Young People's Suit Over Climate Disruption Comes to Court

To the Teacher

Is there anything that young people can do to take on the urgent challenge of climate change? Twenty-one youth activists from around the country believe there is, and they have together entered into a lawsuit to force the U.S. government to take action. The case, known as Juliana v. U.S., will be heard in federal court in Oregon starting on October 29, 2018. The young people will argue that the government, in failing to take serious action to stop climate disruption, has failed to protect the public trust for current and future generations. If they succeed in winning their argument, the court may declare certain U.S. laws relating to energy policy and CO2 emissions unconstitutional and order the federal government to take bolder steps to phase out fossil fuel emissions.

This lesson is designed to provide students with information about the Juliana v. U.S. lawsuit, and allow them to discuss possible avenues through which young people can help to address the climate crisis. The lesson consists of three readings. The first examines the legal case that the young people have presented and consider what effect the lawsuit could have. The second gives students the opportunity to read personal testimony from two of the plaintiffs in the Juliana case and looks at the power of storytelling. The third presents other strategies that young people are using to affect climate policy. Questions for discussion follow each reading.

Note: Consider combining this lesson with our concurrent lesson, How Can We Prevent Climate Catastrophe?

Reading One
Youth Climate Lawsuit Juliana v. U.S.

Is there anything that young people can do to take on the urgent challenge of climate change? Twenty-one youth activists from around the country believe there is, and they have together entered into a lawsuit to force the U.S. government to take action. Their case, known as Juliana v. U.S., will be heard in federal court in Oregon starting on October 29. They are arguing that the government, in failing to take serious action to stop climate disruption, has failed to protect the public trust for current and future generations.

Who are these young people, and what effects might their case have if they are successful? Jack Moran, Courts Reporter for The Register-Guard in Eugene, Oregon, describes the plaintiffs in the case:

There’s the punk rocker, the animal lover and the shy performer. A future educator, a taekwondo black belt and an outdoorsman also are part of the group.

All six young people from Eugene are among 21 youth plaintiffs suing the federal government in an unprecedented, constitutional climate change lawsuit that seeks to overhaul the nation’s energy system.

The landmark environmental case is scheduled to go to trial at the U.S. Courthouse in Eugene on Oct. 29.

The youths’ lawsuit, filed in 2015, asserts the government has for decades promoted fossil fuel production while disregarding dangers associated with greenhouse gas emissions that affect the climate. It seeks a court order requiring the government to make a plan that works to drastically reduce those emissions.

The plaintiffs — between the ages of 11 and 22 years old — all say their lives are affected by a changing environment. And they say it makes sense for them to sue because it’s their generation and those in the future who will disproportionately face the impact of climate change.

Some of the youths assert a warming planet already has hampered their ability to learn and recreate in nature, while others say it threatens their customs and livelihoods. Others have experienced stress and loss brought on by natural disasters such as flooding, drought and wildfires. And some have expressed concern about the state of the world when it comes time for them to have children.

“We’re not talking about our parents’ harms,” lead plaintiff Kelsey Juliana of Eugene said. “We’re talking about our harms.”

The group is supported by Our Children’s Trust, a Eugene-based nonprofit organization founded by attorney Julia Olson that has taken similar legal actions against governments in all 50 states.
       

The case has faced opposition from the federal government, fossil fuel companies, and some judges. One concern shared by some legal scholars is that the case relies on the idea that the United States government is legally entrusted with protecting the well-being of its citizens, that this extends to public things like the land, water, and the atmosphere—and that this idea is not an established legal fact. But Benjamin Hulac and Ellen Gilmer, reporters with E & E News, wrote on October 5, 2018, that the strategy of appealing to the public trust has sometimes been successful in the past:

In Pennsylvania, the state Supreme Court relied in part on public trust in 2013 when it found a shale drilling rule trod on a state constitutional requirement that natural resources be protected for the people. The court affirmed the approach last year in another oil and gas case (Energywire, June 2, 2017).

And just two months ago, a state court ruled that California's public trust doctrine applies to groundwater withdrawals that affect larger waterways in the state.

The approach has drawn copycats from overseas, too.

