Why Are 21 Kids Suing the Federal Government, and Why Does It Matter?

Last year, on August 12, 2015, a group of courageous millennials filed suit against President Barack Obama and members of his cabinet for failing to adequately address the climate change problem commensurate with the threat, despite the fact that we have known for decades that human-caused global warming has been worsening over time as atmospheric concentrations of greenhouse gases have continued to rise. The lawsuit, Juliana et al v. U.S. et al and known in social media as #YouthvGov, petitions the court to order the federal government to develop and implement a national plan that would bring down atmospheric carbon dioxide levels to a level deemed “safe” by climate scientists – 350 parts per million (ppm) – by the year 2100. This federal lawsuit and a batch of similar suits filed in U.S. states, and even in other countries, are being overseen and coordinated by a group of dedicated attorneys and experts at Our Children’s Trust (OCT), with the stated mission “to protect Earth’s atmosphere and natural systems for present and future generations.” Julia Olson, OCT’s founder and executive director, and the Lead Attorney for the federal suit, has recently been profiled by CNN: “Meet the mom litigating the ‘biggest case on the planet.’”

Meet the plaintiffs, ages 9 to 20: Kelsey, Xiuhtezcatl, Alexander, Jacob, Zealand, Avery, Sahara, Kiran, Tia, Isaac, Miko, Hazel, Sophie, Jaime, Journey, Victoria, Nathaniel, Aji, Levi, Jayden, and Nicholas. They are from all over the United States, they are worried about their future in a climate-disrupted world, they went to court as a last resort to get their country to do right by them, and they mean business. While none of them are old enough to rent a car or buy a six-pack of beer, each of them demonstrates a rare brand of wisdom, capability, maturity, and strength of character. Truth be told, these kids are putting grownups to shame. The adults in America have fallen down on the job of passing a livable Earth on to future generations.

About the Plaintiffs
The suit’s named plaintiff, 20-year-old Kelsey Juliana of Eugene, Oregon, began her journey as an advocate for stronger government action at age 16 by filing suit against her home State of Oregon and Oregon Governor John Kitzhaber, for failing to protect the state’s natural resources, water bodies, the Oregon coast, and the atmosphere against carbon pollution. Together with her 12-year-old friend Olivia Chernaik, and represented by both girls’ parents (acting as Guardians for purposes of the suit), Kelsey Juliana was putting to the test the Public Trust Doctrine, a legal concept that had been incorporated into Oregon law that forces the state government to ensure protection of and access to its shared natural environment on the ground – but apparently not in the sky. In July 2015, Judge Karsten Rasmussen ruled against the plaintiffs, rejecting their argument that the atmosphere is covered under the Public Trust Doctrine and concluding that the state had no obligation to preserve it for future generations. Judge Rasmussen also responded to the suit’s allegation that the state was not doing enough to address climate change by writing in his opinion that taking this on would place an “undue burden” on the state legislature. Unswayed, Juliana and Chernaik are appealing the decision, and Juliana is now directing her energies toward the federal effort. She is also spending considerable time and energy raising broader awareness of the need for much stronger action on climate change than we are currently taking.

Plaintiff Xiuhtezcatl Tonatiuh Martinez of Boulder, Colorado – whose first name is Aztec, and pronounced “Shu-TEZ-caht” – has become something of a global celebrity. An accomplished hip-hop artist as well as climate activist, at the ripe old age of 16 Xiuhtezcatl already has an impressive portfolio – something that is possible when you begin at age six. He addressed the Rio+20 United Nations Summit in Rio de Janeiro in 2012 and has addressed the General Assembly of the United Nations in New York. He and the work he does to solve the climate problem have been featured on CNN, HBO, MSNBC, and PBS; and in National Geographic, The Guardian, Rolling Stone, and TED Talks. This past June, he was a featured guest on Real Time with Bill Maher. He received the 2013 US Community Service Award, has served on the President’s youth council, and, in 2015, he was a recipient of the Peace First Prize and the Nickelodeon Halo Award. Last month, he traveled to Sweden to accept the Children’s Climate Prize. As an active leader in the conservation organization Earth Guardians, he encourages other youth worldwide to join the climate movement; he now boasts there is “an army of teens in over 50 countries to demand sustainable policy from our world leaders.”

