On the Eve of Destruction : Courts Confronting the Climate Emergency

In the dim and smokey twilight, with only bare necessities in tow, a family rushes to escape the wildfire racing toward them. Elsewhere, a household evacuates just ahead of a category five hurricane, perhaps not for the first time. Along the coastlines, countless others are resigned to looking on as their homesites erode into the inexorably rising surf. At this moment, millions of Americans are forced to reckon with the horrors of the climate catastrophe, and the number of such people who now viscerally grasp our grim climate reality grows every day. Even the judges of this nation prove no exception to this trend. Enveloped by smoke from a recent wildfire, a Washington appellate court judge remarked to a government attorney in an atmospheric trust litigation case: “I can’t go outside. If I go outside, I’m threatening my life. I have asthma, so I have to stay inside with the windows shut—I don’t have an air conditioner. Why isn’t that affecting my life and my liberty?” Amidst a full-blown climate emergency in which the fate of Humanity rests, this Article argues that our judiciary system is equipped—and is Constitutionally duty-bound—to provide the people of our nation a remedy for the extraordinary governmental malfeasance that has brought our nation, and indeed the world, this climate calamity

Nature\u27s Trust: A Legal, Political and Moral Frame for Global Warming

This essay portrays the urgency of global warming and discusses the role of environmental law in bringing about this crisis. It explains why our regulatory system ignored this problem for too long and offers a property-based perspective to frame government’s responsibility in confronting climate crisis

A Comparison: Lessons from the Columbia Basin and the Upper Colorado Basin Fish Recovery Efforts

47 pages. Contains 5 pages of references

Tribal Tools & Legal Levers for Halting Fossil Fuel Transport & Exports Through the Pacific Northwest

As alarming scientific predictions crystallize into the realities of today’s climate crisis, tribal communities in the Pacific Northwest find themselves on the front lines of a global assault launched by the fossil fuel industry. Encouraged by President Trump’s declaration of intent to unleash $50 trillion of America’s domestic fossil fuels, corporations push for massive expansion of the nation’s fossil fuel infrastructure—even as the world races towards irrevocable climate thresholds. The unprecedented onslaught hinges on the Pacific Northwest as a key link in a global market scheme. The coastal region sits as a proposed industrial gateway for huge export facilities transporting coal, oil, and natural gas from interior lands of the United States to Asian markets. Carbon emissions projected from the proposed fossil fuel development would inflict irreparable damage on the planet’s climate system. More imminently, transport of dirty and explosive fossil fuels poses a grave and present threat to both tribal and non-Indian local communities, as demonstrated by the sudden derailment and horrific explosion of a Union Pacific oil train carrying Bakken oil through Mosier, Oregon in June, 2016. Across the region, citizens rise in protest to defeat these proposals in local, state, and federal permit processes, forming a growing resistance called the “Thin Green Line.” In significant ways, tribes have emerged as key players and powerful leaders in this resistance, staunchly defending the homelands they have inhabited since time immemorial and inspiring the grassroots coalitions to stand behind a “None Shall Pass” blockade of fossil fuels. As the region’s original sovereigns and present day co-trustees of essential natural resources, tribes hold several key legal levers that may arrest these fossil fuel infrastructure projects, both on and off their reservations. Tribal legal mechanisms on-reservation fall into two areas: 1) property rights that may provide the basis for tribes to refuse or restrict rights-of-way access across their reservations; and 2) the authority to regulate dangerous activities on their own lands. Off the reservation, tribes are positioned to assert the federal indian trust responsibility and tribal treaty fishing rights in a complex matrix of federal, state, and local permitting schemes. The existing case law and statutory landscape surrounding all of these legal mechanisms are complicated and interwoven. This article highlights strategic legal avenues available to tribes in both on- and off-reservation contexts. Building on case studies of successful tribal resistance, this article presents analysis for tribal advocates with an ultimate aim to support native nations in their unified efforts to stop fossil fuel trafficking across the Pacific Northwest

No Ordinary Lawsuit : Climate Change, Due Process, and the Public Trust Doctrine

On November 10, 2016, just two days after the election of President Donald Trump, the federal district court in Oregon handed down Juliana v. United States. This remarkable decision refused to dismiss a lawsuit brought by youth plaintiffs who claimed that the federal government\u27s fossil fuel policies over the years, which have produced an atmosphere with dangerous levels of greenhouse gases (GHGs), violated the federal public trust doctrine (PTD) and their federal constitutional rights to due process and equal protection. The court found a constitutional right to a stable climate system, determining that the PTD was an implicit part of due process and enforceable through the Constitution\u27s due process clause. At trial, if the youth plaintiffs are able to prove that for decades the government willfully disregarded information about the potential catastrophic effects of GHG pollution, or abdicated its public trust duties, the decision could be transformative in global efforts to shift to an energy policy that does not threaten young people and future generations. This Article examines Juliana, its context as part of a worldwide campaign of atmospheric trust litigation, its path-breaking reasoning, and its implications in the United States and abroad. The case has been described as the case of the century and, because of the harm it aims to address and the fundamental rights approach endorsed by the court, it just may be that. Pending the forthcoming trial and almost certain appeals, we think the case is, as the trial judge accurately recognized, no ordinary lawsuit

The Politics of Abundance: Towards a Future of Tribal-State Relations

18 p.Mary Christina Wood is Professor of Law and Dean’s Distinguished Faculty Fellow; Director, Bowerman Center for Environmental and Natural Resources Law, University of Oregon School of Law. This is a keynote speech before the Governor of Oregon’s Seventh Annual Summit with Indian Tribes, delivered at Pendleton, Oregon, October 29, 2004. Footnotes have been added to provide references to quotes. The author thanks Jason Hartz for footnote assistance and Sean Martin for editorial assistance