A 9-year-old girl, Ridhima Pandey, sued the Indian government in 2017, accusing it of breaking its obligations to protect the environment for her generation and those to come. Another young girl, Rabab Ali of Pakistan, sued her government, saying it is falling short, too. And nearly 900 Dutch citizens successfully sued the Netherlands in 2015 for more robust goals to cut emissions, though the case is pending appeal....

Michael Blumm, a law professor at Lewis & Clark Law School, said the arguments in the case should be taken seriously.

"The people who complain that this is an outlandish expansion of the public trust really haven't looked closely at the expansion of the public trust in years," said Blumm, who has written extensively on the concept, including with [Mary] Wood [a University of Oregon law professor].

He said the youth plaintiffs can easily argue that climate change has harmed them and that the government must step in to protect land and water resources by protecting atmospheric resources.
 

This raises the question of what will happen if the case is successful. While we can’t know for certain what will happen, the plaintiffs ask that certain energy policies and natural gas contracts be declared unconstitutional, and ask the court to “order Defendants to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2.” In other words, if they win, the government would be ordered to take bolder action against climate change.

Even if the court rules in their favor and orders the U.S. government to develop such a plan, implementation will require larger shifts in the actions of corporations and communities across the United States. As Hulac and Gilmer note in their article, it took years of protest and public campaigning to prompt the desegregation of schools, even after the Supreme Court ruled in favor of desegregation in Brown v. Board of Education in 1954. Lawsuits alone will not create the policy changes necessary to reduce the impacts of climate change.

Nevertheless, the process of bringing the youth climate case to court has already helped to increase public awareness. As Vic Barrett, a 19-year-old plaintiff in the case from White Plains, NY, said in press release put out by Our Children’s Trust on October 18, 2018:

The lengths my own government is going to to get this case thrown out and avoid trial is absurd and offensive. This case is not about money. This is not about the “harms to the government” or how much money the government has paid its experts or how many hours their lawyers have to work. This is about my future and the future of our youngest generations. This is about fundamental constitutional rights of children. We are simply asking for our right to be heard. Our Government exists to hear us and protect us. If we cannot go to our federal courts with real constitutional claims for relief and present our evidence at trial then the people of this country have been failed by our third branch of government.

For Discussion:
 

1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?

2. What arguments are the plaintiffs in Juliana v. U.S. making? How does this relate to the concept of the “public trust”?

3. What are some possible impacts of the youth climate case?

4. Some critics have dismissed this and other similar cases as "Hail Mary pass litigation.” What do you think they mean by that? Do you agree or disagree?

5. What do you think is the role of lawsuits in fostering progress on social and political issues? How do legal cases relate to other methods of creating change? What might be some of the strengths and weaknesses of this approach?
    

Reading Two
Primary Sources: Youth Testimonials

An important part of the Juliana v. U.S. case is the use of personal stories. In the text of the lawsuit itself and in media coverage of the case, the plaintiffs are using the stories of how they and their communities are impacted by climate change to make the argument that the government must act to uphold the rights of young people. On the website Our Climate Voices, some of the plaintiffs elaborate on how their personal experiences have pushed them to take action. Below are two excerpts from the website. Read these and consider the questions for discussion that follow.

1) Jacob Lebel is 21 years old and lives in Roseburg, Oregon. He works on his family’s farm and is a plaintiff in Juliana v. U.S. In his personal story, he discusses the effects of wildfires on the farm:

I’m from Roseburg, Oregon. I was homeschooled as a kid. I had three or four hours of school a day and the rest of the day was spent on our farm. In the mornings, I would get up and do small chores—like feeding the dogs and cats—and then I would have breakfast. After that, I went outside for a long walk, for about an hour or two, to feed all the other animals. It was amazing any time of year except when it was two degrees Celsius outside, raining and super muddy everywhere. On the walk, I gathered eggs and let all the birds out. We had turkeys, quail, ducks, and geese. We had cows, horses, and pigs. After that, I came home to do school for three or four hours. I read enormous amounts in the afternoons, and played outside in the creeks. I was very privileged to grow up in an environment like that. That type of childhood is only going to become harder as climate change erodes basic, life-supporting ecosystems….

