When the young people working with Our Children’s Trust talk about their lawsuits to compel governments to act on climate change, they like to use a quote attributed to Mahatma Gandhi: “First they ignore you, then they laugh at you, then they fight you, then you win.”
This month, it looks like these young activists have made it to step three: On Nov. 12, three fossil fuel lobby groups asked a judge to let them join the federal case as co-defendants against the 21 children (and a climate scientist) who are suing the Obama administration and federal regulatory agencies to take serious, science-based action on climate change.
The case is the culmination of a series of lawsuits brought by various groups of young people in all 50 states since 2011. Their argument is that the federal government is infringing on the constitutional rights of America’s youth and future generations by continuing to allow fossil fuel extraction and consumption. These activities cause climate change by damaging the atmosphere, and the atmosphere is a public trust, they say, that should be protected for future generations. Ultimately, they argue that this type of pollution discriminates against young people, because young people will suffer the impact of climate change far more than today’s policymakers.
The youth have already had some success with their suits, including one case in Washington State. Last week, a Kings County Superior Court judge agreed with some aspects of the youth’s argument while stopping short of ordering the state’s Department of Ecology to draft rules cutting emissions, noting that the agency was already doing so on order of the governor. The judge wrote the eight young plaintiffs’ “very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming… before doing so becomes first too costly and then too late.” Our Children’s Trust and its allies say the judge’s agreement with the idea that America’s youth has a right to a clean environment is a victory. The case also won five of the plaintiffs, aged 11 through 15, a meeting with Washington’s climate-hawk governor, Jay Inslee, back in July. The meeting was scheduled to last 20 minutes but ran for 90, and came shortly before Inslee announced executive action to cap emissions (the law the Department of Ecology is currently working on).
Similar suits have met with even greater success elsewhere in the world. In June, a high court ordered the Dutch government to cut emissions after plaintiffs successfully argued that business as usual would violate the human rights of future generations. And in Pakistan last month, a farmer went before the high court in Lahore arguing that climate change threatened his future, and the court agreed: “The delay and lethargy of the state in implementing the [climate change] framework offend the fundamental rights of the citizens,” wrote Judge Syed Mansoor Ali Shah.
Dodging the influence of money in politics
The justice system is a wise choice for activists hoping to curb climate change, says Mary Christina Wood, the Philip H. Knight Professor of Law at the University of Oregon. “The fact is we have only three branches of government. So from a lawyer’s perspective, you have to look at the structure we have and ask which part is functional and which part of it has become corrupted through big industry money.
“Two of the branches have become essentially corrupted because of the campaign contributions to those two branches of government. And so the third branch — while it’s not perfect, by any means — the federal judiciary is as close to insulated from that big money influence as you can get.”
In August, Our Children’s Trust took its case to the federal level with 21 young Americans and renowned climatologist James Hansen as plaintiffs. (Hansen’s 17-year-old granddaughter Sophie is one of the plaintiffs, and in the case he plays both the role of her guardian and “guardian” to as-yet-unborn generations.) Last Tuesday, the Obama administration filed a motion to dismiss the youths’ suit, arguing that the plaintiffs don’t have the right to bring the lawsuit in the first place, and that even if they did, the court doesn’t have authority to create climate policy. The judge may or may not choose to dismiss; if the case goes to trial, it will be this winter.
But for the plaintiffs, the big development this month was the request by three of Washington’s most powerful trade groups — each representing major players in the fossil fuel industry, including ExxonMobil, Shell, Chevron, Koch Industries and BP America — asking the judge to let them join the Obama administration in the suit as co-defendants. That means the American Petroleum Institute (API), the American Fuel and Petrochemical Manufacturers (AFPM) and the National Association of Manufacturers (NAM) would make their case side-by-side with the Obama administration, using their own lawyers — including Roger Martella, the former General Counsel of George W. Bush’s EPA — to argue against the youths and Hansen.
“It’s fairly common for trade associations to move to participate in lawsuits that could affect their interest,” says Michael B. Gerrard, a professor at Columbia Law School and the director of the Sabin Center for Climate Change Law. “I think it shows that they’re not utterly certain it will be dismissed.”
2015 has been a good year for the climate movement, which declared victory after President Obama announced he would reject the Keystone XL pipeline earlier this month. Over the summer, Greenpeace and its allies also drew significant attention to their efforts opposing Shell’s ill-fated attempt to drill in the Arctic, and, last month, the Obama administration moved to block future drilling in the Arctic. New York Attorney General Eric Schneiderman’s recently launched investigation into whether Exxon misled its investors about the viability of its business in the 1980s and 1990s is just the latest blow to the fossil-fuel industry. All three Democratic presidential candidates have said they support a separate Department of Justice investigation of Exxon.
