Life, Liberty and the Pursuit of a Healthy Planet


The kids are alright, an Oregon judge has ruled, when it comes to a lawsuit that 21 youth plaintiffs from 10 states have filed against the Obama administration and various fossil-fuel trade groups, including the American Petroleum Institute. Judge Ann Aiken of the U.S. District Court for the District of Oregon in Eugene has denied the federal government’s attempt to dismiss the lawsuit, which claims that the authorities’ failure to address climate change has violated their constitutional rights and infringed on the public trust doctrine.

On Nov. 4, the Paris Agreement on climate change went into effect, committing the U.S. and all other countries that signed it to arresting global warming. Yet Aiken opined just six days later that even the government’s involvement in such treaties isn’t grounds for dismissing the kids’ constitutional claims.

“If the Supreme Court were, amazingly, to agree with the district court that there is a federal constitutional right to a sound environment, it would create a whole new world of environmental litigation, comparable to what we have long had for civil rights, gender rights, and several other areas,” says Michael Gerrard, a Columbia Law School professor and the director of the Sabin Center for Climate Change Law.

Like other legal experts, however, Gerrard doesn’t think the lawsuit will be a game-changer. “It’s more than a publicity stunt,” he continues. “I think it’s a serious attempt. It’s just a long shot. If it survived appeal, it’d be spectacular. But I’m not counting on it.”

What’s compelling about Aiken’s ruling is that she contends that the lawsuit shouldn’t be dismissed just because it’s unprecedented. She also believes that the government’s claim that the lawsuit should be subject to case law governing statutory environmental claims is unwarranted.

“[The defendants] are correct that plaintiffs likely could not obtain the relief they seek through citizen suits brought under the Clean Air Act, the Clean Water Act, or other environmental laws,” Aiken writes. “But that argument misses the point. This action is of a different order than the typical environmental case. It alleges that defendants’ actions and inactions—whether or not they violate any specific statutory duty—have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”

Since there’s no contradiction between the international climate change agreements that the U.S. has already entered and the plaintiffs’ assertion that the Obama administration needs to be doing more, the case can proceed, she ruled. Aiken goes on to invoke Supreme Court rulings involving such issues as same-sex marriage to support the kids’ assertions regarding their constitutional rights (see box).

Officially, the case is known as Juliana v. United States, having been named after 20-year old Eugene resident, Kelsey Juliana. The 20 other plaintiffs are between the ages of 9 and 20 and hail from Colorado, Oregon, Florida, Hawaii, New York, Louisiana, Arizona, Alaska, Pennsylvania and Washington state. Backing their effort is the person widely considered to be the grandfather of climate change research, Dr. James Hansen, now an adjunct professor at Columbia’s Department of Earth and Environmental Sciences and formerly director of the NASA Goddard Institute for Space Studies.

The youngsters filed the case in Oregon on Aug. 12, 2015, and are being flanked by Our Children’s Trust, an environmental law non-profit organization, in addition to Hansen, who joined the lawsuit on behalf of his granddaughter and future generations. Lead attorney Julia Olson and her co-counsel are working on the case pro-bono.

The Juliana plaintiffs aren’t seeking financial compensation. They want a declaration that their constitutional rights and the public trust are being violated, and they want the court to order the government and the trade groups to take what seems to be vague action, such as preparing and implementing a remedial plan to phase out fossil fuel emissions.

Olson has based the group’s arguments around two things. First, that the plaintiffs have a right to a healthy planet. And, secondly, that the public trust doctrine—which dates back to ancient Rome and holds that a government’s duty is to protect the public from having certain resources such as land and water misappropriated by private interests—has been compromised.

The kids argue that their right to a healthy planet falls under their constitutional rights to life, liberty and property, and throughout the lawsuit, they cite hearings and scientific findings about how serious global warming is.

What surprises legal observers, however, is the second argument.

“I really never thought that a public trust theory was going to be a viable way to advance an environmental agenda,” notes Shi-Ling Hsu, a law professor and the associate dean for environmental programs at Florida State University who published an article, “A Realistic Evaluation of Climate Change Litigation Through the Lens of a Hypothetical Lawsuit,” in the University of Colorado Law Review in 2008. “I figured this was the kind of thing that certain law professors— environmental law professors—like to kind of put forward. So, yeah, I was a little bit surprised that the district court judge issued the opinion that she did.”

Climate-change lawsuits have reached the Supreme Court. For example, in 2011, the high court rejected common law theories in the case of American Electric Power Company Inc., et al v. Connecticut. The Supreme Court unanimously ruled that corporations can’t be sued for greenhouse gas emissions because it’s up to the U.S. Environmental Protection Agency to regulate them.

Curiously enough, the case that bears the most resemblance to Juliana doesn’t consider the U.S. Constitution at all. In Urgenda Foundation v. The State of the Netherlands, the Hague District Court ruled on June 24, 2015, that the Dutch government must reduce emissions by at least 25% by the end of 2020 (compared to 1990 levels). As in Juliana, citizens were attempting to hold the government accountable for inaction. (Urgenda is now under appeal.)

In the end, legal scholars say, climate change isn’t going to occur because of litigation. Florida State’s Hsu believes treaties such as the Paris Agreement will be needed to reduce greenhouse gases. But Columbia’s Gerrard isn’t so convinced, especially given President-elect Donald Trump’s promises to pull out of the Paris Agreement.

“I don’t see litigation as the silver bullet that is going to completely solve the world’s climate problem, but I also don’t see international agreements being the silver bullet, either,” Gerrard says. “What is ultimately needed is every country concluding that it is in its own best interests to reduce its greenhouse gas emissions, decarbonize its energy system, and prepare for the climate change that is going to happen regardless of our best efforts.”

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