Juliana vs. US — The Climate Change Case Led by Young Adults

The American public routinely sees climate change in the news, and recently we were reminded of the urgency of the issue for millennials and younger generations when kids across the world staged a worldwide Climate Strike this May of 2019. Many of us are less aware of earlier efforts of young adults. In 2015, 19-year-old Kelsey Juliana submitted a Constitutional Climate Change lawsuit against the United States government, including the president and several other federal agencies. She filed the lawsuit with 20 other American youth with help from the attorneys at Our Children’s Trust, an Oregon organization that “elevates the voice of youth to secure the legal right to a stable climate and healthy atmosphere for the benefit of all present and future generations.” (See ourchildrenstrust.org.)

The 21 plaintiffs represented in Juliana v. U.S. are at the forefront of a movement to secure the Fifth Amendment rights to life, liberty, and property for themselves as U.S. citizens, and for the generations to come in the face of the threat of global warming. They argue that the federal government’s support for a fossil-fuel-based energy system, with knowledge of its consequences for human life and natural systems, has and continues to contribute to climate change and jeopardize these rights. Additionally, they assert that the US government’s continued condoning of fossil fuel use and lack of action on climate reform have endangered public trust resources. As scientists’ projections grow more dire and the steps needed more drastic, these plaintiffs seek a comprehensive federal plan to transition to a clean energy system to stop the global warming process and begin to reverse the effects that have already begun (ourchildrenstrust.org).

The plaintiffs spearheading the case range from 11 to 23 years old, reflecting the growing political differences between younger and older citizens, replacing the more traditional rift between liberals and conservatives. People ages 18-34 show more concern about global warming than other Americans, especially those over 55. According to Gallup’s Environment polls from 2015-2018, 70% of the youngest third of the US population polled said they “worried a great deal or a fair amount” about global warming. They also believed more strongly than over-35-year-olds by a margin of 20% that global warming is caused by human activities (news.gallup.com 5/11/2018).

The first charge the “Climate Kids” bring in the case is that the United States government has violated its citizens’ Fifth Amendment rights.  The Fifth Amendment, included in the Bill of Rights written by James Madison, declares that “no person shall … be deprived of life, liberty, or property, without due process of law.”  Likewise, the Preamble to the Constitution states that the federal government shall “promote the general welfare and secure the blessings of liberty to ourselves and our posterity” (constituionus.com). According to Julia Olson, Executive Director and Chief Legal Counsel at Our Children’s Trust and co-lead attorney on the case, these principles “have been with our nation since the founding, …and in the case of climate change, the United States government has knowingly … [created] an energy system for our country that was grounded in the use and burning of fossil fuels. And they’ve known for over half a century that by doing so it actually was endangering all future generations” (Spring Creek Project, 00:04:06 – 00:04:58). The burning of fossil fuels creates more carbon dioxide in the Earth’s atmosphere, increasing the Greenhouse Effect and thus causing a global temperature increase.  The Fourth National Climate Assessment Volume 1, released by the U.S. Global Change Research Program in November, 2017 stated that “it is extremely likely that human activities, especially emissions of greenhouse gases, are the dominant cause of the observed warming since the mid-20^th century” (NCA4.1 pp 231-256). But in spite of urged changes from experts, eighty percent of the energy used by Americans today is still a product of fossil fuel burning (www.eia.gov).

The plaintiffs also claim that the government’s advocacy of the use of fossil fuels is a breach of the “Public Trust” doctrine. According to Olson, the concept of public trust is “based on the foundational principle that all governments are trustees over essential vital natural resources that we all hold in common—we share them. And the government acts as the ultimate protector of those resources so that they are there for the use and the enjoyment and benefit of all future generations” (Spring Creek Project, 00:02:35 – 00:02:59). Olson argues that court precedents demonstrate that the Public Trust doctrine is rooted in the Fifth Amendment and the Posterity Clause which “says that we will protect and secure our liberties not just for ourselves, but for our posterity as well.”

