‘Climate kids’ seek action – and await their day in court

Last Friday, the US government took an extraordinary step to hinder a group of young plaintiffs from suing it over climate change, in a case that could prompt Americans to rethink the role that government plays in safeguarding the atmosphere for future generations.

In an order issued on Oct. 19, the US Supreme Court froze the discovery and trial processes for Juliana v. United States, a federal lawsuit by 21 US citizens between the ages of 11 to 22 who allege that the government has violated their constitutional rights by knowingly destabilizing the Earth’s climate. The Justice Department had requested that the high court pause the trial, which had been slated to begin Monday in the Federal District Court in Eugene, Ore., arguing that the litigation costs would represent an undue burden on the government.

It’s nearly unheard of for the Supreme Court to halt a proceeding in a lower court before it has even started. But this is not the first time the White House, under both Presidents Trump and Barack Obama, have attempted unusual legal maneuvers, variously described by the federal judges reviewing them as “drastic and extraordinary“ and “hen’s-teeth rare,” to prevent this case from moving forward since the plaintiffs first filed it in 2015.

“It sounds like they’re afraid,” says University of Oregon legal scholar Mary Wood, about the Justice Department. “Everybody is saying that this is just a litany of desperate measures.”

Professor Wood developed some of the legal theories that guide the lawsuit, which unlike most environmental suits, does not rely on a statute, regulation, or ordinance. Instead, the plaintiffs, represented by an Oregon environmental nonprofit called Our Children’s Trust, are making a constitutional claim. The US government, they argue, knew about the dangers of greenhouse gas emissions decades ago. Yet they continued to pursue policies, such as issuing permits for fossil fuel extraction and export, that the lawsuit claims deprive the plaintiffs of their rights to life, liberty, and property that are guaranteed by the Constitution’s due process and equal protection clauses.

More broadly, implicit in the case is an assumption of government obligation that could ripple far beyond the realm of climate change. If citizens have standing to sue the government for failing to safeguard natural resources for future generations, then that opens up a flood of other kinds of potential lawsuits.

A different kind of lawsuit

Unlike most lawsuits, the plaintiffs are not seeking money. Instead, they want the courts to require the federal government to formulate a climate recovery plan that would phase out excess greenhouse gas concentrations in the atmosphere.

In the eyes of the plaintiffs, constitutional rights extend to the freedom to enjoy a healthy natural environment.

“The constitution guarantees all Americans the right to life, liberty, and property,” plaintiff Kelsey Juliana, now 22, wrote in a post explaining her decision to sue the government. “But how is anyone supposed to live a life of freedom amid a climate crisis?”

Linking the stability of the global climate to fundamental constitutional rights is a relatively new litigation strategy, but so far it has held up in court. In 2016, Judge Ann Aiken, the federal judge who had been scheduled to preside over Monday’s trial, allowed the case to go forward, writing, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

“If you’re losing your house, your farmlands are failing, and your livelihood is at perpetual risk or at best uncertain, these are the kinds of circumstances that that foreclose the ability to exercise or enjoy those rights,” says Maxine Burkett a law professor at the University of Hawaii who specializes in climate justice.

Observers say that the government is resisting the case for two big reasons. First, the discovery process – the pretrial procedure during which evidence is entered into the public record – could establish as fact the government’s role not just in failing to address climate change, but in knowingly promoting policies that would exacerbate it.

“The discovery is going to reveal that the government actually knows that climate change is real and actually has known it for a very long time, and actually isn’t taking the actions that we would need to take to make our contribution to ensuring that the increase in temperature on the planet stays below 2 degrees centigrade,” says David Takacs, a law professor at the University of California Hastings College of the Law in San Francisco. “That can be both time consuming and embarrassing.”

Second, acknowledgement of the underlying premise of the case – that the Constitution obliges the government to safeguard natural resources for future generations – could drastically shift the balance of power between citizen and state.

“If you were to establish one of the constitutional claims that Our Children’s Trust is looking for, that would have tremendous implications not just for reducing greenhouse gases but for taking all kinds of actions” says Professor Takacs. “If young people, the youth, are seen as a protected class, then anything that the government does that fails to steward a sustainable future for youth would all of a sudden be challengeable in court under constitutional grounds, and the government doesn’t want that.”

Beyond the courthouse

For climate activists, the judiciary is far from an ideal mechanism for mitigating greenhouse gas emissions. But given that more than half of Congress disputes the science underpinning climate change, and that the executive branch is disinclined toward climate action, the courts may be their only remaining recourse.

“This is what is so striking about the plaintiffs’ case,” says Wood. “Their whole point is that the other branches of government should have ceased this perilous policy decades ago.”

Even if the plaintiffs don’t prevail, the attention that the case is receiving constitutes a victory of sorts, as it might prompt the general public to rethink the government’s responsibility toward the planet’s atmosphere. Already, the procedural developments in the case have drawn national attention. On Sunday and Monday, activists plan to rally in cities across the US.

“Part of the genius of this lawsuit,” says Takacs, “is that it is helping to promote that cultural shift. The fact that you’ve got this incredibly mediagenic lawsuit, the fact that you have these incredibly smart, articulate young people under the age of 18 who are saying the things that they’re saying in the most intelligent way.... that’s part of the goal.”

This shift could shape how the next generation of environmental lawyers take on climate change. “This a is truly an extraordinary time to be in law school,” says Olivia Molodanof, a JD candidate at the UC Hastings College who has followed the case closely. “Cases like the Juliana case have really sparked a fire in people.”