Judge Rules Kids Can Sue Feds for Climate Change Negligence

A federal judge gave 21 Americans between the ages of nine and 20 the green light to sue the federal government for its inaction on climate change.

Twenty-one young people have filed a lawsuit against the U.S. government for its failure to address climate change. (Photo: Andrea Willingham)

Nov 15, 2016· 3 MIN READ

David Kirby has been a professional journalist for 25 years. His third book, Death at Seaworld, was published in 2012.

Attention, President Obama and President-elect Trump: When it comes to climate change, you have been served—by the nation’s future.

Last week a federal judge in Oregon upheld a magistrate judge’s court ruling that a lawsuit against the U.S. government and its fossil fuel policies filed by 21 young people ages nine to 20 can proceed.

“This is no ordinary lawsuit,” U.S. District Court Judge Ann Aiken wrote in a 54-page decision that upheld every argument the plaintiffs put forward, calling it a “landmark case.”

The lawsuit challenges federal decisions made on a vast set of topics, Aiken wrote, including carbon dioxide emissions from power plants and vehicles, extraction of fossil fuels on federal land and how much to charge for its use, tax breaks and subsidies for the fossil fuel industry, funding of fossil fuel infrastructure, and construction of marine coal terminal projects.

“Plaintiffs assert the defendants’ decisions on these topics have substantially caused the planet to warm and the oceans to rise,” Aiken said. “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.”

The amended lawsuit was filed in September 2015 by attorneys with the environmental group Earth Guardians and the 21 students supported by the nonprofit Our Children’s Trust. It alleges that the government has violated the plaintiffs’ Fifth Amendment guarantees of due process and equal protection, the Ninth Amendment’s assurance of “unenumerated rights preserved for the people,” and the public trust doctrine.

Attorney Julia Olson, executive director of Our Children’s Trust called the judge’s decision to allow the case to proceed “groundbreaking.”

“For the first time a federal court has recognized that there is a fundamental right to a climate system capable of sustaining human life,” Olson said. “The Supreme Court, for over 100 years, has said that sovereign governments are public trustees, but our federal government has been denying that it’s subject to the Public Trust Doctrine, that only the states are.

“She has put that issue to bed,” Olson said.

Kiran Oommen, a 19-year-old plaintiff and student at Seattle University, said he was “excited” by the ruling and the prospect of suing the current administration or, more likely, the next one.

“The federal government is not upholding our rights to life, liberty, and property,” Oommen said. “The next president doesn’t even acknowledge that climate change is happening, but I’m going to be here a lot longer than he is.”

The suit named President Obama and several federal department and agency heads as defendants. Three industry groups—the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute—joined the suit on behalf of the government and tried to have it dismissed.

According to the lawsuit, “Recent scientific studies conclude that our country is now in a period of ‘carbon overshoot,’ with early consequences that are already threatening and that will, in the short term, rise to unbearable unless Defendants take immediate action to rapidly abate fossil fuel emissions.”

The students laid out examples of harm they have suffered (which is needed to prove a case’s legal standing), from climate change, including algae blooms in drinking water, drought-induced low water levels that kill salmon, extreme wildfires and flooding that jeopardize personal safety, harm to revenue-producing orchards, and asthma caused by hot, dry conditions and wildfire smoke.

A list of demands in the lawsuit includes getting the court to find that the government is violating the plaintiffs’ “fundamental constitutional rights to life, liberty, and property,” along with ordering it to “prepare a consumption-based inventory of U.S. CO2 emissions” and implement “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 in the future will depend.”

Olson said the students are willing to discuss settling the case, adding, “We’re waiting to see if they’ll come to the table and stop sitting side by side with the fossil fuel industry and sit down with youth to hammer out a real plan to protect the environment.”

Otherwise, an extraordinary trial may soon be under way. The lawsuit will automatically transfer to the incoming Trump administration, Olson said.

“We vote for our government representatives, and we expect them to act in the best interest of the country, but I’m struggling to feel that’s the case,” Oommen said. “The government is putting me and all people around me in danger, as opposed to protecting us.

“That’s why it’s all the more important that we fight the case,” he continued. “Going through the executive branch is not working, so we’re going through the judicial branch to force the executive branch to be held accountable.”