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Frustrated by the slow pace of progress on climate change policy, an Oregon-based environmental group is using a novel legal strategy called "atmospheric trust litigation" to try to force governments to take action. And the movement is being led those who have a high stake in the welfare of future generations -- students.
A crowd paraded recently outside the courthouse in Eugene, Oregon. Kids, teachers, parents … there were even singing grandmas. All hoping to draw attention to what this young woman was doing inside.
Your honor, I have counsel table with me this morning, this afternoon, Kelsey Juliana, one of the plaintiffs.
Kelsey Juliana is only 19 years old, but she's suing the State of Oregon, claiming it's not doing nearly enough to stop climate change and prevent the effects it will have on her generation and those to come.
If the state does not act now, we are facing irreversible, catastrophic crises.
Juliana – who delayed her first semester of college last fall to participate in a climate walk across the country – has been active on the issue for years.
I've been doing climate activism work since 5th grade. And, you know, that started with me, you know, getting my friends, my soccer team together and spending a day marching and holding up signs.
In 2011, Juliana and another plaintiff teamed up with a local environmental activist group, Our Children's Trust to file the lawsuit against the state. Juliana was just 15.
But it's not only her age that's drawn attention to this case …. It's also the legal approach that's being used. …. All started by university of Oregon law professor Mary Christina Wood about a decade ago.
MARY CHRISTINA WOOD:
It was really the moment when Hurricane Katrina hit and I recognized that climate crisis had not been addressed properly by government and the crisis was worsening with great urgency.
And environmental law had largely failed to address many of the most significant problems we face. So, to me, the Public Trust Doctrine was the logical response.
The Public Trust Doctrine is a legal theory that essentially says, government should hold certain natural resources in trust for the public. It can be traced back to ancient Roman law and English common law.
In the US, it's mostly been used to guarantee public access to waterways, and became part of American case law back in the 1890's in a Supreme Court ruling that private developers in Chicago couldn't prevent public access to Lake Michigan.
But in the 1970's, environmental lawyers began arguing that the Public Trust Doctrine should be extended to other resources, like wildlife or even the air – and that it should compel governments to protect these resources, too. And now, Professor Wood says, it should be extended to protect the atmosphere as well.
It obviously applies to the atmosphere because the atmosphere controls the climate system we all depend on for survival.
Wood thought, if the atmosphere could be considered a resource covered by the public trust doctrine, then maybe courts could force governments to take additional steps to reduce greenhouse gas emissions. She called her idea, "atmospheric trust litigation" and worked with well-known climate scientist James Hansen.
He says we need to reduce emissions by at least six percent a year … and proposed specific remedies like a carbon tax to help get there. Wood started giving talks about the plan … and eventually wrote a book.
The problem with climate is that there is mind-blowing urgency and we have now Nature's laws to contend with. And so, what atmospheric trust litigation asks is that government have a plan.
And so, I heard a talk that Mary Wood gave at the University of Oregon about using the Public Trust Doctrine to compel governments to protect our climate system for future generations…
Environmental attorney Julia Olson was so inspired that she decided to put Wood's ideas into practice. In 2010, she co-founded Our Children's Trust – the group that backed Juliana's case in Oregon.
But it's not just happening here – kids backed by the group have brought lawsuits against the federal government and in 14 other states, although the case in Oregon has gotten the furthest along. And the idea's catching on globally, too – similar lawsuits have been filed Ukraine, Uganda, the Philippines and the Netherlands.
It's all been done with the help of an army of attorneys and scientists working pro bono.
We're trying to spread the message that people everywhere, all over the world, hold these fundamental, inalienable rights to have their essential natural resources protected for themselves and for future generations, for their children and great-grandchildren.
Lawsuits, including the federal suit, have been dismissed. And while a couple of state judges have been receptive to the idea that the public trust could include the atmosphere, none has forced state governments to take action.
Richard Stewart is a professor of environmental law at New York University, and explained the plaintiffs in Oregon will have an uphill battle, too.
It's an interesting and intriguing idea, but– there are a number of problems. One, it goes way b– beyond what any state court has done thus far. Secondly– the atmosphere is global and greenhouse gases mix globally. So Oregon can by no means solve the problem, even the problem in Oregon.
The third problem is providing a remedy. And many courts in– there have been cases brought in other states that have said, "This is really for the political branches, this is beyond the capacity of the judiciary to manage."
In fact, the circuit court judge in Oregon originally tossed out Juliana's case on procedural grounds based on that very argument. But last year, an Oregon appeals court gave our children's trust one of its biggest wins so far: ordering the case back to the lower court for a decision on the merits.
Four years after the plaintiffs filed their lawsuit, they finally got their day in court, on April 7, here at the Lane County Circuit Court in Eugene.
People lined up 2 hours before the hearing to watch Kelsey Juliana's case against the state of Oregon. But interestingly, the state itself doesn't dispute many of the basic underlying facts of the case.
The State of Oregon agrees that climate change is a serious problem.
Paul Garrahan is an attorney with the Oregon Department of justice and was part of the state's legal team at the hearing. The state of Oregon for decades has been an environmental policy leader.
Oregon is already one of the lowest greenhouse gas emitters in the country, and is about to shut down its only coal-fired power plant. The state even has a global warming commission and is adopting a clean fuels program.
Garrahan says, the state shares many of the plaintiffs' goals, but using the public trust doctrine to sue in court isn't the right way to go about achieving them.
We think that as a fundamental issue of democratic government, those decisions should be made by the legislature and by the executive branch.
But the plaintiffs argue there's no time for a debate about the role of various branches of government, and point to a report issued by the state itself showing its proposed plans don't put it on track to achieve its own emissions goals.
The plaintiffs acknowledge that the state is taking lots of steps to address this, but they say it's just not enough.
Well, we agree that the state can do more. And we're aggressively pushing policies to do more.
Judges have said, "I'm a judge and it's not my job to tell democratically elected legislatures and state officials what to do." How do you overcome that?
It's actually pretty simple. So, we have three branches of government. It goes back to 5th grade civics. And one branch of government – the legislature doesn't get to both interpret the Constitution, write the laws, and then police themselves. That would be a real concentration of power in one branch of government. And so, what we're asking the court to do is do its job and interpreting our public trust rights and then also be the police on the legislature to determine whether it is upholding its duty to make laws that protect our rights.
You haven't gotten any state governments to do this. And other people have, you know, called this a bit of a stretch. Why keep going with this?
We haven't had a choice but to keep going and I think one of the important things for people to recognize is the urgency of the crisis. And it's only our generation that can deal with this problem and stop the irreversible impacts that we're causing.
Olson and her team at our children's trust aren't slowing down. They plan to file three more state lawsuits and another federal lawsuit…and new lawsuits are also expected in India and Pakistan. The judge in Oregon says he will make his ruling in the next couple of months.
I hope that the judge will rule in our favor. I hope that he will look me in the eye and understand that, you know, I am running out of time.
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