UPDATE: State judge rules against two Oregon teens in climate change lawsuit

The outcome of Kelsey Juliana and Olivia Chernaik's climate change lawsuit against the state hinges upon two fundamental questions, both of them loaded with nuance.

Is the air we breathe part of the public trust? And if so, is the state government failing in its obligation to ensure our air remains viable for future generations?

The two teens, both of Eugene, argue the answer to each question is "yes." They sued the state in 2011, claiming its failure to stay on track with its own greenhouse gas reduction goals constitutes a violation of the public trust doctrine.



The state disagrees.

In court proceedings Tuesday, a Lane County Circuit Court judge came one step closer to settling the matter.

Oregon's public trust doctrine holds all waterways and the land underneath them as a public resource to be maintained for current and future generations.

State officials have also used the doctrine in matters dealing with wildlife. Chernaik and Juliana argue the air, too, is a vital resource deserving government protection.

On Tuesday, after years of legal back-and-forth, lawyers for both sides argued their positions before Lane County Circuit Court Judge Karsten Rasmussen. Both sides have filed motions asking Rasmussen to rule in their favor without a trial.

Rasmussen said he expects to rule on the motions within one to two months.

The two teens are supported by Our Children's Trust, a Eugene-based group that treats greenhouse gas emissions as a threat to future generations. Our Children's Trust has launched legal challenges in states across the U.S., but the Oregon case is the first to gain real traction in the courts.

It has garnered national attention in part because Oregon's lawmakers have already recognized climate change as a threat and set goals to reduce the state's carbon footprint. The state is not on track to meet those goals.

"The state is violating my constitutional rights by sitting idly by, letting vital resources be exploited," 19-year-old Juliana said during an interview in her home Tuesday. "That's not just, and it's not ensuring my survival."

Tuesday's hearing was part legal process, part public spectacle. An hour before the courtroom opened, a large crowd gathered outside.

Dozens of children paraded around the courthouse, carrying signs in support of the two teens. Grandmothers stood near the entrance, singing a revised version of "You are My Sunshine," with verses tailored to fit environmental themes.

Judge Rasmussen irked demonstrators by announcing that no children would be allowed in the courtroom, nor in an overflow room set up to accommodate the large crowd. The decision was rolled back after the teens' lawyers protested, and six young children were permitted inside the courtroom.

"It's enormously disappointing for the young people who left school to come here and hear about their rights," Our Children's Trust executive director Julia Olson said. "It's their future that's really at stake, so they have more of a right to be here than you and me."

Inside the courthouse, the mood was all business.

Rasmussen appeared to lean toward siding with the state, at one point telling Assistant Attorney General Renee Stineman, "I'm making your argument for you."

The judge expressed hesitancy to wade into a debate on the scope of Oregon's public trust doctrine. He also expressed doubt that, if he found the air to be part of the public trust, the court could establish an acceptable level of carbon emissions (Chernaik and Juliana's lawyers have pegged it at 350 parts per million).

"You are asking a circuit court judge for the state of Oregon, for the County of Lane, to declare that number?" he asked Chernaik and Juliana's lawyer.

Further, he questioned how the two sides would identify the actions the state would take to reduce Oregon's carbon footprint, should he rule in the plaintiffs' favor.

Chris Winter, a lawyer with the Portland-based Crag Law Center representing the teens, asked the judge to limit his ruling to the question of whether the air is a public trust resource that the state must protect. Questions about how to protect it should come later, he said.

"We're asking the court to play an appropriate role as a check and balance on the other branches of government," Winter said. "We're not asking the court to create policy."

Juliana, who flew home from college in North Carolina to attend the hearing, referenced Oregon's drought to make her point.

Gov. Kate Brown on Monday declared drought-related emergencies in Crook, Harney and Klamath counties, bringing the total to five counties the state has recognized as direly drought-stricken. Additional declarations are expected after the Oregon Drought Council meets this week.

"This is directly related to climate change," Juliana said. "It's time our government became proactive and not wait for a state of emergency to do something."

-- Kelly House

khouse@oregonian.com

503-221-8178

@Kelly_M_House