‘Biggest case on the planet’ pits kids vs. climate change

Levi Draheim is a nine-year-old science
geek. He founded an environmental club as a fourth grader and gives
talks about climate change to audiences of grown-ups. His home is
on a slender barrier island on Florida’s Atlantic coast, 21 miles
south of Cape Canaveral and a five-minute walk from the beach. By
mid-century, his sandy childhood playground could be submerged by
rising seas. He will be just 42.

Nathan Baring is 17 and a high school
junior in Fairbanks, Alaska—120 miles south of the Arctic Circle.
He loves cold weather and skis. The Arctic^[1]
is warming twice as
fast as the rest of the planet^[2]. Now winter snows that
Baring once celebrated as early as August in Fairbanks can hold off
until November.

By 2050, Arctic sea ice will have virtually disappeared, and
temperatures in the interior, surrounding Fairbanks, will have
risen by an additional 2 to 4 degrees Fahrenheit, altering the
boreal forest ecosystem. Nathan will be 50.

“I can deal with a few days of rain in February when it’s
supposed to be 40 below,” he says. “But I can’t deal with the idea
that what my parents experienced and what I have experienced will
not exist for my children. I am a winter person. I won’t sit idly
by and watch winter vanish.”

Baring and Draheim so lack confidence that they will inherit a
healthy planet that they are suing the United States government for
failing to adequately protect the Earth from the effects of climate
change. They are among a group of 21 youths who claim the federal
government’s promotion of fossil fuel production and its
indifference to the risks posed by greenhouse gas emissions have
resulted in “a dangerous destabilizing climate system” that
threatens the survival of future generations. That lapse violates,
the court papers argue, their fundamental constitutional rights to
life, liberty, and property. The lawsuit also argues that the
government violated the public trust doctrine, a legal concept
grounded in ancient law that holds the government is responsible
for protecting public resources, such as land and water—or in this
case, the climate system—for public use.

The kids’ lawsuit was joined by acclaimed NASA climate scientist
James Hansen,^[3] who began studying
climate change in the 1970s and whose granddaughter, Sophie, is
among the 21 young plaintiffs.

“In my opinion, this lawsuit is made necessary by the at-best
schizophrenic, if not suicidal nature of U.S. climate and energy
policy,” he told the court.

Last fall, U.S. District Court Judge Anne
Aiken^[4] agreed with the youths’
claim. Her sweeping 54-page
opinion^[5] laid the foundation for
what looks to be a groundbreaking trial later this year. In her
ruling, Aiken established, in effect, a new right for these
children and teens: a right to expect they could live in a stable
climate.

“I have 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.”

She made clear that “this lawsuit is not about proving that
climate change is happening or that human activity is driving it.
For purposes of this motion, those facts are undisputed.”

And Aikens added: “Federal courts too often have been cautious
and overly deferential in the arena of environmental law and the
world has suffered for it.”

Mary
Wood^[6], a University of Oregon
environmental law professor who pioneered the concept that the
atmosphere should be treated as part of the public trust, calls the
lawsuit “the biggest case on the planet.”

“This claim challenges the government’s entire fossil-fuel
philosophy. The whole thing,” Wood says. “The scientists, on the
other hand, are saying if we continue on our path without drastic
cuts in carbon dioxide emissions, we are going to leave a barren
planet that will not support broad human survival. You could not
get claims more grave than that.”

The lawsuit originally was filed against the Obama
administration, which sought to have the case dismissed because the
courts are “ill-suited” to oversee “a phenomenon that spans the
globe,” according to court papers.

“Climate change is a very serious problem,” Sean Duffy, a
Justice Department lawyer told the court last September. “We do not
question the science. Climate change threatens our environment and
our ecosystems. It alters our climate systems and it will only
worsen over time. It is the result of man-made emissions. Now where
(the parties) disagree is as to who determines how to address
climate change in the first instance. Our position is that Congress
and the Executive Branch should address climate change in the first
instance and should do so by coordinating with other nations.”

Several groups representing the fossil-fuel industry, including
the American Petroleum Institute, joined the lawsuit as
intervenors, but disagreed “to the extent of climate change, to the
emissions that cause it, and to other scientific principles,” Quin
Sorenson, a lawyer representing the industry, argued in court.

The case could prove even more consequential with the change of
administration because of President Trump’s efforts to roll
back climate regulations^[7]
put in place by his predecessor. Last week, the Trump
administration shifted course on the case and asked that a federal
appeals court review Judge Aiken’s decision to proceed to
trial.

“Whatever happens next, this is a case to watch,” says Michael
Burger,^[8] a Columbia University
law professor and specialist in climate law. “It’s out there, ahead
of the curve. And given the change in administration and President
Trump’s views on climate change, this may be a potential hook to
keep things moving along the climate change front. It may be the
opening salvo in what will be an increasing number of lawsuits that
take a rights-based approach to climate change in the United
States.”

In challenging the government’s role in climate change on
constitutional grounds Julia
Olson,^[9] the plaintiffs’ lead
lawyer, harkens to the realm of historic Supreme Court cases that
established new constitutional protections in situations when
Congress failed to act. Those cases include the 1954 Brown v. Board
of Education decision that banned segregation in public schools and
the 2015 Obergefell v. Hodges decision that legalized same-sex
marriage.

The climate change lawsuit makes essentially a straightforward
request. It asks a federal judge to order the government to write a
recovery plan to reduce carbon emissions to 350 parts per million
by 2100 (down from 400 parts per million) and stabilize the climate
system.

The courts are needed to step in, Olson argued, because the
government has not—despite knowing for more than 50 years that the
burning of fossil fuels causes global warming.

