Atmospheric Trust Litigation: Prompting Climate Action through the Courts
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Over the last two decades, frustration with government inaction on climate change has catalyzed a surge of litigation to prompt policy action. Although climate change litigation is constrained by justiciability doctrines and a hostile legal opportunity structure, environmental non-governmental organizations (NGOs) are still pursuing lawsuits. This paper investigates atmospheric trust litigation (ATL), a national litigation campaign coordinated by Our Children’s Trust, which uses the public trust doctrine to enforce what they allege is the government’s fiduciary obligation to protect the atmosphere in trust for the public. Specifically, I examine the Oregon court proceedings in Chernaik v Kitzhaber as a case study of how both parties strategically frame their arguments to influence case outcomes. Although ATL is still in its infancy, previous research has assessed the viability of the legal arguments underlying atmospheric trust litigation and analyzed case outcomes. However, this paper contributes to a discussion of the practical application of these arguments by investigating how Our Children’s Trust (OCT) employs various strategies to influence case outcomes, and addresses the broader research question of how Our Children’s Trust creates their own opportunities in a hostile legal environment. To answer, I draw from legal briefs, court decisions, interviews, and newspaper coverage to explain how counsel framed and refined the problems and solutions in court, provided a roadmap for case proceedings, and sensationalized a “doom and gloom” future to influence case outcomes. My findings indicate that by agreeing to bifurcate their case, strategically framing their appeal, and rewording their requests on remand, OCT helped create legal opportunities that resulted in a justiciability win. This research underscores the importance of giving agency to social movement actors and understanding the broader socio-legal context within which atmospheric trust litigation operates.