative duty to prevent trust resources from being damaged or wasted. She also felt that the state must do more than just regulate the use of the trust assets and refrain from selling them off.

Justice Walters added that reviewing the state's actions and omissions as trustee wouldn't violate the separation of powers among the governmental branches. In fact, that sort of review may eventually be undertaken in an ongoing lawsuit (now nearly eight years old) regarding the general public's asserted right to jump into Oswego Lake, which the city down there considers private property. That litigation is still trying to determine whether the lake was navigable waters when Oregon became a state. If it was, then the question becomes whether the state is doing its duty to the public as trustee. 

That's a lot of if's. Don't buy a bathing suit just yet.

One of the young people in this week's Supreme Court case was part of a group that brought a similar lawsuit, which you might have read about, in federal court. That one got nowhere, either, although there's still a slim chance the Ninth Circuit court of appeals could rehear it, which would resuscitate it, at least for a while. 

If the planet goes to hell, don't expect much help from the folks in the black robes, even if they vote blue. They don't make waves too often any more.

UPDATE, later that day: An alert reader who follows these things more closely than I points out that the court did not say that it would never expand the public trust doctrine beyond its current narrow scope, just that it would not do so now. I would not hold my breath waiting for this group of justices ever to do that. He also informs me that the youthful plaintiffs in the state and federal lawsuits are essentially the same group. Thanks to him for the clarifications.


  1. Folks like Earl Warren and Bill Douglas don’t come along too often, about once in a lifetime.


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