Multnomah County vows to continue advocating, litigating for a life-sustaining climate after disappointing Chernaik v. Brown decision

October 23, 2020

The Portland Waterfront appears barely visible on Sept. 15 from record-breaking wildfire smoke.

Multnomah County is disappointed by the opinion the Oregon Supreme Court released yesterday in Chernaik v. Brown. The County filed an amicus brief in this case supporting the plaintiffs/petitioners and unfortunately, the Court did not rule in favor of petitioners.  

Olivia Chernaik and Kelsey Juliana are two young people from Lane County who sued Oregon under the ancient public trust doctrine, saying the state has an affirmative duty to protect its water, fish, wildlife and air against harm, including climate change. 

Yesterday, the Court upheld the Court of Appeals decision rejecting the argument that the State has an affirmative duty to act under the public trust doctrine to protect public trust resources.  The Court also refused to expand public trust resources beyond navigable waters and submerged and submersible land, ultimately rejecting petitioners' argument that the public trust doctrine extends to the climate.

As Multnomah County argued in our amicus brief filed last year in the case, we believe all sovereigns, including Multnomah County, have an affirmative duty to protect public trust resources based on a plethora of long-standing case law.  We also urged the court to recognize that based on other case law, public trust assets have been expanded to include fish, wildlife, and the climate.  We were the first sovereign in the country to publicly declare that government has a duty to act.

Chair Deborah Kafoury has repeatedly said Oregonians are already witnessing dramatic changes: including this fall’s record-breaking wildfires, an acidifying ocean and drought.

“My colleagues and I on the Multnomah County Board believe that governments do have a duty, morally and legally, to protect natural resources, particularly in light of the climate crisis,” she said. “Our communities are literally burning to the ground in fires fueled by the climate crisis, the court's decision defies common sense and imperials current and future generations.”

Although we are disappointed by the Court's majority opinion in this case, we were encouraged by the Oregon Supreme Court's Chief Justice dissenting opinion stating:  "We should not hesitate to declare that our state has an affirmative fiduciary duty to act reasonably to prevent substantial impairment of our public trust resources."

Multnomah County has been acting on the threat of climate change since 2001. Because of those efforts carbon emissions in Multnomah County have decreased to 19% below 1990 levels and per person, emissions have decreased by 42% (based on 2018 data). 

That work will continue, and Multnomah County will look for every available opportunity to advocate, litigate, and take action at the local, state and Federal level of government to secure a future for young people with a stable life sustaining climate.