It is not a stretch to say that Donald Trump’s election could be the end of the world as we know it. Trump, who claims that global warning is a hoax perpetrated by the Chinese, has said he will withdraw the United States from the Paris Climate Agreement. He has vowed to block President Barack Obama’s emission-cutting Clean Power Plan, and has suggested that he will tap coal-sponsored climate contrarian Myron Ebell to dismantle the Environmental Protection Agency.
But, like any good apocalyptic sci-fi film, there may be hope from an unlikely quarter.
Last year, 21 people between the ages of eight and 19 sued the federal government for violating their constitutional due process rights by increasing carbon emissions—even as government officials, going back 50 years, acknowledged the harm of global warming. Among other evidence, the plaintiffs cite a 1969 letter from then–White House adviser Patrick Moynihan to President Nixon’s counsel warning of “apocalyptic change” and the loss-by-sea of Miami and Washington, D.C. The plaintiffs demand that the federal government hatch and carry out a plan to slash carbon emissions—right now.
“These children cannot wait another 50 years. They cannot wait even another five years to secure their rights because the damage as alleged will be irreversibly locked in,” said Julia Olson, lead counsel for the case Juliana v. the United States, in a U.S. District Court in Eugene, Oregon, this September. Olson, who is also the director of the nonprofit Our Children’s Trust, claimed the government had flouted the “public trust doctrine,” a common law precept with roots in the Roman Empire, which holds that the government must protect natural resources for future generations.
The Department of Justice, supported by three trade groups that represent the fossil fuel industry, has moved to dismiss the lawsuit on the grounds that the plaintiffs alleged merely a “generalized grievance,” and thus could not show that government policy had harmed them specifically. The Department of Justice also claimed that the public trust doctrine does not apply to the federal government, and noted that no court has ever recognized a constitutional right to be free of climate change.
Indeed, for all its urgency, the case was a long shot, in part because federal judges are loath to recognize new constitutional rights. But last week, two days after Trump’s election, U.S. District Court Judge Ann Aiken did just that in denying the motion to dismiss. “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” wrote Aiken.
Aiken found the right to a stable climate system in the Fifth Amendment’s substantive due process guarantee of life, liberty, and property. She likened the case to Obergefell v. Hodge, which affirmed the constitutional right to same-sex marriage on the grounds that so many other fundamental rights rely on the institution of marriage. Similarly, Aiken reasoned, everything we have and are relies on a healthy environment. “To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink,” Aiken concluded.
By rejecting the motion to dismiss, Aiken has allowed the case to move forward to discovery, summary judgment, and then, perhaps, trial. More significantly, President Obama now has a fresh chance to settle with the plaintiffs. By crafting a solution with the heads of more than a dozen federal agencies named in the suit, he might just preserve some part of his legacy on climate change policy through the courts.
The morning after Aiken’s decision, Barrett stood with another plaintiff, Columbia University sophomore Alexander Loznak, on the steps of Columbia’s Low Library with leading climatologist Dr. James Hansen, whose granddaughter is also a plaintiff. Hansen has warned that carbon dioxide concentrations must decrease by 6 percent a year by 2020 to return to 350 parts per million, a threshold for safety we have passed.
Barrett and Loznak claim to have experienced direct, personal harm from climate change. For Barrett, these injuries included lost school days from Hurricane Sandy. For Loznak (full disclosure: my former student), they include damages to his family’s ranch and hazel nut orchard, which was founded in 1868 by an ancestor, one of the first female ranchers in Oregon. Loznak’s full list of harms, from the dried-up rivers where he used to fish to the wildfire smoke he inhales, total 15 type-written pages
“I’d very much like to sit down with President Obama,” said Loznak. “We have two months left.”
But even if it wanted to, could the Obama administration craft a meaningful settlement with the plaintiffs on climate change policy in a mere 70 days? The heads of more than a dozen federal agencies have also been named in the suit, and “the intervenors”—that is, the three industry trade groups—would likely object.
Olson, the lead counsel, is optimistic. “I think it’s very possible if President Obama and the other key defendants come to the settlement table,” she said. “It may not resolve the whole case, but it could provide some very important interim protections for these youth plaintiffs.” Actions that should immediately stop, she said, include the further leasing of public lands for fossil fuels extraction and the building of new fossil fuel infrastructure.
And while the intervenors could object to a settlement, she argued, the court would decide whether to enter a consent decree. In such a settlement, the plaintiff and defendant ask the court to enter their agreement and oversee the decree. In this case, the federal judiciary would be responsible for compelling the Trump administration to honor the terms of the settlement, not unlike the judiciary’s role in protecting the civil rights enshrined in Brown v. Board of Education.
Columbia’s Michael Burger and the University of Vermont’s Pat Paranteau, environmental attorneys with an expertise in climate law, both say that settlement with the federal government is possible, even if likely to be challenged by the intervenors and/or the Trump administration. Leading economist Jeffrey Sachs, who advised on the case, agreed that a settlement is possible. “I think the administration sees absolutely that its agenda is utterly endangered and should immediately step forward,” he said. “I think this is obvious thing to do.”
Sachs, who spoke from Marrakesh, Morocco, where leaders from nearly 200 countries have met to hash out next steps for the Paris Climate Agreement, said he would bring the case to the attention of senior officials. He added that this week, for the first time, the U.S. is going to put forward a long-term plan for carbon reduction.
For its part,
the Department of Justice is looking at the case. Spokesperson Wyn Hornbuckle
emailed, “We are currently reviewing the decision and considering next
Olson emphasized that, if the Obama administration falls through, she is prepared to go to court against a Trump administration, arguing that Trump’s lack of factual claims on climate science only strengthens her case. Whether the case will reach trial is still unclear, as the next stage is discovery, which can take years, and then summary judgment, in which the plaintiffs must more fully establish causation between the government’s actions on climate change and their injuries.
“Even if there is a victory at the trial court, there remains a rough road ahead for the plaintiffs because they’re basically asking the court to recognize a previously unrecognized right,” said Burger.
That means the Supreme Court might have to get involved, if the case even makes it that far. Less than 1 percent of cases make it to the Court, and even if it did, Parenteau said, a court filled out by a Trump nominee would make for a tough hearing. “The benefit of this case will be: Does this get to trial? And does it make a record of how dire exactly our situation is, and how consequential this election has been for any chance of mitigating it?” said Parenteau.
Still, what Aiken’s decision means is that the future of climate change remains an open question. At least for one federal judge in Oregon, a stable climate and a world worth living in are no less than fundamental rights.