With the Trump Administration waging an all-out assault on environmental protection and exiting from the Paris Climate Agreement, here are a few questions to think about:
- Is the Administration violating the constitutional rights of our children by allowing oil and gas production on public lands?
- Is Congress violating our children’s constitutional rights by giving tax breaks to fossil fuels?
- Is the atmosphere one of those vital natural assets that public officials must protect for all generations?
- Should the federal government be required by law to have a mandatory and enforceable climate action plan that reduces greenhouse gas concentrations to safe levels?
Those are among the provocative questions raised by a group of young Americans in a lawsuit against the federal government. The suit, initiated two years ago by 21 children and young adults ages 9 through 21, is working its way through the federal court system on the West Coast, possibly including the 9th Circuit Court of Appeals — the three-judge panel President Trump threatened to disband after it ruled recently against his travel bans and his attempt to defund sanctuary cities.
As if this is not enough drama, climate science will be on the witness stand. The judges will consider whether the science is sufficient to find that global climate change is jeopardizing the lives, liberty and right to property of current and future generations likely to suffer the brunt of its impacts.
As if the legal fight is not lopsided enough, the young litigants are supported by grants, individual contributions and pro bono legal assistance, while the Justice Department has virtually unlimited resources provided by our taxes.
And just in case the Trump Administration was not a tough enough adversary, three powerful industry groups — the National Association of Manufacturers, the American Petroleum Institute, and the American Fuel & and Petrochemical Manufacturers — intervened in the case on the side of the Justice Department.
The battle is well underway. Two days after Trump’s inauguration, the Justice Department began pulling out all the stops to keep the case from going to trial. So far its motions have been denied. In one ruling that kept the case alive even before Trump took office, U.S. District Court Judge Ann Aiken wrote “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 Justice Department got more bad news last month when the three intervening trade associations asked to withdraw from the case, telling the judge “We want off the bus.”
The Administration may be anxious to keep the case from going to trial because the Justice Department cannot be sure of winning. Trump’s promotion of fossil fuel production; his appointment of climate doubters and deniers to key jobs; his assault on environmental regulations; his cancellation of Obama’s climate action plan; his efforts to cut spending on climate science; his withdrawal from the Paris climate accord; his decisions to expand fossil energy production on federal lands and in federal waters; and Congress’ longstanding subsidization of fossil fuels are pretty solid evidence that the U.S. government contributes to climate change.
The lawsuit has a long and difficult road ahead, with the wheels of justice turning slowly. It seems likely to end up before the U.S. Supreme Court. If the young plaintiffs win at trial and the decision is upheld, this and future Administrations will be legally obligated to create and implement climate action plans that reduce atmospheric concentrations of greenhouse gases to 350 ppm by the end of the century, the level that climate scientists consider relatively safe. If the government fails to do so, the courts will force it to.
Yale Law Prof. Douglas Kysar, who is not involved in the litigation, calls the young persons’ lawsuit “a powerful poke and prod to the entire federal government on the question of climate responsibility.”
“In that sense,” he says, “(the case) might well be the most important lawsuit on the planet right now and the government knows it. That’s why Trump’s lawyers are so desperate to avoid an honest fight.”
In addition to its likely ripple effect on other countries, a victory for these children and young adults would make big waves in the U.S. It would establish that the atmosphere is a trust asset that we all own and public officials are required by law to protect. It would put legal weight behind the principle that our children have a constitutional right to futures of life, liberty and property undiminished by special interests and government actions. More specifically, it would put the nation’s judicial system squarely behind the idea that the federal government cannot jeopardize our children’s rights by using fossil fuels or facilitating their production.
With two branches of the federal government acting like wholly owned subsidiaries of Big Oil, kids are depending on the third branch to make sure the world’s biggest consumer of goods and services, the world’s largest economy, the world’s biggest consumer market, the world’s second largest source of greenhouse gas pollution, a military that ranks as the world’s largest institutional oil consumer, and the country with some of the world’s biggest oil and gas reserves, isn’t AWOL while states, cities, corporations and 195 other nations are engaged in the fight against climate change.
It appears that the trial will take place early next year.
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