Beyond Cap-and-Trade to Strong Climate Action

By Tom Housel*

After a contentious 2019 legislative session, House Bill 2020 — Oregon’s cap-and-trade program — failed to pass the legislature because of a lack of Democratic votes in the Senate. For many, this was seen as a catastrophic failure, but a closer look shows that cap-and-trade’s demise actually opens up an incredible opportunity to think even bigger. While the bill may have taken some positive steps in combating climate change, it was also deeply problematic. The cap-and-trade bill sought to reduce emissions by 80 percent from a 1990 level baseline by 2050, but it included free allowances for some of the state’s major emitters, it omitted major emitting sectors like industrial forestry (which CSE and others have identified as Oregon’s #1 carbon emitting sector), and would likely exacerbate existing environmental injustices suffered by certain communities.

Governor Kate Brown has vowed to take executive action to address climate change in the aftermath of the failed bill, which seems admirable on the surface but would likely accomplish little. If the bill goes back to the legislature in 2020, it’s hard to imagine that it wouldn’t be further weakened in order to attract a necessary Democratic vote from Sen. Arnie Roblan (D-5), a notable Jordan Cove LNG export terminal supporter), Sen. Betsy Johnson (D-16), who attempted to hijack the Ways and Means Committee to insert late-stage amendments into HB 2020 in support of fuel importers, the gas industry, and waste operations), or Sen. Laurie Monnes Anderson (D-25), who sought exemptions and protections for Boeing.

At the same time, it is important to note that Governor Brown is also a defendant in Chernaik v. Brown. In that case, her administration is fighting against youth who seek drastic changes in state climate policy to reduce emissions according to the best available science. The youth plaintiffs seek a declaration from the governor that the atmosphere and other natural resources are public trust assets that the state holds in trust for the benefit of the public and that the state has a fiduciary duty to protect those resources. Additionally, the plaintiffs seek an order that the state is obligated to implement a plan to reduce carbon emissions according to the best available science. Governor Brown and the other defendants have fought against these youth, arguing that there is no affirmative duty to act to protect the climate and state resources. So far, the state’s arguments have prevailed in the Lane County Circuit Court and the Oregon Court of Appeals. If the state really wanted to act on the climate emergency, it makes little sense that they would continue to fight this battle tooth-and-nail instead of conceding that a legal duty exists to protect the climate.

As the climate movement regroups, we should pursue stronger measures that address all emitting sectors and take advantage of all of the state’s ample carbon sequestration opportunities (like forests and agriculture). Future Green New Deal measures will be important to comprehensively address the problems our planet is facing. In this post, I will explore the possibility of another potentially game-changing, short-term measure, a ballot initiative to incorporate a green amendment, rooted in the public trust doctrine, in Oregon’s constitution. I believe this could form a backbone for broader and more aggressive environmental action and climate protections across the state.

Why a Green Amendment?

Our government was created by the people, for the people. What purpose does it serve, if not to protect the people from harm and provide benefits to ensure that our society may continue to thrive? That power granted by the people to the government extends to managing and protecting our natural resources for the benefit of all people of the state. The public trust doctrine originated in Roman law and passed to the United States through English common law. It is the proposition that “[b]y the law of nature, these things are common to all mankind: the air, running water, the sea, and consequently the shores of the sea.”

Over time, the public trust doctrine has been adopted, amended, reinterpreted, or ignored at the will of each state. Some states have incorporated aspects of this doctrine through constitutional amendments. Others have relied on courts to strengthen the doctrine. Oregon has done neither. This idea that Oregon has a trust responsibility to protect natural resources for the benefit of its people is nonexistent in our constitution, and the Oregon courts seem to recognize only submerged and submersible lands as public trust assets—applications recognized by the U.S. Supreme Court. This must change.

If Oregon were to pass a green amendment rooted in the public trust, it would be a strong defense mechanism to protect the land, air, and water of the state that are so important for our health, safety, and recreation. Any amendment must be self-executing, in that it would need no further statutes for enforceability, and would grant any Oregonian standing to sue in order to protect resources defined in the language of the amendment. This is a vital step in protecting Oregon’s natural resources for not only ourselves, but for our children, grandchildren, and all future generations.

Who benefits?

