National Geographic - Laura Parker
A pioneering lawsuit against the U.S. government on global warming won
the right to a trial. Now Trump wants an appeals court to cancel it.
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| These young people are among the group suing for the right to a
stable climate. They are (left to right top) Aji Piper, Levi Draheim, Journey
Zephier, (left to right bottom) Jayden Foytlin, Miko Vergun, Nathan Baring. |
Levi Draheim is a nine-year-old science geek. He founded an
environmental club as a fourth grader and gives talks about climate
change to audiences of grown-ups. His home is on a slender barrier
island on Florida’s Atlantic coast, 21 miles south of Cape Canaveral and
a five-minute walk from the beach. By mid-century, his sandy childhood
playground could be submerged by rising seas. He will be just 42.
Nathan Baring is 17 and a high school junior in Fairbanks, Alaska—120
miles south of the Arctic Circle. He loves cold weather and skis. The
Arctic
is warming twice as fast as the rest of the planet. Now winter snows
that Baring once celebrated as early as August in Fairbanks can hold off
until November.
By 2050, Arctic sea ice will have virtually disappeared, and
temperatures in the interior, surrounding Fairbanks, will have risen by
an additional 2 to 4 degrees Fahrenheit, altering the boreal forest
ecosystem. Nathan will be 50.
“I can deal with a few days of rain in February when it’s supposed to
be 40 below,” he says. “But I can’t deal with the idea that what my
parents experienced and what I have experienced will not exist for my
children. I am a winter person. I won’t sit idly by and watch winter
vanish.”
Baring and Draheim so lack confidence that they will inherit a healthy
planet that they are suing the United States government for failing to
adequately protect the Earth from the effects of climate change. They
are among a group of 21 youths who claim the federal government’s
promotion of fossil fuel production and its indifference to the risks
posed by greenhouse gas emissions have resulted in “a dangerous
destabilising climate system” that threatens the survival of future
generations. That lapse violates, the court papers argue, their
fundamental constitutional rights to life, liberty, and property. The
lawsuit also argues that the government violated the public trust
doctrine, a legal concept grounded in ancient law that holds the
government is responsible for protecting public resources, such as land
and water—or in this case, the climate system—for public use.
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| Plaintiff Nathan Baring, 17, is concerned about melting ice and warmer winters around his home in Fairbanks, Alaska. Photograph by Daniel Cronin (left). Photograph By Ed Kashi, VII, Redux (right). |
The kids’ lawsuit was joined by acclaimed NASA climate scientist
James Hansen, who began studying climate change in the 1970s and whose granddaughter, Sophie, is among the 21 young plaintiffs.
“In my opinion, this lawsuit is made necessary by the at-best
schizophrenic, if not suicidal nature of U.S. climate and energy
policy,” he told the court.
Last fall, U.S. District Court Judge
Anne Aiken agreed with the youths’ claim. Her sweeping
54-page opinion
laid the foundation for what looks to be a groundbreaking trial later
this year. In her ruling, Aiken established, in effect, a new right for
these children and teens: a right to expect they could live in a stable
climate.
“I have no doubt that the right to a climate system capable of
sustaining human life is fundamental to a free and ordered society,”
Aiken wrote. “Just as marriage is the foundation of the family, a stable
climate system is quite literally the foundation of society, without
which there would be neither civilisation nor progress.”
She made clear that “this lawsuit is not about proving that climate
change is happening or that human activity is driving it. For purposes
of this motion, those facts are undisputed.”
And Aikens added: “Federal courts too often have been cautious and
overly deferential in the arena of environmental law and the world has
suffered for it.”
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| Miko Vergun, 16, is worried that her home country of the Marshall Islands is destined to slip beneath rising seas. Photograph by Andre Seale, VWPICS, Redux (Left). Photograph by Daniel Cronin (right). |
Mary Wood,
a University of Oregon environmental law professor who pioneered the
concept that the atmosphere should be treated as part of the public
trust, calls the lawsuit “the biggest case on the planet.”
“This claim challenges the government’s entire fossil-fuel philosophy.
The whole thing,” Wood says. “The scientists, on the other hand, are
saying if we continue on our path without drastic cuts in carbon dioxide
emissions, we are going to leave a barren planet that will not support
broad human survival. You could not get claims more grave than that.”
