Kelsey Juliana was in fifth grade when she decided to become a climate activist. Her parents were involved in social justice and environmental causes, and they frequently took her along to rallies and marches in their hometown of Eugene, Oregon. “They both had their own movements that they were a part of,” says Juliana, now 22. “But climate change was this issue that young people were getting fired up about, and I was a young person.” She began participating in events led by the iMatter Youth Movement, which encourages youth to push for climate change policies. “That was the bulk of my activism from a young age. I was leading protests and marches around town.”
Then when she was 14, Juliana’s activism took on another level. She heard about an organization in Eugene that was planning to sue the government over its climate policies. Called Our Children’s Trust and headed by a determined lawyer named Julia Olson, the group was preparing legal actions in all 50 states and looking for youth plaintiffs. “I knew I wanted to participate,” Juliana says. She signed on to the Oregon lawsuit and quickly found herself in a crash course on government. “I wasn’t really even aware that young people had the power to take action and represent themselves, seeing as we couldn’t vote,” she says. But seven years later, that case is still in litigation, and in 2015 it spawned another federal case. Naturally, Juliana agreed to participate in that one too. “The Oregon case felt pretty stagnant, and I was ready for more actions,” she says. “They never had a goal of 21 kids. This was something that we all, at one point or another, decided we wanted to be a part of.”
That case, Juliana v. United States, which is set to begin within the next few weeks, pits Juliana and 20 other plaintiffs between the ages of 11 and 22 against President Donald Trump, the Environmental Protection Agency, and the Departments of Energy, Defense, and Transportation, among others, for actively supporting policies that contribute to climate change. The kids aren’t seeking any kind of monetary award but rather injunctive relief; specifically that the court orders the government to create and follow a “national climate recovery plan” that scraps all use of fossil fuels by 2050. Since it was first filed in September of 2015 (against then-President Barack Obama), the government has repeatedly tried to have it thrown out, including asking the Supreme Court three times to issue a stay. Just last week, Chief Justice John Roberts granted the Trump administration another request to put a hold on the case.
Expected to drag through the holidays and into early 2019, the trial has quietly moved through the courts with particularly high stakes: Should the kids emerge as victors, the federal government could be forced to take action against the fossil fuel industry, regardless of whether the president wants to or not.
The beginnings of Juliana v. United States stretch back to 2006, when University of Oregon law professor Mary Wood realized in the aftermath of Hurricane Katrina that environmental laws had failed to prevent large-scale, fatal natural disasters. She began researching how the country’s foundational idea of public trust and commons could be applied to the climate crisis.
“Stopping coal mines, that’s micro, but it can never add up in time” Wood explains. “I wanted to create a strategy that was macro and could address what the climate actually needs.” She saw using the public trust principle for litigation as a “last resort” but also suggested that, when argued by children, it could be directly tied to constitutional rights. Wood called the strategy atmospheric trust litigation (ATL) and began spreading the idea via a book and lectures.
Then, in March of 2010, an attorney named Julia Olson heard Wood speak at an annual law conference. Olson is a Eugene-based lawyer who had worked with grassroots environmental groups and focused on issues of public lands and endangered species. She took Wood up on her suggestion to bring action against the government, founding Our Children’s Trust to focus on forcing the government’s hand in climate action through ATL explicitly. In May of 2011, OCT filed legal actions in all 50 states and one against the federal government. Of those, the federal case was dismissed, most of the state cases were also denied or dismissed, one is still ongoing, and a handful morphed into subsequent legal actions. Of that final subset, only one, in Massachusetts, won.
Olson says the lesson OCT learned from the first federal lawsuit is that it’s not enough to prove the government has failed to prevent climate change; for an ATL case to be successful, lawyers must show the government has been directly involved in harming the environment through its policies. So OCT regrouped, gathered new plaintiffs, and tried again. In September of 2015, Juliana v. United States was filed in U.S. District Court in Oregon. It will be the first time ATL has ever been tried in federal court.
