Our Children Fight for Right to a Stable Climate System

November 30, 2016

By Mike Kluk

Regardless of political persuasion, if you accept the overwhelming scientific evidence that climate change is real and is caused by human activity, these are unsettling times.

The new administration cavalierly dismisses climate change as a Chinese hoax and has threatened to pull the United States out of the Paris Accords. Potential leadership at the EPA and the Department of the Interior are — at a minimum — very discouraging.

In this light, I wanted to find some positive happenings in the fight to halt the upward march in global temperatures and we at Cool Davis thought it would be a good time to shine a spotlight on this inspiring story.

Hope from the children: Securing the legal Constitutional right to a stable climate

Lawsuit challenging the federal government’s failure to act more aggressively to limit climate change allowed to go forward.

A federal judge in Oregon recently decided that a class action lawsuit that raises a constitutional claim against the federal government and elements of the fossil fuel industry could proceed. The case, Juliana v. United States, filed  in 2015 by 21 young people ages 9  to 20, claims that government actions that have led to climate change have violated their constitutional rights to life, liberty, and property and that the government has failed to protect essential public resources such as the coast line and a stable climate.

This decision was issued in response to a motion to dismiss the lawsuit filed by the federal government and the fossil fuel defendants. They argued that it was not possible to use constitutional rights to challenge government actions and inactions that may have led to a warming climate. The court rejected the argument in clear terms.

Court validates connection between Constitution and climate

“Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society . . . a stable climate system is quite literally the foundation of society, without which there would be neither civilization nor progress. … To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.” – U.S. District Judge Ann Aiken

“A stable climate system is quite literally the foundation of society.” – U.S. District Judge Ann Aiken

The recent decision does not decide the case on the merits. It does however let it go forward to trial where plaintiffs will have a chance to prove that climate change is caused by human activity and that the federal government has had a role in facilitating it. The trial may occur as early as 2017. The plaintiffs have claimed that climate change has been increased by the federal government allowing for and selling permits to extract fossil fuels from federal lands and subsidizing the fossil fuel industry among other actions. The case claims that the federal government has wrongly embraced short-term financial benefits at the expense of the health and safety of the plaintiffs and future generations.

Even assuming the plaintiffs prevail on the merits at trial, it will not be over. Given the implications, it is virtually assured that the government will appeal the case to the Ninth Circuit Court of Appeals and if unsuccessful, to the Supreme Court. A final answer may be many years in the future.

Similar legal efforts around the world

This case is not the only instance of litigation in the United States and internationally that seeks to combat climate change by enforcing constitutional and statutory rights. Many of these cases have been unsuccessful because of complications and limitations of who can sue, who can be sued and the relief that can be granted. For the most part, the unsuccessful cases have not reached the merits of whether the current climate change we are experiencing is caused by human activities and is resulting in harm.

Lawyers have learned from the efforts and mistakes of those earlier cases. For instance, unsuccessful cases in which gross polluting businesses were sued have given way to cases now targeting government entities which seems a more fertile ground.

Other cases include a 2013 case brought by an environmental group, Urgenda, in the Netherlands which resulted in an order that the country reduce its greenhouse gas emissions by 25 percent from 1990 levels rather than the 17 percent that the government had proposed.

A Peruvian farmer filed suit in Germany against a large German energy company that seeks redress for the emissions attributed to this company over the past two and a half centuries. While the damages sought are very modest, $21,000, it will have significant implications if successful.

In Pakistan, a young man sued the government because of its failure to implement a national climate change policy. The court ordered the Pakistani government to form a climate change commission to address what “appears to be the most serious threat facing Pakistan.”

Our Children’s Trust successful in Washington State already

The organization that brought the Oregon Case, Our Children’s Trust, brought a successful case in Washington State recently as well. There, a County Superior Court ordered the State Department of Ecology to develop an emissions reduction regulation.

These cases represent a new wave of litigation intended to require inactive governments, many with their heads stuck firmly in a bucket of oil, to take reasonable steps to address the threat presented by climate change.