Two administrations (and industry) respond
The lawsuit originally was filed against the Obama administration,
which sought to have the case dismissed because the courts are
“ill-suited” to oversee “a phenomenon that spans the globe,” according
to court papers.
“Climate change is a very serious problem,” Sean Duffy, a Justice
Department lawyer told the court last September. “We do not question the
science. Climate change threatens our environment and our ecosystems.
It alters our climate systems, and it will only worsen over time. It is
the result of man-made emissions. Now where (the parties) disagree is as
to who determines how to address climate change in the first instance.
Our position is that Congress and the Executive Branch should address
climate change in the first instance and should do so by coordinating
with other nations.”
Several groups representing the fossil-fuel industry, including the
American Petroleum Institute, joined the lawsuit as intervenors, but
disagreed “to the extent of climate change, to the emissions that cause
it, and to other scientific principles,” Quin Sorenson, a lawyer
representing the industry, argued in court.
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| Levi Draheim, 9, fears that his coastal Florida home will be inundated. Photograph by Daniel Cronin (left). Photograph by Karen Bleier, AFP, Getty Images (right). |
The case could prove even more consequential with the change of
administration because of President Trump’s efforts to roll back climate
regulations put in place by his predecessor. Last week, the Trump
administration shifted course on the case and asked that a federal
appeals court review Judge Aiken’s decision to proceed to trial.
“Whatever happens next, this is a case to watch,” says
Michael Burger,
a Columbia University law professor and specialist in climate law.
“It’s out there, ahead of the curve. And given the change in
administration and President Trump’s views on climate change, this may
be a potential hook to keep things moving along the climate change
front. It may be the opening salvo in what will be an increasing number
of lawsuits that take a rights-based approach to climate change in the
United States.”
Building on history
In challenging the government’s role in climate change on constitutional grounds J
ulia Olson,
the plaintiffs’ lead lawyer, harkens to the realm of historic Supreme
Court cases that established new constitutional protections in
situations when Congress failed to act. Those cases include the 1954
Brown v. Board of Education decision that banned segregation in public
schools and the 2015 Obergefell v. Hodges decision that legalised
same-sex marriage.
The climate change lawsuit makes essentially a straightforward request.
It asks a federal judge to order the government to write a recovery
plan to reduce carbon emissions to 350 parts per million by 2100 (down
from 400 parts per million) and stabilise the climate system.
The courts are needed to step in, Olson argued, because the government
has not—despite knowing for more than 50 years that the burning of
fossil fuels causes global warming.
Olson first tuned in to the climate change threat when, eight months
pregnant with her youngest child, she watched An Inconvenient Truth,
former Vice President Al Gore’s 2006 Oscar-winning climate change
documentary at her local moviehouse.
“There is something about carrying life inside your body that is
transformative and gives you a different kind of perspective on the
world,” she says.
She founded
Our Children’s Trust,
a nonprofit with a mission to protect children from climate change, and
now serves as executive director. The trust is assisting in the case.
Olson has also filed climate change lawsuits in each of the 50 states,
which are proceeding separately. She has won cases in Washington,
Massachusetts, and New Mexico.
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| Aji Piper, 16, of Seattle, believes the future belongs to the next generation. Photograph by Daniel Cronin (left). Photograph by George Rose, Getty Images (right). |
Similar lawsuits, brought by other lawyers, are playing out in other
nations, including Belgium and New Zealand, and have been won in
Pakistan, Austria and South Africa. Last year, a Dutch court ordered the
government to reduce carbon emissions by a quarter within the next five
years.
Olson’s clients in the federal suit range in age from nine to 20. They
are media savvy environmental activists who understand the power of
connecting the future effects of climate change to the people who will
have to live with them.
Kiran Oommen, 19, a student at Seattle University, says he joined the lawsuit because it gives voice to his generation.
“We have little or no representation in the government, yet the effects
of climate change will affect us more than anyone else,” he says. “This
is a way we can speak for ourselves and stand up for our future.”
Aji Piper, 16, is a high school student in Seattle who plants trees
around the city and is an avid letter-writer to the state’s polluting
industries. He adds: “Once you start involving children, people start
listening more. My role in the case is to sit there in court.”
