WHAT DOES THE OREGON COURT CASE MEAN

Kelsey Cascade Rose Juliana et al. v. the United States of America—a title straight out of legal eco-fiction!  It’s actually a real life climate change challenge case in Federal court in Oregon.  The one line version of the case is that Oregon youth (and a few others) sued the United States Government for failing to protect them from the future impacts of climate change.

The youth argued that by failing to address climate change the government was depriving them of their constitutional rights to liberty and property without due process of law. To further support their case they evoked a “public trust” doctrine that the government had an obligation to treat the atmosphere and waters as resources held in trust for the public and were permitting their degradation by allowing extensive fossil fuel exploitation.  They further argued that younger people who would have to live with the destructive consequences of climate change were particularly harmed by this neglect.  In other words, the older generation is enjoying the benefits of “cheap” fossil fuel energy while passing its true cost through to those still living decades from now. By not taking appropriate action to mitigate GHG emissions and by positively supporting fossil fuel projects, the government is in effect enabling and encouraging this transfer of wealth  and wellbeing  from the  young to the old.  This, the claim states, is a deprivation of liberty and property without due process of law.

Because of the complexity of the case, the US District Judge assigned the case to a magistrate to make preliminary findings as to the US Government’s argument that the case should be dismissed. Various fossil fuel industry groups joined the Government in asking for the dismissal   The gist of the Government’s argument is that the public trust argument does not apply to the atmosphere and that in any event the case is inappropriate for judicial resolution as it impinges on the powers of the political arms which have in fact acted both legislatively (the Clean Air Act and through numerous Executive Branch steps.  It also questioned the constitutional claim of “substantive due process”  which has largely been marginalized as a legal argument for many decades. In April a US Magistrate ruled that the lawsuit should be able to go forward—that if the plaintiffs could prove what they alleged, they might have a case.  The defendants filed objections and the District Judge heard further arguments in mid-September.  We’ll see what happens.

In the meantime, new GHG regulations for power plants are in limbo in court, there is widespread doubt that the Paris climate accords will be fully implemented and even if they are, whether they will be enough to avert disaster.  One presidential candidate says climate change is a Chinese hoax, the other barely mentions it (meaning she will have no mandate).  So what recourse is there against the more and more certain danger of real, irreversible harm?