October 2, 2019 03:19 PM
IN THE SUPREME COURT OF THE STATE OF OREGON ______
CHERNAIK, a minor and Lane County Circuit resident of Lane County, Oregon; Court No. 161109273 LISA CHERNAIK, guardian of Chernaik; a minor and CA A159826 resident of Lane County, Oregon; and CATIA guardian of SC S066564
Plaintiffs-Appellants, Petitioners on Review,
v.
KATE BROWN, in her official capacity as Governor of the State of Oregon; and STATE OF OREGON,
Defendants-Respondents, Respondents on Review. ______
BRIEF ON THE MERITS OF RESPONDENTS ON REVIEW, KATE BROWN AND STATE OF OREGON ______
Review of the Decision of the Court of Appeals on Appeal from a Judgment of the Circuit Court for Lane County Honorable KARSTEN H. RASMUSSEN, Judge ______
Opinion Filed: January 9, 2019 Author of Opinion: Armstrong, P. J. Before: Armstrong, Presiding Judge, and Shorr, Judge, and Garrett Judge pro tempore ______Continued… 10/19 WILLIAM H. SHERLOCK #903816 ELLEN F. ROSENBLUM #753239 Hutchinson Cox Coons, et al Attorney General P.O. Box 10886 BENJAMIN GUTMAN #160599 940 Willamette St., Ste. 400 Solicitor General Eugene, Oregon 97440 CARSON L. WHITEHEAD #105404 Telephone: (541) 686-9160 Assistant Attorney General Email: [email protected] 1162 Court St. NE Salem, Oregon 97301-4096 COURTNEY B. JOHNSON #077221 Telephone: (503) 378-4402 Crag Law Center Email: 3141 E Burnside St. [email protected] Portland, OR 97214 Telephone: (503) 525-2728 Attorneys for Respondents on Review Email: [email protected] ELISABETH A. HOLMES #120254 Attorneys for Petitioners on Review Blue River Law PC P.O. Box 293 COURTNEY LORDS #101249 Eugene, OR 97440 Multnomah County Attorney's Office Telephone: (541) 870-7722 501 SE Hawthorne Blvd., Ste. 500 Email: [email protected] Portland, OR 97214 Telephone: (503) 988-3138 Attorney for Amicus Curiae Email: [email protected] STEPHEN E. DINGLE #842077 Attorney for Amicus Curiae Lane County Office of Legal Counsel Lane County Courthouse KENNETH KAUFMANN #982672 125 E 8th Ave. Kenneth Kaufmann Attorney at Law Eugene, OR 97401 1785 Willamette Falls Dr., #5 Telephone: (541) 682-6561 West Linn, OR 97068 Email: [email protected] Telephone: (503) 230-7715 Email: [email protected] Attorney for Amicus Curiae
Attorney for Amicus Curiae
Continued… 10/19 TRAVIS EIVA #052440 CHARLES M. TEBBUTT #965790 Zemper Eiva Law LLC Law Offices of Charles M. Tebbutt 101 E Broadway, Ste. 303 941 Lawrence Eugene, OR 97401 Eugene, OR 97401 Telephone: (541) 636-7480 Telephone: (541) 344-3505 Email: [email protected] Email: [email protected]
Attorney for Amicus Curiae Attorney for Amicus Curiae
10/19 TABLE OF CONTENTS
INTRODUCTION ...... 1 FIRST QUESTION PRESENTED ...... 2 FIRST PROPOSED RULE OF LAW...... 2 SECOND QUESTION PRESENTED ...... 3 SECOND PROPOSED RULE OF LAW...... 3 BACKGROUND ...... 3 A. The state recognizes the threat posed by climate change and is taking steps to combat it, but needs to do more...... 3 B. The trial court and Court of Appeals hold that plaintiffs are not entitled to a judicial declaration that the state must do more to combat climate change...... 6 SUMMARY OF ARGUMENT...... 9 ARGUMENT...... 10 A. The state’s obligation to take action against climate change does not arise from the public trust doctrine...... 10 1. The public trust doctrine imposes narrow limits on state action and serves as a source of authority for state action...... 10 2. The public trust doctrine applies to navigable waters, not other state resources...... 15 a. Kramer rejects plaintiffs’ argument that the public trust doctrine applies to all waters...... 16 b. The cases do not incorporate fish and wildlife into an overarching trust doctrine and do not suggest that the state has affirmative duties regarding fish and wildlife...... 17 c. The state’s obligation to protect the atmosphere does not derive from the public trust doctrine...... 18 B. The constitutional separation of powers forbids creating a judicially enforceable obligation to take affirmative action in this context...... 21 1. Under Oregon’s Constitution, climate policy choices must be made by the legislative and executive
i branches, and by the people through their initiative powers...... 22 2. The public trust doctrine does not provide a judicially manageable standard for reviewing the policy choices of the legislative and executive branches on climate change...... 26 3. If the executive and legislative branches fail to fulfill their responsibilities to act on climate change, the proper remedy is political rather than judicial...... 29 CONCLUSION...... 32
TABLE OF AUTHORITIES
Cases Cited Anthony v. Veatch, 189 Or 462, 220 P2d 493 (1950)...... 18 Aronow v. Minnesota, No. A12-0585, 2012 WL 4476642 (Minn Ct App Oct. 1, 2012)...... 19 Chernaik v. Brown, 295 Or App 584, 436 P3d 26 (2019)...... 8, 9, 15 Chernaik v. Kitzhaber, 263 Or App 463, 328 P3d 799 (2014)...... 7 Cook v. Dabney, 70 Or 529, 139 P 721 (1914)...... 12 Corvallis & Eastern R. Co. v. Benson, 61 Or 359, 121 P 418 (1912)...... 12 Filippone v. Iowa Department of Natural Resources, No. 12-0444, 2013 WL 988627 (Iowa Ct App Mar 13, 2013) ...... 19 Haugen v. Kitzhaber, 353 Or 715, 306 P3d 592 (2013)...... 23 Illinois Central Railroad v. Illinois, 146 US 387, 13 S Ct 110, 36 L Ed 1018 (1892) ...... 12, 13, 14, 18 Juliana v. United States, 217 F Supp 3d 1224 (D Or 2016)...... 11
ii Kramer v. City of Lake Oswego, 365 Or 422, 446 P3d 1 (2019)...... 10, 11, 12, 13, 15, 16, 17, 20, 26 MacPherson v. Dept. of Admin. Servs., 340 Or 117, 130 P3d 308, (2006)...... 23 Morse v. Oregon Division of State Lands, 31 Or App 1309, 572 P2d 1075 (1977), affirmed on other grounds, 285 Or 197, 590 P2d 709 (1979)...... 20 Morse v. Oregon Division of State Lands, 285 Or 197, 590 P2d 709 (1979)...... 12, 18, 28 Putnam v. Norblad, 134 Or 433, 293 P 940 (1930)...... 23, 28 Rowe v. Rowe et al., 219 Or 599, 347 P2d 968 (1959)...... 13 Sanders-Reed v. Martinez, 350 P3d 1221 (NM Ct App 2015)...... 19 State ex rel. Nilsen v. Whited, 239 Or 149, 396 P2d 758 (1964)...... 28 State of Oregon v. Monsanto Co., et al., Multnomah Co. Circuit Court No. 18-cv-00540...... 21 State v. Dickerson, 356 Or 822, 345 P3d 447 (2015)...... 17, 18 State v. Rogers, 330 Or 282, 4 P3d 1261 (2000)...... 27 Winston Bros. Co. v. State Tax Com., 156 Or 505, 62 P2d 7 (1936)...... 11 Yancy v. Shatzer, 337 Or 345, 97 P3d 1161 (2004), abrogated on other grounds by Couey v. Atkins, 357 Or 460, 355 P3d 866 (2015)...... 22
