An extraordinary lawsuit — brought by 21 children and generations yet to come — is demanding a government plan to address climate change. Not money damages, simply a plan. It is called Juliana v. United States and it has survived a trial by fire from both government and industry since day one. So far.
The claim is elegantly simple, as deep truths can be. The children have standing to bring the case because they will be more adversely affected by climate change than any adult now living (per latest report, it will be soon beyond redress). Their legal claims are based on constitutional doctrines of Due Process (the loss of their future) and Equal Protection (zero protection for the children), and the Public Trust (wise husbandry of common resources such as the atmosphere). Their foundation has been supported in an amicus brief filed by 63 professors of law, myself among them.
To the surprise of some, the notion that governments have environmental obligations to generations to come is now a principal feature of international treaties, national constitutions, and case law. As early as 1969 the U.S. Congress declared it the duty of each generation to act as “trustee” for those following. This duty took wings in an opinion of the Supreme Court of the Philippines, writing that it had existed “from the inception of mankind”, lest they “inherit nothing but a parched earth, incapable of sustaining life”. The case, styled as Minors Oposa, was brought in the name of children. The opinion was unanimous.
Other venues have followed, including two decisions of the Pennsylvania Supreme Court (rejecting state approvals for fracking), and opinions from such diverse nations as Pakistan, Columbia, Ireland and the Netherlands, each responding to climate change. The Columbia case was brought in the name of children. The Dutch case, brought by adults and children, invalidated a national climate change plan as inadequate. Then again, at least they had a plan.
The U.S. had a plan too, however modest. It was scrapped by the Trump administration and replaced by policies that could not do more to accelerate climate change than were this their goal: large subsidies for fossil fuels and open season on every inch of public lands, while abandoning renewables and the mere idea of energy conservation. Without blushing, the administration is today defending its reduction of fuel efficiency standards by calling the climate situation hopeless; they would do no good. If a legal duty toward children and future generations is found, its violation will be a lay-down. The question is whether they will get to prove it.
The answer has been yes, in the face of scorched-earth government opposition, until this past week. The docket of motions and replies in Juliana reads like a civil war history, battles and all. Despite the paper blitz, federal courts up to the 9th Circuit Court of Appeals have found the claims plausible, twice, pending of course trial on the merits. Declarations from more than 30 experts are on record, with trial scheduled for Oct. 29. Meanwhile, government attorneys had already petitioned the Supreme Court to stop the trial on various grounds, all rejected by Supreme Court Justice Anthony Kennedy, the court’s motions judge for this circuit.
Upon Kennedy’s resignation, however, Chief Justice John Roberts assumed the role and, when the government petitioned one final time, he granted a temporary halt, putting the court in the position of ruling on a case that had yet to be tried, and with obvious political overtones. Last Friday, the Supreme Court lifted its stay and sent the case back to the appellate court with language signaling its skepticism, but leaving it for lower courts to work through and, in effect, take the heat.
On the other hand, the very fact of this case might give any judge pause. We Americans will take the futures of other adults, and even countries, without blinking, largely because we have the raw power to do so. But children are different, and not (as some skeptics have said) as gimmicks for public attention. The young have rights at stake here that are unique and existential. They belong only to them. The question at this point becomes, who has the right to take them away?
Oliver A Houck is the David Boies Chair in Public Interest Law at Tulane University.