These are just a few of the plaintiffs, and the ones who have been most visible in the media; but all 21 have unique perspectives, rich experiences and stories to share, and a strong passion for making the world a better, safer place. Several of them are featured in a set of short films (all about 15 minutes long) that can be viewed from the OCT website; all were brilliantly created and produced by Kelly Matheson at WITNESS and filmmaker Christi Cooper at Barrelmaker Productions. For example, “TRUST Colorado,” featuring Xiuhtezcatl, tells the story of how he has perceived climate change affecting the landscape and weather patterns all around him. Quoted when the film was featured in a 2013 film festival, Xiuhtezcatl said:

“The proof of climate change is everywhere. In my lifetime, the amount of forest killed by beetles has expanded. The number of acres burned has intensified. My generation is losing our forests. We are losing our homes. It’s not too late to ensure a livable future, but we need to listen to the science and act now.”

A summary film, “A Climate of TRUST,” features former NASA climate scientist Dr. James Hansen, a federal whistleblower and GAP client, now directing the Climate Science, Awareness, and Solutions program at Columbia University. He is filmed with his granddaughter Sophie Kivlehan, one of the 21 plaintiffs. Hansen plays the dual role of official climate science advisor and expert witness for the lawsuit, and Guardian Plaintiff for Sophie, for whom he wrote the 2009 book “Storms of My Grandchildren: The Truth About the Coming Climate Catastrophe and Our Last Chance to Save Humanity.”

Hansen, now more of a climate activist and a communicator of climate science than a research scientist, yet again issues a clear, unequivocal warning:

“We have a global climate emergency. Earth is out of energy balance, there is more energy coming in than going out. That energy drives warming of the ocean, ice sheet disintegration and sea level rise, stronger storms, more intense heat waves, droughts, fires and floods. Our Constitution guarantees young people equal protection of the law and the rights to life, liberty — including the pursuit of happiness — and property. These rights may not be denied by government action without due process of law.”

The Oil and Gas Industry Jumps into the Fray
Hansen’s warning is one that has been ignored, refuted, and even ridiculed by the fossil energy industries ever since Hansen testified before the U.S. Senate in 1988 that climate change was real and it was happening in real time. Just three months after the federal suit was introduced, on November 12, 2015, three mega-sized trade associations – the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers, and the National Association of Manufacturers – elbowed their way into the lawsuit, becoming listed as co-defendants alongside the U.S. President, his cabinet, and federal agencies (see OCT press release).

Presumably, these carbon-intensive corporations believed that, by becoming parties, they could handily make the suit go away; so far, they have not succeeded, despite persistent efforts. When the court granted their Motion to Intervene, the kids all decided they were just fine with suing them too. Why not? After all, the oil and gas industry is the biggest climate pollution offender both in the U.S. and worldwide, and has systematically played an egregious role in manipulating and promoting the outright denial of climate science in U.S. politics.

Post-Election Good-News/Bad-News
First, the good news. Just hours after the final results of the 2016 U.S. presidential election became known in the early morning of November 10, the young plaintiffs received the news they had long hoped for: their potentially game-changing lawsuit would be allowed to go to trial. This, despite heavy-handed efforts by the President’s co-defendants – the fossil fuel energy industries – to have the suit dismissed. U.S. District Court Judge Ann Aiken issued an opinion and order on November 10 that included a pronouncement that will go down in climate policy history, no matter the ultimate outcome of the suit:

“Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

To drive home her point, she added:

“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.”

The young plaintiffs – together with their attorneys and many thousands of supporters worldwide – rejoiced, knowing that they, these tenacious and spirited children and young adults, would finally have their day in court to argue their constitutional and public trust claims for all the world to hear and see. They knew they had won a critical, potentially groundbreaking battle in the war against the polluters and in defense of Earth’s atmosphere and climate, and defeated Big Oil, which has become unaccustomed to not getting its way in a courtroom or anywhere else. This is an important victory not just for the plaintiffs, but for all who have worked tirelessly for better public policies to address the climate threat and have been thwarted time and time again by the powerful fossil fuel interests.

