Aaron Edelman is a guest author and a law clerk at Garvey Schubert Barer's Washington, D.C.'s office. You can reach Aaron at firstname.lastname@example.org or at 202.298.1738.
The White House Council on Environmental Quality (CEQ) recently issued its final guidance to agencies to incorporate greenhouse gas (GHG) emissions and climate change into environmental reviews done in accordance with the National Environmental Policy Act of 1969 (“NEPA”). This release was the culmination of six years of work – building off of drafts released in 2010 and 2014.
This month saw the latest chapter in a lengthy case about climate change and Oregon’s response to it. The case, Cherniak v. State of Oregon, began in 2011, when two Eugene area teens challenged the state’s response to climate change, arguing that the atmosphere was part of the public trust and that the state had failed in its obligation to protect that resource for future generations.
The case was initially dismissed by the Lane County Circuit Court in 2012 for lack of subject matter jurisdiction. In 2014, the Oregon Court of Appeals remanded the case, finding that the court did have authority to consider the matter. On Tuesday, April 7, 2015, the state of Oregon found itself back in the Lane County Circuit Court arguing that the atmosphere is not subject to the public trust doctrine. The other critical issue involves the remedy if the atmosphere is found to be subject to the public trust doctrine. Essentially, what authority does a state circuit court have to dictate state policy and determine the appropriate level of emissions?
The court indicated it would likely rule on the matter within two months, but that is unlikely to be the end of the matter. Stay tuned for future developments on climate change in Oregon.
If, as expected, climate change and sea level rise become a bigger threat to private property in the 21st century, ancient doctrines about boundary changes, including accretion, reliction and avulsion will become increasingly important. On August 14, 2014, the Oregon Supreme Court explained its view of accretion in Sea River Properties, LLC v. Parks, 355 Or 831 (2014).
The case arose just north of Rockaway Beach along the Nehalem River and involved grants of land that went back over a century and a half. There was a complex geologic and factual background, but the question the court had to answer was who owned land that had generally built up west of the defendant’s land and north of the plaintiff’s land between the old bed of the Nehalem river (before the federal government built a jetty) and the ocean. The Oregon Supreme Court chose not to exercise its ability to re-weigh the facts and, relying on the facts found by the trial court, concluded that “accreted land belongs to the upland owner where the accretion began,” even if it eventually grows in front of the property of another.
In itself, this case is not particularly surprising or interesting, but, as climate change continues to affect our world, these cases will only become more common and it behooves practitioners to understand the application of the common law property doctrines involved in shifting boundary lines.
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