They’re suing the U.S. government for endangering their future by supporting a fossil fuel-based energy system, despite knowledge of how that would contribute to the current climate disaster.
The case would clarify a new fundamental right—the right to a stable climate system that sustains human lives and liberties. The scale of the government misconduct in this case is quite unprecedented. Never before has there been this kind of government-created public health disaster at such a large scale.
A court order recognizing that these youth have constitutional rights and that the government is violating those constitutional rights. And then a court order directing the defendants—the government agencies—to come up with a plan to bring the energy system into constitutional compliance.While the courts can order the government to make a plan, they don’t write policies. That’s why things like the Green New Deal and other climate change policies are so critical. We have to have the policies ready because our government is not going to be quick to develop a remedial plan.
Government-endorsed contributions to climate change are a fundamental threat to their constitutional rights. Rather than asking for money in damages, the youth are demanding action, pressing the government to use its power to create a national energy transition plan to guide us away from fossil fuels. The youth’s legal basis for this case rests in the Constitution and the Fifth Amendment right that no person can be “deprived of life, liberty, or property without due process of law,” and on the public trust doctrine, which outlines the government’s responsibility to protect publicly shared resources such as shorelines and bodies of water.
The case has support in international law and comparative law jurisprudence, as CIEL and ELAW argue in their recent amicus brief. Seventy years ago, the UN adopted the Universal Declaration of Human Rights, which provided that everyone has a right to life. Subsequent treaties have incorporated and elaborated on this. As a party to the International Covenant on Civil and Political Rights, the United States is obligated to protect people’s fundamental right to life. Additionally, the US has signed but not ratified the American Convention on Human Rights and the Convention on the Rights of the Child, both of which also affirm the right to life.
Preserving a healthy environment and a stable climate system is an essential component of ensuring the right to life, and this can be seen in international law and in the national laws and jurisprudence of foreign states. As part of its denial of the government’s initial motion to dismiss in November 2016, the Oregon District Court recognized that the right to a climate system capable of sustaining human life was necessary in order to exercise the rights of life, liberty, and property. It is now up to the Ninth Circuit Court to uphold the lower court’s decision to allow the case to move forward and let the youth have their day in court.
Central Questions and Key Takeaways from the Hearing:
The government hasn’t acted sufficiently to stop climate change. But is inaction enough for a court case?
During the hearing, Julia Olson from Our Children’s Trust argued on behalf of the youth, emphasizing that this case is not about inaction on the part of the government, but about action to subsidize and facilitate the nation’s fossil fuel energy system, even in the face of evidence that doing so deprives its citizens of their Fifth Amendment rights to life, liberty, and property.
Is the district court the right place for this lawsuit?
The government argued that the case primarily focused on actions of administrative agencies and so should be heard first through administrative proceedings rather than on a Constitutional claim to the district court. But the youth maintained that administrative paths to fixing our climate problem are insufficient. The destruction wrought by climate change is not caused by problems with one specific agency’s action that an administrative court could address, but rather systematic government action in support of an energy system that is threatening youth and future generations’ constitutional rights.
Yet again, the government challenged the case’s ability to go to trial. So what is each side asking for?
Though the trial was originally scheduled to begin last October, the government was granted an unusual pretrial appeal that postponed it until last week’s hearing could decide whether the case should move forward at all. Last Tuesday, the youth had to fight for the chance to prove that they’ve faced real threats due the government’s contribution to climate change.
For the 21 young people, the trauma and loss caused by climate change doesn’t just exist in some theoretical future; they have all experienced real harm and suffering due to our increasingly unstable environment. For example, 15-year-old Jayden Foytlin has repeatedly seen her home flood as tropical storms intensify in Louisiana. And 19-year-old Nathan Baring’s hometown in Alaska is threatened by both ice storms and pollution, which have forced his family to live without power for a week in 18-degree Fahrenheit temperatures and exacerbated his asthma.
In addition to asking the Court to lift the stay on the case, the youth petitioned it for an injunction to stop all new fossil fuel development, leasing, and investment while the case proceeds, a move that the Justice Department lawyer called an “attack on the separation of powers.”
What Are the Youth Fighting For?
Three and a half years ago, a group of 21 young Americans decided to sue the US government, arguing that government-endorsed contributions to climate change are a fundamental threat to their constitutional rights. Rather than asking for money in damages, the youth are demanding action, pressing the government to use its power to create a national energy transition plan to guide us away from fossil fuels. The youth’s legal basis for this case rests in the Constitution and the Fifth Amendment right that no person can be “deprived of life, liberty, or property without due process of law,” and on the public trust doctrine, which outlines the government’s responsibility to protect publicly shared resources such as shorelines and bodies of water.