A green amendment would benefit all people of the state and would be a tool to fight environmental harms caused by affirmative actions or neglectful inactions of the state government. It would allow the people to protect not only our beautiful landscapes their recreational value, but also promise clean water, clean air, and a stable climate for all Oregonians. The West has been experiencing water shortages, and it is important that the water that remains is of the purest quality. The DEQ has acknowledged that air toxics like lead and benzene are a concern in the Portland region, and a green amendment would give us the means to protect the air quality despite the lack of federal regulation in that area. Climate instability is a threat to every aspect of our society, and a green amendment would provide a means for the people to force the government to make decisions based on the best available science rather than striving to achieve arbitrary targets.

Everyone in the state would benefit from a constitutional amendment that holds the government accountable for any reckless environmental policies. People across the state would benefit from a guaranteed access to clean air and water, from the farmers in rural communities to those living in communities packed with industrial facilities. We would have new tools to prevent deforestation and enhance our mismanaged forest lands. Actions could be taken to mitigate and adapt to our current climate reality, which could provide benefits to communities impacted by wildfire and drought. Until dramatic changes are made to our governmental laws, we are fighting a losing battle against the laws of nature.

How do we accomplish this?

The circumstances surrounding House Bill 2020 highlighted some of the shortcomings of our government. Private interest groups are funneling money to our representatives due to lack of campaign contribution limits, and our representatives are either making concessions to keep opposition at the table or completely neglecting their responsibilities and hiding with militias. 2Lost in the political fray is the voice of the constituents that elected those legislators. We, as Oregonians, need to decide what level of protection we need for our environment and demand that our government to comply with our interests.

Fortunately, Article IV, Section 1 of the Oregon Constitution provides a method for citizens to amend the constitution through ballot initiatives independent of the Legislative Assembly. First, a petition must be signed by at least eight percent of the number of voters in the most recent gubernatorial election (nearly 150,000 signatures, by my count). Then, the amendment would be put to a vote at the next election and would pass with a simple majority. This may seem like an enormous hurdle, but we have the power to make this happen. If we want to keep Oregon healthy, safe, and beautiful, then we must rise to the challenge of protecting it. Considering the urgency of the climate crisis, we need to take immediate measures to align our legal and political system with transformative tools that allow the people to defend the resources that are vital to our survival.

What would a green amendment look like?

There are five important aspects that must be incorporated into a green amendment: (1) the government is the trustee; (2) present and future Oregonians are beneficiaries; (3) defining the assets; (4) the fiduciary obligations of the state; and (5) enforceability. Here is an example: 

Article I, Section 47 to the Oregon Constitution – Right to Pure Water, Clean Air, and a Healthy Environment.

Each person of the state of Oregon has a right to a clean and healthy environment, including pure water, clean air, ecologically healthy habitats, a stable climate, and to the preservation of the natural, scenic, recreational, historic and aesthetic qualities of the environment.

The state’s public natural resources, among them its tidelands, waters, air, flora, fauna and climate are the common property of all the people of Oregon, including both present and future generations. The state, including each branch, agency and political subdivision, shall serve as trustee of these resources. The state shall conserve, protect and maintain these resources for the benefit of all the people, including future generations. 

The state shall not take any legislative or executive action that would cause the unreasonable degradation, diminution, or depletion of the natural environment, either through direct state action or indirect state action such as a failure to restrain the actions of others. Among the duties of the state are a duty against alienation, a duty to maximize the societal value of natural assets, a duty to protect natural assets, and a duty to restore damaged assets. 

The rights stated in this section are inherent, inalienable, and indefeasible and are among those rights reserved to the people. This provision and the rights stated herein are self-executing. Each person shall have the right to prevent and remedy violations of these rights through appropriate legal proceedings against any party, governmental or private.

The language of this example clearly states the intentions of the amendment and clearly defines the obligations the government has in managing the natural resources of the state. The natural resources protected by the amendment are clearly defined, but are also not limited to only those resources listed in the statute. Unquestionably, the people have the right to file legal proceedings against the state in order to prevent or remedy any violation of the amendment. An amendment like the example above would empower the people of Oregon to protect our forests, rivers, lakes, air, and climate from threats to our natural environment. We cannot wait any longer to protect the land, air, and water that sustains us.

Conclusion

We Oregonians consider ourselves stewards of the Earth, but our laws are increasingly lagging behind our ideals and scientific reality. Oregon’s environmental protections are shamefully weaker than many other states, and we must raise our voices to ensure that we see change within our borders. We are a powerful community, and we are stronger than the industries pouring money into our legislature for their own benefit. We can—and must—relentlessly pursue a comprehensive overhaul to Oregon’s existing law to protect the land we love. Our lives depend on it.

 

*Tom Housel is a rising third year law student at the University of Oregon School of Law and a law clerk at the Center for Sustainable Economy

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