Young people are suing over climate change

The Constitution may hold the key to climate action.

 

Some of the 21 plaintiffs, along with attorneys and supporters, gather on the steps of the federal courthouse in Eugene, Oregon, after a hearing demanding the U.S. government take science-based action against climate change in March 2016.
Robin Loznak/ZUMA PRESS

The day before Donald Trump’s inauguration, a group of environmental lawyers had hoped to depose Rex Tillerson, Trump’s nominee for secretary of State, in Dallas, Texas. Julia Olson wanted to grill the former ExxonMobil CEO and American Petroleum Institute board member about climate change: what his industry knew, when they knew it, and how they lobbied the federal government to address — or ignore — the problem.

Industry lawyers disputed the request, and at press time it was unclear if the deposition would actually happen. But if it does, Olson will add Tillerson’s testimony to the evidence she is gathering for a trial in Oregon later this year, where she will try to convince a federal judge that the government’s failure to stem the climate crisis violates the constitutional rights of her clients — 21 young people not yet old enough to legally buy a drink.

This lawsuit is as broad as most are narrow. Environmental litigation is often incremental, ensuring that the government dots its i’s and crosses its t’s when permitting energy projects or carving out endangered species habitat. Olson’s case is instead designed to upend our entire fossil fuel-based energy system.

Olson argues that embedded in our rights to life and liberty is the right to a habitable planet — a right imperiled by rising seas and extreme weather. The federal government, she says, has willfully violated that right by unearthing and burning fossil fuels while fully aware of the consequences. And she’s representing youth because today’s 10-year-olds will be more profoundly impacted by climatic chaos than, say, our 70-year-old president.

The case is grounded in the “public trust” doctrine, which states that the government is obliged to manage certain natural resources for the long-term public good. The idea dates to Roman times and in the U.S. has been mostly applied to waterways. In a landmark 1892 case, the U.S. Supreme Court found that Illinois could not sell a lengthy stretch of Lake Michigan’s shoreline to a railroad company because the state held the lake’s waters in trust for the people.

The court saw the lake and its shoreline primarily as a corridor of commerce. But the idea of the public trust expanded over time. In 1983, the California Supreme Court stopped Los Angeles from emptying Mono Lake because it would hurt wildlife and diminish the lake’s recreational and aesthetic values — also part of the trust.

Olson hopes to establish that the government has an intrinsic responsibility to protect the atmosphere, too. The court will wrestle with questions like: What is a habitable climate system? And at what point is it endangered? “You can’t have that conversation in Congress,” Olson says. “This will be a legitimate review of why we are in this mess.” The trial will cover government leasing programs and tax policies that support fossil fuels, and political decisions to leave meaningful remedies for a warming world for another day.

Ultimately, the plaintiffs want federal policies to reduce carbon emissions enough to prevent catastrophic warming. Judges wouldn’t write those policies, but the lawyers want to ensure that they reflect sound science. And they want courts to supervise their implementation, much the way courts oversaw school integration after Brown v. Board of Education. “We’re looking for swift, game-changing action as soon as we can,” Olson says.

 

“For years, lawyers (tried) to establish a constitutional right to a clean environment, with no success at all,” says Michael Gerrard, an environmental law professor at Columbia University. Then, in 2013, Pennsylvania courts struck down a law that blocked local governments from restricting oil and gas drilling, saying it violated the state’s constitutional obligation to conserve clean air, water and scenery for future generations.

Olson and her allies also notched some victories: This year, Washington and Massachusetts courts ruled in favor of youth plaintiffs in state-level versions of Olson’s federal suit. Those cases, supported along with the Oregon suit by the nonprofit Our Children’s Trust, forced state agencies to develop emission-reduction plans.

There was another major breakthrough this November, when a federal judge in Oregon shot down the government’s and industry’s motions to dismiss, allowing Olson’s case to go to trial. “The trial court’s decision was quite remarkable and unexpected,” Gerrard says. For the first time, a federal judge implied that the Constitution did entitle Americans to a livable environment, and that the question of whether that right was imperiled deserved a hearing. “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” Judge Ann -Aiken wrote.

Now Olson must convince the court of the direct connections between federal energy policies and the harms wrought by climate change, and of its authority to make the government change its ways. If she wins, the question becomes whether the case can survive on appeal, even up to the nation’s highest court — which could soon welcome a new justice, maybe two, appointed by Trump.

Contributing editor Cally Carswell writes from Santa Fe, New Mexico.  

