Oral arguments were heard on Tuesday in a long-running lawsuit brought by two teenagers against the state of Oregon. The teens are seeking to force the state to take more aggressive action on climate change and thereby better protect the planet for future generations.

 

The suit is one of dozens of legal actions and petitions filed in virtually every state, along with federal courts, as part of a campaign spearheaded by the Oregon-based nonprofit Our Children’s Trust. “Our purpose is to protect earth’s natural systems for current and future generations,” the organization declares on its Web site. “We are here to empower and support youth as they stand up for their lawful inheritance: a healthy planet.”

The legal actions are predicated on what’s known as the Public Trust Doctrine, a principle of common law that requires governments to protect and maintain certain resources for the benefit of the wider community. The petitioners sponsored by Our Children’s Trust seek to have the atmosphere included as a common resource that governments are obliged to maintain and protect for the public good — both now and for future generations.

In some cases, the suits have struggled to gain traction in the courts. A suit brought by a group of youths against several federal agencies was dismissed by a U.S. District Court judge in 2012, for example. Subsequent appeals have been unsuccessful, and the U.S. Supreme Court declined to hear the case in December.

Last September, Alaska’s Supreme Court dismissed a suit brought by six minors there, finding that the question at hand is one best decided through the political process, not the courts.

A similar conclusion was reached by Circuit Court Judge Karsten Rasmussen in Oregon’s case last summer, but the Oregon Court of Appeals later rejected that finding and sent the case back to Rasmussen, setting up what could be one of the most closely-watched decisions in the campaign so far.

Both the state and the child petitioners have asked the judge to render summary judgement rather than go to trial, and oral arguments along those lines were presented yesterday.

In the original complaint filed in 2011, attorneys for the two teenagers — Olivia Chernaik, now 14, and Kelsey Juliana, now 19 — argued that the atmosphere is “intricately linked” with other resources that the nation’s courts have considered to be part of the public trust that governments are obliged to maintain and protect.

(Below: Kelsey Juliana talks with Bill Moyers about her lawsuit.)

“Harm to the atmosphere negatively affects water resources, submerged and submersible lands, islands, shorelines, coastal areas, wildlife and fish,” the attorneys argued. “Harm to the atmosphere also harms the public’s ability to use trust resources for the purposes of conservation, pollution, abatement, maintenance and enhancement of aquatic and fish life, habitat for fish and wildlife, ecological values, in-stream flows, commerce, navigation, fishing recreation, energy production and the transport of natural resources.”

Attorneys for the state of Oregon counter that the state has already taken aggressive steps to address its climate footprint — including emissions goals set by the state legislature in 2007. In addition, the state argued, the young litigants are essentially asking the court to create law where none exists, thereby usurping the powers of the state’s governor and its legislature.

“Decades ago the state and the governor began researching the impacts and causes of global climate change,” said Assistant Attorney General Renee Stineman, according to local reports. “And they’ve used this information to develop aggressive programs and policies to address the concerns surrounding global climate change.”

Those efforts, however, are already falling short, the plaintiffs argue. “The goals set by Oregon Legislature in 2007 are inadequate to meet the state’s greenhouse gas reductions that will be required in order to protect Oregon’s trust assets,” the complaint asserts.

The notion that the atmosphere should be considered part of the public trust — and that litigation can ensure that it is — originated with Mary Wood, the Philip H. Knight Professor of Law Faculty and director, of the Environmental and Natural Resources Law Program at the University of Oregon. Known formally as Atmospheric Trust Litigation, or ATL, the strategy, according to Wood, “seeks to accomplish through decentralized domestic litigation in countries across the globe, what has thus far eluded the centralized, international diplomatic treaty-making process.”

Whether the strategy will prove successful remains an open question, and so far most courts have proved unwilling to accept the argument with any sort of far-reaching decisions. The exchange in Oregon’s Lane County courtroom on Tuesday provided no conclusive insights, although some reports suggested that the Judge Rasmussen appeared to be sympathetic to the state’s argument. As reported by The Oregonian:

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.

Rasmussen is expected to render a decision later this year.

Tom Zeller Jr. has written on energy and environment for The New York Times, The Washington Post, National Geographic, HuffPost and Bloomberg View. You can follow him on Twitter@tomzellerjr.