Though the government argues that this sort of climate lawsuit is unprecedented, it has support in international law and comparative law jurisprudence, as CIEL and ELAW argue in their recent amicus brief. Seventy years ago, the UN adopted the Universal Declaration of Human Rights, which provided that everyone has a right to life. Subsequent treaties have incorporated and elaborated on this. As a party to the International Covenant on Civil and Political Rights, the United States is obligated to protect people’s fundamental right to life. Additionally, the US has signed but not ratified the American Convention on Human Rights and the Convention on the Rights of the Child, both of which also affirm the right to life. Preserving a healthy environment and a stable climate system is an essential component of ensuring the right to life, and this can be seen in international law and in the national laws and jurisprudence of foreign states. As part of its denial of the government’s initial motion to dismiss in November 2016, the Oregon District Court recognized that the right to a climate system capable of sustaining human life was necessary in order to exercise the rights of life, liberty, and property. It is now up to the Ninth Circuit Court to uphold the lower court’s decision to allow the case to move forward and let the youth have their day in court.
What’s Next?
This landmark climate case has faced a long road on its way to trial, emerging victorious time and time again in spite of multiple government attempts to derail the case before it even begins. Last week’s hearing was the most recent step in the fight to make it to trial. Looking forward, it may be months before a decision is reached, but the widespread attention on this one hearing alone (with over 15,000 viewers!) shows mounting public support for our right to a stable climate system and a growing demand to move toward a clean-energy future.
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Rodgers: A court order recognizing that these youth have constitutional rights and that the government is violating those constitutional rights. And then a court order directing the defendants—the government agencies—to come up with a plan to bring the energy system into constitutional compliance.
While the courts can order the government to make a plan, they don’t write policies. That’s why things like the Green New Deal and other climate change policies are so critical. We have to have the policies ready because our government is not going to be quick to develop a remedial plan.
YES! Magazine 34 minutes agoCLIMATE Andrea Rodgers, second from the right, takes notes during a hearing in the Juliana v. U.S. case before the 9th Circuit Court of Appeals in Portland, Oregon on June 4. Robin Loznak / Our Children’s Trust
By Fran Korten, YES! Magazine What’s Next for the Youth Climate Lawsuit
On June 4, Andrea Rodgers was in the front row of attorneys sitting before a three-judge panel of the 9th Circuit Court. The court session, held in Portland, Oregon, was to determine whether the climate change lawsuit (Juliana v. United States) brought by 21 young plaintiffs should be dismissed, as requested by the U.S. government, or go on to trial.
It’s the latest of many delays for the lawsuit, which was first filed in 2015 by the then-youth plaintiffs. The judges’ decision on this most recent request to dismiss the case is expected sometime in the next few months.
Rodgers is a senior attorney for Our Children’s Trust, the nonprofit based in Eugene, Oregon, that is supporting the young plaintiffs — the eldest of whom are now young adults while the youngest is 11 — in making their case.
They’re suing the U.S. government for endangering their future by supporting a fossil fuel-based energy system, despite knowledge of how that would contribute to the current climate disaster. Rodgers is also the lead attorney for climate-related suits on behalf of children in the states of Washington and Florida.
I spoke with Rodgers about the lawsuit, the youth movements erupting around the world in response to governments’ inaction on climate change, and about preparing her own children for a future marked by the climate disaster.
This interview has been edited for clarity and length, and Andrea Rodgers reviewed the edits for accuracy.
Fran Korten: In the 9th Circuit hearing on June 4, Judge Andrew Hurwitz remarked that with this suit you are asking the court to break new ground. Are you?
Andrea Rodgers: We are not breaking ground with respect to our claims that the government’s conduct is violating the youth’s constitutional rights to life, liberty, property, and equal protection of the law.
Where we’re breaking new legal ground is with respect to a new fundamental right—the right to a stable climate system that sustains human lives and liberties. The scale of the government misconduct in this case is quite unprecedented. Never before has there been this kind of government-created public health disaster at such a large scale.
Korten: This case has been stalled for more than four years by the government’s motions to dismiss. How are the plaintiffs in this case reacting to all this delay?
Rodgers: Many of these kids have been engaged in this litigation for a fifth or more of their lives. They’re ready to get their evidence presented to a court. So it’s frustrating. But they’re also confident that they’re going to get their stories told and that justice will be done. They’re just unfortunately seeing that sometimes justice is not swift.
Korten: What gives them the confidence that they will be heard?
Rodgers: They know that they have constitutional rights. They’ve read the Constitution. They see that they have the right to life and liberty. And they understand the science and how their rights are being infringed upon. Under our system of government, you can go to court to get redress. So they are confident that the courts will appropriately apply the law to protect them.
Korten: How do you see this youth-based lawsuit relating to other youth-led movements like the Sunrise movement, Zero Hour, Extinction Rebellion, and the worldwide Friday strikes led by Greta Thunberg in Sweden?
