A Legacy of Fighting for Justice

On the morning of March 9 2016, 21 young plaintiffs, aged 8 to 19, crowded into a courtroom in Eugene, Oregon, to sue the United States government for failing to protect their environment by allowing continued fossil fuel development that was leading to potentially catastrophic global warming. Their efforts were set in motion by a law professor whose family has been fighting for social and environmental justice for well over a century.

Photo by Viewminder/FlickrAcross the US, youth groups are suing governments, demanding that their rightto a pollution-free environment be respected.

The group behind the current lawsuit, Our Children’s Trust , believes that Earth’s atmosphere is a legacy that each generation must protect for the next, and that the US government must not allow any actions, public or private, that might abuse this common heritage. Specifically, they cite increasing carbon pollution as the greatest threat to our atmospheric trust. Similar lawsuits in Massachusetts and Washington have received favorable rulings in court.

Based on this idea of a trust violated, young activist organizations such as iMatter (which began as Kids vs. Global Warming, a project of Earth Island Institute) have organized demonstrations around the world. They mobilized during the recent Paris climate talks, whose positive steps forward were, in the children’s opinions, far less than what is needed. They want to force the US government, through the courts, to respect their rights to a pollution-free environment.

The concept of an atmospheric trust doctrine, as their legal argument is often called, was the brainchild of Mary Christina Wood, a University of Oregon Environmental Law professor. Wood worked with teams of young Americans to develop the idea, and a strategy for taking it both to the streets and to the courts.

As Mary explained in an interview with Yale Environment 360: “The litigation just takes this well known, ages-old principle that government is trustee of our crucial resources and applies it to the atmosphere and to the climate in particular. The reason it’s important is because the political branches of government are doing next to nothing to address this crisis, which is threatening the future survival and welfare of the youth of this nation and future generations. Where the two political branches are doing nothing, the public trust has its most forceful argument for judicial intervention. The atmospheric trust cases don’t ask the courts to determine what measures should be taken to reduce carbon dioxide emissions. But they do ask courts simply to force the other branches to do their job in protecting the natural resources we rely on.”

Mary who has spoken throughout the United States, and appeared on the final Bill Moyers television program, credits her environmental concerns to several generations of long-lived attorneys, each of whom were champions of both social and environmental justice.

The first was her famous great-grandfather, Charles Erskine Scott (CES) Wood, a key figure in the development of modern Portland, Oregon. He died more than a decade before Mary and her twin sister, Becky were born, but they learned all about him from stories their grandfather told them. (Becky too, is an environmental lawyer, and is based in Boise, Idaho.) CES played a leading role in creating the Portland Art Museum, its public library, and many other important institutions, but he was best known for his relationship with the famous Nez Perce Indian leader, Chief Joseph.

Photo courtesy University of Oregon The concept of an atmospheric trust doctrine, which
is the basis for these lawsuites, is the brainchild of
law professor Mary Christina Wood.

The two first met in 1877 under unusual conditions. CES was a Lieutenant among the US Army troops that chased the Nez Perce for 1,200 miles in an epic series of battles, trying to force the Native Americans, who lived in the beautiful Wallowa Valley of northeastern Oregon, to move to a tiny Idaho reservation. Charles joined the fight after the Nez Perce had badly defeated the Army in White Bird Canyon, Idaho. His first task in the war was to bury the 34 soldiers who fell to Nez Perce bullets. He only wanted “to get a crack at an Indian and show no quarter,” he wrote then.

But during the war, CES came to see the Nez Perce as victims of European expansion, fighters for liberty and for a simpler, less acquisitive, way of life, connected to the land. He had learned to love the inter-mountain West environment a few years earlier while his company explored Oregon’s Harney Desert, the site of the current-day Malheur Wildlife Refuge, famously held hostage by the militant Bundy gang earlier this year.

Years later, after CES became a noted author, poet, playwright and painter, he wrote in his epic work, The Poet in the Desert of the revelations that came to him in the Malheur area:

I look up unto the stars, knowing that to them my life is not
More valuable that that of the flowers;
The little, delicate flowers of the Desert,
Which, like a breath, catch at the hem of spring and are gone.

During the Nez Perce War, Charles witnessed the brutal Big Hole Battlefield massacre of Native American women and children by the Army. By the time the war was over, his sympathies were clearly with the Nez Perce. He is credited with transcribing Chief Joseph’s famous “I will fight no more forever” speech, though many historians actually believe Joseph made no speech, and that Wood crafted it from a conversation he had with Joseph after the latter’s surrender.

The friendship that began that day lasted for the rest of Joseph’s life, as CES worked tirelessly to help Joseph return to the northwest from a terrible confinement in Oklahoma, argued for the right of the Nez Perce to reclaim their Wallowa Valley home, and hosted Joseph in Portland, where Charles had become a prominent attorney. He also sent his son, Erskine, Mary Wood’s grandfather, to live for two summers with Chief Joseph’s family on the Colville Indian Reservation in Washington State.

While in Portland, CES fought for the rights of radicals such as Emma Goldman and the Industrial Workers of the World — an international labor union that was founded in 1905. He was a champion of woman suffrage. He quit the Oregon Bar in 1912 over its failure to admit African-American members, and, in 1908, he attacked the decimation of Oregon’s old growth forests in language reminiscent of John Muir:

“There is no spot where the primeval forest is assured from the attack of that worst of all microbes, the dollar… It is a pity to have all this majesty of antiquity totally destroyed. Man cannot restore it. It cannot be rebuilt by Nature herself in less than a thousand years…”

Charles died in 1944 at the age of 92. His son Erskine, who lived to be 104, also became an attorney and fought for social and environmental justice, as did his own son, Mary’s father. Erskine told Mary and her sister, Becky, that his days living with Chief Joseph were the highlight of his life. The family kept in regular touch with the Nez Perce, and a decade ago, the Woods gave a prize Appaloosa stallion to a descendent of Joseph to honor a family obligation to the tribe.

When Erskine went to live with Joseph on the reservation, his father told him to ask the chief what Joseph might want as a present for taking care of him for two summers. But when Joseph answered that he’d like a horse, Erskine thought such a gift was not worthy of so famous a person, and never told his father. After the story came out years later, Mary Wood and her family fulfilled a generations-old promise.

“Each generation has an obligation to fulfill the promises made in the past,” Mary Wood now says. And that promise, she would add, extends to future generations as well.

That’s what the atmospheric trust is all about.