“I think that they see that they are losing traction in our political system and they’re going to lose traction in the courts as well,” says Julia Olson, executive director and lead attorney for Our Children’s Trust.
Oregon law professor Mary Christina Wood agrees with Olson: “Obviously the fossil fuel companies are scared by this litigation, and that’s why they’re moving to intervene,” she says. Wood is not involved with Our Children’s Trust’s work, but her research arguing that the atmosphere should be considered a public trust is integral to it. She sees the fossil fuel lobby’s interest in the case as a vote of confidence in Our Children’s Trust’s strategy. She also thinks the industry’s decision to challenge the youth may backfire.
“I think this is the most important case now on the planet because it would force carbon dioxide reductions,” Wood says. “And now the fossil fuel industry has just drawn a whole lot of public attention to this case and to its own practices.”
Still a long-shot strategy
Judges, because of their relative isolation from the electoral process, have often been responsible for ordering reluctant government agencies to protect vulnerable populations. Both Olson and Wood point to the Civil Rights movement and Brown v. Board of Education. At that time, Wood explains, “judges found there were fundamental constitutional rights to equality and courts supervised the enforcement of those rights.” The same would be the case here — the courts would require the government to make a change, and ensure that it did, but would not specify exactly how that change would occur.
That said, Our Children’s Trust’s effort is still a long shot at the US Supreme Court. “It’s hard to imagine that five members of the current Supreme Court would find a constitutional right to a clean environment,” says Gerrard. Reaching the Supreme Court, however, could take years, though Olson says that may eventually be where they’re headed. At Federal Court, in Oregon, the case will ultimately be decided by one of two judges, the first appointed by Obama and the second by Bill Clinton; the fact that both were appointed by Democrats is a mildly encouraging sign for the young plaintiffs.
Should the youths succeed, the federal government would be ordered by the court to devise a science-based plan to reduce emissions. According to one analysis by Hansen, the world would eventually need to phase out fuels like gas and oil altogether.
“This lawsuit is made necessary by the at-best schizophrenic, if not suicidal, nature of US climate and energy policy,” Hansen wrote in an expert declaration along with the case. “Our government’s permitting of additional, new, or renewed fossil fuel projects is entirely antithetical to its fundamental responsibility to our children and their posterity. Their fundamental rights now hang in the balance.”
Lawyers for the trade groups declined to comment on pending litigation, but in their submission to the court, they argue that the young plaintiffs are looking for an “unprecedented restructuring of the economy.” A “sudden and significant reduction” in emissions “would cause a significant negative effect” for oil and gas companies by destroying the market for their product, the lawyers write, and would harm the National Association of Manufacturers’s members by increasing production and transportation costs. In an email, Reid Porter, a spokesperson for API, pointed to a report by his group to show that “our industry has done more to mitigate climate challenges by investing almost as much as the federal government and more than all other industries.”
“They know that if the young people win this case it will have a huge impact on the use of fossil fuels going forward,” says Olson. “It will require a transition off of fossil fuels. As they say in their paper, that’s a direct threat to their economic interest.”
“The urgency is mind-blowing”
Should the judge decide to let the trade groups join the suit, the defendants’ bench would seat some odd bedfellows — Obama’s executive actions on climate change have, in the past, drawn denunciations from all three groups. In fact, two of the trade groups, NAM and AFPM, are simultaneously suing the administration to put the Clean Power Plan on hold; the third, API, decried the Clean Power Plan, with its president telling reporters that it “will dramatically increase consumer cost, it will destroy jobs.”
Yet even these measures that the fossil fuel lobby so staunchly opposes are insufficient to deal with the urgent threat climate change poses. And at the same time the administration seeks to cut emissions, it has continued to allow new mining and drilling projects to go forward on public land, to subsidize the fossil fuel industry and to fund new fossil fuel projects overseas.
Even if the world does walk away from this month’s Paris climate conference with a deal and even if every country in the world including the United States sticks to that deal and fulfills its emission-cutting goals — far from a sure bet — the world ison course for 2.7 degrees of warming, far higher than the upper threshold of two degrees Celsius that climate scientists have encouraged governments to hit. (We’ve already warmed the planet by one degree Celsius.) As we pass the two-degree threshold, researchers have warned, we pass more and more tipping pointstriggering climate change’s most catastrophic effects. Eventually, global warming will continue of its own accord regardless of what humans do.
“The fact is you cannot get an international agreement until domestic will is in place, because it would be meaningless,” says Mary Christina Wood. “So until the United States has a firm obligation domestically, it’s not going to offer up anything firm in Paris that comports with the science. That’s why the domestic judicial campaign here is utterly crucial.”
Federal judges “can actually approach a problem without the biased self-interest that comes with campaign contributions. And that is why the case against the Obama administration has so much hope,” Wood continues. “The urgency,” she says, “is mind-blowing.”