Look at what happened in Napa Valley, California, in the wine region. Entire businesses were wiped out and lost large parts of vines that had been growing for years. There was a normal community of people, houses, and businesses, and the next day, half of the businesses were gone. The ecosystems around it and around people's lives are completely changed now. That could happen to the farm. And it’s a toss-up. We don’t have the capacity right now to fight a wildfire. We are in a rural area on a little gravel road outside of town. Firefighters won’t come here to protect a huge property like this. So, at this point, it’s fate. We just don’t know.

Last summer, there were two weeks where it was so smoky we couldn’t see blue sky. That has never happened in my life. We always had a couple days of smoky air during the summer. This time, I didn’t notice how intense it was until it was dragging on and on, there were barely any days when it got lighter, and we couldn’t really see any blue sky. It crept up on us. Then it got really bad. It was so soupy that we couldn’t see trees that were a half mile away. We couldn’t see the hills around us… We had to wear particle masks. It’s extremely bothersome on a farm. It’s scratchy. It’s hot. You have to take it off whenever you go in and out of the house. I started researching air conditioning filters that filter out smoke particles so that we could protect ourselves when we were inside.

Finally, I started to see blue sky again. I was so thankful. But, then I thought, ‘The way things are going, it’s probably going to be worse next year.’ I started wondering, ‘Is it going to last a month next year? How much smoke will we get? Will the wildfire be closer?’ Wildfires are a very immediate danger that could wipe out the entire farm. As they get more severe and common with climate change, the chance of our farm being in the burn area increases more and more every year.

 

2) Jayden Foytlin is 14 years old and lives in Rayne, a small town in southern Louisiana. In her personal story, she discusses the effects of her home being damaged in a flood in 2016:

I was 13 years old. My room was completely destroyed. I had to move my mattress to the living room where there wasn’t mold everywhere and it wasn’t gross and wet. My little brothers also had to sleep in the living room. Seven kids sleeping in the living room is not the funnest thing in the world, especially if you value it being quiet. It was kind of hectic.

My family aren't the richest people on Earth so we can’t just fix everything. We really had to save up to get the house to where it is now. We had to rip out some of the walls and some of the floors to get the mold off. You can see the insulation and stuff now. And we still haven’t gotten the floors replaced, so the living room is concrete. We did a lot of painting and reconstruction. FEMA gave us money so we could get our house back in order, but they didn’t give us much….

I actually got involved in fighting climate change when I was eleven or twelve, after the Gulf oil spill. My family used to go down to the Gulf of Mexico for birthday parties or to swim. We loved going to the beach. The oil spill didn’t just wreck the beaches, it also wrecked the seafood. We couldn’t have fish or shellfish for a while. It was bad because being from Louisiana, you’re going to want shellfish. After that, I remember my mom took a lot of pictures of pelicans, Louisiana’s state bird, covered in oil, and a lot of fishes and turtles. Stuff that should be healthy in the Gulf Coast wasn’t healthy. I became more aware just seeing the damages and realized there was a lot to learn.

I went back to the Gulf once last year, but it was different. We were more cautious about the water. I heard rumors that you shouldn’t go into the water with an open wound. It wasn’t as fun as it used to be because we had to be careful not to hurt ourselves… And we didn’t go back after that because it was scary.

It frustrated me because I didn’t know if the Gulf Coast would ever recover. I started noticing the pattern of how oil companies were mistreating people of color and low-income people. You see power plants in the poorest parts of Louisiana. That’s completely unfair. Coming from a poorer family, it was very frustrating to me. It got to me.

For Discussion:
 

1. What were some of the details in the stories that stood out for you? Were there aspects of the stories that resonated with your own experiences?

2. Why might these young people use storytelling as a part of their lawsuit?

3. Were there any parts of these stories that surprised you? Why?

4. How would you tell your story of how you came to understand the impacts of climate change? Where might you see the impacts of climate change in your community?