Constitutional & Statutory Provisions Or Const, Art III, § 1...... 22, 25 ORS 340-223-0030(1)(e)...... 4 ORS 455.511...... 4
iii ORS 468A.200(1) ...... 3 ORS 468A.200(3) ...... 4 ORS 468A.205...... 24, 25 ORS 468A.205(1) ...... 4, 5 ORS 468A.215...... 4 ORS 537.110...... 16 ORS chs. 469, 469A ...... 4
Admistrative Rules OAR 340-253-0000 ...... 4 OAR 340-257-0010 ...... 4
Other Authorities Executive Order 17-20...... 5, 25 Executive Order 17-21...... 5, 25 House Bill 2017 ...... 5 House Bill 2020 (2019)...... 5, 24, 30 Office of the Governor, Oregon Climate Agenda, November 28, 2018, available at https://www.oregon.gov/gov/Documents/Governor%20Kate%20Brown% 20Climate%20Agenda.pdf (last accessed Sept 30, 2019)...... 5 Overview of House Bill 2020 (2019), Oregon Legislative Information System, available at https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/HB2020 (last accessed Sept 30, 2019)...... 6 Restatement (Third) of Trusts § 87 (2007) ...... 27 Senate Bill 1547 (2016) ...... 5
iv BRIEF ON THE MERITS OF RESPONDENTS ON REVIEW, KATE BROWN AND STATE OF OREGON ______
INTRODUCTION Oregon has long recognized the devastating effects that climate change, if unchecked, will have on our state and its residents. Though more is required, the state has taken initial actions to curb greenhouse gas emissions, and to prepare for the harmful effects of a warming planet. The defendants in this lawsuit—Governor Brown and the state—agree with plaintiffs, and other young people worldwide, that governments have an urgent, moral obligation to take decisive steps to combat climate change. Meaningful policies to improve the state’s response to the threat continue to be at the top of the legislative agenda. And the Governor is committed to using the authority she has to reduce carbon emissions
That action, however, must come from the legislative and executive branches. In our constitutional democracy, the courts do not have the authority to compel the legislative and executive branches to act on the moral imperative to take action. Oregon’s Constitution and laws provide the mechanisms for tackling climate change: lawmaking by the legislature, executive action by the
Governor and agencies, and direct action by citizens through the initiative process. Should the political branches of government fail to take appropriate action, the remedy is through the political process, not through judicial 2 intervention. Ultimately, the people of Oregon can—and should—hold their elected representatives accountable on climate policy issues, at the ballot box and via the citizen initiative process.
Plaintiffs argue that the courts can dictate the state’s response to climate change—and compel different and additional action by the legislative and executive branches—under the common law public trust doctrine. But that doctrine has never been understood to give the courts authority to prescribe environmental policy to the legislative and executive branches. Expanding the doctrine as plaintiffs suggest would give power to the courts that is constitutionally vested in the legislature, the Governor, and the people. Simply put, although plaintiffs are right to demand action on climate change, the public trust doctrine is not the right mechanism for tackling these important issues.
FIRST QUESTION PRESENTED Does the public trust doctrine impose affirmative, fiduciary duties on the state that can be enforced in court?
FIRST PROPOSED RULE OF LAW No. The public trust doctrine grants the state authority to regulate certain waterways to protect the public’s interest, and prohibits the state from taking actions that would permanently impair the public’s interest in those waterways.
It does not impose affirmative, fiduciary obligations like those attaching to an ordinary trust. 3
SECOND QUESTION PRESENTED Does the public trust doctrine apply to the atmosphere and other natural resources like fish and wildlife?
SECOND PROPOSED RULE OF LAW No. The public trust doctrine applies to submerged and submersible lands and the overlying water for title-navigable waterways. Any authority or responsibilities the state may have with respect to other natural resources derive from legal sources separate from the public trust doctrine.
BACKGROUND The impacts of climate change in Oregon and around the globe are serious and undeniable, and those impacts demand action by the state. As explained below, the state has taken initial steps to combat climate change.
Further action is being considered by the state, through legislation and executive action.
A. The state recognizes the threat posed by climate change and is taking steps to combat it, but needs to do more. Oregon’s legislative and executive branches have long recognized the need to take action on climate change. In 2004, the Governor’s Advisory
Group on Global Warming issued a report calling for “immediate and significant action” to address the effects of, prepare for, and reduce Oregon’s exposure to the risks of global warming. ORS 468A.200(1). Soon thereafter the legislature, recognizing that climate change “poses a serious threat to the 4 economic well-being, public health, natural resources and environment of
Oregon,” created the Oregon Global Warming Commission to recommend ways to reduce the emission of greenhouse gases. ORS 468A.200(3),
468A.215.
