Monday, December 31, 2018

Kids are Turning to the Courts to Demand Climate Action

There are waves of legal actions from kids around the world demanding that their governments act to combat climate change. In the absence of science based climate action a court-ordered mandate to reduce emissions may be our best hope of protecting our planet for future generations.

Kids are leading the call for climate action as a matter of survival. They are protesting the inaction of their political leaders and turning to the courts to demand that governments reduce greenhouse gas emissions and phase out fossil fuels. As these kids point out, they are being forced to act because adults are behaving like irresponsible children. Emboldened by leaders like 15 year old Greta Thornburg kids around the world are coming together to demand action.

Juliana v. United States

Almost four years ago a 15 year old environmental activist made headlines for being among 21 young plaintiffs suing the US government over its failure to adequately address climate change. Xiuhtezcatl Tonatiuh along with 20 other young people launched a lawsuit calling for a national climate plan. The lawsuit known as Juliana v. United States alleges that the government is denying young people their constitutional rights by failing to act on climate change. 


The suit was originally filed in 2015 in Eugene Oregon. It claims that the government and the fossil fuel industry knew the causes and effects of climate change but failed to act violating the plaintiffs’ constitutional right to live in a stable, habitable climate.

The fossil fuel industry is on trial along with the federal government for infringing on the constitutional rights of young people including their rights to life, liberty and the pursuit of happiness.  For more than five decades government support for fossil fuels has increased emissions which, according to the filing, violates the public trust by failing to protect a common resource.

A scientific paper written in support of the Juliana lawsuit states that climate change "unarguably sentences young people to either a massive, implausible cleanup or growing deleterious climate impacts or both".

In 2016 a federal judge in Oregon ruled that the case could move forward. Although President Barack Obama and members of his administration were the original defendants, in February 2017 they were substituted with the current president Donald Trump and his cabinet secretaries and agency heads.

In March 2018 the Trump administration failed to stop the climate lawsuit. The federal government’s request to halt the lawsuit "is entirely premature," wrote Judge Sidney Thomas, the chief judge of the U.S. Court of Appeals for the 9th Circuit.

In October 2018, a federal district court allowed the suit to move forward. In her ruling Judge Ann Aiken set a judicial precedent in her decision, when she wrote: "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 November 2018, the Trump administration managed to successfully stay the Juliana v. the United States trial. The 21 young plaintiffs immediately filed an emergency motion with the Ninth Circuit Court of Appeals to lift the stay. The plaintiffs reiterated their allegation that the federal government’s "ongoing systemic conduct in controlling and perpetuating a fossil fuel energy system" has already led to dangerous climate impacts.

Juliana v. United States was scheduled to go to trial in Oregon beginning on February 5, however, the stay issued by the Ninth Circuit Court of Appeals gave the Trump administration a victory. Climate Liability News summarized the legal intrigue as follows:

"The Supreme Court issued a brief stay, then revoked it, and the Ninth Circuit rejected the government’s four requests for a writ of mandamus, an extremely rare pre-trial appeal, but its most recent decision keeps the proceedings on hold."

Our Children's Trust

Oregon-based nonprofit Our Children's Trust has supported climate lawsuits all across the US. They have been at the forefront of crafting a legal strategy that opens up a new front in the war against climate change.

Youth plaintiffs supported by Our Children’s Trust, launched state-level lawsuits in Alaska, Washington and Florida. State judges dismissed the cases in Alaska and Washington, but both sets of plaintiffs are appealing.

The Florida lawsuit is still very much alive. The suit was launched by eight plaintiffs ranging in age from 10 t0 20 against the state of Florida, former Republican Gov. Rick Scott, state agencies and the heads of those agencies. The young plaintiffs accuse the state of violating their constitutional rights by "perpetuating an energy system that is based on fossil fuels."

One of the plaintiffs is Delaney Reynolds, an eighteen year old climate advocate. "Our climate change crisis is the biggest issue that my generation will ever face, and it's up to us, today's children, to fix this problem," Reynolds said. "It is my hope that the court will rule to require that Florida enact and enforce laws to reduce and eliminate carbon emissions so that our state and citizens can have a future here."

