If allowed to go forward, plaintiffs in Oregon will ask court to hold government responsible for violating their rights to life, liberty, property and equal protection
March 10, 2016 — Twenty-one teenagers appeared in an Oregon courtroom to challenge the federal government over what they claim is a failure to protect them from the impacts of climate change, while several hundred schoolchildren protested outside.
While the mass of children, their parents, chaperones and local activists lined up in the rain on Wednesday, trying to get in to watch the proceedings, Judge Thomas Coffin of the US district court in Eugene, Oregon, questioned the lawyers on the government’s claim that the case should be thrown out.
At issue is whether the 21 teenagers, the oldest of which is 19, have standing in the case – including whether they have or will suffer specific injuries that can be reasonably traced to government actions affecting climate change and whether the court is able to remedy those injuries.
Coffin did not issue an immediate ruling on Wednesday whether the case, Juliana et al v United States et al, will be allowed to go forward, though the plaintiffs said they expected a decision to take one to two months.
If it does, the plaintiffs, brought by the environmental group Our Children’s Trust, will ask the court to hold the government responsible for violating the children’s constitutional rights to life, liberty, property and equal protection under the law as well as to benefit from the public trust, which they argue includes the atmosphere.
“What we have is not just a failure to act,” said Julia Olson, the lead attorney for the plaintiffs, after the hearing. “The government is doing everything to fuel this problem.” She pointed to the permitting of oil and gas drilling and the export of fossil fuels, including the recently approved Jordan Cove Liquefied Natural Gas terminal in Coos Bay, Oregon, which the complaint says “enhances the cumulative danger” caused by the government’s actions.
The case is part of a larger group of cases being brought across the country by Our Children’s Trust and others challenging the federal and state governments by seeking damages from climate change-related harms or citing a violation of the public trust doctrine, through which the governments owns resources in trust for public use.
Our Children’s Trust attorney Andrea Rodgers, who was not involved in Wednesday’s hearing but was in town to observe, said they had cases in every state. Rodgers had challenged the state of Washington in a similar case in 2011.
If successful, the case in Eugene would require the government to create an inventory of US carbon dioxide emissions and create “an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and will depend,” according to the complaint, originally filed in August.
But reaching that stage appeared unlikely. At the hearing, Coffin said he found these requested actions “troublesome” as it would require the court overseeing the actions of a number of federal agencies and potentially eroding the balance of power between government branches.
It was also not clear whether specific harm could be linked between climate change and the children. Quinn Sorenson, an attorney representing the energy industry, which intervened in the case on the government’s behalf, said the suit was an example of “archetypal generalized grievance”.
“Any person on the planet could bring a related claim based on anything in any district,” he said.
But the hundreds of children spilling down the steps outside felt otherwise. Forty middle school students from Portland’s Sunnyside Environmental School had gathered at 6am for the two-hour drive down to Eugene to watch the legal proceedings, teacher Asa Gervich said, explaining they had been studying social and environmental justice issues in class and had learned about the case from a local activist.
With the other plaintiffs and former NASA climate scientist turned activist James Hansen lined up behind her, lead plaintiff Kelsey Cascadia Rose Juliana, 19, spoke enthusiastically to the crowd after the hearing. “Government, who do you work for– industry or us?” she said to cheers.
“By allowing a spike in the planet’s temperature, the government is violating our rights,” said Alex Loznak, 19, who said in the complaint that his family’s farm near the proposed site of the Jordan Cove project could be threatened by increased drought and wildfire from climate change.
“The adults just haven’t done their job, so this is the kids taking over,” Hansen said.
In some ways, these cases might be ahead of their time. Jessica Wentz, associate director of Columbia Law School’s Sabin Center for Climate Change Law, said it’s still uncertain whether harm arising from climate change is enough to give legal standing to a plaintiff and that until there are “clear legal statutes to challenge” in court, climate change action will probably need to be left as a political matter.
Wentz, who is not involved in the Eugene case, said she likes the plaintiff’s legal arguments, “but from the perspective of a lawyer I’m skeptical it can go forward”. She thought arguing a violation of the public trust, which is usually a matter of state law, would be particularly troublesome and said the constitutional claims of rights violations are new but still doubtful to work.
“But,” she said, “I appreciate the creativity and novelty.”