Youth Climate Activists Versus Federal Government
Following recent legal victory, lead plaintiff in novel global warming lawsuit pushing for settlement agreement
At 20 years old, Kelsey Juliana estimates she has spent nearly half her life as an environmental activist, although you can make a case that it has been even longer than that. The year she was born, her parents were involved in one of the most successful campaigns to protect old growth forests in Oregon. As a toddler she attended the 1999 WTO protests in Seattle, and by fourth grade she was organizing her classmates to participate in the first International Day of Climate Activism.
Photo by Sam Beebe
Juliana is best known as the lead plaintiff in a suite of novel state and federal lawsuits arguing that the federal government, in contributing to climate change, has violated the constitutional rights of young people to life, liberty, and property, and has failed to protect public trust resources. The plaintiffs, who range in age from 9 to 20, are seeking legally-binding and scientifically valid policies to deal with climate change. Now that a climate denier is set to become president in January, Juliana’s clear-eyed assessment succinctly summarizes what this strategy is all about: “I really do believe this case is our last hope for a climate remedy.”
In early November, Juliana and her 20 co-plaintiffs won a major procedural victory when US District Court Judge Ann Aiken ruled in their favor, finding that the plaintiffs had legal standing to pursue the claim and that their case could proceed to trial.
Aiken rejected attempts by the government and the fossil fuel industry to have the case dismissed, writing in her opinion that, “Exercising my ‘reasonable 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.” In her ruling, she pushed back against the government’s argument that executive and legislative action on climate change would render a ruling for the plaintiffs disrespectful: “There is no contradiction between promising other nations the United States will reduce C02 emissions and a judicial order directing the United States to go beyond its international commitments to more aggressively reduce C02 emissions,” adding that a judgment in favor of the plaintiffs would not express “disrespect for the Executive Branch’s international climate change agreements.”
While Aiken’s ruling clears the path for the case to go to trial, it also creates an opportunity for a settlement. “The favorable track for all of the plaintiffs would be to go to the settlement table,” Juliana says. “We’re pushing for Obama’s administration to sit down with us and work out a settlement before he leaves office.”
Suing the government to compel action on climate change is often discussed as a radical step. Considering the current political climate, however, it is a logical action in the face of a radically dysfunctional government that is unable, or just unwilling, to follow its own policy recommendations. “In 1986 the EPA was ordered to come up with a plan to reduce CO2 emissions, which is what we are arguing for,” Juliana says.
Considering the epidemic of climate denial in Congress today, it is hard to fathom that in June of 1986 a Republican-controlled Senate held a five panel hearing on Ozone Depletion, the Greenhouse Effect, and Climate Change. Senator John Chafee, a Republican from Rhode Island and the chair of the Senate Subcommittee on Environment and Public Works, presided over two days of testimony from Reagan administration officials, senators including Al Gore, and climate scientist such as Dr. James Hansen and Dr. Michael Oppenheimer.
In opening statements, senators set forth a series of initiatives, including tasking the Environmental Protection Agency and Office of Technology Assessment to set forth, “policy options that, if implemented, would stabilize the levels of atmospheric gases.”
At the September hearing, Julia Olson, lead attorney for Juliana and her co-plaintiffs and executive director of the nonprofit Our Children’s Trust, presented the plans the EPA and OTA prepared in response to the Senate’s initiatives. In court testimony, Olson explained, “Those plans got put on the shelf and were never implemented. The EPA plan was a plan to stabilize carbon dioxide levels at 350 parts per million, what we seek in this case.”
Photo by Walter, Flickr
In oral arguments, Olson laid out a timeline of the US government’s long-standing awareness of climate danger. From Office of Naval Research findings in 1956 that “carbon dioxide from burning fossil fuels is linked to climate change, rising temperature, and hurricane frequency,” through statements President Obama made in a September 2016 New York Times interview that the threat of climate change is “terrifying,” it becomes clear that the government has been cognizant of the impacts of climate change but has failed to follow its own recommendations to deal with the crisis. The government has already done its research, but, Julianna adds, government officials have “failed to do the next step and implement their findings.”
Her vision of a settlement includes, “a concrete plan to phase out fossil fuel emissions on a realistic timeline to get to safe stable targets.” This would include a phase out of existing fossil fuel project as well as future ones. Juliana also wants work to stop on the Jordan Cove liquefied natural gas pipeline in her native Oregon, as well as on the Dakota Access Pipeline that would carry crude oil from North Dakota to Illinois, and the Atlantic Coast Pipeline that would run from West Virginia to southern North Carolina. (Read Earth Island Journal’s features about resistance to the Dakota Access Pipeline here and the Atlantic Coast Pipeline here.)
Beyond specific projects, Juliana and her colleagues seek to secure protections for the atmosphere under the Public Trust Doctrine, a legal principle dating back to Ancient Rome that argues the natural environment is common to all of humanity and should be held in trust by governments who bear responsibility for its protection. In the US, courts have long recognized water resources as being protected under the doctrine.
Juliana explains, “The goal of the Public Trust Doctrine is to ensure that government acts with a moral and legal responsibility by not exploiting or polluting the atmosphere so that not only those living and using the resource today can have it, but so that generations down the line can too.”
In the absence of a settlement agreement, the case could ultimately wind up in the US Supreme Court. Regardless of who is appointed to fill the current Supreme Court vacancy, Juliana and her co-plaintiffs are optimistic about their chances. In her ruling, Judge Aiken argued there is a strong case for the emergence of new fundamental rights and cited a recent landmark Supreme Court opinion, Obergefell v. Hodges, in which the court held that same-sex marriage is protected under the Constitution:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights ... did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.
This opinion was delivered by Justice Anthony Kennedy, believed by most legal experts to be the deciding vote if Juliana. v. United States winds up before the Supreme Court.
The images and captions accompanying this article have been edited post publication.