There was bad news that second week in November as well: on November 14, the World Meteorological Organization (WMO) published a provisional statement on the status of the global climate in 2016, stating that 2016 will likely be the hottest year on record, with global average temperatures exceeding those of 2015 – and this continuing trend will bring a host of dangerous climate impacts. We saw this yet again in the form of Hurricane Matthew, which took lives, caused serious damage in the Southeastern U.S. and was the most serious humanitarian emergency in Haiti since the 2010 earthquake. The Earth’s climate is in trouble, WMO warned, and therefore human populations are in trouble. Yes, even the dense population residing near Trump Tower in New York City is in trouble; where one extreme weather event like Hurricane Sandy and the storm surge it caused would be enough to take dozens of lives, cause billions of dollars in damages, inundate the entire subway system, cause power outages for weeks, and essentially shut down the city. Earlier this year, the average global concentration of carbon dioxide rose above 400 ppm and is projected to keep rising unless drastic measures are employed in the U.S. and all over the world. Getting back to 350 ppm is going to require a significant and coordinated national (and international) effort resembling the Apollo Program to send manned spacecraft to the Moon.

Now, just one month into the transition of power, President-elect Donald Trump and those he has brought on to serve in his cabinet have made it clear how they stand on a reality-based approach to this existential threat: they are clearly seeking to instigate more and faster fossil fuel development, not less. Naming ExxonMobil CEO Rex Tillerson as the new U.S. Secretary of State – especially given that he is to replace Secretary John Kerry, a strident advocate for strong action to address climate change – can be seen as Trump’s opposition to the climate movement, if not an apparent affinity for large oil and gas projects. His other choices, e.g. for the U.S. Environmental Protection Agency and the U.S. Department of Energy, are of equal concern.

The 21 plaintiffs and their attorneys are coaxing President Obama to the settlement table, but they have received no indication of interest. By engaging with the plaintiffs directly, President Obama could send a strong signal to the nation and the world that, for now, the United States is aligned with the rest of the world in its intention to meet the goals of the 2015 Paris climate agreement. All he needs to do is meet with the plaintiffs to discuss settlement terms.

Regardless, the legal team at OCT says the presiding judge has indicated he wants to move the case quickly to trial, and they are optimistic about the outcome. They have shared their view with CSPW: a climate-denying Trump administration makes their work easier, not harder, and, in their minds, boosts their chances of winning. After all, the science doesn’t lie, and the vast body of strong scientific evidence is stacked against the defendants. The presiding judge is more likely to find for the plaintiffs if he is convinced that a court order is necessary to compel the incoming administration to adopt the policies and regulations needed to drive down carbon dioxide emissions to 350 ppm. The plaintiffs, in the words of President Obama, are “fired up and ready to go” to trial against President-elect Trump, his cabinet choices, and the three mega trade associations representing all that is dangerous to their very survival and that of future generations.

Time is of the Essence
The clock is ticking: President Obama has less than 30 days to accept the offer to settle. By doing so, he could easily make a move that could bring some serious sunshine into his climate change legacy; a legacy made darker of late by his disappointing failure to act swiftly and decisively on the bitter controversy surrounding the Dakota Access Pipeline, which is slated to cross near sacred burial sites on indigenous treaty land and pass under the Missouri River where it could leak and destroy the region’s water supply. Leaders in the climate movement believe that the President’s failure to take a strong stand on this pipeline puts a mar on his climate change record, which while including some noble efforts, is nonetheless much weaker than advocates for avoiding a climate catastrophe had hoped. President Obama could make climate history and elevate his legacy in settling Juliana et al v. U.S. et al out of court – but, we predict, he will not. Still, the Plaintiffs remain hopeful and are issuing regular appeals to him.

This may be President Obama’s one shot to let these kids know he is just as concerned about their future as they are, as so many of us are, all over the world.

He better step up to the table, and fast. Time is running out.

 

CSPW Senior Climate Policy Analyst Anne Polansky has 30 years of experience in public policies relating to energy and the environment, with a strong focus on climate change and renewable energy. She is a former Professional Staff Member of the House Committee on Science, Space and Technology.