The significance of a landmark youth climate case was not lost on three Oregon judges Tuesday afternoon, as the case was repeatedly compared to the historic Brown v. Board of Education decision that made racial segregation in public schools unconstitutional.
In what legal experts have called a groundbreaking piece of climate litigation, the youth lawsuit seeks to hold the federal government accountable for its role in perpetuating climate change.
“You’re arguing for us to break new ground,” Judge Andrew Hurwitz told Julia Olson, lead attorney for Our Children’s Trust, the nonprofit organization that filed the lawsuit on behalf of the youth plaintiffs. “You’re asking us to do a lot of new stuff, aren’t you?”
Seventeen of the 21 youth plaintiffs bringing the case attended oral arguments at the 9th U.S. Circuit Court of Appeals in Portland. After a series of attempts by the federal government to have the case thrown out, judges heard arguments from Olson and Assistant Attorney General Jeff Clark, representing the federal government, to determine whether the case should proceed to trial. A decision is expected sometime this summer.
The weight of what it would mean to allow such a case to proceed to trial was not lost on the judges, those in the room, and many more watching online. Repeatedly, the judges and lawyers spoke to the unprecedented nature of what the lawsuit seeks to address: the government’s failure to protect younger generations from catastrophic climate change.
“If we look back on the 20th century, we can see race and sex discrimination were the constitutional questions of the era,” Olson said in her concluding remarks. “When our great-grandchildren look back… they will see government sanctioned climate destruction was the constitutional question of this century.”
The landmark lawsuit, brought by a group of children and young adults ranging in age from 11 to 23, argues that the government is violating its constitutional obligation to current and future generations by failing to preserve a clean atmosphere. A final decision could shape the future of climate litigation for years to come.
Though the trial was supposed to begin last October, the Trump administration has successfully delayed the proceedings — including bringing two separate emergency bids to toss out the case to the Supreme Court — arguing, among other reasons, that the judicial branch is not responsible for directing climate policy.
During Tuesday’s arguments, Clark reiterated the government’s position that the plaintiffs do not have standing to bring this case.
The government is arguing that it has not undermined the plaintiffs’ rights — as they claim it has through its failure to provide a safe and livable climate to current and future generations — and even if it has, fixing the damage would be infeasible.
What’s more, as Clark summarized in his closing statement, “We don’t think this constitutional right exists, there’s no historical basis for it.” He added that allowing this case to go forward would cast a “dagger at the separation of powers” within the branches of government and that if it was successful, would set a dangerous precedent. There would be “no logical stopping power,” he argued.
Our Children’s Trust first filed the lawsuit in August 2015 against the Obama administration. In January 2017, the Trump administration was named as a defendant in the case.
The lawsuit uses a legal theory known as atmospheric trust litigation, which argues that the government must maintain certain common elements such as rivers or shorelines, and in this case, the atmosphere, for public use. By failing to protect and preserve a clean atmosphere for future generations — by promoting fossil fuels, for instance — the lawsuit argues that the government is violating its obligation to the public trust.
When asked what sort of outcome the plaintiffs were looking for, Olson said that the government’s discrimination against this younger generation should be declared unconstitutional.
“The government devalues the lives of these young people by making decisions on energy policies,” she said. “[It] values them less and values adults today more.”
Olson explained that the case is not about inaction — the failure to act on climate change — as much as it is about the fact that the government has facilitated and subsidized a certain type of system, one reliant on fossil fuels. And in doing so, it is violating the plaintiffs’ Fifth Amendment rights to life, liberty, or property.
To remedy this, plaintiffs are asking that the government be required to prepare a national energy system that would transition the U.S. off of fossil fuels.
“You appear to be requesting some sort of affirmative action,” Judge Mary Murguia said. “We would not be striking down anything … we would be affirmatively telling the government to do something.”
“[I’m] trying to figure out if we’ve done anything like that to this scale,” she continued, adding that it’s “almost drawing on a clean slate.”
And indeed, perhaps no problem has existed before on a scale such as that of the climate crisis. “The scale of the problem is so big because of the systemic conduct of the government,” Olson said.
Olson explained that yes, the defendants — the federal government — should be ordered to take similar action, “much like Brown vs. Board,” because “whenever there is a government system that’s causing such catastrophic infringement to fundamental rights… [there’s a] duty to issue a decree to address [this] constitutional violation.”
The three judges appeared sympathetic to the arguments presented by the plaintiffs. “You present compelling evidence that we have a real problem… it may even rise to the level of criminal neglect,” Judge Hurwitz said. “The tough question is, do we get to act because of that?”
“We may have the wrong Congress and the wrong president,” he added. “The question for us is whether we get to intervene in that.”