Six days before Christmas, a King County judge cleared the path for eight Seattle children to go to court to argue the state violated their constitutional rights and the public trust doctrine by not doing enough to address climate change.
The children and their attorneys claim that how well the government manages atmospheric conditions — i.e., the climate — right now will have a direct and significant impact on the quality of the society and environment they will inherit later.
The argument that atmosphere should be part of the public trust — a legal concept that makes the government responsible for protecting shared resources — is finding leverage in several state courts and a federal court, and is inspiring litigation by young people around the globe concerned about climate conditions. This atmospheric trust litigation was pioneered by University of Oregon law professor and part-time Vancouver resident Mary Wood.
Wood is a fourth-generation member of a family that made a legacy out of environmental protection and stewardship in Southwest Washington and Northwest Oregon. The family’s storied past was made present for Wood in regular retellings by her parents, along with the family’s environmental commitment.
“There was always an awareness of the family history in the people growing up,” Wood said. “The family legacy is conservation. The understanding that what you hold today isn’t yours, it’s to be protected to the next generation.”
Her great-grandfather was C.E.S. Wood, a monument of early Portland citizenry who served as an attorney, civil liberties advocate, soldier and geologist. Early in his life, he fought in the 1877 Nez Perce War and was present at the surrender of Chief Joseph. He also transcribed Chief Joseph’s surrender speech, though there is some debate surrounding it by historians. Wood later befriended Joseph and twice sent his son, Mary’s grandfather, Erskine Wood Jr., to spend a summer hunting and fishing with him on the Colville Indian Reservation, where the famous chief lived in exile.
According to a 1997 Seattle Times article, Erskine Jr. later wrote about the experience and lamented that he never told his father that Joseph had asked for a stallion. After the story appeared, Wood and her family decided to belatedly make good on the 104-year-old request. In July 1997, the Woods gave Joseph’s descendants an Appaloosa stallion at Wallowa Lake, Ore.
She grew up spending time along the verdant shores of the Columbia River on a stretch of property her family had owned since 1889. But the splendor and seclusion she experienced there was disrupted in the late 1970s and early 1980s by the construction of the Glenn L. Jackson Memorial Bridge, which today carries Interstate 205, and the subsequent development of east Vancouver.
“It was absolutely heartbreaking when (the bridge) went in,” Wood said. “In just a few years, Clark County was just chewed up and devastated by California developers.”
Years later, in 2005, she and her siblings were the driving force behind protecting the last wild chum spawning habitat in Clark County. The shoreline near the spawning beds was owned by her grandfather before his second wife sold it to a developer. The family worked with local conservation groups and the city of Vancouver and Clark County to save the shoreline from being developed.
Changing climate
By that time, she was deep into researching public trust doctrine, an idea that traces back to the Roman Empire. But she said she “woke up” to the realities of climate change when Hurricane Katrina hit the Southeast United States.
“For the first time ever, I delved deeply into the science of climate change and was shocked by the urgency and gravity of the reality before us. So I applied the public trust … to the atmosphere, realized that doctrine logically applied to protect our climate system,” she said in an email.
Wood argues that the environmental statutes passed in the 1970s have been turned inside-out, and that the agencies tasked with enforcing them, politically captured by industry and special interest groups, now issue permits to pollute rather than stop pollution. Further complicating the issue, the laws are filled with technical language that obfuscate their true intentions.
“Some things are better than they were. They can’t throw trash in the Columbia River. But they can dump a lot of toxins in it,” she said. “Environmental statutory law has become utterly detached from logic — become so complicated, it’s like a ship unmoored from premise.”
Rather than relying on the legislative and executive branches to wade into the situation and get bogged down in minutiae, the approach Wood created asks the courts to force the government’s hand to broadly and adequately create a plan to limit human-caused climate change so that future generations can enjoy the same environmental benefits as their ancestors.
The argument was embraced by Our Children’s Trust, which formed in 2011. Currently, the nonprofit is helping groups of teens and children to sue governments around the country and in federal court.
Inspired by the urban sprawl that blurred the lines between Camas and Vancouver and what she describes as regulators’ openly allowing “all-out ecological devastation” in the Pacific Northwest, Wood combined her research on the public trust doctrine and environmental law and produced her book “Nature’s Trust: Environmental Law for a New Ecological Age,” in 2013.
She’s not participating in the lawsuits, but she’s keeping a close eye on them.
Even if the courts side with the children suing the government, Wood said, she worries about how well the remedies will be enforced. Still, she’s optimistic about what they might mean for the public.
A “lawsuit can provide mechanism to supervise an actual plan,” she said. “Even apart from that, it serves as a forum by which the public can better understand what’s at stake and what are its rights.”