The Florida lawsuit is but one of many lawsuits supported by Our Children's Trust. They have brought suits in 50 states calling for climate action and and reductions in fossil fuel usage. In a statement, Our Children's Trust said governments have a "legal and moral obligation to protect current and future generations from the intensifying impacts of climate change".

The importance of Juliana

As reported by Grist, the case may be, "the best shot at large-scale climate action under the Trump administration."  Julia Olson is the executive director of Our Children’s Trust and she is the council leading the Juliana litigation. She called the lawsuit "this generation’s Brown v. Board of Education." Trump administration’s lead lawyer Eric Grant called the case the "trial of the century."  

Despite the stay, Juliana v the United State has already broken new legal ground by getting a District Court judge to declare that the plaintiffs have a constitutional right to a stable climate. 

Grist quotes Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University as saying the litigation is key to climate action.
"This is strategic impact litigation," says Burger. "As you can see from the global interest, it’s already had a real impact. It’s starting to shape the conversation about climate change....The time may be right for Juliana and other lawsuits like it to gather real momentum, paving the way for meaningful victories" Berger told Grist. He believes cases like this could put real pressure on industries and governments to pay for local adaptation projects and make firm commitments to reduce emissions.
Also in Grist, Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute calls the Juliana lawsuit an "especially crucial in the fight against climate disruption". She also said said this lawsuit empowers young people to advocate for their rights and that "drives social change."

EU climate lawsuit is part of a global phenomenon

The US is not the only place where young people are suing their governments and demanding climate action. Suits in Europe, India, New Zealand, and Pakistan all allege that their governments have failed to enact effective policies and they continue to rely on fossil fuels. 

"Worldwide, there is a great deal of interest in the Juliana case not just because of the practical outcome that it might or might not achieve, but because of what it represents," says Berger. "Deeply held values about environmental protection, about intergenerational equity, about the need to address climate change — these things can be linked to specific legal rights embodied in constitutions or in common law."
 
Kids and their families have filed a lawsuit against the EU. The suit often called the "People’s Climate Case," demands that governments protect citizens from climate change. This suit is focused on the EU's inadequate 2030 emissions reduction targets. The 10 families that are bringing the suit are from Portugal, Germany, France, Italy, Romania, Sweden, Kenya and Fiji. Young children and representatives from Sweden’s indigenous Sami community are among the plaintiffs in this lawsuit.

As quoted by The Independent, Environmental lawyer Roda Verheyen, who is representing the families, acknowledges that this is a global phenomenon. "Climate change is already an issue for the courts in the European countries and around the world," Verheyen said. "The plaintiff families are putting their trust in the EU courts and legal system to protect their fundamental rights of life, health, occupation and property which are under threat of climate change. The EU courts must now listen to these families and ensure that they are protected."

The European litigation is supported by Climate Action Network (CAN), an umbrella group of environmental NGOs working to tackle climate change. The German NGO Protect the Planet is shouldering the costs of the legal case.

"In 2015, as part of the Paris agreement, countries agreed to pursue efforts to limit temperature rise to 1.5C. Yet, it is clear that the existing EU 2030 climate target is not enough to respect the commitments taken in the Paris agreement and should be increased,” said CAN director Wendel Trio. This legal action initiated by families is underlining the urgency and the necessity to increase the EU’s 2030 climate target."

Political headwinds

The fact that the interests of this generation are threatening future generations is unconscionable.  However, efforts to engage climate action are being met by political headwinds in North America, Europe and Asia.

As long as conservatives are in power there is little to no hope of a political solution. This is especially true in the US where the current field of Republicans and the US commander and chief are all climate deniers.  

The US lawsuits may end up in front of the Supreme Court, however, partisan supreme court appointments may make progress difficult. with the recent additions of conservative justices Gorsuch and Kavenaugh to the highest court in the land make favorable rulings very unlikely.

"There’s just such extreme urgency right now to have these constitutional infringements addressed by our courts with the full factual records," Olson said.  In the argument against the stay in the US lawyers argued that a delay in the trial would contribute to a "miscarriage of justice". 

Delaying action is a serious concern as the window of opportunity to act gets ever smaller.  "Every week, or even every day, that our trial is delayed is time I spend further worrying about the stability of our climate system and the security of my future," said Kelsey Juliana, a 21-year-old plaintiff from Eugene, Oregon.

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