The climate kids, as the group is known, also are living the full menu
of drought, deluge, heat, and extreme weather events that are rapidly
becoming the unnerving norm. Not only has sea-level rise killed any
long-term future Levi Draheim might have envisioned on Florida’s Space
Coast, but he has to cope with toxic algae blooms like the outbreak that
befouled beaches last July and monster storms, such as Hurricane
Matthew, which barreled up the Florida coast last October and eroded
away much of the sand on his beach.
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| Journey Zephier, 16, of Kauai is concerned about lasting impacts on the land and sea. Photograph by Deagostini, Getty Images (left). Photograph by Daniel Cronin (right). |
Journey Zephier, 16, lives in Kauai, Hawaii, where ocean acidification
is killing coral reefs and coastal fisheries. Miko Vergun, 16, who lives
in the Portland, Oregon, suburb of Beaverton, fears she may never be
able to visit her native Marshall Islands in the remote Pacific Ocean
before they disappear beneath the swells. Tidal flooding, she says in
court papers, is so frequent now that a fifth of the population has
already moved away.
Last August, Jayden Foytlin, 13, awoke one morning to flood waters
seeping into her bedroom in Rayne, Louisiana, as a rainstorm that lasted
two weeks flooded more than 60,000 homes and killed 13 people.
Foytlin’s home was soon awash in sewage. The Foytlins do not live in the
flood plain, yet the raging waters destroyed their home and all of
their belongings.
“This flood has been called a thousand-year event,” Foytlin told the
court. “Yet within the last two years, I have read about eight
‘500-year’ events. In less than two years, there have been nine flood
events that are not even supposed to happen in my lifetime. My family
and I feel very vulnerable.”
Winning the war?
Despite winning a trial, prevailing ultimately remains an uphill climb.
Columbia’s Burger says Judge Aiken’s unprecedented order that the case
go to trial “is a great opinion for environmental law.”
But, he warns: “As it moves up on appeal and ultimately to the Supreme
Court, the chances get less and less that that opinion survives in its
current form.”
To date, courts have never recognised a constitutional right to even a
natural environment free of pollutants, let alone to a stable climate.
After Judge Aiken ruled, proponents urged Obama to settle the case
before Trump took office. Obama declined. The government also declined
to ask for an appellate review of her order; government lawyers instead
proceeded toward trial. Seven days before Trump was sworn in as
president, government lawyers added a routine
brief to the court file that may complicate the Trump administration’s effort to argue the science and halt the trial.
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| Jayden Foytlin, 13, of Rayne, Louisiana, is worried about the increasing frequency of devastating storms in her region, like the tornado that struck on March 6, 2011. Photograph by Gerald Herbert, AP (left). Photograph by Daniel Cronin (right). |
In the brief, government lawyers conceded nearly every point on which
the plaintiffs’ case against the government was constructed. These
admissions include the government’s role in promoting the development of
fossil fuels and its belief that greenhouse gases are at
“unprecedentedly high levels compared to the past 800,000 years ... and
pose risks to human health and welfare.”
The government went so far as to point out where the plaintiffs had
understated the evidence against the government in court papers. They
then corrected the figures, raising them upwards.
“They recognised the importance of this case and tried to make sure
when the Obama administration left, that the government’s position was
clear and the court shouldn’t spend time in trial worrying about facts
that should not be contested,” says Phil Gregory, the plaintiffs’
co-counsel.
The Trump team changes tack
Now, the Trump administration appears to have reversed course. Last
week, government lawyers asked Judge Aiken to grant their request that
the Ninth Circuit Court of Appeals review her order. Halting the trial,
the lawyers wrote, could avoid litigation that “is unprecedented in its
scope, in its potential to be protracted, expensive and disruptive to
the continuing operation of the United States Government.”
The appellate review is unlikely to be granted because the decision is
up to Judge Aiken, the judge who ordered the trial to proceed. In common
practice, appeals courts decline to consider appeals until a trial
concludes.
In a separate motion, government lawyers are also fighting a request by
the youth’s lawyers that the Justice Department preserve all documents
relevant to the lawsuit, including information on climate change,
energy, and emissions.
Even if a review is granted, it may be difficult for the Trump
administration to reverse the government’s statements and
acknowledgements about climate change that are already part of the
record. Still, the new administration’s position on the subject is
becoming increasingly clear. Two days after the government’s motions
were filed, EPA Administrator Scott Pruitt swept aside established
science on the connection between carbon dioxide emissions and global
warming and declared that “carbon dioxide is not a primary contributor
to the global warming that we see.”
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