Rodgers: It’s really exciting to see these other youth movements develop. I think a lot of people were inspired by these young plaintiffs who, back in 2010, decided to bring their cases to court. Youth today are so aware of what other youth are doing that these movements build off of one another—the students fighting gun violence and [racism] and so much more. They’re having these conversations about the world that they want to live in and that they believe that they’re entitled to as a matter of law. So it’s exciting to see that. As an adult, you want kids who are active in the democratic process. And this is such an important part of that.
Korten: Do you think the activism among the youth will have any effect on the courts’ decisions in this case?
Robin Loznak / Our Children’s Trust
Left to right, attorney Andrea Rodgers, Juliana youth plaintiff Aji Piper, lead counsel Julia Olson, and Juliana youth plaintiff Hazel Van Ummersen, walk to a court hearing in front of the 9th Circuit Court of Appeals in Portland, Oregon on June 4.
Rodgers: The court doesn’t look to what’s going on outside the courtroom in order to render a legal decision. But the courts are also made up of judges who are human and aware of the world around them. They understand when there is societal change going on. You see that with the gay marriage decision. I don’t think that decision would have happened without the “Love Is Love” and other campaigns. Same thing with Brown v. Board of Education and the bus boycotts. So the movements outside of the courtroom are critical. We have three branches of government, and they all know what the other is doing. But I wouldn’t go so far as to say that the courts are influenced directly. It’s really much more indirect, long term, and bigger picture.
Korten: If you do go to trial, you will bring testimony from many experts. But much of that information is already in the news, in academic papers, and reviewed in governmental panels. Is there any special value to having it aired in court?
Rodgers: Absolutely. Because in court, it’s sworn testimony under oath. Scientific testimony has to go through a very rigorous process to be admissible in a court of law. Junk science is thrown out or considered unreliable. There are scientific standards for what’s admissible in a court of law. The person delivering testimony has to be considered an expert in the fields in which they’re testifying. There’s no fake news in the court because that’s considered perjury. And then the witness is cross-examined. So it gives the other side an opportunity to poke holes in their testimony and to bring in other conflicting information.
We have 23 expert witnesses. People like James Hansen, Joseph Stiglitz, Frank Ackerman, Harold Wanless, Steve Running, Hugh Goldberg, Pete Erickson, and [James Gustave] Speth, all of whom are the top experts in their fields. It’ll be the trial of the century.
Korten: What is the best outcome you could imagine from this suit?
Rodgers: A court order recognizing that these youth have constitutional rights and that the government is violating those constitutional rights. And then a court order directing the defendants—the government agencies—to come up with a plan to bring the energy system into constitutional compliance. While the courts can order the government to make a plan, they don’t write policies. That’s why things like the Green New Deal and other climate change policies are so critical. We have to have the policies ready because our government is not going to be quick to develop a remedial plan.
Korten: What can ordinary citizens do to support this case?
Robin Loznak / Our Children’s Trust
Attorney Andrea Rodgers being interviewed at a press conference on the steps of the Miami Dade County Courthouse in 2018. Rodgers was representing Florida youth in a climate change lawsuit against the state of Florida.
Rodgers: On the Our Children’s Trust website, there are toolkits so that supporters can get engaged and support the youth plaintiffs. You can teach young people about the suit and their constitutional rights in school. There are ways to utilize the litigation to galvanize members of the community in support of science-based climate action. There are people getting congressional and other elected leaders to recognize that there’s a fundamental right to a stable climate system.
Korten: You recently spoke at the Bainbridge Island Climate and Energy Forum in Washington state. How do you see the value of local actions such as that one?
Rodgers: Local action is the primary way that people in the community are learning about climate change. This kind of local forum can keep people aware of policy efforts and making phone calls on legislation or learning about election issues. The other thing a local forum does is to bind us together as a community. Climate change is a very difficult issue. It’s easy to throw up your hands and give up. When you’re working on this issue within a community, that’s so much more powerful. It keeps you going when you feel frustrated or disheartened. You have that community to lean on.
Korten: You are a mother. How do you help your children understand what you’re fighting for without scaring them?
Rodgers: It’s really hard. My daughter is 8, and my son 11. You don’t want them to think that there is no future for the planet. But at the same time I want them to recognize the reality of what’s going on and what the scientists say. This is going to be the issue they will work on because it’s going to affect their world in every way imaginable. So they need to be prepared for that.
I try to engender within them a love and appreciation for the natural world and then the understanding that they’re going to need to fight to protect it. It shouldn’t have to be a fight, but it really is. We saw that in court. The government’s lawyer was advocating that there shouldn’t be a right to a stable climate system even though his children and his grandchildren are dependent upon that for their lives. But there he was making those arguments, as scary as that is. So my own children are going to need to know the reality and carry the fight forward.
Reposted with permission from our media associate YES! Magazine.
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