On Wednesday, a group of kids and teenagers will face off in an Oregon courtroom against the US government and the fossil fuel industry. The young people, from states as far away as Florida, Arizona, New York, Hawaii, and Alaska, are suing President Obama and several federal agencies for inaction on climate change. The group includes Nathaniel, a teenager from Fairbanks whose asthma has worsened with the wildfires that now sweep across Alaska each summer; Alex, whose family farm in Oregon has been parched by record heat waves and drought; Journey, a member of the Yankton Sioux Tribe living in Hawaii, whose family fled from flooding in 2012; and Levi, an 8-year-old who lives on a low-lying barrier island in Florida that is already grappling with sea level rise.
“For over fifty years, the United States of America has known that carbon dioxide (“CO2”) 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,” reads their complaint, which was filed in September by Our Children’s Trust, an Oregon-based nonprofit that has brought a series of similar suits at the state level. “Despite this knowledge, Defendants continued their policies and practices of allowing the exploitation of fossil fuels.”
The heart of their argument is that government, by failing to significantly cut greenhouse gas emissions, is violating young people’s Fifth and Ninth Amendment rights to due process and equal protection, as well as the “public trust” doctrine, which holds that certain natural resources must be protected for public use. Climate inaction is a form of discrimination, they argue, because young people will be impacted more severely by climate change than the current generation of policymakers. The suit asks the court to order the government to “cease their permitting, authorizing, and subsidizing of fossil fuels and, instead, move to swiftly phase out CO2 emissions.”
Climate activist and former NASA climatologist James Hansen is included in the suit as a “guardian for future generations.” “This lawsuit is made necessary by the at-best schizophrenic, if not suicidal, nature of US climate and energy policy,” Hansen wrote in a declaration accompanying the complaint. “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 young plaintiffs have likened the case to landmark discrimination suits Brown v Board of Education, which struck down segregation in schools, and Obergefell v. Hodges, which guaranteed the right to marry to same-sex couples.
The public trust doctrine has most commonly been used to ensure public access to waterways, though environmentalists have recently begun extending it challenge fossil fuel development. In 2014, the Pennsylvania Supreme Court found that a law intended to expedite fracking in the Marcellus Shale violated a public trust provision in the state constitution that ensures a “right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment,” and charges the state government to “conserve and maintain them for the benefit of all the people.”
But extending the doctrine to the atmosphere is more unusual. Our Children’s Trust has had modest success at the state level, and internationally. Last year, citing a “historical lack of political will to respond adequately to the urgent and dire acceleration of global warming,” a judge in Washington State affirmed the argument that climate change threatens public trust resources and ordered the state’s Department of Ecology to consider limiting carbon dioxide emissions. In June, a judge in the Netherlands ordered the Dutch government to implement deeper emissions cuts in response to a case brought by a group partnering with Our Children’s Trust. But precedent is less encouraging at the federal level in the United States. In 2012, a district court in Washington, DC, dismissed a similar case brought by children against the Environmental Protection Agency, ruling that applying a public trust theory to the atmosphere “represents a significant departure from the doctrine as it has been traditionally applied,” and that the federal government already regulated greenhouse gasses through the Clean Air Act.
But the scope of the government’s authority under the Clean Air Act was recently called into question when the Supreme Court temporarily blocked the Obama administration from implementing its plan for limiting greenhouse gas emissions from power plants. Even if it went forward, the plan would still be “another example of EPA’s failure to even seek future CO2 emissions reductions at anything near the rate required to preserve a habitable climate system,” the complaint alleges, because it relies too heavily on methane-loaded natural gas and “does not even return US emissions to 1990 levels.” Though the defendants argue climate policy should be made in the legislature, not in the courtroom, the plaintiffs say they’ve exhausted that option. “They’ve tried Congress, and we both know that’s not going to happen,” said Philip Gregory, one of the lawyers representing the kids. “The only place they can really turn is the courts.”
It may sound like a long shot, but fossil fuel industry groups are taking the lawsuit seriously. In November, lobbyists representing ExxonMobil, Shell, Chevron, Koch Industries, and other dirty-energy companies petitioned the judge for permission to join the case alongside the government: the American Petroleum Institute, the American Fuel & Petrochemical Manufacturers, and the National Association of Manufacturers. The groups called the case “extraordinary,” and argued that a victory for the plaintiffs would require an “unprecedented restructuring of the economy” and pose “a direct, substantial threat to [their] businesses.” They’ve asked the court to throw the case out, arguing that the juveniles don’t have standing. The government has made similar claims, which will be evaluated Wednesday. The question of standing—whether the youths can show they’ve suffered concrete, individualized injury that can be traced to the government’s inaction—is just the first legal hurdle. If the case is allowed to proceed, it could unfold over several years.
The fact that major industry groups are devoting money and time to fighting the young plaintiffs shows “they understand how serious and significant our case is,” Gregory said. One of the lawyers representing the energy companies is the former general counsel of the EPA. “They’re throwing their best hitter at us,” noted Gregory, whose Northern California firm has its own reputation for winning innovative environmental lawsuits. Despite long odds of success, Gregory said, “I genuinely believe that the fossil fuel industry is scared.”