High Country News Classifieds
  • DEVELOPMENT AND OPERATIONS COORDINATOR
    Development & Operations Coordinator Terms: 1.0 FTE (full-time), Salary DOE ($45,000 - $55,000) Benefits: Paid Time Off (12-24 days/year depending on tenure), Paid Holidays (10/year),...
  • GUIDE TO WESTERN NATIONAL MONUMENTS
    NEW BOOK showcases 70 national monuments across the western United States. Use "Guide10" for 10% off at cmcpress.org
  • CARBON RANCH PLANNER
    The Quivira Coalition (www.quiviracoaltion.org) is a Santa Fe-based nonprofit that builds resilience on arid working lands. We foster ecological, economic, and social health through education,...
  • EDUCATION AND OUTREACH DIRECTOR
    Education and Outreach Program Director The Quivira Coalition (www.quiviracoaltion.org) is a Santa Fe-based nonprofit that builds resilience on arid working lands. We foster ecological, economic,...
  • WESTERN DIVISION DIRECTOR OF FIELD PROGRAMS
    DEADLINE TO APPLY: October 29, 2021 LOCATION FLEXIBLE (WESTERN HUB CITY PREFERRED) Overview The Land Trust Alliance is the voice of the land trust community....
  • COMMUNICATIONS AND OUTREACH ASSOCIATE
    Communications and Outreach Associate Position Opening: www.westernlaw.org/communications-outreach-associate ************************************************* Location: Western U.S., ideally in one of WELC's existing office locations (Santa Fe or Taos, NM, Helena,...
  • FREELANCE GRAPHIC DESIGNER & PROJECT COORDINATOR (REMOTE)
    High Country News (HCN) is seeking a contract Graphic Designer & Project Coordinator to design promotional, marketing and fund-raising assets and campaigns, and project-manage them...
  • FILM AND DIGITAL MEDIA: ASSISTANT PROFESSOR OF INDIGENOUS MEDIA, CULTURAL SOVEREIGNTY AND DECOLONIZATION (INITIAL REVIEW 12.1.21)
    Film and Digital Media: Assistant Professor of Indigenous Media, Cultural Sovereignty and Decolonization (Initial Review 12.1.21) Position overview Position title: Assistant Professor - tenure-track Salary...
  • REAL ESTATE SPECIALIST
    To learn more about this position and to apply please go to the following URL.
  • ENVIRONMENTAL GEOPHYSICS
    "More Data, Less Digging" Find groundwater and reduce excavation costs!
  • RARE CHIRICAHUA RIPARIAN LAND FOR SALE
    40 acres: 110 miles from Tucson: native trees, grasses: birder's heaven::dark sky/ borders state lease & National forest/5100 ft/13-16 per annum rain
  • CENTRAL PARK CULTURAL RESOURCE SPECIALIST
    Agency: Oregon Parks and Recreation Department Salary Range: $5,203 - $7,996 Position Title: Central Park Cultural Resource Specialist Do you have a background in Archaeology...
  • STAFF ATTORNEY
    Come live and work in one of the most beautiful places in the world! As our Staff Attorney you will play a key role in...
  • ARIZONA GRAZING CLEARINGHOUSE
    Dedicated to preventing the ecological degradation caused by livestock grazing on Arizona's public lands, and exposing the government subsidies that support it.
  • OPERATIONS MANAGER
    Position Summary: Friends of the Inyo (friendsoftheinyo.org) is seeking a new Operations Manager. The Operations Manager position is a full-time permanent position that reports directly...
  • WATER RIGHTS BUREAU CHIEF
    Water Rights Bureau Chief, State of Montana, DNRC, Water Resources Division, Helena, MT Working to support and implement the Department's mission to help ensure that...
  • EXECUTIVE DIRECTOR
    The Amargosa Conservancy (AC), a conservation nonprofit dedicated to standing up for water and biodiversity in the Death Valley region, seeks an executive director to...
  • DEVELOPMENT & OUTREACH ASSOCIATE
    Southeast Alaska Conservation Council is hiring! Who We Are: The Southeast Alaska Conservation Council (SEACC) is a small grassroots nonprofit based out of Juneau, Alaska,...
  • DESERT LANDS ORGANIZER
    Position Summary: Friends of the Inyo seeks a Desert Lands Organizer to assist with existing campaigns that will defend lands in the California desert, with...
  • IDAHO CONSERVATION LEAGUE
    Want to help preserve Idaho's land, water, and air for future generations? Idaho Conservation League currently has 3 open positions. We are looking for a...