The legislature also set concrete goals for state action on greenhouse gas emissions: arrest the growth of emissions by 2010, reduce them at least 10% below 1990 levels by 2020, and reduce them at least 75% below 1990 levels by
2050. ORS 468A.205(1). To achieve those goals, the legislature and the executive branches have, among other steps, taken action to reduce emissions from electricity generation and motor vehicles—two of the most significant sources of emissions—and to increase energy efficiency for buildings and consumer products. See, e.g., ORS chs. 469, 469A (reduced emissions from electricity generation and natural gas); ORS 455.511 (increased energy efficiency); OAR 340-257-0010 et seq. (Low Emission Vehicle Program);
OAR 340-253-0000 et seq. (Clean Fuels Program); ORS 340-223-0030(1)(e)
(closure of the Boardman coal-fired power plant in 2020).
Those actions have made a significant difference, but they are not enough. The state “met its 2010 greenhouse gas reduction goal, having arrested the growth of greenhouse gas emissions.” (TCF 54). But it is not on track to meet its 2020 and 2050 greenhouse gas reduction goals; further efforts must be made if Oregon is to meet those goals. Id. 5
The legislature and the executive branches have continued to make those efforts. For example, in 2016, the legislature enacted Senate Bill 1547, which
(among other provisions) required electric companies in Oregon to stop using electricity generated by coal-fired power plants in other states; and in 2017, the legislature enacted House Bill 2017, which, among other things, expanded the
Clean Fuels Program. Similarly, the Governor issued executive orders in 2017 to reduce greenhouse gas emissions from Oregon’s buildings and to promote electric vehicles. Executive Order 17-20; Executive Order 17-21. More recently, the Governor issued a detailed climate agenda for reducing the state’s carbon emissions while maintaining a healthy economy. Office of the
Governor, Oregon Climate Agenda, November 28, 2018, available at https://www.oregon.gov/gov/Documents/Governor%20Kate%20Brown%20Cli mate%20Agenda.pdf (last accessed Sept 30, 2019).
Earlier this year the legislature devoted considerable time and attention to
House Bill 2020, which would have established a comprehensive cap-and-trade program for greenhouse gas emissions, while making the emissions targets of
ORS 468A.205(1) even more stringent. HB 2020 (2019). That legislation— which would have made Oregon only the second state in the nation with a cap- and-trade program—passed the House and made it through a second reading on the Senate floor. See Overview of House Bill 2020 (2019), Oregon Legislative
Information System, available at 6 https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/HB2020 (last accessed Sept 30, 2019). Similar legislation appears likely to be introduced during the next legislative session, and the Governor is exploring options for using her executive authority on climate.
B. The trial court and Court of Appeals hold that plaintiffs are not entitled to a judicial declaration that the state must do more to combat climate change. In 2011, plaintiffs filed this action against the State of Oregon and
Governor John Kitzhaber, in his official capacity,1 seeking declaratory and injunctive relief to remedy the state’s alleged failure to take sufficient action to protect Oregonians from climate change. They requested declarations that the atmosphere and other resources are protected by the common law public trust doctrine, that the state has a “fiduciary obligation” to protect those resources from the impacts of climate change, that the state has failed to uphold its fiduciary obligation to protect trust resources “by failing adequately to regulate and reduce carbon dioxide emissions,” and that “the best available science requires carbon dioxide emissions to peak in 2012 and be reduced by at least six per cent each year until at least 2050.” (TCF 640-41). Plaintiffs also sought injunctive relief to require the state to prepare an annual accounting of Oregon’s carbon dioxide emissions, to require the state “to develop and implement a
1 Governor Kate Brown was substituted as a defendant in her official capacity after she assumed the governorship in February 2015. 7 carbon reduction plan that will protect trust assets by abiding by the best available science,” and ongoing court supervision to monitor the state’s compliance. Id.
The state moved to dismiss the complaint on jurisdictional grounds. By agreement of the parties, the motion to dismiss did not address the merits of plaintiffs’ claims about the scope of the public trust doctrine. The trial court granted the state’s motion, concluding that plaintiffs’ requested relief exceeded the court’s authority under Oregon’s Declaratory Judgment Act and that plaintiffs’ requested relief would violate the separation of powers and political question doctrines. See Chernaik v. Kitzhaber, 263 Or App 463, 471,
328 P3d 799 (2014) (“Chernaik I”).
Plaintiffs appealed and the Court of Appeals reversed, ruling that at least part of plaintiffs’ request for declaratory relief was justiciable and that the trial court must issue two “bare” declarations regarding the scope of the public trust doctrine. Specifically, the court held that on remand the trial court must declare whether the atmosphere and other resources are subject to the public trust doctrine and whether the state has a “fiduciary obligation” to protect those resources from the “impacts of climate change.” Chernaik I, 263 Or App at 479
(quoting plaintiffs’ amended complaint).
On remand, the parties filed cross-motions for summary judgment. In their motion for partial summary judgment, plaintiffs sought a declaration that 8 the state “has a fiduciary obligation to manage the atmosphere, water resources, navigable waters, submerged and submersible lands, shorelands and coastal areas, wildlife and fish as public trust assets, and to protect them from substantial impairment caused by the emissions of greenhouse gases.”
Chernaik v. Brown, 295 Or App 584, 590, 436 P3d 26 (2019) (“Chernaik II”).
Plaintiff also sought declarations that “atmospheric concentrations of carbon dioxide (CO2) exceeding 350 parts per million (ppm) constitutes substantial impairment” of trust resources and that the state had violated its fiduciary obligations by failing to reduce carbon emissions in Oregon in a way that would meet the goal of 350 ppm by 2100. Id. The state asked the trial court to declare that the public trust doctrine does not “extend to the atmosphere” and does not impose fiduciary duties like “the particular affirmative actions associated with traditional legal trusts.” Id. at 591.
The trial court granted the state’s motion for summary judgment and denied plaintiffs’ motion for partial summary judgment. (ER 4-22). The court declared that the public trust doctrine encompasses only the submerged and submersible lands that the state received pursuant to the equal footing doctrine.
(ER 11-15). As to those resources, the trial court held that the public trust doctrine acts as a restraint on alienating submerged and submersible lands but does not impose an affirmative, fiduciary obligation on the state to protect those lands from climate change. (ER 15-17). 9
The Court of Appeals affirmed. The court did not reach the issue of what resources were protected by the public trust doctrine. Rather, the court concluded that the public trust doctrine, as described in this court’s cases, did not impose “fiduciary duties on the state to affirmatively act to protect public- trust resources from the effects of climate change.” Chernaik II, 295 Or at 600.