Olson first tuned in to the climate change threat when, eight
months pregnant with her youngest child, she watched An
Inconvenient Truth, former Vice President Al Gore’s 2006
Oscar-winning climate change documentary at her local
moviehouse.

“There is something about carrying life inside your body that is
transformative and gives you a different kind of perspective on the
world,” she says.

She founded Our Children’s
Trust,^[10] a nonprofit with a
mission to protect children from climate change, and now serves as
executive director. The trust is assisting in the case. Olson has
also filed climate change lawsuits in each of the 50 states, which
are proceeding separately. She has won cases in Washington,
Massachusetts, and New Mexico.

Similar lawsuits, brought by other lawyers, are playing out in
other nations, including Belgium and New Zealand, and have been won
in Pakistan, Austria and South Africa. Last year, a Dutch court
ordered the government to reduce carbon emissions by a quarter
within the next five years.

Olson’s clients in the federal suit range in age from nine to
20. They are media savvy environmental activists who understand the
power of connecting the future effects of climate change to the
people who will have to live with them.

Kiran
Oommen,^[11] 19, a student at
Seattle University, says he joined the lawsuit because it gives
voice to his generation.

“We have little or no representation in the government, yet the
effects of climate change will affect us more than anyone else,” he
says. “This is a way we can speak for ourselves and stand up for
our future.”

Aji Piper, 16, is a high school student in Seattle who plants
trees around the city and is an avid letter-writer to the state’s
polluting industries. He adds: “Once you start involving children,
people start listening more. My role in the case is to sit there in
court.”

The climate kids, as the group is known, also are living the
full menu of drought, deluge, heat, and extreme weather events that
are rapidly becoming the unnerving norm. Not only has sea-level
rise killed any long-term future Levi Draheim might have envisioned
on Florida’s Space Coast, but he has to cope with toxic
algae blooms^[12] like the outbreak that
befouled beaches last July and monster storms, such as Hurricane Matthew^[13], which barreled up the
Florida coast last October and eroded away much of the sand on his
beach.

Journey Zephier, 16, lives in Kauai, Hawaii, where ocean
acidification^[14] is killing coral reefs
and coastal fisheries. Miko Vergun, 16, who lives in the Portland,
Oregon, suburb of Beaverton, fears she may never be able to visit
her native Marshall Islands in the remote Pacific Ocean before they
disappear beneath the swells. Tidal flooding, she says in court
papers, is so frequent now that a fifth of the population has
already moved away.

Last August, Jayden Foytlin, 13, awoke one morning to flood
waters seeping into her bedroom in Rayne, Louisiana, as a rainstorm
that lasted two weeks flooded more than 60,000 homes and killed 13
people. Foytlin’s home was soon awash in sewage. The Foytlins do
not live in the flood plain, yet the raging waters destroyed their
home and all of their belongings.

“This flood has been called a thousand-year event,” Foytlin told
the court. “Yet within the last two years, I have read about eight
‘500-year’ events. In less than two years, there have been nine
flood events that are not even supposed to happen in my lifetime.
My family and I feel very vulnerable.”

Despite winning a trial, prevailing ultimately remains an uphill
climb. Columbia’s Burger says Judge Aiken’s unprecedented order
that the case go to trial “is a great opinion for environmental
law.”

But, he warns: “As it moves up on appeal and ultimately to the
Supreme Court, the chances get less and less that that opinion
survives in its current form.”

To date, courts have never recognized a constitutional right to
even a natural environment free of pollutants, let alone to a
stable climate.

After Judge Aiken ruled, proponents urged Obama to settle the
case before Trump took office. Obama declined. The government also
declined to ask for an appellate review of her order; government
lawyers instead proceeded toward trial. Seven days before Trump was
sworn in as president, government lawyers added a routine brief^[15] to the court file that
may complicate the Trump administration’s effort to argue the
science and halt the trial.

In the brief, government lawyers conceded nearly every point on
which the plaintiffs’ case against the government was constructed.
These admissions include the government’s role in promoting the
development of fossil fuels and its belief that greenhouse gases
are at “unprecedentedly high levels compared to the past 800,000
years … and pose risks to human health and welfare.”

The government went so far as to point out where the plaintiffs
had understated the evidence against the government in court
papers. They then corrected the figures, raising them upwards.

“They recognized the importance of this case and tried to make
sure when the Obama administration left, that the government’s
position was clear and the court shouldn’t spend time in trial
worrying about facts that should not be contested,” says Phil
Gregory, the plaintiffs’ co-counsel.

Now, the Trump administration appears to have reversed course.
Last week, government lawyers asked Judge Aiken to grant their
request that the Ninth Circuit Court of Appeals review her order.
Halting the trial, the lawyers wrote, could avoid litigation that
“is unprecedented in its scope, in its potential to be protracted,
expensive and disruptive to the continuing operation of the United
States Government.”

The appellate review is unlikely to be granted, because the
decision is up to Judge Aiken, the judge who ordered the trial to
proceed. In common practice, appeals courts decline to consider
appeals until a trial concludes.

In a separate motion, government lawyers are also fighting a
request by the youth’s lawyers that the Justice Department preserve
all documents relevant to the lawsuit, including information on
climate change, energy, and emissions.

Even if a review is granted, it may be difficult for the Trump
administration to reverse the government’s statements and
acknowledgements about climate change that are already part of the
record. Still, the new administration’s position on the subject is
becoming increasingly clear. Two days after the government’s
motions were filed, EPA Administrator Scott Pruitt swept aside
established science on the connection between carbon dioxide
emissions and global warming and declared that “carbon dioxide is not a primary contributor
to the global warming that we see^[16].”