Climate Fight Moves From the Streets to the Courts

Recent actions by both youth and state attorneys are making climate change a legal issue, not just an environmental cause

Climate Emergency

It’s hard to blame climate activists for being frustrated. After two decades of international efforts like The Kyoto Protocol, Copenhagen Accord and Paris Agreement, the world still increases carbon dioxide (CO2) and other greenhouse gas emissions each year.

Public events like the Global Climate March in 2015 and the People’s Climate March in 2014 barely make the news cycle before fading away. Despite their best efforts, fewer than 50 percent of adults in the US consider climate change a serious problem, a number that hasn’t budged much over the last decade.

But according to John Schwartz at The New York Times, concerned citizens are trying a new tactic: the courts. Last month, a judge in the state of Oregon allowed a lawsuit filed by Our Children’s Trust on behalf of 21 minors to proceed. The suit argues that despite compelling evidence over many decades that climate change is a major problem the Federal Government has not done enough, infringing on the rights of the younger generation. It states:  

The present level of CO2 and its warming, both realized and latent, are already in the zone of danger.

Defendants have acted with deliberate indifference to the peril they knowingly created.

As a result, Defendants have infringed on Plaintiffs’ fundamental constitutional rights to life, liberty, and property.

Defendants’ acts also discriminate against these young citizens, who will disproportionately experience the destabilized climate system in our country.

The suit, which calls on the Federal Government to stop permitting and subsidizing projects with large climate impacts, is not surprising—the same organization tried something similar in 2012 that was tossed out. What is interesting this time around is that the suit was accepted by magistrate judge Thomas Coffin of the U.S. District Court in Oregon, and will now head to Federal District Court.

“It is the first time a federal court has suggested that government may have a constitutional duty to combat climate change, and that individuals can sue to enforce that right,” Michael B. Gerrard, the director of the Sabin Center for Climate Change Law at Columbia Law School tells Schwartz.

To file the suit, Julia Olson, the executive director and chief legal counsel for Our Children’s Trust put out a call for volunteer plaintiffs to youth climate groups, receiving responses from all over the country and funding from various environmental groups. She frames the fight as a human rights issue. “Most [of these plaintiffs] can’t vote,” she says. “And they don’t have the money to lobby.”

The decision comes on the heels of another ruling involving kids and climate change. Last July, eight children sued the Washington State Department of Ecology, asking them to reduce carbon emissions in the state. The King County Superior Court ruled in favor of the children directing the agency to use the best science available when regulating carbon emissions.  

“Kids understand the threats climate change will have on our future,” 13-year-old plaintiff Zoe Foster said in a statement after the ruling. “I’m not going to sit by and watch my government do nothing. We don’t have time to waste. I’m pushing my government to take real action on climate, and I won’t stop until change is made.”

Putting kids on the stand is not the only legal innovation taking place in climate activism. According to Steven Novella at Neurologica, some attorneys general are mulling the idea of suing climate change deniers. He points out that New York Attorney General Eric Schneiderman recently subpoenaed documents from ExxonMobil after it was revealed that the company actively funded organizations that sought to undermine climate science while its own scientists were gathering data about how its products were changing the climate (the company denies those charges).

The attorney general of the Virgin Islands also recently issued subpoenas to the Competitive Enterprise Institute and PR firm DCI, which were funded by Exxon to promote climate change denial. Justin Gillis and Clifford Krauss at The New York Times also say Schneiderman investigated massive coal producer Peabody Energy for two years to determine whether it “properly disclosed financial risks related to climate change.”

The probe may expand to other oil companies and other attorneys general could join the suit, creating a much stronger case than small environmental and climate change groups could ever make on their own.

“This could open up years of litigation and settlements in the same way that tobacco litigation did, also spearheaded by attorneys general,” Brandon L. Garrett, a professor at the University of Virginia School of Law tells Gillis and Krauss. “In some ways, the theory is similar—that the public was misled about something dangerous to health. Whether the same smoking guns will emerge, we don’t know yet.”

If any of these suits go forward, it marks a turning point. As the fight against climate change moves from the lab and the streets to the courts, it follows similar historic battles such as civil rights and marriage equality.

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