Nov 13, 2016
Donald Trump's election to the presidency is a devastating blow to the environmental community, coming at a crucial juncture in the fight against climate change. As Rebecca Leber and Ben Adler write for Grist, nearly all of President Barack Obama's climate legacy probably will be undone in the Trump administration. With both Congress and and the presidency in the hands of people who claim not to believe in climate science and federal agencies soon to be headed by officials with ties to the fossil fuel industry, environmental activists have few places where they can turn to pressure government to strengthen our national climate agenda.
If Trump fulfills his promise to pull the United States out of the Paris climate agreement, America will become the only major polluter in the world to declare its unwillingness to work with an international community trying to stop climate change and alleviate the damage that's already been done.
But a ruling yesterday by a federal judge in Eugene, Oregon, could provide an avenue for climate action via the courts. Judge Ann Aiken ruled that 21 young Americans can proceed to trial in a suit against the Obama administration. The suit alleges that the government has known about climate change for decades but failed to address it, denying these children and teenagers their right to a safe future.
The key part of Aiken's ruling is that last bit: The assertion that young people have a legal right to a stable climate. There is "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 civilization nor progress.'"
Aiken continued, "Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it."
That the youth have come this far is a big deal, Mary Wood, professor at the University of Oregon School of Law, told BillMoyers.com. "This was the threshold that was so crucial because it is at this point that the judge declares the rights of the youth," Wood said. "This declaration could not have been more grounded in the constitution and public trust law. This was a huge victory for the youth, and it sets up the side walls for the case moving forward."
The lawsuit targets President Obama, but as of Jan. 20, the new president, Donald Trump, will become the defendant.
In Marrakech, UN officials are meeting this week to work on the Paris agreement. Still reeling from the US election results, some in attendance saw the Oregon news as a ray of hope. "This is a remarkable opinion," Jeffrey Sachs, director of Columbia University's Earth Institute, told reporters, especially because "It's quite clear that the incoming administration is going to bring in a lot of the most irresponsible forces in the world to try to have one last fling at their greed."
Sachs urged Obama to stop fighting the lawsuit and shore up some of his climate legacy. "Settle this lawsuit; bring judiciary into oversight as a fundamental duty," he said. "It's the last opportunity for the Obama administration to get this right -- and if they continue to challenge this suit in their last days, shame on them."
Were the Obama administration to offer a settlement and the young plaintiffs accepted it, the judicial system would then be responsible for insuring that the Trump White House put the terms of that settlement into effect. "This is Obama's last chance to make climate progress before the Trump administration unravels everything he's done," Wood said.
Julia Olson, a lawyer for the plaintiffs, suggested that, among other options, the Obama administration could propose curtailing or shutting down fossil fuel extraction in the United States. Such a settlement would result in a court order that the Trump administration would then have to abide by -- it could attempt to overturn the order, but that could take years. (We've asked the White House for comment on the possibility of a settlement and will update this piece when we receive it.)
But if the Obama administration chooses not to settle, the trial will proceed, with Trump as the new defendant. "We are more than ready to go to trial," Olson said. "That's our focus right now. Until we hear from the Obama administration that they want to come to the table and have meaningful settlement talks and really put things on the table, we're preparing and moving to trial."
She is confident the plaintiffs would have an advantage over the future Trump administration, largely because any witnesses who deny climate change would likely not be acceptable to the court. "Donald Trump has said that climate change is a hoax." Olson noted. "So for Donald Trump to come to the court and bring a climate denialism set of facts won't fly for two reasons: One, you can't perjure yourself in a court of law, and, two, any expert you bring in to testify before the judge has to be qualified as an expert by the court. They will not be able to come into that courtroom and bring their climate denialism agenda."
Indeed, as Judge Aiken wrote in her decision allowing the case to go to trial: "This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed." Rather, Aiken continued, the case at hand is whether the administration and its agencies "are responsible for some of the harm caused by climate change," and whether a court has the legal authority to order these agencies to change course and do something about it.
Courts generally are barred from directly getting involved in politics. "However, the scope of the political question doctrine should not be overstated," Aiken wrote. "As Alexis de Tocqueville observed, '[t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question.'"
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