By David Holmquist
The struggle to address the climate crisis has unfolded in a wide variety of venues over the past three decades: international conferences, street demonstrations and school strikes, policy advocacy and lobbying events, legislative negotiations, court proceedings and—most recently—a transatlantic sailboat crossing by a Swedish teenager.
In the realm of court proceedings, the most compelling legal challenge to unfettered climate change has come from a group of 21 American youth who have sued their federal government for having failed to act to limit climate change—while profiting by selling the rights for the extraction of coal, oil and natural gas. The lawsuit alleges that the U.S. government encouraged mining and drilling in full knowledge of the hazards of burning fossil fuels thereby depriving the plaintiffs of a safe and stable climate system and, ultimately, their constitutional rights to life, liberty, property and “public trust resources.”
The suit, Juliana v. the United States, is part of a wave of “atmospheric trust litigation” being heard in state and federal courts that are formulated under a legal theory known as the Public Trust Doctrine (PTD). The plaintiffs, who were all under the age of 21 when the suit was first filed in 2015, are represented by attorneys from Our Children’s Trust, a non-profit based in Eugene, Oregon. They were joined by the preeminent climate scientist James Hansen, acting as the “guardian of future generations.” Hansen’s granddaughter, Sophie Kivlehan, is one of the youth plaintiffs.
Our Children’s Trust was established in 2010 by attorney Julia Olson with support from Mary Christina Wood, founding director of the Environmental and Natural Resources Law Program at the University of Oregon. Wood is a leading theorist of PTD and the author of Nature’s Trust: Environmental Law for a New Ecological Age (2014). Before his retirement, journalist Bill Moyers produced extensive coverage of the PTD and Juliana. Wood was his guest on the final episode of his PBS series, “Moyers & Company.”
Juliana v. the United States has broken new ground, and not just for its claims about governments’ obligations to hold resources in public trust for the benefit of future generations. Plaintiffs also argued that inaction on climate change discriminated against their generation, as they would bear the worst impacts of climate change but had no voting rights by which to influence policy. The lawsuit has been subject to extraordinary efforts by the government seeking dismissal on various grounds, including an unprecedented—and as yet unsuccessful—petition to the U.S. Supreme Court to dismiss the case prior to its having been heard at the district court level.
U.S. Justice Department attorneys, in trying to defend the government, have argued that there is “no constitutional right to a pollution-free environment.” But in early proceedings in the U.S. District Court for the District of Oregon, presiding Judge Ann Aiken stated that the right to “a climate system capable of sustaining human life” is fundamental, as she ruled that the case should proceed. Legal scholars have pointed out that Judge Aiken’s ruling far exceeds any previous claims of government obligations in the environmental policy arena.
Initially, three fossil-fuel industry trade groups—the American Petroleum Institute, the National Association of Manufacturers and the American Fuel and Petrochemical Manufacturers—intervened on the side of the government. After the 2016 election, when the Trump administration stepped up efforts to derail the case, the trade groups asked for, and received, release from their roles as defendants. In their motion to the court, they stated, “as the dynamics have changed over the last several months, we no longer feel that our participation . . . is needed to safeguard industry and our workers.”
Juliana has been scheduled for trial three times since 2016. Persistent motions from the Justice Department have effectively blocked the progress of the suit, and it is now at another critical juncture. A process of “interlocutory appeal” has been underway since November 2018, in which oral arguments were heard by the Ninth District Court of Appeals on June 4, 2019. A recording of that hearing, which lasted just over an hour, can be seen on YouTube. A decision could be handed down any day. While many observers felt the Ninth Circuit seemed disposed to allow the case to continue, the consensus is that the interlocutory appeal will eventually end up in the Supreme Court. In reporting on the June 4 hearing, the New York Times quoted David Uhlmann, director of the environmental law program at the University of Michigan:
“In my heart, I love this lawsuit. Everything that’s compelling about this lawsuit from the beginning is even more compelling today. . . . I think anybody who has studied this court would have to conclude this is an uphill battle . . . but it’s not a foregone conclusion that the Supreme Court would reject these claims.”
Wikipedia has a detailed and highly informative page on Juliana. Explore the Our Children’s Trust website, beginning with an in-depth history of the motions and decisions in the Juliana case, the plaintiffs’ stories and the many sources of support from civil society. Subscribe to updates on pending developments on the website, follow Our Children’s Trust on Twitter, and look for the Donate button on the website.