Chernaik v. Brown

The Supreme Court of Oregon rejected youth plaintiffs’ arguments that the public trust doctrine should be expanded to encompass additional natural resources and that the doctrine imposes affirmative fiduciary obligations on the State to protect trust resources from substantial impairment caused by climate change. With respect to the scope of the doctrine, the Supreme Court said the public trust doctrine extends both to the State navigable waters and to the State’s submerged and submersible lands. (A trial court had interpreted the scope more narrowly.) Although the court agreed with the plaintiffs that the doctrine “can be modified to reflect changes in society’s needs,” the court rejected the plaintiffs’ “expansive test” for determining which resources should be protected, finding that the plaintiffs’ two-factor test—(1) Is the resource not easily held or improved and (2) Is the resource of great value to the public for uses such as commerce, navigation, hunting, and fishing—would fail to provide “practical limitations.” The court therefore declined to expand the doctrine to cover additional resources, including the atmosphere. Regarding the State’s obligations under the public trust doctrine, the court rejected the plaintiffs’ contention that the doctrine imposes obligations like the obligations trustees of private trusts owe to beneficiaries. The court indicated that importing private trust principles “could result in a fundamental restructuring of the public trust doctrine and impose new obligations on the State.” The chief justice dissented, writing that in her view the judicial branch has “a role to play” in addressing the harms of climate change. She said the 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.”