A group of youths filed a climate change lawsuit, raising civil rights and environmental claims based on the public trust doctrine, constitutional and statutory grounds. Fighting for the principle that all the people own the public natural resources, including future generations, and that the federal government has a duty as trustee of these resources to protect, conserve and maintain. The plaintiffs seek court orders to require the government to drastically reduce emissions.
Yesterday, U.S. Magistrate Judge Coffin rejected motions to dismiss this lawsuit filed by our government and the fossil fuel industry. Coffin recommended that the lawsuit be allowed to proceed to trial. The next step is for a U.S. District Court judge to determine whether to accept his recommendation and allow the lawsuit to proceed to trial.
The youth range in age from 8-19. Each plaintiff states how he or she has already been personally and emotionally harmed by climate change impacts affecting their lives and interests, such as recreational and food resources, and how increasing impacts over the future years will cause greater harms. For example, one plaintiff talks about how declining snowpack means fewer opportunities to enjoy winter sports. Low water levels killing wild salmon in rivers means less food sources. Plaintiffs also talk about the psychological and emotional harms that are caused by the fear of changing climate, knowing these impacts will worsen as they grow older. One plaintiff of Aztec descent, age 15, talks about he "engages in sacred indigenous spiritual and cultural practices to honor and protect Earth" and the harm that failure to address climate change has caused to these practices. He talks about how climate change has harmed his personal safety and recreational interests due to "increased frequency and intensity of wildfires, drought, declining snowpack, pine-beetle infested forests, and extreme flooding near his home in Colorado." An 11-year old plaintiff talks about how much he enjoys rafting in rivers, the "solitude of the wilderness and experience of seeing plants and animals in their natural habitat." Drought and reduced water levels has meant fewer rafting trips with his family. Record-setting heat has adversely impacted the opportunity and/or enjoyment of outdoor activities, and increased the severity of his allergies. A 10-year old plaintiff has been harmed by warmer temperatures, drought, low water levels, and forest fires that have reduced her opportunities to enjoy her love of nature and wildlife as well as recreational activities, like swimming in natural bodies of water, hiking, boating, backpacking, camping, and watching salmon spawn. A 14-year old plaintiff, member of Navajo Nation, and her mother, remember when there was sufficient water on the Reservation for agriculture and farm animals, but now the springs are drying up. "Jaime and her Mother were not able to sustain living on the Reservation because of the costs of hauling water into Cameron for themselves and their animals. Jaime is worried that her extended family, all of whom live on the Reservation, will also be displaced from their land, which will erode her culture and way of life. Participating in sacred Navajo ceremonies on the Reservation is an important part of Jaime’s life, and climate impacts caused by the acts of Defendants are starting to harm the ability for Jamie and her tribe to participate in their traditional ceremonies." This plaintiff now lives on family property in a forest, but now climate change has destroyed large sections of this forest due to pine beetle infestations and forest fires.
Please read the complaint and hear their voices, the harms they experience now, their fears now and for their future. As the complaint states:
"Youth Plaintiffs have a substantial, direct, and immediate interest in protecting the atmosphere, other vital natural resources, their quality of life, their property interests, and their liberties. They also have an interest in ensuring that the climate system remains stable enough to secure their constitutional rights to life, liberty, and property, rights that depend on a livable future. A livable future includes the opportunity to drink clean water, to grow food, to be free from direct and imminent property damage caused by extreme weather events, to benefit from the use of property, and to enjoy the abundant and rich biodiversity of our nation. Youth Plaintiffs are suffering both immediate and threatened injuries as a result of actions and omissions by Defendants alleged herein and will continue to suffer life-threatening and irreversible injuries without the relief sought. Youth Plaintiffs have suffered and will continue to suffer harm to their health, personal safety, bodily integrity, cultural and spiritual practices, economic stability, food security, property, and recreational interests from the impacts of climate change and ocean acidification caused by Defendants."
By 2050, these plaintiffs will only range in age from 43-55. "By 2050, climate change is expected to add thousands of additional premature deaths per year nationally from combined ozone and particle health effects." By 2050, there will be so many horrific climate change impacts, with increased wildfires, droughts, earlier snowmelt, heat, disease and illness, rising seas, decreased wildlife populations etc. They will also bear increased financial costs for delaying action now, such as adaptation: "Approximately 190,000 of our nation’s bridges are vulnerable to increased inland flooding caused by climate change, with adaptation costs estimated at $170 billion for the period from 2010 to 2050."
The complaint was filed against the U.S. (as sovereign trustee of national natural resources) President Obama, and federal departments.
