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Kids of the Future

21 kids sue the Obama Administration, stating it has failed to make progress on climate change for future generations.

Most kids of 2016 spend their time with their friends, playing video games, or immersing themselves in Pokémon Go, but for twenty-one kids from various states, that is not their primary concern.  With the assistance of Our Children’s Trust, an environmental legal group, these kids have sued the federal government and fossil fuel companies for lack of action when it comes to climate change.  The plaintiff’s ages range from 9 to 19, and all believe that climate change is the most pressing issue our world faces today.

In their lawsuit, filed in 2015, they cited four claims of relief: Due Process Clause of the Fifth Amendment, violation of equal protection principles embedded in the Fifth Amendment, violation of the unenumerated rights preserved for the people by the Ninth Amendment and a violation of the Public Trust Doctrine. The Public Trust Doctrine gives special status to certain resources for the public good, and promotes the idea that the government should protect these resources.

During the 2008 Presidential Campaign, President Obama states many times that he thought climate change was a critical issue…

According to the kids who make up this group, they expected more from President Obama, who addressed climate change more than any other U.S. President in his many speeches.  According to President Obama, a majority of Americans have come to believe “that climate change is real, that it’s important and we should do something about it.”  During the 2008 Presidential Campaign, President Obama stated many times that he thought climate change was a critical issue and that Congress needed to take legislative action.  The 21 plaintiffs feel like he dropped the ball, and along with Congress, failed to take critical action.  Given that most of them have not yet reached voting age, they get no say in who represents them and find it a challenge to make their opinion known.

Avery McRae, an 11-year-old plaintiff from Eugene, said outside court that she was upset when people say she and other plaintiffs are too young to sue.  “I know that I love the Earth, and I know it’s being threatened by warming temperatures,” she said.  “I know that I have a constitutional right to a stable environment.”

Representing the 21 plaintiffs is Julia Olson, an experienced environmental attorney.

Representing the 21 plaintiffs’ is Julia Olson, an experienced environmental attorney.  Olson graduated from the University of California, Hastings College of Law in 1997.  She represented grassroots conservation groups for 15 years, but changed her career after becoming a mother.  Olson credits the film “An Inconvenient Truth” for inspiring her to take a stance on climate change.  The film, released in 2006, followed former Vice President Al Gore as he campaigned for environmental change.  Once she had children, she said that she now knew that the greatest threat to her children was climate change, and she helped found Our Children’s Trust, the organization supporting the kid’s lawsuit.  Our Children’s Trust has been involved in other lawsuits as well at the state level, but the majority of them have proven to be unsuccessful.

In this case, Olson and her team are asking the federal court in Oregon to order the US government to create a comprehensive plan to help lower global carbon dioxide levels to 350 parts per million, which they claim is what the government’s own scientists recommended in 1990.  Olson said that if the case makes it to the discovery phase, she believes there will be more than ample documentation to back up their claims.

Following the filing of the lawsuit, both the government defendants and the fuel industry filed motions to dismiss the lawsuit.  On April 8, 2016 U.S. Magistrate Judge Thomas Coffin denied those motions.  However, it was not a complete victory.  The ruling was appealed to the U.S. District Court, where Judge Ann Aiken heard oral arguments on September 13, 2016.

In order to have legal standing to file a lawsuit, a plaintiff must have suffered an individualized harm…

The biggest argument against the lawsuit is whether or not these plaintiffs even have standing to sue over these climate change matters.  In order to have legal standing to file a lawsuit, a plaintiff must have suffered an individualized harm that gives a legal cause of action.  Fossil Fuel defendants have stated that they lack standing because climate change is a prediction of harm, and that even if there was harm, it is something that is for Congress to decide, not the judicial system.

“No court has ever found a fundamental right to be free from climate change,” Sean Duffy, an attorney for the US Department of Justice, said at the March hearing.  “There is simply no constitutional right to a pollution-free environment.”  The federal government isn’t responsible for all the climate pollution in the world, he said.  Furthermore, “federal courts are not a proper forum in which to raise generalized grievances about federal policies.”  Julia Olson disagrees, believing that the courts are the proper place to implement change.

Across the globe, similar lawsuits are being filed, and seeing successful results.

Across the globe, similar lawsuits are being filed and seeing successful results.   In June, the high court ordered the Dutch government to cut emissions after plaintiffs successfully argued that business as usual would violate the human rights of future generations.  In Pakistan, a farmer went before the high court in Lahore arguing that climate change threatened his future, and the court agreed saying, “The delay and lethargy of the state in implementing the climate change framework offend the fundamental rights of the citizens.”

There have also been a few success stories in state courts throughout the country.  In Washington State, several young climate activists, including one who is a plaintiff in the federal lawsuit, have sued to force officials to adopt new rules to limit carbon emissions based on the best available science.  In May, a state judge ordered Washington to come up with a rule by the end of the year, but the state has appealed that ruling.

The judge is scheduled to make her ruling by November.  No matter what the result, there will likely be an appeal from either side.  This case could potentially end up at the Supreme Court of the United States, with the court being able to have a large impact on the climate change issue.  If it is found that these plaintiffs ultimately have standing, the court will essentially be saying that we do have a constitutional right to a better climate.  Regardless of the decision made in November, this case will likely be around for a long time.

Katelyn Heath, Ethics Editor Emeritus
About Katelyn Heath, Ethics Editor Emeritus (20 Articles)
Katelyn Heath is a 2017 graduate of Campbell Law School and served as the Ethics Editor for the Campbell Law Observer during the 2016-2017 academic year. She is from Salisbury, North Carolina and graduated from UNC-Charlotte with a Bachelor of Arts in History and Criminal Justice in 2014. Following her first year of law school she attended Baylor Law Schools Academy of the Advocate in Scotland. She is also currently working for Marshall and Taylor PLLC, a local family law firm.
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