Kids Take a Stand Against Climate Change, but Do They Have Standing?

January 25, 2019 by Rebecca Strauss

By Rourke Donahue, Staff Contributor

Twenty-one children are suing the federal government over its failure to address climate change. But does the public have a fundamental right to the environment and is climate change an appropriate issue for courts to address?

 

In 2015, twenty-one kids between the ages of eight and nineteen sued the federal government for failing to address climate change. The young Plaintiffs, along with climatologist Dr. James Hansen and the environmental activist group, Earth Guardians,[1] assert that the federal government’s failure to mitigate the known effects of climate change violates the public trust doctrine and the Plaintiffs’ fundamental constitutional rights to life, liberty, and property.[2] Under the public trust doctrine, the government is the trustee of national public resources (including the atmosphere, seas, shores, waters, and wildlife) and has a duty to manage and protect these environmental resources.[3] Plaintiffs argue that the government’s failure to protect the environment violates the public’s “inherent, inalienable, natural, and fundamental rights” to the environment.[4]

The Defendants in this case, entitled Juliana v. United States,[5] are numerous members of the federal government who had a role in American environmental policy, including President Barack Obama and former members of his administration, including the EPA and its Administrator and the Secretaries and Departments of Energy, Interior, Transportation, Agriculture, Commerce, Defense, and State, among others.[6] However, it is the Plaintiffs who make this case so fascinating to the public, but who also raise questions about the case’s legal viability.

The young Plaintiffs assert that climate change has directly harmed them and their property. Xiuhtezcatl, age fifteen, is of Aztec descent and claims that his sacred indigenous spiritual and cultural practices of honoring and protecting the Earth have been jeopardized by climate change.[7] Alex, age eighteen, lives on the plum and hazelnut farm that his family has tended for generations, but recently it has suffered from droughts and record high heat.[8] Zealand, age 16, claims that his allergies have gotten worse due to climate-induced heat waves and pollen count increases, forcing him to spend less time outdoors. Victoria, age 16, was affected when Hurricane Sandy caused her home to lose electricity and her school to close.[9] Other Plaintiffs claim that their asthma has exacerbated,[10] that they can no longer swim in their local lagoon because of flesh-eating bacteria,[11] and that they had to cancel camping trips because of nearby wildfires.[12]

Plaintiffs’ alleged injuries raise questions regarding whether they have sufficiently established standing. Under Article III of the United States Constitution, plaintiffs in any case must prove that (1) they have suffered an injury in fact that is concrete, particularized, and imminent; (2) the injury was caused by the defendant; and (3) the injury can be redressed by the court.[13]This case grapples with whether a phenomenon as diffuse and complex as global warming can meet these requirements.

In establishing standing, Plaintiffs argue that they have a “substantial, direct, and immediate interest” in protecting the environment and ensuring that their future environment is livable and safe.[14] Plaintiffs also assert that they “have suffered and will continue to suffer harm to their health, personal safety, bodily integrity, cultural and spiritual practices, economic stability, food security, property, and recreational interests.”[15] In response, Defendants argue that Plaintiffs fail to establish standing because they assert only generalized grievances instead of concrete and particularized injuries,[16] the alleged harms cannot be traced to particular government actions,[17] and the alleged harms cannot be redressed by the Court.[18]

However, in an unprecedented 2016 decision, United States District Judge Ann Aiken ruled in favor of Plaintiffs,[19] holding that they had established Article III standing.[20] Judge Aiken held that Plaintiffs suffered an injury in fact because it does not matter if a large number of people suffer an injury, but rather that it is concrete and particularized.[21] Additionally, Judge Aiken agreed that the injury was imminent because Plaintiffs have already been affected by climate change.[22] Secondly, Judge Aiken held that, at the pleading stage, Plaintiffs established causation between the Government’s actions and Plaintiffs’ harm.[23] Lastly, Judge Aiken held that, viewing the complaint in Plaintiffs’ favor at the Motion to Dismiss phase, Plaintiffs adequately demonstrated that their requested relief could redress their alleged injuries.[24]

