Xiuhtezcatl Tonatiuh Martinez (15) stands in front of his fellow plaintiffs and addresses the press in March 2016. (Clayton Aldern/Grist & BillMoyers.com)
A hearing in Eugene, Oregon, today will decide whether a legal gambit by 21 young Americans to sue the government into taking action on climate change can move forward.
The case rests on the idea that the nation’s fossil-fuel-based economy is depriving the plaintiffs of their constitutional right to a habitable community. It also draws on the public trust doctrine, which gives special status to certain resources, such as shorelines, as property to be administered by the government for the public good. Our Children’s Trust, the group behind the suit, argues the atmosphere is a public trust.
The aim of the suit is to have a court — the Supreme Court, if the suit advances that far through the legal system — require the federal government to address climate change more aggressively through laws and regulations. Lawyers in the case draw comparisons to the federal response to Brown v. Board of Education, the 1954 Supreme Court decision that required the desegregation of schools. In that case, “judges found there were fundamental constitutional rights to equality and courts supervised the enforcement of those rights,” Mary Christina Wood, a law professor at the University of Oregon, told BillMoyers.com last year. Our Children’s Trust is hoping for a similar outcome on the issue of climate change.
This sets up an unlikely team of allies: Although President Barack Obama has declared limiting climate change one of his legacy issues and has taken considerable flak from the political right for it, his administration is being supported in its defense by trade groups representing some of America’s biggest polluters. Lawyers from the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers and the American Petroleum Institute, who were granted permission to join the case as defendants in January, will team up with the US Justice Department in arguing against the kids if it goes to trial.
Julia Olson, lead lawyer in the suit, says that today’s hearing is key. In April, a federal district court judge decided that the children had a case. If US District Court Judge Ann Aiken agrees, it will move forward to the discovery process, in which Olson expects to dig up evidence to reinforce her case that the government has been concerned about climate change for more than 50 years, but failed to take appropriate action.
“In the 1960s, the Environmental Science Services Administration specifically was concerned with the effects of pollution on weather and climate, especially the potential buildup, on a global basis, of carbon dioxide and particulate matter in the atmosphere,” Olson said by email, describing information found during a preliminary investigation laying the groundwork for the suit. “Federal officials also knew that a rise in temperature would result from the rise in the atmosphere of carbon dioxide, causing the polar icecaps to melt and our seacoast cities to be inundated by the rise in sea level… Despite this knowledge of harm our government did nothing to halt the serious climate effects our children and grandchildren will face and everything to perpetuate the problem.”
Our Children’s Trust has been honing its strategy for years, bringing suits in all 50 states before going after the Obama administration. And throughout the process, the future effects of climate change that the young plaintiffs are trying to ward off have moved into the present. They hit one plaintiff, Jayden Foytlin, 13, hard last month when a storm lingered over her home state of Louisiana for three days. It caused floods of the sort that are supposed to occur only once every 500 years but have actually occurred eight times in less than 12 months, a fact that caused climatologists to take the rare step of definitively linking the intensity of the storms to climate change. “A few weeks ago I literally stepped out of bed and was up to my ankles in climate change,” Jayden said.