This court subsequently allowed review.
SUMMARY OF ARGUMENT This case presents this court with a discrete legal issue that nonetheless has enormous implications for constitutional separation of powers. Contrary to plaintiffs’ arguments, the common law public trust doctrine does not require the state to take affirmative action to prevent climate change. The doctrine applies only to title-navigable waters and operates as a restraint on state action and as a source of authority for state action. The doctrine has never been used to compel state action or to review the adequacy of state policy choices.
Plaintiffs’ approach would convert judges into policymakers, conducting open-ended review of climate policy choices made by the legislative and executive branches to determine whether they are sufficient to address the threat of global warming. That approach is inconsistent with our state’s constitutional design. Oregon’s Constitution and laws provide the mechanisms for tackling climate change in our state: lawmaking by the legislature, executive action by the Governor and agencies, and direct action by citizens through the initiative 10 process. Allowing judges to make climate policy choices instead would upend our constitutional order.
The need to take further action on climate change is urgent, but that need must be met through the political branches of government or through the people exercising their initiative power. The public trust doctrine does not permit the court to circumvent those political processes and set state climate policy. For that reason, this court should affirm.
ARGUMENT
A. The state’s obligation to take action against climate change does not arise from the public trust doctrine. The state recognizes that it—and other governments—must take decisive action to fight the existential threat of a dramatically warming planet. Under
Oregon’s Constitution, the legislative and executive branches have policymaking tools to fight climate change, and the people also have the right to set climate policy or demand legislative action through citizen initiatives. The common law public trust doctrine does not authorize courts to usurp those constitutionally prescribed roles.
1. The public trust doctrine imposes narrow limits on state action and serves as a source of authority for state action. The public trust doctrine is a creature of common law. Kramer v. City of
Lake Oswego, 365 Or 422, 430-32, 446 P3d 1 (2019) (describing the common law origins of the doctrine). None of Oregon’s cases connect the doctrine to 11 any provision of the Oregon Constitution, and plaintiffs do not argue that doctrine derives from the Oregon Constitution.2 The cases describe the state’s trust responsibilities as an attribute of its sovereignty, one that arises out of its ownership of title-navigable waters, which are the waterways and underlying lands that passed to the state upon admission to the Union.3 In that capacity,
“the state represents the people, and the ownership is that of the people in their united sovereignty, while the waters themselves remain public so that all persons may use the same for navigation and fishing.” Id. at 438 (quoting
Winston Bros. Co. v. State Tax Com., 156 Or 505, 511, 62 P2d 7 (1936)).
The state’s ownership of navigable waters is subject to the people’s right to use that land and the overlying waters for specified public uses, including
2 In Juliana v. United States, 217 F Supp 3d 1224 (D Or 2016), currently pending in the Ninth Circuit, the plaintiffs raised claims under the public trust doctrine against the federal government for failure to protect the trust resources from climate change. The claims in Juliana, however, are based on a substantive due process theory under the federal Constitution. Id. at 1233. Plaintiffs here have not argued that the state has violated federal law.
3 Although federal law determines what navigable waters passed to the state at the time of statehood under the equal footing doctrine, the scope of the public trust doctrine and the duties it imposes is primarily a question of state law. Kramer, 365 Or at 431-32, 437. As Kramer notes, federal law “suggests that some fundamental principles may set a floor for the state’s management of public trust waters.” 365 Or at 437 n 13, citing Illinois Central Railroad v. Illinois, 146 US 387, 13 S Ct 110, 36 L Ed 1018 (1892). In Illinois Central, the Court asserted that the state can “no more abdicate” its trust responsibilities by leaving navigable waters “entirely under the use and control of private parties” than it can “abdicate its police powers in the administration of government.” 146 US at 453. 12 navigation, fishing, commerce, and recreation. Morse v. Oregon Division of
State Lands, 285 Or 197, 201-02, 590 P2d 709 (1979) (discussing the doctrine and noting the “bellwether” federal case, Illinois Central Railroad v. Illinois,
146 US 387, 13 S Ct 110, 36 L Ed 1018 (1892)); Cook v. Dabney, 70 Or 529,
532, 139 P 721 (1914) (“[U]pon the admission of the state into the Union it was vested with the title to the lands under navigable waters, subject, however, at all times to the rights of navigation and fishery.”). The doctrine prevents the state from alienating trust property in a way that would substantially impair the public’s interest and from otherwise divesting itself of the authority to protect the public’s interest in those specified uses of the trust resources. See, e.g.,
Morse, 285 Or at 202-03 (state may issue permit to fill a portion of Coos Bay when fill did not materially interfere with public use); Corvallis & Eastern R.
Co. v. Benson, 61 Or 359, 369-74, 121 P 418 (1912) (state may alienate rights in tidelands but retains authority to prevent any use that will materially interfere with navigation or commerce). As Kramer held, the public trust doctrine can be enforced against the state when it has taken action that unreasonably interferes with the public’s right to use navigable waters. 365 Or at 447.
No Oregon court has invoked the public trust doctrine to impose an affirmative duty on the state or to require the state to take a particular action at the behest of a private litigant. Rather, Oregon cases applying the public trust doctrine have concerned (1) the state’s ability to alienate the bed of a title- 13 navigable waterway and (2) the state’s regulatory authority over uses of title- navigable waterways.
This court’s opinion in Kramer, which was issued after plaintiffs filed their opening brief, supports the conclusion that the public trust doctrine does not impose affirmative, fiduciary duties on the state. The issue in Kramer was whether a city resolution prohibiting access to Oswego Lake from city parks violated the public trust doctrine. This court held that the public trust doctrine grants a right of access to public waters from adjoining public land and that
“rules interfering with the exercise of that right must be objectively ‘reasonable’ in light of the ‘purpose of the trust and circumstances of each case.’” Kramer,
365 Or at 447 (quoting Rowe v. Rowe et al., 219 Or 599, 604, 347 P2d 968
(1959)). But Kramer also makes it clear that the prior public trust cases “have not mandated specific requirements or prohibitions to govern the state’s management of waters it holds in trust.” 365 Or at 446.
