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Can a Surprise Lawsuit in Oregon Save American Climate Policy?

A group of young Americans is suing the government for inaction on climate change. As of yesterday, the suit cleared a major hurdle, and, at COP22 in Marrakech, a lot of people are celebrating.
COP22 Marrakech

Outside the COP22 international climate conference in Marrakech, Morocco, on November 9th, 2016. 

In 2015, a group of young Americans filed a lawsuit against the Obama administration, claiming that the United States government had failed to take sufficient action on climate change, and that this failure was unconstitutional. The Obama administration moved to dismiss the lawsuit, but, yesterday, Judge Ann Aiken of the U.S. District Court in Eugene, Oregon, rejected the administration’s motion, in an extraordinary decision that could prove consequential for U.S. climate policy.

In brief, the plaintiffs — 21 Americans between the ages of nine and 20, with legal guidance from Our Children’s Trust — allege that the U.S. government’s knowing inaction on climate has violated their right to “life, liberty, and property” as enshrined in the due process clause of the Fifth Amendment. The case will go to trial in 2017. Elizabeth Brown, staff attorney at Our Children’s Trust, says the plaintiffs will establish that government officials knowingly ignored an existential threat to its citizens.

“We will prove that the U.S. government has known for over five decades about climate change and its consequences and what it’s done with that knowledge,” Brown told reporters this afternoon in the Blue Zone at COP22 in Marrakech. Rather than targeting individual instances of negligence, Brown said, “this lawsuit goes after the entire system, collectively. We’re gonna prove that by locking in fossil-fuel energy for five decades, that the government is violating these people’s constitutional and public trust rights.”

“Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”

Jeffrey Sachs, director of Columbia University’s Earth Institute and a senior advisor to the United Nations Secretary General — not to mention one of the most knowledgeable Americans about the economics of climate policy — spoke with emotion about the importance of the news.

“This is a remarkable opinion,” he told reporters, stressing that if the lawsuit prevails in 2017, it could prove a powerful bulwark against the climate denialism of President-elect Donald Trump. “It’s quite clear that the incoming administration is going to bring in a lot of the most irresponsible forces in the world to try to have one last fling at their greed,” Sachs said.

Some of the most striking lines from Aiken’s decision (you should really read the whole thing):

  • “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”
  • “This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed.”
  • “Plaintiffs have alleged a causal relationship between their injuries and defendants’ conduct. At this stage, I am bound to accept those allegations as true.”
  • “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”
  • “The federal government, like the states, holds public assets — at a minimum, the territorial seas — in trust for the people.”
  • “The Institutes of Justinian declared ‘the following things are by natural law common to all: the air, running water, the sea, and consequently the seashore.’ J. Inst. 2.1.1 (J.B. Moyle trans.). The doctrine made its way to the United States through the English common law.”

The lawsuit is thorough in its demands: Plaintiffs want the government to stop permitting and subsidizing carbon energy; to phase out carbon emissions as soon as possible; to seek a drawdown in atmospheric carbon to 350 parts-per-million by the close of the century; and to enact a countrywide plan that will stabilize the climate system. Proponents see this lawsuit as far more than symbolic: It is a chance — perhaps our last, if you believe some of the plaintiffs — to compel a Trump administration by law to act responsibly on climate.

While President Barack Obama has previously challenged the lawsuit, Sachs says that the election of Trump should prompt the current administration to accept the plaintiffs’ position, and to settle the case before January 20th, 2017.

“The most important thing [the Obama administration] can do in its last days is to ensure that the rule of law prevails in the U.S. in the years ahead,” Sachs said. “Settle this lawsuit; bring judiciary into oversight as a fundamental duty. It’s the last opportunity for the Obama administration to get this right — and if they continue to challenge this suit in their last days, shame on them.”

Speaking with me outside the press area this afternoon, Sachs reiterated that the lawsuit could prove a turning-point in the struggle against state-sponsored pollution, and said it’s possible that Obama will seek a swift settlement.

“They should have settled from the start, because getting the judiciary to protect fundamental rights was the right approach, period,” Sachs said. “I think, up until Tuesday, they thought that they [the Democrats] would continue to be in charge. But after Tuesday, the only thing that would bar this would be neglect or confusion as they’re moving boxes out of their offices because they know that the incoming administration, throughout the campaign, has said that they’ll try to dismantle all this, and that is a fundamental violation of the rights of these plaintiffs and the rights of American citizens.”

Daniel Jubelirer, a youth delegate from SustainUS and a member of Earth Guardians, a co-plaintiff in the lawsuit, was exultant in the Blue Zone this morning.

“It gives me great pleasure to say ‘we will see you in court’ to the federal government,” Jubelirer told reporters. “President Obama is currently named; but now we will be directly suing Donald Trump for climate inaction.” A broad grin spread across his face at that sentence. “This trial is going to be the trial of our generation. We are going to trial in a case that everyone told us was impossible…. I’m really stoked.”

Sachs seemed more concerned than stoked, and warned that the U.S. is on track to be a global outcast. “The U.S. would be a country completely standing on its own if it tried anything so unwise as to unravel [the Paris Agreement],” Sachs said. “I do not believe the American people want to stand alone against the other 95.5 percent of the world’s population, and become a pariah nation.”