Climate Change Litigation: Oregon Rejects Expansion of Public Trust Doctrine
On October 22, 2020, the Oregon Supreme Court rejected claims by youth climate activists seeking to expand the state’s public trust doctrine to address climate change. The court ruled that the state did not have an affirmative “fiduciary” obligation to undertake measures to reduce greenhouse gas (GHG) emissions to protect environmental resources, such as navigable waters, that are subject to the public trust doctrine.
In a 6–1 decision authored by Justice Lynn Nakamoto, the court declined to accept the plaintiffs’ invitation to either expand the boundaries of the public trust doctrine to accommodate additional resources or impose upon the state a heightened duty of protection for covered resources.
While the court left open the possibility that the doctrine could be expanded in the future, its decision, along with the Ninth Circuit’s recent rejection of similar claims by a similar group of plaintiffs, is a setback for efforts to employ the public trust doctrine to force action on climate change.
It remains to be seen whether the court would be receptive to public trust arguments involving damage claims for specific navigable waters protected by the trust, rather than plaintiffs’ abstract claims regarding damage to those resources generally arising from climate change.
Background – The Public Trust Doctrine
The public trust doctrine has roots in ancient Roman, Spanish, and English property law, which held that the Crown owned all submerged and tidal lands in trust for its subjects and that this trust relationship obliged the Crown to ensure that the public’s right to navigate these waters was not unreasonably impaired. After the American Revolutionary War, the Crown’s trust ownership of lands transferred to the former colonies, as well as new states as they entered the Union. In Oregon, as with many other states, the doctrine was expanded to include all navigable waters, not just tidal waters.
This once-obscure doctrine gained prominence in 1970 when legal scholar Joseph Sax published a highly influential law review article arguing that the doctrine should serve as a legal framework for courts to evaluate environmental issues. In recent years, this doctrine has been identified as a potential tool to fight climate change through the courts, as exemplified by the amicus brief filed by 107 law professors with the Oregon Supreme Court.
Chernaik v. Brown
Youth climate activists filed the lawsuit in 2011 against former governor John Kitzhaber. They sought declaratory relief that the public trust doctrine covers resources such as the atmosphere, wildlife, and fish. The plaintiffs also sought a ruling that Oregon, by failing to adequate regulate and reduce carbon dioxide emissions, had failed to uphold the fiduciary obligations imposed by the public trust doctrine. Their case was initially dismissed by Oregon’s lower courts on procedural grounds in 2012, but the Oregon Court of Appeals reversed and remanded in 2014, holding that the plaintiffs had a right to seek declaratory relief.
Once the State was required to address the substance of the plaintiffs’ claims on remand, it argued two main points: First, the public trust doctrine does not extend to the atmosphere, to non-navigable waters of the state, or to fish and wildlife. Second, unlike the duties associated with administering private trusts, the public trust doctrine does not impose fiduciary duties upon the state. The circuit court again granted the State’s motion to dismiss, and the case ultimately wound its way to the Oregon Supreme Court.
Justice Nakamoto distilled the case to two primary issues: (1) whether the public trust applies to natural resources beyond submerged and submersible lands and navigable waters; and (2) “whether the public trust doctrine imposes a fiduciary duty upon the state to protect trust resources from the negative impacts of climate change.”
The Scope of Protected Resources
The Oregon Supreme Court has previously held that the public trust doctrine covers all submerged and submersible lands as well as all navigable water. The court has not extended the doctrine to cover all waters of the state or to wildlife (although wildlife are protected by the “wildlife trust,” which is similar to, but distinct from, the public trust doctrine).
As the public trust doctrine is based in the common law, the court recognized that it is not fixed but “can be modified to reflect changes in society’s needs.” The court noted that previous expansions “all resulted from disputes involving a specific body of water and furthered the primary purpose of the doctrine—protecting the public’s right to use navigable waters for fishing and navigation.”
The plaintiffs proposed a two-pronged test to justify the expansion of the doctrine to additional resources—e.g., the atmosphere. Under the test, the doctrine would cover all resources that were (1) “not easily held or improved” and (2) “of great value to the public for uses such as commerce, navigation, hunting, and fisheries.” Rejecting the proposed test, the court noted that it had no “practical limitations” and that it was “difficult to conceive of a natural resource that would not satisfy [the test].” The court ruled that the plaintiffs had not established the legal basis for an expansion beyond its current limits to include protection of the atmosphere. The court also avoided articulating any test that could be used to expand the doctrine to cover additional natural resources.
A Narrow View of the Scope of State’s Duties as Trustee
Because submerged and submersible lands and navigable waters are trust resources, the court evaluated the scope of the state’s responsibilities for protecting those resources.
The plaintiffs argued that, as “trustee,” the state must act similarly to that of a trustee of a private trust, which includes a fiduciary duty to protect trust resources. The court recognized that the state and private trustees share certain responsibilities, including that it must satisfy the general standard of reasonableness. However, the court concluded that the state’s obligations do not encompass all the responsibilities of a private trustee and declined to find, “under the legal theory . . . articulate[d] in this case,” that “the state has fiduciary obligations under the public trust doctrine that require . . . [it to] protect public trust resources from the effects of climate change.”
Chief Justice Walters issued a long and impassioned dissent, concluding: “This court can and should issue a declaration that the state has an affirmative fiduciary duty to act reasonably to prevent substantial impairment of public trust resources.”
Broader Implications of Decision
The Oregon Supreme Court’s opinion is a setback to efforts to invoke the public trust doctrine as a basis for litigation seeking to limit GHG emissions. The court rejected key elements of this theory—that the public trust doctrine should be expanded to treat the atmosphere as a public trust resource and that the fiduciary obligations inherent in the public trust doctrine require the government to take affirmative measures to protect trust resources.
That said, the opinion expressly holds the door open for future litigation that might reach a different result, as the court did not “foreclose the possibility that the doctrine could expand to include other resources in the future” or “foreclose the possibility that the doctrine might be expanded in the future to include additional duties imposed on the state.” The court may be signaling that it would be receptive to a more refined and restrictive test than that proposed by the plaintiffs.
Furthermore, the court reasoned that, because the case did not involve claims of damage to specific navigable waters protected by the trust, but rather abstract claims regarding damage to those resources arising from climate change, it was inappropriate to issue any declaration requiring action by the state. Thus, if a plaintiff brought a subsequent suit alleging, for example, that the public trust doctrine covers a specific body of water damaged by the effects of climate change, the outcome could potentially be different.
In addition, while this case limits the public trust doctrine as legal basis for seeking to force action on climate change in Oregon, it does not foreclose other theories. For example, a number of public entities have asserted that energy companies are responsible for climate change under common law nuisance and similar theories. The U.S. Supreme Court is set to decide whether these cases should be heard in state or federal courts. Because those lawsuits are proceeding on different legal theories, the Oregon Supreme Court’s decision will not affect them.
Finally, earlier this year, Oregon’s Governor Kate Brown issued Executive Order No. 20-04 directing state agencies to take actions to reduce and regulate GHG emissions. The order directs actions to reduce GHG emissions in Oregon by at least 45 percent below 1990 emissions levels by 2035. The order directs further actions between 2035 and 2050 to reduce emissions by at least 80 percent below 1990 emissions levels by 2050. Details on the order are available here.