Young activists trade backpacks for briefcases to litigate against climate change

by Neil Auwarter

“A society grows great when old men plant trees in whose shade they shall never sit.”  – Greek Proverb

But imagine if the reverse was true. Imagine that many of your elders not only failed to plant trees, but  actively cut down existing forests.  And imagine those elders seemed intent to smash, grab, and burn natural resources for immediate profit – even at the risk of leaving an impoverished and sweltering planet for future generations.  Welcome to Earth 2023.

Of course the battle over greenhouse gasses  and climate change is not a simple intergenerational conflict.  Many older Americans are fighting tirelessly for a carbon-free future; and conversely, some younger Americans seem oblivious to climate reality.  Yet the generational aspect of the climate battle is real.  The median age of CEOs of large oil and gas companies is 58.1 Charles Koch, CEO of coal and oil giant Koch Industries, is 87.  According to a study published in 2022 in Nature Climate Change, Americans 45 and older, including Baby Boomers, caused greenhouse gas emissions approximately one-third greater per capita than younger generations.2 3  The generational divide over climate is hinted at by the cheeky motorhome bumper sticker, “We’re spending our kids’ inheritance.”  And given the 6 to 10 mpg boasted by these vehicles, some see a darker subtext taunting, “We’re wrecking our kids’ planet.”

Enter a new generation of young climate activists heading to court to litigate for their futures and against fossil fuel consumption and its climate-altering effects.  Taking inspiration from young icons like Pakistani women’s rights activist Malala Yousafzai and Swedish climate activist Greta Thunberg, young Americans have commenced groundbreaking climate litigation against the United States and individual states, alleging government action and inaction is causing climate change.  Three such cases are Juliana v. United States, Natalie R. v. Utah, and Held v. Montana.

In Juliana v. United States, 21 plaintiffs ages 9 to 20 sued the federal government for allowing and promoting fossil fuel consumption, thus leading to climate change.  They argue the government has failed in its obligation to protect public trust resources, such as the Earth’s atmosphere.  Further, the government has actively encouraged fossil fuel consumption, such as through federal land leases and tax subsidies.  The case argues the government has violated the youngest generation’s constitutional due process right to life, liberty, and property in the form of a current and future habitable climate.  The plaintiffs seek a judicial declaration acknowledging the federal government’s fiduciary duty to protect the atmosphere as a public trust.  The suit further seeks injunctive relief in the form of a legally binding plan to reduce atmospheric carbon to levels considered safe by scientists.  The plaintiffs are represented by attorney Julia Olson, founder of Oregon-based non-profit Our Children’s Trust.  Attorney Olson, a mother of two, acknowledged that like many, she sometimes feels like crawling into bed to escape despair over environmental harm already caused by climate change.  But she added, “I can’t do that because I have to look my kids in the eyes.”4  University of Oregon Law School professor Mary Wood called the litigation “the biggest case on the planet.”5

In January 2020 a three-judge panel of the Ninth Circuit Court of Appeals found in a split decision that the plaintiffs in Juliana lacked standing to pursue the claim, a potentially fatal procedural finding.  The two-judge majority further found the issue of climate change mitigation was outside the constitutional power of the courts and should instead be addressed to Congress or the electorate.  However, dissenting judge Josephine Staton disagreed with the majority; she opined both that the plaintiffs had standing and that the dispute was within the power of the courts to resolve, and the case should proceed to trial. Judge Staton’s dissent noted that even the defendant U.S. government “does not contest, carbon dioxide (“CO2”) and other greenhouse gas (“GHG”) emissions created by burning fossil fuels are devastating the planet.” Her dissent described the case in stark terms:

“It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.” [Staton, dissenting opinion]

The Juliana case is now back in the District Court, which is considering the plaintiffs’ motion to amend their complaint to state a claim that can surmount the procedural failings found by the Court of Appeals majority.

In Natalie R. v. Utah, seven young plaintiffs ages 10 to 19 sued the state in March 2022, arguing Utah’s climate actions violated the plaintiffs’ rights under the state constitution to life, health, and safety.  The case differs from the Juliana case in that the Natalie R. plaintiffs’ claim is based on their rights under the Utah constitution, rather than the U.S. constitution. The case was ordered dismissed in November 2022 by the trial court, which found that while the young plaintiffs had “a valid concern,” climate change was an issue for the Utah legislature, not the courts.  The plaintiffs appealed the dismissal.  Then, in a rare procedural move signaling the case’s importance, the Utah Supreme Court ordered in March it would hear the appeal directly, bypassing the normal step of intermediate appeal to the Utah Court of Appeals.  The case is expected to be argued in the Utah Supreme Court later in 2023.

In Held v. Montana, 16 plaintiffs ages 2 to 18 sued the state for its role in allowing and promoting fossil fuel consumption and climate change.  Like Natalie R. v. Utah, the Montana case is based on the state constitution.  However, the cases differ in that Montana is one of a handful of states whose constitution expressly guarantees its residents the right to a clean and healthful environment “for present and future generations.”  Legal experts believe this express provision in the Montana constitution could give the plaintiffs a better chance of prevailing than in Juliana v. U.S. or Natalie R. v. Utah.  The Montana suit seeks a judicial declaration that residents’ right to a healthful environment includes a stable climate system.  The plaintiffs also seek an injunctive order requiring Montana to prepare an accounting of the state’s greenhouse gas emissions, and that the state implement a plan to reduce those emissions to a healthful level consistent with the best scientific estimates.  Trial is set to begin in June 2023 in the state capital, Helena.

The young litigants in these and many similar cases are heeding the admonition of Crosby, Stills, Nash & Young: “And teach your parents well.” – Graham Nash (1968), Teach Your Children

Neil Auwarter is a contributing member of the Grassroots Network Climate Emergency Mobilization team. If you have a suggestion for a future blog topic or are interested in joining the team, please reach out to us at climateemergency[at]sfbaysc[dot]org.


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