Though the plaintiffs do hail from across the U.S., OCT’s move to file in Oregon was part logistical—Olson and several of the kids live there—and part strategic: In 2014 the Department of Energy approved plans for a natural gas export terminal in the small coastal town of Coos Bay. If completed, the terminal would be Oregon’s largest source of CO2 emissions. It would also cause direct harm to the atmosphere by government actors, seeming to back up OCT’s claim that, “through its policies and practices, the Federal Government bears a higher degree of responsibility than any other individual, entity, or country for exposing Plaintiffs to the present dangerous atmospheric CO2 concentration.”
Most of the plaintiffs got involved in Juliana for reasons reflective of their young age: Avery McRae, 13, went to a summer camp hosted by OCT and became interested in its work; Kiran Oommen, 21, was childhood friends with Juliana and active in community organizing. All shared a common experience of having their lives affected by natural disasters and warming temperatures, outcomes outlined meticulously in the 100-page 2015 lawsuit. One kid’s mom worked for a seasonal ski resort; its closure due to lack of snow meant she couldn’t work, affecting the family’s income. Another, who lives in Louisiana, has regularly endured flooding and loss of power and water due to hurricanes. Several others have experienced increased allergies and the loss of wild fish available to eat. James Hansen, a climate scientist at Columbia University’s Earth Institute and the grandfather of 20-year-old Sophie Kivlehan, another litigant, is also named in the suit—its only adult plaintiff. He sued on behalf of “Future Generations,” a symbolic group intended to represent youth across America.
For the kids involved, the process has occasionally been arduous. Deposition practice and press conferences aren’t typical weekend activities for middle- and high-schoolers, but as the case has dragged through the courts, its plaintiffs have increasingly found themselves in the spotlight. “Most of the time I’m just a regular college student going about everything,” says Oommen, who studies sociology at Seattle University. “Then other times I’m like, ‘Sorry I can’t, there’s a woman from National Geographic who wants to interview me.'” He and others say participating in the case has been a hands-on lesson in how the law works. “Imagine your knowledge of the legal system when you were 18—that was mine. It’s a pretty interesting way to learn. You start learning about the weirder ways to throw out a case, because the government has tried those.”
As Juliana has continually cleared hurdles, from the government’s initial movement to dismiss to its attempt to withhold evidence from being presented, legal scholars suggest that District Judge Ann Aiken—whose ruling on a federal arson case sparked the armed occupation of a wildlife refuge in 2016—has been the leading factor in Juliana proceeding all the way to trial. In her opinion and order regarding the motion to dismiss, Aiken wrote, “Even when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government.”
University of San Francisco law professor Alice Kaswan says Aiken has taken a brave approach in issuing such a statement. “Most courts are terrified of this kind of litigation. It’s raising issues they’re afraid are very political and [they’re] in the role of trying to decide who’s responsible or forcing people to act. But this court is saying, ‘We’ve been too shy.’ I think she believes the judiciary can’t sit by.” The Department of Justice disagrees, saying in a statement: “This lawsuit is an unconstitutional attempt to use a single Oregon court to control the entire nation’s energy and climate policy. Those policies should be decided by the elected branches, not the courts.”
Kaswan also notes that, even if the kids don’t win, winning might not entirely be the point: “Part of the stakes are just the spotlight.” Speaking to the New York Times, David Uhlmann, a former Department of Justice official, shared Kaswan’s skepticism: “The claims are compelling,” he said, “[but] it’s hard to see the Supreme Court upholding a favorable verdict, if the case gets that far.” Even some of the plaintiffs aren’t totally sure; Oommen says that, while “the social outcome is already strong and will continue to get stronger,” the legal bet is harder to place. “As far as in the courts, I don’t know about the law. I don’t know how that will end up, but I do know this case has been an inspiration point for people around the world,” he says.
Either way, ATL has now gotten further in the legal process than ever before, paving the road, in more ways than one, for youth down the line. “People say, ‘Your name’s going to be down in history books,’ but I can’t comprehend that,” Juliana says. She’ll have to learn to: The trial is expected to draw hundreds of observers.