Kramer’s holding is rooted in the public trust doctrine being a restriction on state action that curtails the public’s use rights. Because the state took title to navigable waters subject to the public’s paramount right to use the waters, the state lacks the authority to unreasonably restrict those rights. As the
Supreme Court explained in Illinois Central Railroad v. Illinois, 146 US 387,
456, 13 S Ct 110, 36 L Ed 1018 (1892), the state’s inability to alienate the public’s right to use navigable waters “follows necessarily from the public 14 character of the property, being held by the whole people for purposes in which the whole people are interested.” Essentially, the state cannot eliminate the public’s use rights by granting them to a private party any more than the state could grant away its police powers, because neither action would be within “the legislative power.” Id. at 453.
But none of the cases suggest that the public trust doctrine can compel an exercise of the “legislative power” in the first instance, much less allow the judicial branch to prescribe what such legislation should entail. As noted,
Illinois Central used the state’s police powers as a reference point for discussing the state’s ability to alienate trust property. As to the state’s police powers, the Court noted that the state can delegate them but always retains the
“right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes.” Id. at 453-54. The restraint on alienation of navigable waters is similar: “they cannot be placed entirely beyond the direction and control of the State.” Id. at 454.
The public trust doctrine, then, operates as a negative restraint on state action, based on the nature of the state’s ownership. A court has the power to prohibit state action that would unreasonably restrict the public’s rights. But the doctrine does not permit a court to compel state action. 15
2. The public trust doctrine applies to navigable waters, not other state resources. In addition to a declaration that the public trust doctrine imposes affirmative duties on the state, plaintiffs also seek a declaration that the doctrine extends to most natural resources, including all waters, fish and wildlife, and the atmosphere. The Court of Appeals did not reach the scope of the resources subject to the public trust doctrine because it concluded that the state had no affirmative, fiduciary duties to combat climate change, regardless of the resource. Chernaik II, 295 Or App at 600. Although this court could do the same, if it does address the question it should conclude that the public trust doctrine applies only to title-navigable waterways and their underlying lands.
No Oregon court has extended the scope of the public trust doctrine beyond navigable waters and the underlying land that the state acquired under the equal footing doctrine. The state’s duties under the public trust doctrine stem from the public’s paramount right to use of navigable waters for particular purposes. The public’s rights and the state’s duties with regard to other resources—other waters, fish and wildlife, and the atmosphere—are distinct and do not originate in the public trust doctrine, as explained below. First, the public’s rights in privately owned waterways are not governed by the public trust doctrine. Kramer, 365 Or at 432-33. Second, although this court has described the state’s ownership of fish and wildlife in terms of trust law, the 16 cases do not incorporate those resources into a single overarching doctrine.
Lastly, no case has extended the public trust doctrine to apply to the atmosphere. Nor has any statute or constitutional provision expanded the public trust doctrine to encompass all waters of the state, fish and wildlife, or the atmosphere, as plaintiffs propose.
a. Kramer rejects plaintiffs’ argument that the public trust doctrine applies to all waters. The plaintiffs in Kramer, like the plaintiffs here, argued that the public trust doctrine was an overarching legal theory that governed the public’s rights to use of waters on public and on private land. This court rejected that argument and concluded that the public trust doctrine did not apply to waters where the underlying land remains privately owned. Kramer, 365 Or at 433.
The public’s rights in private waters were governed by the public use doctrine.
Although the public has a “paramount right to the use of the waters” under either doctrine, the public use doctrine did not grant a right of access from the adjoining uplands, as the plaintiffs asserted. Id. at 436.
Kramer shows that the public’s paramount right to use an essential resource does not imply that the resource falls within the common law public trust doctrine. That is the case even when the resource, like water, is owned by the public. See ORS 537.110 (declaring that “[a]ll water within the state from all sources of water supply belongs to the public”). In light of Kramer, this 17 court should reject plaintiffs’ argument and adhere to the previous case law that treats the public trust doctrine as a distinct and limited legal theory.
b. The cases do not incorporate fish and wildlife into an overarching trust doctrine and do not suggest that the state has affirmative duties regarding fish and wildlife. As this court noted in Kramer, Oregon courts have long used the metaphor of a trust to describe the state’s ownership of and relationship to fish and wildlife. 365 Or at 437 n 12. In State v. Dickerson, 356 Or 822, 345 P3d
447 (2015), for example, this court engaged in a detailed examination of the state’s sovereign interest in wildlife, referring to that interest as the “wildlife trust doctrine” and canvasing the cases discussing that doctrine. Id. at 834. The court concluded
Although the trust metaphor is an imperfect one (for example, there is no trust instrument that delineates the terms of the trust), the state’s powers and duties with respect to wildlife have many of the traditional attributes of a trustee’s duties. Acting as a trustee, the state has the authority to manage and preserve wildlife resources and may seek compensation for damages to the trust corpus.
Id. at 835.
But recognizing that the concept of a trust may be a useful “metaphor” to describe the state’s relationship with its wildlife, id., does not suggest that the common law public trust doctrine covers wildlife. This court’s cases have not considered fish and wildlife to be part of an overarching public trust doctrine, as plaintiffs suggest. Dickerson does not mention the public trust doctrine and did 18 not cite Oregon cases discussing the doctrine, such as Morse. Nor did
Dickerson cite Illinois Central, or other federal case law concerning the doctrine.
More importantly, none of the cases discussing fish and wildlife have imposed an affirmative, fiduciary duty on the state. Rather, the cases have emphasized that the state, as trustee, has the authority to regulate private taking of fish and wildlife. For example, in Anthony v. Veatch, 189 Or 462, 474, 220
P2d 493 (1950), this court concluded, “The right of the state, either in the exercise of its police power, or in its sovereign capacity in trust for its people, to regulate and even to prohibit the capture of fish in navigable waters within its borders, has been asserted by this court, and is sustained by the weight of authority.” As noted, Dickerson also concluded that the state, as trustee, “has the authority to manage and preserve wildlife resources.” 356 Or at 865. In short, even if this court concluded that fish and wildlife were part of an overarching trust doctrine, that doctrine does not impose affirmative, fiduciary duties on the state.
c. The state’s obligation to protect the atmosphere does not derive from the public trust doctrine. Plaintiffs acknowledge that no Oregon court has extended the public trust doctrine to include the atmosphere. (Pet BOM at 20). Plaintiffs argue that this court should extend the doctrine to include the atmosphere because the 19 atmosphere, like water and wildlife, is an essential public resource that is not
“easily held or improved.” This court—like other courts that have addressed this issue4—should conclude that the public trust doctrine does not apply to the atmosphere.