Reading Three
Other Youth-Led Strategies for Climate Action 
 

On Sunday, October 7, 2018, the Intergovernmental Panel on Climate Change released a report stating that urgent action was needed to slow the impacts of global warming. Matt Simon, a writer for Wired, summarized the report:

Simply put: The laws of the physical universe say that we can keep global warming to 1.5 degrees Celsius (on average) above pre-industrial levels, the optimistic goal set out in the Paris Agreement, but we’re quickly running out of time. As in, we may reach that 1.5 degree rise in as little as a dozen years at the rate we’re spewing emissions. And the consequences will be disastrous.

To correct course and avoid 1.5 C, or 2.7 degrees Fahrenheit, we’ll need to cut emissions by half before 2030, and go carbon-neutral by 2050, the report says. That gives us three decades to transform our energy production into something unrecognizable, with renewable energy galore combined with carbon capture techniques like the bolstering of forests, and maybe even sucking the stuff out of the atmosphere and trapping it underground.
           

This report raises the question of what strategies, if any, will be most effective in creating large-scale action on climate change. The youth climate lawsuit is an example of how one group of young people is pursuing a legal strategy to try and prompt action around climate change. But other concerned youth are pursuing change by targeting politicians through electoral organizing and direct action campaigns. In a piece for Teen Vogue published on September 14, 2018, college student Izzi Graj describes one group that is putting pressure on elected officials.

On August 8, I joined dozens of young New Yorkers at Governor Andrew Cuomo’s office to demand for the seventh and last time that he refuse campaign contributions from fossil fuel CEOs and lobbyists. That day we gave Cuomo one last chance to stand with our generation and fight for us. We’d hoped the governor would pledge to reject campaign contributions from the fossil fuel billionaires responsible for this crisis, but that didn’t happen, and my friends were arrested at his office. I was infuriated. I was there as a volunteer with Sunrise Movement, a youth-led organization that is turning our rage at decades of inaction on climate change into a political machine capable of helping to elect honest leaders who will fight for our generation and create millions of good jobs in the process. Our organization is only one year old, and we’re working every day ahead of the midterms to support real leaders who will fight for our generation….

The most frustrating part is that Governor Cuomo recently told me face to face that he would reject money from fossil fuel interests. In a video of that conversation, you can see my shock when I asked him if he could pledge to stop taking fossil fuel money and he replied, “Yes, I’m there.” I thought he was finally taking young people seriously and standing up to fossil fuel billionaires, the same people who have encouraged climate denial and held back action on climate change for decades, fueling climate disasters that kill thousands of people every year and threaten the poorest and most marginalized communities of New York. But the next day, he took it back, his team arguing that he’d misunderstood the question….

It is not just in New York that our nation’s lauded “leaders” on climate change are arresting young people when pushed to take the climate crisis seriously. Also on August 8, six young people were arrested at the state capitol in Sacramento, California, after demanding Governor Jerry Brown take action on climate change by rejecting fossil fuel money and ending fossil fuel production in his state, which is the sixth largest crude-oil-producing state in the nation….

Partnering with these oil and gas executives is not only disastrous for our society’s ability to stop climate change; it is also deadly for millennial voter turnout. Millennials were crucial to Democratic wins in 2017, and we broadly disapprove of politicians taking money from the companies imperiling our futures. Millennials and Generation Z-ers will form the largest voting bloc in U.S. history this fall. We demand our leaders reject fossil fuel money and take climate change seriously.
 

Politicians are not the only target for young people. On college campuses, students are pressuring their schools to pull their assets out of fossil fuel companies. These divestment campaigns seek to make the idea of profiting off of extracting and burning fossil fuels a moral issue on campuses and in the larger public debate on climate change. At the University of Pennsylvania, their undergraduate student government voted 17-1 on a resolution urging the school to divest. Julia Klayman, a writer for the school newspaper The Daily Pennsylvanian, described the gains of the divestment movement on her campus:

For Discussion:
 

1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?

2. Why are some young people targeting politicians through electoral organizing and direct action? What do you think of this strategy, as opposed to other approaches?

3. According to the reading, what is a “divestment campaign”? Why have some students adopted this strategy at their colleges and universities?

4. Of the various approaches discussed in these readings, which ones make the most sense to you? Why? Can you think of other strategies that young people might use to create change?