Fresh Ideas: The most important lawsuit you’ve never heard of
January 9, 2018
In 2015, 21 young people sued the United States, asking the federal court to declare the U.S. government has violated their constitutional rights to life, liberty, and property by allowing the dangerous destabilization of our climate system, deliberately ignoring the advice of experts and its own plans. They asked the court to direct the government to prepare a plan to phase out fossil fuel emissions.
What would move a 15-year-old to sue the federal government?
The 21 young plaintiffs in Juliana et al vs. the United States assert "for over fifty years, the United States of America has known that carbon dioxide pollution from burning fossil fuels was causing global warming and dangerous climate change, and that continuing to burn fossil fuels would destabilize the climate system on which present and future generations of our nation depend for their wellbeing and survival. Defendants also knew the harmful impacts of their actions would significantly endanger Plaintiffs, with the damage persisting for millennia. Despite this knowledge, Defendants continued their policies and practices of allowing the exploitation of fossil fuels."
The plaintiffs say that climate destabilization places them at serious risk of harm, risks so substantial as to "shock the conscience," and that the government continues to act with "deliberate indifference to the known danger they helped create and enhance."
In the suit, the young plaintiffs tell their own stories. Here's 13-year-old plaintiff Jayden Foytlin from Rayne, La., describing her home in the aftermath of catastrophic flooding in 2016 partly caused by climate change: "Floodwaters were pouring into our home through every possible opening. We tried to stop it with towels, blankets, and boards. The water was flowing down the hallway, into my Mom's room and my sisters' room. The water drenched my living room and began to cover our kitchen floor. Our toilets, sinks, and bathtubs began to overflow with awful smelling sewage because our town's sewer system also flooded. Soon the sewage was everywhere. We had a stream of sewage and water running through our house."
No one thought the suit would go far. But just in case, the American Petroleum Institute and the National Petroleum Council intervened on the side of the federal government trying to have the case dismissed. The government and the fossil fuel lobbyists tried twice for dismissals with no success, and in 2016 the U.S. District Court judge for Oregon, Ann Aikins, issued a decision eloquently arguing why the case should proceed. Here's an excerpt from her opinion:
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"I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the foundation of the family, a stable climate system is quite literally the foundation of society, without which there could be neither civilization nor progress."
As the fossil-fuel intervenors realized the case might actually go to court, and they might have to produce decades worth of records about what they did and didn't know about fossil fuel emissions and climate change, they petitioned the judge to withdraw as intervenors. Also, in their own words, they were "confident" the Trump administration would be able to vigorously defend the lawsuit, while they had less confidence in the Obama administration, against whom the suit was originally brought. The judge granted their request.
In the latest development in December, a Trump administration lawyer once again asked an appeals court panel to dismiss the case, arguing the district court was acting outside of its jurisdiction. But with an expected positive ruling by the panel, the case will go to trial in U.S. District Court in Oregon on Feb. 5.
The lawsuit is a long shot, and if it makes it all the way to the Supreme Court, it faces a tough fight, especially if Trump gets the opportunity select another Supreme Court justice by then. But even to have made it this far is a victory of sorts. The law moves forward case by case, decision by decision, and the powerful language used by Judge Ann Aikins in her ruling allowing the case to go forward is now a part of our case law, hopefully to be built on by other cases, much as the argument for gay marriage was built up decision by decision.
The 21 plaintiffs in Juliana are not alone. Citizens throughout the world have been suing their governments for ignoring climate damage. In 2012, Ugandan youth sued the state for failing to comply with international climate-change agreements. In 2015, 900 Dutch citizens won a case against their government that resulted in an order for the government to reduce carbon emissions by 25 percent. In March 2017, 9-year-old Ridhima Pandey filed a petition against the Indian government asserting it had failed to fulfill its duties to her and the Indian people to mitigate climate change.
And in September 2017, a group of Portuguese children began crowd funding for litigation against 47 governments in the European Court of Human Rights. A member of this group, Andre, age 9, says, "To stay quiet and say it is wrong is not enough. We need to act for a better future."
Anne Macquarie blogs about clean energy and climate change in Nevada at nevadanscleanenergy.org.