Since adults aren’t doing such a great job at saving the planet, a group of kids has decided to try to protect their future on their own. (OK, some lawyers are helping, too.)
A
new lawsuit against the federal government, filed by
a group of 21 children and young adults between the ages of 8 and 19, could become a major new front against climate change—and a preview of the next important civil rights struggle of the 21st century.
Climate justice means securing the right of all people—those alive today and those in the future—to a stable environment that protects their life, liberty, and property. In his environmental encyclical this summer, Pope Francis
argued that climate change is “one of the principal challenges facing humanity in our day,” a human rights issue that, on our current course, threatens to worsen racial, economic, and social injustice, and challenges the basic decency that makes us human. Top climate scientists tell us, in increasingly urgent dispatches, that we’re running out of time to change course. Obviously, if you’re a 10-year-old and hearing about all this for the first time, you’re going to be pretty mad.
The Obama administration has recently issued a bevy of new regulations designed to reduce American emissions, but
the numbers still fall short. The latest science says
much bolder action is necessary, especially by
historically large polluters
like the United States, to avert a truly horrific, and potentially
irreversible, modification of the atmosphere, oceans, and
biosphere—Earth’s basic life-support system that makes human
civilization possible. This month, world leaders, including President
Obama, will meet in Paris to negotiate
the first-ever global agreement on climate change, so the stakes are especially high right now.
At first glance, the circumstances surrounding this lawsuit read like a storyline straight out of a Disney movie: On one side, a group of energetic kids, joined by a wise and genial grandfather who is fond of fedoras. On the other side, the president of the United States. Will the kids save the world?
The legal team behind the new federal case, Our Children’s Trust, has been pursuing the same basic strategy for several years now, though this is its highest profile case. A separate petition from the group, filed in Washington state, recently
got the attention of the governor, who agreed to meet with the teenage petitioners and subsequently ordered stricter emissions reductions for his state.
“Kids understand the threats climate change will have on our future,” said 13-year-old Zoe Foster, a petitioner in the Washington state case. “I’m not going to sit by and watch my government do nothing. We don’t have time to waste. I’m pushing my government to take real action on climate, and I won’t stop until change is made.”
Last week brought an interesting twist in the plot: Three groups representing the fossil fuel industry
joined the federal case as
intervenors, arguing that the lawsuit is “extraordinary” and “a direct threat to [their] businesses” and that, if the kids win, “massive societal changes” and an “unprecedented restructuring of the economy” could result.
The groups are the American Petroleum Institute, which includes BP, Chevron, ExxonMobil, and Shell; the National Association of Manufacturers, which calls itself “the leading advocate for a pro-growth agenda”; and the American Fuel and Petrochemical Manufacturers, which includes DuPont and Koch Industries. All
have been outspoken against climate legislation. They will argue that the kids, in this case, don’t have standing—the individualized harm that gives the plaintiff a legal cause of action—because climate change is mostly a prediction of harm, and that, even if they are being harmed, climate change is a question for Congress to decide anyway.
The kids’ lawyers see it differently.
“The biggest fossil fuel polluters on the planet, including Exxon and Koch Industries, just asked the court for permission to argue that young people don’t have a constitutional right to life if it means reducing fossil fuel use,” Julia Olson, the lead attorney from Our Children’s Trust said in a statement. In a follow-up interview with
Slate, Olson went a step further: “It’s good news for us that they’re doing this. They see this as a legitimate case.”
Michael Blumm, a professor at Lewis and Clark Law School in Portland, Oregon, who is not involved in the lawsuit, agrees the addition of fossil fuel industry representatives could make things awkward for the Obama administration. “One of the ironies of the case is: The government, which is bashed by the fossil fuel industry for its alleged war on coal and for the Keystone thing, is now in lockstep with them in this lawsuit.” Blumm added that it wasn’t unusual for groups like these three to intervene on high-profile cases where they might expect the government, as a defendant, wouldn’t necessarily be arguing in their best interests.
The lawsuit seeks comprehensive, science-based legislation to return atmospheric carbon dioxide to 350 parts per million by 2100. That’s why the kids’ team has enlisted the help of James Hansen, the renowned former NASA scientist, who filed
lengthy, emotionally charged testimony with the suit on behalf of his granddaughter, Sophie Kivlehan, one of the plaintiffs, who is 17.