The atmosphere is fundamentally different from navigable waters as a resource. As noted, the state holds title to the beds and banks of navigable waters, and its public trust duties arise out of its ownership. The state does not, and cannot, own the atmosphere. Although airspace may be subject to ownership, the air itself is not. Fish and wildlife, though not subject to the public trust doctrine, are corporeal assets that can be reduced to physical possession and thus can sensibly be analogized to property held in trust. The atmosphere cannot.
The atmosphere has no geographical or jurisdictional boundaries. Carbon emissions anywhere in the world affect the atmosphere equally. And an
4 Courts around the country have uniformly rejected efforts to make the atmosphere subject to the public trust doctrine. See, e.g., Sanders-Reed v. Martinez, 350 P3d 1221, 1225 (NM Ct App 2015) (“Plaintiffs have cited no cases—and we have found none—where another jurisdiction’s appellate court has concluded that common law public trust principles independently apply to management of the atmosphere.”); Filippone v. Iowa Department of Natural Resources, No. 12-0444, 2013 WL 988627, at *3 (Iowa Ct App Mar 13, 2013) (holding that the defendant “does not have a duty under the public trust doctrine to restrict greenhouse gases to protect the atmosphere”); Aronow v. Minnesota, No. A12-0585, 2012 WL 4476642, at *3 (Minn Ct App Oct. 1, 2012) (explaining that “no Minnesota appellate court has held that the public-trust doctrine applies to the atmosphere”). 20 individual’s right to “use” the atmosphere—as a key resource for sustaining the
Earth’s other natural resources—is not tethered to a particular location or a discrete purpose. By contrast, this court’s cases addressing the public trust doctrine all concern the public’s right to use waterways at particular locations for particular purposes. The same is true for the fish and wildlife cases, which concern the right to take wild animals. The atmosphere, as a transitory and unbounded resource, is not connected to the basic concerns that underlie the court’s public trust cases or wildlife cases.
Plaintiffs’ request to incorporate the atmosphere into the public trust doctrine is also inconsistent with how Oregon courts have modified the doctrine previously. When the courts have expanded the public trust doctrine, they have done so in modest, incremental ways that are rooted in the doctrine’s history.
The Court of Appeals expanded the public trust doctrine to include recreation as a use of title-navigable waterways. See Morse v. Oregon Division of State
Lands, 31 Or App 1309, 1311, 572 P2d 1075 (1977), affirmed on other grounds, 285 Or 197, 590 P2d 709 (1979). In Kramer, this court held that the doctrine includes a right of access from public land to public water and extended the doctrine to apply to actions by local governments. 365 Or at 449.
Those expansions of the doctrine were firmly rooted in its history: the rights of the public to use title-navigable waterways and the state’s obligation to protect those uses, both of which follow from the state’s acquisition of the title- 21 navigable waters at statehood. The atmosphere does not share that history.
Adding it to the public trust doctrine would be an aberration in this court’s cases, not an extension.
This court should reject plaintiffs’ argument and hold that the public trust doctrine is limited to title-navigable waterways and does not impose affirmative, fiduciary duties to take action.5
B. The constitutional separation of powers forbids creating a judicially enforceable obligation to take affirmative action in this context. Plaintiffs ask this court to expand dramatically the scope of the public trust doctrine and to hold that the state has a judicially enforceable duty to take action. But that view of the doctrine is fundamentally inconsistent with the constitutional separation of powers. The Oregon Constitution does not grant to the judicial branch the power to set statewide climate policy or to substitute its
5 Plaintiffs devote several pages of their brief to an argument that the state has taken a contradictory view of the public trust doctrine in a complaint filed by the state in State of Oregon v. Monsanto Co., et al., Multnomah Co. Circuit Court No. 18-cv-00540. Plaintiffs assert that certain statements in that complaint are inconsistent with the state’s arguments in this case. Accordingly, in plaintiffs’ view, the state had admitted that it has a fiduciary duty to protect a broad array of public trust resources and should be estopped from arguing otherwise.
Briefly, plaintiffs are wrong that the state has taken conflicting positions. The Monsanto complaint does not concern the issue in the case: whether the state has an affirmative, fiduciary duty to protect public uses of trust resources from climate change. The portions of the complaint cited in plaintiffs’ brief are entirely consistent with the state’s position that public trust doctrine is source of regulatory authority over navigable waters. 22 policy judgment for that of the other branches. Under our structure of government, that power rests with the legislature, the Governor, and the people: lawmaking by the legislature, executive action by the Governor and agencies, and direct action by citizens through the initiative process. Because plaintiffs’ proposed expansion of the public trust doctrine creates an irreconcilable conflict between a common-law rule and the constitutional structure of government, this court should reject plaintiffs’ argument.
1. Under Oregon’s Constitution, climate policy choices must be made by the legislative and executive branches, and by the people through their initiative powers. Plaintiffs’ argument that the public trust doctrine imposes affirmative, fiduciary duties rests on a flawed understanding of the court’s common-law powers, and their argument is fundamentally inconsistent with the allocation of responsibility outlined in the Oregon Constitution. Article III, section 1, of the
Oregon Constitution allocates power between the legislative, executive, and judicial branches. A court cannot announce a common-law rule that would shift the balance of power between the branches or that would authorize the court to perform the functions of another. See Yancy v. Shatzer, 337 Or 345, 352, 97
P3d 1161 (2004), abrogated on other grounds by Couey v. Atkins, 357 Or 460,
355 P3d 866 (2015) (“The judicial department may not exercise any of the functions of one of the other departments, unless the constitution expressly authorizes it to do so.”); MacPherson v. Dept. of Admin. Servs., 340 Or 117, 23
127, 130 P3d 308, (2006) (“[L]imitations on legislative power must be grounded in specific provisions of either the state or federal constitutions.”);
Haugen v. Kitzhaber, 353 Or 715, 719–20, 306 P3d 592 (2013) (“[B]ecause the
Governor is the head of an equal branch of government, this court must not
‘assume the power to question the action of the executive of the state.’”)