This case has a complicated procedural history following Judge Aiken’s 2016 decision, but the parties’ briefs on the Government’s interlocutory appeal are due to the Ninth Circuit by early March 2019.[25] However, the case’s fate remains uncertain. Judge Aiken asserting a fundamental right to the environment is unprecedented in any federal court, so the Ninth Circuit might be reluctant to uphold the creation of such an expansive new right. Even if Plaintiffs did convince the Ninth Circuit, it is still unlikely that the Supreme Court would recognize a right to the environment because of the Court’s general reluctance to recognize new rights and President Trump’s appointment of two conservative justices to the bench, which moved the Court farther to the right.[26] Additionally, the Supreme Court expressed skepticism of Plaintiffs’ claims in July 2018 when it denied the Government’s petition for a writ of mandamus and stated, “the breadth of [the kids’] claims is striking, however, and the justiciability of those claims presents substantial grounds for difference of opinion.”[27]

Even though the ultimate success of Juliana[28] is currently unknowable, Judge Aiken’s favorable ruling represents the first time a federal court recognized a fundamental right to the environment and ignites hope for a potential future in combatting climate change through the judicial process.[29]

[1]Rick Reibstein, Can Our Children Trust Us with Their Future? Juliana is a reminder that the government’s purpose is to be a guardian for future generations, Am. Bar Ass’n (Jan. 16, 2018), https://www.americanbar.org/groups/young_lawyers/publications/tyl/topics/environmental-law/can-our-children-trust-us-their-future/.

[2]Complaint at para. 96, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Aug. 12, 2015) (2015 WL 4747094).

[3]Id.at para. 263.

[4]Id.at para. 304.

[5]No. 6:15-cv-01517-TC (D. Or. Aug. 12, 2015) (2015 WL 4747094).

[6]Complaint at para. 98–130, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Aug. 12, 2015) (2015 WL 4747094).

[7]Id.at para. 20–21.

[8]Id.at para. 23–24.

[9]Id.at para. 71–72.

[10]Id.at para. 46.

[11]Id.at para. 83.

[12]Id.at para. 18.

[13]Defendants’ Motion for Summary Judgement at para. 11, Juliana v. United States, No. 6:15-CV-01517-TC (D. Or. May 22, 2018) (2018 WL 2441145) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).

[14]Complaint at para. 96, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Aug. 12, 2015) (2015 WL 4747094).

[15]Id.

[16]Defendants’ Motion for Summary Judgement at para. 14, Juliana v. United States, No. 6:15-CV-01517-TC (D. Or. May 22, 2018) (2018 WL 2441145).

[17]Id.at para. 16.

[18]Id.at para. 21.

[19]See Ciara O’Rourke, The 11-Year-Old Suing Trump Over Climate Change, The Atl.(Feb. 9, 2017), https://www.theatlantic.com/science/archive/2017/02/trump-climate-lawsuit/516054/.

[20]Juliana v. United States, 217 F. Supp. 3d 1224, 1242 (D. Or. Nov. 10, 2016).

[21]Id.at 1243 (quoting Pye v. United States, 269 F.3d 459, 469 (4th Cir. 2001).

[22]Id.at 1244.

[23]Id.at 1246.

[24]Id.at 1248.

[25]Juliana v. United States, No. 18-36082 (9th Cir. Jan. 7, 2019).

[26]See O’Rourke, supranote 19.

[27]See Timothy Cama, Supreme Court denies Trump admin request to halt youth climate lawsuit, The Hill(Jul. 30, 2018), https://thehill.com/policy/energy-environment/399562-supreme-court-denies-trump-admin-request-to-halt-youth-climate.

[28]217 F. Supp. 3d 1224 (D. Or. Nov. 10, 2016).

[29]See Eric Holthaus, The Kids Suing the Government Over Climate Change Are Our Best Hope Now, Slate(Nov. 14, 2016),https://slate.com/technology/2016/11/the-kids-lawsuit-over-climate-change-is-our-best-hope-now.html.