Unlike many previous cases filed by Our Children’s Trust, which have focused on the
somewhat obscure legal idea that governments have an innate duty as intergenerational trustees to protect the natural resources under their domains, this case is a straight-up constitutional challenge aimed at securing intergenerational equity in the context of climate change. The atmospheric trust idea has so far gained
only limited traction in the
several times it’s been tried, including a 2011 federal case dismissed by the U.S. Court of Appeals for the District of Columbia Circuit,
Alec L. v. McCarthy, which was brought by Our Children’s Trust.
Blumm, who filed
an amicus brief in support of
Alec L.,
believes the constitutional claim made by the current case is
different. “It would be a path-breaking suit if it succeeds,” Blumm told
me. “They’re trying for revolutionary change on the order of
Brown v. Board and
Obergefell v. Hodges, and they may be able to succeed.”
Earlier this year,
a Dutch court found
that its federal government was legally obligated to reduce greenhouse
emissions, the first ruling of its kind anywhere in the world.
Constitutional law scholars
are generally divided on whether a challenge like this will be successful in the United States, because our Constitution doesn’t specifically provide the right to environmental protection.
Still, the lawyers behind the kids’ case say that may not matter.
They assert that the Due Process Clause of the Fifth and 14th Amendments and the Equal Protection Clause of the 14th Amendment—the basis of many civil rights cases—require the government to pay special attention to the harm climate change inflicts on children and future generations.
The case is the latest example of a quickly growing cultural realization that what humans are doing to the climate is fundamentally unjust and that traditional political change is just too slow to address it. With a congressional deadlock on climate likely to continue into the next presidency, regardless of
who wins the White House in 2016, the court system may be the last reasonable pathway for change on the scale that scientists say is necessary.
Still, a case like this is aimed at energizing the political branches, not superseding them. It’s a very unlikely scenario that this specific case reaches the Supreme Court and results in a favorable decision. But a favorable Supreme Court decision would likely result in a historic mandate for Congress to decide on the best way to put the country on a crash carbon diet with minimal economic impact.
Instead, this particular case will probably die at the district or circuit court level, though even if that happens, it could inspire follow-on lawsuits for years that would hope to catch a more favorable judge or cultural moment, according to environmental and constitutional law scholars I spoke with.
If Congress remains reluctant to act and those follow-on lawsuits also fail, young people would likely inherit a federal government with a much diminished opportunity for addressing climate change. “People in the political branches 20 or 25 years from now are going to look back on people in the political branches today and say, ‘You gave us a mess,’” said Blumm.
Meanwhile, we will be watching geological-scale change happen in the span of a human lifetime. If climate ambition is framed based on what’s possible politically in this current moment, then we will fail. This lawsuit, and future ones like it, helps to moralize climate action and make it much more personal.
Hansen, now 74, says of his continuing research and advocacy on climate change since leaving NASA in 2013: “I am doing this for my grandchildren and future generations, and that does give you a completely different feeling. It makes it possible to keep working hard.”
His most recent paper, a deeply troubling assessment of the near-term potential for worst-case-scenario sea level rise,
made global headlines earlier this year. In a
2013 paper, he outlined how fast the world would have to switch to carbon-neutral forms of energy to preserve a stable climate. The original title, Hansen told me, was in honor of his granddaughter: “Sophie vs. Obama.”
At the heart of his work is frustration with the slow pace of political progress on the climate issue. Though governments have pledged significant cuts in emissions as part of the runup to the Paris negotiations,
there’s a big difference between pledges and actual, legally enforceable policy.
Another risk, Hansen says, is that “you don’t want people believing in what I call the ‘half-baked, half-assed solution.’ You don’t want people believing that they’re actually solving the problem if they aren’t. … There is a danger that they’ll claim victory, and people won’t notice for another decade that it wasn’t victory.”
So Hansen, who
will attend the Paris climate talks, has put his name on this lawsuit—mostly as a way to force Congress and the president to pay more attention to climate change, and, in his words, “the sooner the better.”
Whether this case gains significant traction—and more importantly, how many years it takes for this case or one like it to succeed—may well decide Americans’ quality of life for generations. But just as the struggle for same-sex marriage felt hopeless until it succeeded, right now, for these kids at least, it’s a long shot.