The lawsuit is based on constitutional rights and the public trust doctrine and how our federal government has known for decades that CO2 pollution was causing climate change such that "massive emission reductions" and a national transition away from fossil fuels was needed to protect constitutional rights of these plaintiffs.
Plaintiffs argue that the federal government, as trustees of national public trust resources (including air, seas, shores of the sea, water and wildlife) have public trustee obligations to preserve and protect these national trust resources for now and future generations. These public trust obligations are based on constitutional clauses (e.g., Ninth Amendment, reserved powers Tenth Amendment) and federal statutes. "In 1968, Congress declared that the policy of this country is the Federal Government has an obligation to 'fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.' 42 U.S.C. § 4331(b)(1)." And, "Congress also declared that the Federal Government is among the 'trustees for natural resources' and directed Defendants to act as trustees, on behalf of the public beneficiaries, of all natural resources under their management and control. 42 U.S.C. § 9607 (f)(1); see also 33 U.S.C. § 2706 (Oil Pollution Act)." The federal government has recognized its public trust obligations, as stated in a 2010 complaint against British Petroleum: "Natural resources under the trusteeship of the United States and other sovereigns have been injured, destroyed, or lost as a result of discharged oil and associated removal efforts. The discharged oil is harmful to natural resources exposed to the oil, including aquatic organisms, birds, wildlife, vegetation, and habitats."
The public trust doctrine is not new. In California, for example, the State Lands Commission states: "The common law Public Trust Doctrine protects sovereign lands, such as tide and submerged lands and the beds of navigable waterways, for the benefit, use and enjoyment of the public. These lands are held in trust by the State of California for the statewide public and for uses that further the purposes of the trust. The hallmark of the Public Trust Doctrine is that trust lands belong to the public and are to be used to promote publicly beneficial uses that connect the public to the water."
Our air is also a critical natural resource that is relied upon by all people for our survival and clean air should be available to all people equally. Many lawsuits have been filed to extend public trust doctrine to climate change. And there is hope: In 2011, the Pennsylvania Supreme Court overturned several challenged provisions of a state pro-fracking statute based on public trust codified in the state constitution: "The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."
The youth plaintiffs also filed constitutional claims. One, violation of the Due Process Clause of the Fifth Amendment that "recognizes and preserves the fundamental right of citizens to be free from government actions that harm life, liberty, and property." Two, Violation of Equal Protection Principles in the 14th Amendment that are "Embedded in the Fifth Amendment." Specifically: "The affirmative aggregate acts of Defendants in the areas of fossil fuel production and consumption irreversibly discriminate against Plaintiffs’ exercise of their fundamental rights to life, liberty, and property, and abridge central precepts of equality. The affirmative aggregate acts of Defendants in the areas of fossil fuel production and consumption have caused and are causing irreversible climate change. As a result, the harm caused by Defendants has denied Plaintiffs the same protection of fundamental rights afforded to prior and present generations of adult citizens. The imposition of this disability on Plaintiffs serves only to disrespect and subordinate them. The principles of the Equal Protection Clause, which are embedded in the Due Process Clause, prohibit the Federal Government’s unjustified infringement of Plaintiffs’ right to be free from Defendants’ aggregate acts that destabilize our nation’s climate system whose protection is fundamental to Plaintiffs’ fundamental rights to life, liberty, and property." Three, violation of the unenumerated rights preserved for the people by the Ninth Amendment. The Ninth Amendment states that the enumeration in the Constitution of certain rights "shall not be construed to deny or disparage others retained by the people." Plaintiffs argue that "protecting the vital natural systems of our nation for present and future generations is fundamental to our scheme of ordered liberty and is deeply rooted in this nation’s history and tradition. Without a stable climate system, neither liberty nor justice exist."
When the federal magistrate rejected the fossil fuel motions to dismiss, he recognized that the plaintiffs asserted personal harms while the fossil fuel groups merely see this lawsuit as a "direct, substantial threat" to their businesses. Judge Coffin wrote:
"The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society. It may be that eventually the alleged harms, assuming the correctness of plaintiffs’ analysis of the impacts of global climate change, will befall all of us. But the intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society.”
"Bill McKibben and Naomi Klein call the [case the] 'most important lawsuit on the planet right now.'" As noted by the magistrate judge: "plaintiffs assert a novel theory somewhere between a civil rights action and NEPA/Clean Air Act/Clean Water Act suit to force the government to take action to reduce harmful pollution."
Just think about the possibilities this precedent could open the door for climate change, and so much more.
