EUGENE — Two Eugene teenagers are trying to save the world — one court hearing at a time.
Kelsey Juliana, 17, and Olivia Cherniak, 13, were part of an overflow crowd Thursday that listened to testimony when a three-judge panel of the Oregon Court of Appeals convened at the University of Oregon School of Law.
Oregon courts can order the governor to do much more to stave off climate change and protect the state's air and water for future generations, an attorney for the two girls asserted.
But an attorney for the state Department of Justice argued that such action would violate separation of powers principles and that it is up to the Legislature, with input from the governor and the public, to decide whether and what should be done to preserve the state's natural resources. It now will be up to the court to decide which is correct. A decision is not expected for several months, at the least.
Afterward, Juliana said she was honored to be involved in the lawsuit and have it heard by the appeals court. She said she found the proceeding interesting.
"I thought it was fascinating and very compelling," she said. "And I thought they made very good arguments."
Juliana has been active in climate issues since middle school and, as she did when the lawsuit was filed in 2011, said she believes global warming and climate change are the defining issues of her peer group. After she graduates this spring, she plans to take part in the Great March for Climate Action that will travel from Los Angeles to Washington, D.C.
"I really do believe this is the crisis of our generation and future generations," she said.
The appeal is the latest step in a novel legal battle aimed at forcing state governments across the country to tackle head-on the issue of global warming and to speed up efforts to reduce carbon emissions. If higher courts ultimately rule that judges can order states to take such actions, it likely would be considered a landmark decision that would reverberate across the nation, supporters of the lawsuit said.
"It would make a huge difference," UO law professor Mary Wood, director of the school's Environmental and Natural Resources Law Program, said following the hearing. "It would be the call heard 'round the world."
Attorneys are not arguing the merits of the case at this stage. The only point at issue now is whether the courts have the authority to even take up the matter.
The case is before the appeals court because Lane County Circuit Judge Karsten Rasmussen ruled in 2012 that judges do not have that authority. He said it would violate the state constitution's separation of powers doctrine for a judge to impose a solution to what is essentially a political issue.
Juliana and Cherniak filed their lawsuit with support from the Eugene-based group Our Children's Trust. Similar suits have been filed in all 50 states.
The suits are based on a legal principle known as the public trust doctrine, which holds that state governments hold the natural resources of a state in trust for its residents, both current and future. The Oregon suit asks the courts to find that those resources are under immediate threat and order the governor to come up with a plan that will protect them.
Tanya Sanerib, an attorney with the Center for Biological Diversity, is representing the two students in the case. She told the appeals court panel that the state has failed to protect its air and water for future generations and that judicial intervention is both allowed and needed to bring about effective changes before the climate has passed a tipping point.
"We are at the point where we are seeing substantial impairment of those natural resources," she argued. "At the end of the day it is up to the judiciary to mold the common law."
But Denise Fjordbeck, the head of the justice department's civil appeals division, argued that it is not for the courts to tell the governor or Legislature how to do their jobs. To the extent that federal courts have taken such steps in the past — such as orders to reduce prison overcrowding or set up school busing plans — Fjordbeck argued they only took those steps after governments failed to heed a string of previous rulings setting out constitutional shortcomings.
"We're far from that point," she argued. "The Legislature and governor have taken action (on climate issues) and will continue to take action without any further direction from the court."
Hearing the case were Presiding Judge David Schuman, Judge Erika Hadlock and Judge Joel DeVore. All three had questions for the attorneys, and afterward neither side offered any opinions about which way the judges might rule.
Scores of students from Eugene schools attended the hearing, as did Eugene Mayor Kitty Piercy. The overflow crowd filled the large classroom where the court met.
The lawsuit has attracted support from politicians and business, agricultural and conservation groups, who have filed a friend of the court brief in support of the two young plaintiffs. That brief sets out the potential effects of increasing greenhouse gas emissions on climate, agriculture, water supply and other natural systems.
The Western Environmental Law Center in Eugene also filed a separate brief on behalf of 22 legal scholars from around the country urging the court to apply the public trust doctrine to the atmosphere.