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
  • INDIGENOUS AFFAIRS EDITOR - HIGH COUNTRY NEWS
    High Country News is hiring an Indigenous Affairs Editor to help guide the magazine's journalism and produce stories that are important to Indigenous communities and...
  • STAFF ATTORNEY
    Staff Attorney The role of the Staff Attorney is to bring litigation on behalf of Western Watersheds Project, and at times our allies, in the...
  • ASSISTANT VICE PRESIDENT FOR DIVERSITY AND INCLUSION
    Northern Michigan University seeks an outstanding leader to serve as its next Assistant Vice President for Diversity and Inclusion. With new NMU President Dr. Brock...
  • EXECUTIVE DIRECTOR
    The Clark Fork Coalition seeks an exceptional leader to serve as its Executive Director. This position provides strategic vision and operational management while leading a...
  • GOOD NEIGHBOR AGREEMENT MANAGER
    Help uphold a groundbreaking legal agreement between a powerful mining corporation and the local communities impacted by the platinum and palladium mine in their backyard....
  • EXECUTIVE DIRECTOR
    The Feather River Land Trust (FRLT) is seeking a strategic and dynamic leader to advance our mission to "conserve the lands and waters of the...
  • COLORADO DIRECTOR
    COLORADO DIRECTOR Western Watersheds Project seeks a Colorado Director to continue and expand WWP's campaign to protect and restore public lands and wildlife in Colorado,...
  • DIGITAL MEDIA SPECIALIST, THE NATURE CONSERVANCY: WYOMING, MONTANA AND UTAH
    Digital Media Specialist - WY, MT, UT OFFICE LOCATION Remote and hybrid options available. Preferred locations are MT, WY or UT, but applicants from anywhere...
  • GRANT WRITER (PART-TIME, FREELANCE CONTRACT) HIGH COUNTRY NEWS
    High Country News seeks an energetic, articulate and highly organized grant writer to support a growing foundations program. This position works closely with our Executive...
  • EXPERT COMPUTER & TECH HELP, PROVIDED REMOTELY
    From California, I provide expert tech help remotely to rural and urban clients. I charge only when I succeed. Available 7 days. Call for a...
  • ACCOUNTING AND OPERATIONS GENERALIST
    What We Can Achieve Together: The Accounting and Operations Generalist provides accounting and operations related services, including lease administration and compliance support, to the Arizona...
  • LANDSCAPE ECOLOGIST
    Landscape Ecologist, Arizona What We Can Achieve Together: The Landscape Ecologist provides technical and scientific support and leadership for conservation initiatives and strategies in landscape...
  • MULESHOE RANCH PRESERVE STEWARD
    What We Can Achieve Together: The Muleshoe Ranch Preserve Steward lives on site in housing provided by The Nature Conservancy and performs and coordinates construction...
  • ASSISTANT PROFESSOR OF HISTORY - INDIGENOUS HISTORIES OF THE NORTH AMERICAN WEST
    Whitman College seeks applicants for a tenure-track position in Indigenous Histories of the North American West, beginning August 2024, at the rank of Assistant Professor....
  • DAVE AND ME
    Dave and Me, by international racontuer and children's books author Rusty Austin, is a funny, profane and intense collection of short stories, essays, and poems...
  • CHIEF FINANCIAL OFFICER
    Rural Community Assistance Corporation is looking to hire a CFO. For more more information visit: https://www.rcac.org/careers/
  • EXECUTIVE DIRECTOR
    The Absaroka Beartooth Wilderness Foundation (ABWF) seeks a new Executive Director. Founded in 2008, the ABWF is a respected nonprofit whose mission is to support...
  • CANYONLANDS FIELD INSTITUTE
    Field seminars for adults in natural and human history of the northern Colorado Plateau, with lodge and base camp options. Small groups, guest experts.
  • COMING TO TUCSON?
    Popular vacation house, everything furnished. Two bedroom, one bath, large enclosed yards. Dog-friendly. Contact Lee at [email protected] or 520-791-9246.
  • ENVIRONMENTAL AND CONSTRUCTION GEOPHYSICS
    We characterize contaminated sites, identify buried drums, tanks, debris and also locate groundwater.