(quoting Putnam v. Norblad, 134 Or 433, 439, 293 P 940 (1930).
How Oregon should respond to the global climate-change crisis is a policy question of immense importance and complexity. The political branches of government must answer that question in the first instance: the legislature passes laws, after a deliberative process to determine the appropriate course of action, and the executive enforces those laws and takes additional action through agencies. The Governor also has the power to exercise executive authority, as necessary and as authorized by law. The courts can then review laws for compliance with the constitution and can review executive actions for compliance with the law. The people, ultimately, control that lawmaking process at the ballot box by electing state officials or by setting policy directly via citizen initiatives. The people also can alter the balance of power between the branches of government by amending the constitution.
A conclusion that the state has affirmative, fiduciary duties to protect natural resources from climate change—duties that a court can use to compel affirmative legislative and executive action, as plaintiffs contend—would create 24 a conflict between the judicial branch, acting in its common-law capacity, and the political branches, acting in their constitutional capacity. For example, the legislature’s obligation to set policy that protects Oregonians from climate change can be fulfilled only by enacting laws. A court, through the public trust doctrine, cannot compel the legislature to pass any law, much less laws that embody the particular standards for greenhouse gas reductions that plaintiffs have requested in this case.
The state’s statutory emissions targets, ORS 468A.205, provide a clear example of the constitutional conflict that would result from a declaration that the state has affirmative, fiduciary duties under the public trust doctrine to combat climate change. In their complaint, on summary judgment, and in their brief on the merits, plaintiffs emphasize the inadequacy of the state’s emissions targets. (Pet BOM 42). Plaintiffs (and amici) also highlight the recent failure of House Bill 2020 to demonstrate the alleged failure of the state to meet its fiduciary duties under the public trust doctrine. As noted, HB 2020 would have lowered the emissions targets in ORS 468A.205, set a cap on total emissions, and created a market-based program to reduce carbon emissions. But even as to
HB 2020, plaintiffs emphasize that the bill was too modest and would not achieve the emission targets their experts view as necessary. (Pet BOM 42).
The public trust doctrine—as a creature of common law—cannot be used to compel the legislature to change the emissions targets in ORS 468A.205 and 25 cannot be used to require the executive branch to meet emissions reductions proposed by plaintiffs, instead of those set out in statute. But the necessary conclusion of plaintiffs’ argument is that the public trust doctrine is a superior source of law that empowers courts to pass judgment on the legislature’s policy choices. That is not the court’s role, even when the state is not on track to meet the current emissions goals set out in ORS 468A.205.6
Relatedly, a court, acting on authority of a common-law doctrine, lacks the power to direct the policy decisions entrusted to the executive branch. For example, the Governor has issued executive orders to combat climate change by directing state agencies to promote efficiency in state and residential buildings and to promote electric vehicles. Executive Order 17-20; Executive Order 17-
21. The policy choices reflected in those orders—or in future orders or other executive actions related to climate change—are an exercise of the Governor’s constitutional power as the chief executive of this state. Under Article III, section 1, a court cannot intrude on the Governor’s power to make those policy choices in the first instance. In light of the separation of powers, this court
6 Plaintiffs repeatedly note in their brief that the state is not on track to meet the emissions targets in ORS 468A.205, a point that the state does not dispute. But as explained in the text, the policy choices for what the targets should be and how best to meet those targets, rest with the legislature, not with the court. And the Governor, other state officials, and citizen activists are actively pursuing legislation for the coming session and executive actions on climate—the very tools the constitution provides for making meaningful progress on these important issues. 26 should reject plaintiffs’ argument and conclude that the public trust doctrine does not impose affirmative, fiduciary duties on the state to protect trust resources from climate change.
2. The public trust doctrine does not provide a judicially manageable standard for reviewing the policy choices of the legislative and executive branches on climate change. There is another separation-of-powers reason that it would be inappropriate to expand the public trust doctrine to impose fiduciary duties on the state: The doctrine does not supply any judicially manageable standards for evaluating the state’s compliance with its obligation to take action regarding climate change. As Kramer explained, neither this court nor the legislature
“has mandated specific requirements or prohibitions to govern the states’ management of waters that it holds in trust for the public as a whole.” 365 Or at 446. In other words, there are no specific terms that govern the state’s public trust duties. Rather, the state’s duty is a general one: protect public uses of navigable waters for recreation, fishing, and navigation. As plaintiffs acknowledge, the state’s “choice of means” to carry out its duties—assuming they are fiduciary in nature—is discretionary. (Pet BOM 30).
Plaintiffs do not explain how a court would review the discretionary policy choices of the legislative and executive branches without running afoul of the separation of powers. Under ordinary trust principles, “[w]hen a trustee has discretion with respect to the exercise of a power, its exercise is subject to 27 supervision by a court only to prevent abuse of discretion.” Restatement
(Third) of Trusts § 87 (2007). The Restatement commentary describes limited circumstances that would demonstrate an abuse of discretion, including acting in bad faith or “a finding that the trustee, in exercising a power, has acted unreasonably—that is, beyond the bounds of a reasonable judgment.”
Restatement § 87. Stated differently, showing abuse of discretion would require plaintiffs to demonstrate that a decision by the legislature or Governor to take or not to take a particular action was outside “the range of legally correct discretionary choices” and did not result in a “permissible, legally correct outcome.” 7 State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000).
Attempting to apply such a standard to the complex policy decisions that are required in addressing climate change—decisions that invariably touch on a wide range of complex issues, including transportation, energy generation, energy efficiency, and a host of economic considerations—would require the court to make substantive policy decisions under the guise of a common law doctrine. But the courts must “defer to the large measure of legislative discretion in determining the needs of the public and the measures necessary to
7 The standard of review is different when the state has taken action to restrict the public’s use of navigable waters. Kramer, 365 Or at 447 (concluding that “rules interfering with the exercise of that right must be objectively reasonable in light of the purpose of the trust and the circumstances of each case”) (citation and quotation marks omitted). 28 satisfy them.” State ex rel. Nilsen v. Whited, 239 Or 149, 154, 396 P2d 758
(1964). Likewise, the courts must not seek to control the exercise of executive discretion. Putnam, 134 Or at 439, 443. If the public trust doctrine functioned as plaintiffs contend, then the courts would be hopelessly entangled in the discrete policy decisions that are entrusted to the legislative and executive branches by the constitution. That is not the law.