Olson has assembled a timeline of records beginning with President Lyndon Johnson, demonstrating that each president since has known about the potentially catastrophic effects of fossil fuels. “Our government, at the highest levels, knew and was briefed on it regularly by the national security community, by the scientific community,” Olson told Steve Kroft on 60 Minutes (“Climate Change:  What 10 Presidents Have Known” www.cbsnews.com).

As early as November 1965, a team of expert scientists and engineers authored a report called “Restoring the Quality of Our Environment.” In one section Charles David Keeling, the climate scientist who first described the “greenhouse effect,” warned about high levels of atmospheric carbon dioxide and blamed the burning of fossil fuels ( “Climate Change,” cbsnews.com).

In 1969, Daniel Patrick Moynihan, an adviser to President Richard Nixon, wrote a memorandum addressing “the carbon dioxide problem.” “With all the fossil fuels man is now burning, more carbon dioxide is entering the atmosphere and raising temperatures, which in turn will raise sea levels.  Goodbye New York,” he wrote. “Goodbye Washington, for that matter. . . . I would think this is a subject that the Administration ought to get involved with” (“Climate Change,” cbsnews.com).  The refusal to act on that evidence, says the lawsuit, is a serious breach of the Public Trust Doctrine .

The Climate Kids initially submitted over 1000 pages of reporting including these documents, as well as reports on  the basics of climate change science, current impacts and projections for the future, and the ways in which the U.S. government and the fossil fuel industry have contributed to the issue. Now the total amasses some 36,000 pages (“Climate Change,” cbsnews.com).

The legal process has prompted the government to acknowledge in court filings that human elevation of greenhouse gases is likely the dominant cause of observed warming since the mid twentieth century (“Climate Change,” cbsnews.com).  But EPA Director Scott Pruitt swept those findings aside two days later:  “Carbon dioxide is not a primary contributor to the global warming that we see,” he said (Laura Parker, “Kids Sue the U.S. Government,” nationalgeographic.com, November 9, 2018).

The Climate Kids are seeking, according to Olson, “a comprehensive plan—we call it a Climate Recovery Plan—by the United States government to transition the nation’s energy system completely away from fossil fuels, roughly by midcentury, and to a clean energy system in all sectors,  . . to ideally return the carbon dioxide levels to 350 [thousand] parts per million by 2100 as a maximum threshold” (Spring Creek Project, 00:10:59 – 00:11:45). Scientists say that would stabilize the global temperature. Beyond that, much more would need to be done to reverse the effects that have already begun.

Originally filing the case in 2015, near the end of President Obama’s tenure, the suit now faces a more oppositional administration.  Some fossil fuel industry groups that had originally joined the government to oppose the suit, dropped out, believing that the Trump administration will fight hard on their behalf. Indeed, the Justice Department, arguing the government’s case, has claimed that the court system is not the appropriate place for arguments about climate and energy policy—that those decisions rightfully belong in the legislative and executive branches.

In November 2016, U.S. District Court Judge Ann Aiken denied the government’s motion to dismiss the case and scheduled a trial date. “Exercising my ‘reasoned judgment,’ she said, I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society” (ourchildrenstrust.com).  Since then, the Trump administration has continued to argue that the lawsuit is not “judiciable” because of its uniquely broad constitutional claims.  The government has appealed Judge Aiken’s decision three times to the 9th Circuit Court of Appeals and twice to the Supreme Court, failing each time.

Amicus curiae briefs have been submitted by a diverse range of groups including medical professionals, environmental groups such as The Sierra Club, women’s and religious groups, law professors, and over 32,000 people under the age of 25 recruited by a climate group called Zero Hour.

In early March, Judge Aiken granted the government an “interlocutory appeal,” in which they will be allowed to ask for an end to the lawsuit based on what they see as its illegality.  Oral arguments for the interlocutory appeal took place June 4, 2019, in Judge Aiken’s court in Portland and a ruling has not yet been announced.

A link to the June 23, 2019 60 Minutes segment: https://www.cbsnews.com/news/juliana-versus-united-states-climate-change-lawsuit-60-minutes-2019-06-23/