Can the Constitution Protect the Climate? Youth Suing the Federal Government Hope So

Nancy Hoch Nov 7, 2018

Twenty-one Americans, ages 11 to 22, are suing the federal government over what they say is its willful refusal to protect them and future generations from climate change.

The Trump Administration is doing everything it can to stop the landmark constitutional lawsuit, Juliana v. United States, from going forward. On Nov. 5, it filed two motions to stay the case, one with the U.S. District Court for the District of Oregon and the other — for what is the fourth time — with the Ninth Circuit Court of Appeals. With a writ of mandamus still pending in the Supreme Court, the government is currently working to halt the trial at three different levels of the federal judiciary.

“It’s unheard of,” said Philip Gregory, co-counsel for the youth plaintiffs. “I’ve asked colleagues, former Supreme Court law clerks, legal scholars and reporters who cover the courts, and no one has seen this before. It’s the clearest evidence of how fearful this administration is of standing trial in this case.”

The new round of motions come three days after the Supreme Court lifted a temporary stay it had put in place just days before the trial had been set to start on Oct. 29.

There have been numerous other efforts to end the suit since it was first filed in August 2015 during the Obama administration. Kelsey Juliana, for whom the case is named, was a teenager at the time. Now, at 22, she is the oldest of the plaintiffs.

“These petitions for stay and dismissal are exhausting,” she said. “To everyone who has invested in this case, to those who’ve followed along our journey for the past three years and counting: stay with us, in hope and in the pursuit of justice.”  

The 21 plaintiffs in Juliana come from communities across the country where some of the severest effects of a destabilizing climate are currently being experienced. They are not, however, suing the federal government for failing to act on climate change. The problem, they say, is that government officials have known for more than 50 years that burning fossil fuels causes climate change but have nevertheless persisted “in creating a national energy system that causes climate change.”

The government’s “affirmative actions,” the plaintiffs assert, have deprived them “of their constitutional rights to life, liberty, and property” and, in addition, have “failed to protect essential public trust resources” like air and water. Without a rapid change in governmental policy, they anticipate having to live most of their lives in an increasingly devastated world.

The suit begs the question of whether there is a constitutional right to a safe and stable climate. Given the retreat of the legislative and executive branches on climate change, might a more strategic route to climate action be found through the courts?

Our Children’s Trust, the non-profit organization spearheading Juliana and providing the plaintiffs with pro bono lawyers has, since 2011, helped youth launch proceedings on climate change in all 50 states and partnered with children and their attorneys in other countries where similar legal actions on climate change are underway.

The 21 young people are not asking for monetary damages. Instead, they hope the court will order the national government to develop a “Climate Recovery Plan” that will “return atmospheric carbon dioxide concentrations to below 350 ppm [parts per million] by the year 2100.”   

On Oct. 29, rallies planned in over 40 states to celebrate what should have been the start of the trial, turned into protests. Outside the U.S. District Court in Eugene, Oregon, where the case is slated to be heard, several hundred people rallied in support of the plaintiffs. Because they had made their travel plans before the trial was postponed, many were in attendance.

In fact, one of the youngest plaintiffs, 11-year-old Levi Draheim, was happy to be there since poisonous, vermillion-hued algae are washing up on the shore near where he lives in Satellite Beach, Florida. “I was excited to leave my home in Florida,” he said, “because the air is so toxic from the red tide, which is being made worse by climate change.”

At noon in Washington, D.C. that day about 80 people gathered before the U.S. Supreme Court. Tom Wetterer, an attorney for Greenpeace USA, told the crowd, “The fact that the government has gone to these extraordinary measures to delay and even have the lawsuit dismissed, shows that the government is really worried about the outcome of this case.”                          

In front of a large banner, reading “Let the Youth Be Heard,” high school students from the D.C. area, none of whom are plaintiffs in the trial but all of whom are active in environmental movements, took to the microphone to speak of their hopes, their grief and their determination to protect their communities and the planet from climate change.

Jerome Foster, a 16-year-old junior at a D.C. public high school and the founder of the Climate Reporter, an international youth-led environmental news organization, compared climate change to leaving the refrigerator door open at home.

“Understand, I’m yelled at for this,” he said. “So why are we not yelling at the fossil fuel industry to close the refrigerator door? I am affecting everyone in my house with my actions in a negative way. The fossil fuel industry is affecting everyone on this planet in a deadly way.”  

Seeming older than his years, Foster remarked on the selfishness of elected leaders who are blocking climate action, noting that “many of them have had many years to have the pleasure to breath fresh, clean air in their youth.”

“Are you all better than us?” he asked of them. “Are your lives more valuable than ours?”

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This article was updated on Nov. 9 to reflect new developments.

Photo: Youth climate activists and their supporters rally outside the Supreme Court. Credit: Nancy Hoch.   

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