Plaintiffs assert that protecting trust resources from “substantial impairment” due to climate change is the substantive standard imposed on the state by the public trust doctrine. (Pet BOM 26). But plaintiffs do not explain how that standard could be applied to statewide climate policy. Although this court used the phrase “substantial impairment” in Morse, that case concerned the limits on state action. 285 Or at 203. Under Morse, the state cannot alienate the lands beneath navigable waters in a way that would result in “substantial impairment of the public’s interest.” Id. Thus, “substantial impairment” is an appropriate standard for assessing the impacts of state action on the public’s use of a particular navigable water. That standard has never been used to assess broadly the adequacy of state policy decisions. Nor do the cases suggest that
“substantial impairment” could be an appropriate standard for assessing inaction by the state, much less compelling a particular state action.
At bottom, if a court concluded that the state’s actions to combat climate change were insufficient to avoid substantial impairment of trust resources, that 29 conclusion would be nothing more than a substantive disagreement with the legislative or executive branch on a policy issue. The courts are not tasked with deciding whether a policy choice of the legislature or Governor is good or bad.
For example, higher taxes on fuel would likely reduce the carbon emissions from transportation by reducing the amount of driving by Oregonians. Higher taxes would also have economic impacts, depending on the amount of the tax and how it was structured. The legislative and executive branches are tasked, under our system of government, with balancing competing policy interests and determining an appropriate course of action. A court is ill equipped to balance such policy concerns and is not authorized to determine whether policy decisions are wise or imprudent for addressing a particular problem. Rather, the court’s role is to assess the lawfulness of state action under the constitution and laws of this state.
3. If the executive and legislative branches fail to fulfill their responsibilities to act on climate change, the proper remedy is political rather than judicial. As noted, the state acknowledges that climate change is harming
Oregonians and that the state has a moral obligation to protect current and future generations from the catastrophic impacts of a warming planet. How the state goes about meeting the challenge of climate change—an issue of incredible complexity—must be determined by the legislative and executive branches or by people, through the initiative power. That remains true even 30 though the state has not yet taken sufficient action to meet its existing goals to reduce greenhouse gas emissions, and even though the legislature is sometimes unable to pass new laws, like HB 2020, that would set more aggressive goals and cap statewide carbon emissions. The remedies for inaction by the legislature include increased action by the executive branch, within existing law, or an effort by the people to pass new laws or amend the constitution. The remedy does not lie in judicial intervention in the complex policy choices of other branches of government.
Plaintiffs correctly note that the people are sovereign under our system of government and that the branches of government exist to serve the people’s interest. (Pet BOM 15-16). But plaintiffs then incorrectly infer that the court is empowered to dictate, via the public trust doctrine, the appropriate policy response to protect the people’s interest. That is not the court’s role. The court is not the “backstop for legislative and regulatory inaction” as plaintiffs contend. (Pet BOM 1). That backstop is the people, via the political process, who have ultimate control over state law and policy.
Although plaintiffs acknowledge that the public trust doctrine does not set out how the state should meet its obligations to protect trust assets, Pet BOM
30, they simultaneously contend that doctrine does establish a benchmark for the court to evaluate substantive policy and declare that policy to be lacking.
(Pet BOM 40-43 (arguing that the state’s policy choices are inadequate)). But 31 extending the public trust doctrine as plaintiffs request would put the court—in fact, a single circuit court—in the position of setting statewide climate policy.8
Plaintiffs and amici argue that the public trust doctrine would be meaningless if the state does not have affirmative duties that can be enforced by the court. That is incorrect. The public trust doctrine continues to operate as a restraint on state action and as a source of authority for state regulation.
Plaintiffs simply ask too much of the common law. When the legislature fails to act, the executive can take action, as authorized under existing statutes and the constitution. If both branches fail to take adequate action, the remedy is the people, who can vote for representatives who will take different action on climate change, or who can place an initiative or constitutional amendment on the ballot to achieve their policy goals. The remedy is not judicial intervention—under a common-law doctrine—in matters entrusted to the political branches of government and the people.
8 Plaintiffs assert that their view of the public trust doctrine is complementary to existing Oregon law and will not “conflict with any legislatively announced principles or agency regulations.” (Pet BOM 35). As discussed in the text, plaintiffs’ fundamental claim is that the public trust doctrine compels the state to do more. That some existing statutes are consistent with the public trust doctrine does not lessen the intrusiveness of plaintiffs’ requested declarations. 32
CONCLUSION This court should affirm the Court of Appeals’ decision.
Respectfully submitted,
ELLEN F. ROSENBLUM Attorney General BENJAMIN GUTMAN Solicitor General
______/s/ Carson L. Whitehead CARSON L. WHITEHEAD #105404 Assistant Attorney General [email protected]
Attorneys for Respondents on Review Kate Brown and State of Oregon NOTICE OF FILING AND PROOF OF SERVICE
I certify that on October 2, 2019, I directed the original Brief on the
Merits of Respondents on Review, Kate Brown and State Of Oregon to be electronically filed with the Appellate Court Administrator, Appellate Records
Section, and electronically served upon William H. Sherlock and Courtney B.
Johnson, attorneys for petitioners on review; Courtney Lords, attorney for amicus curiae; Elisabeth A. Holmes, attorney for amicus curiae; Kenneth
Kaufmann, attorney for amicus curiae; Stephen E. Dingle, attorney for amicus curiae; and Travis Eiva, attorney for amicus curiae, by using the court's electronic filing system.
I further certify that on October 2, 2019, I directed the Brief on the Merits of Respondents on Review, Kate Brown and State Of Oregon to be served upon
Charles M. Tebbutt, attorney for amicus curiae, by mailing two copies, with postage prepaid, in an envelope addressed to:
Charles M. Tebbutt Law Offices of Charles M. Tebbutt 941 Lawrence Eugene, OR 97401
Continued… CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(1)(d)
I certify that (1) this brief complies with the word-count limitation in
ORAP 5.05(1)(b) and (2) the word-count of this brief (as described in ORAP
5.05(1)(a)) is 7,707 words. I further certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(3)(b).
______/s/ Carson L. Whitehead CARSON L. WHITEHEAD #105404 Assistant Attorney General [email protected]
Attorney for Respondents on Review Kate Brown and State of Oregon
CLW:kw5/9868208