Constitutional right to life argument applied to climate

November 17, 2015

“The biggest fossil fuel polluters on the planet, including Exxon and Koch Industries, just asked the court for permission to argue that young people don’t have a constitutional right to life if it means reducing fossil fuel use,” Julia Olson, the lead attorney from Our Children’s Trust said in a statement.  The case is a new lawsuit against the federal government, filed by a group of 21 children and young adults between the ages of 8 and 19, could become a major new front against climate change—and a preview of the next important civil rights struggle of the 21stcentury.

“Kids understand the threats climate change will have on our future,” said 13-year-old Zoe Foster, a petitioner in the Washington state case. “I’m not going to sit by and watch my government do nothing. We don’t have time to waste. I’m pushing my government to take real action on climate, and I won’t stop until change is made.”

Unlike many previous cases filed by Our Children’s Trust, which have focused on the somewhat obscure legal idea that governments have an innate duty as intergenerational trustees to protect the natural resources under their domains, this case is a straight-up constitutional challenge aimed at securing intergenerational equity in the context of climate change.

Michael Blumm, a professor at Lewis and Clark Law School in Portland, Oregon, who is not involved in the lawsuit, agrees the addition of fossil fuel industry representatives could make things awkward for the Obama administration. “One of the ironies of the case is: The government, which is bashed by the fossil fuel industry for its alleged war on coal and for the Keystone thing, is now in lockstep with them in this lawsuit.” Blumm added that it wasn’t unusual for groups like these three to intervene on high-profile cases where they might expect the government, as a defendant, wouldn’t necessarily be arguing in their best interests.

Blumm, who filed an amicus brief in support of Alec L., believes the constitutional claim made by the current case is different. “It would be a path-breaking suit if it succeeds,” Blumm told me. “They’re trying for revolutionary change on the order of Brown v. Board and Obergefell v. Hodges, and they may be able to succeed.”

Earlier this year, a Dutch court found that its federal government was legally obligated to reduce greenhouse emissions, the first ruling of its kind anywhere in the world. Constitutional law scholars are generally divided on whether a challenge like this will be successful in the United States, because our Constitution doesn’t specifically provide the right to environmental protection.

Still, the lawyers behind the kids’ case say that may not matter.

They assert that the Due Process Clause of the Fifth and 14th Amendments and the Equal Protection Clause of the 14th Amendment—the basis of many civil rights cases—require the government to pay special attention to the harm climate change inflicts on children and future generations.

The case is the latest example of a quickly growing cultural realization that what humans are doing to the climate is fundamentally unjust and that traditional political change is just too slow to address it. With a congressional deadlock on climate likely to continue into the next presidency, regardless of who wins the White House in 2016, the court system may be the last reasonable pathway for change on the scale that scientists say is necessary.

Still, a case like this is aimed at energizing the political branches, not superseding them. It’s a very unlikely scenario that this specific case reaches the Supreme Court and results in a favorable decision. But a favorable Supreme Court decision would likely result in a historic mandate for Congress to decide on the best way to put the country on a crash carbon diet with minimal economic impact.

Instead, this particular case will probably die at the district or circuit court level, though even if that happens, it could inspire follow-on lawsuits for years that would hope to catch a more favorable judge or cultural moment, according to environmental and constitutional law scholars.  Powerful forces have intervened to stand by Pres. Obama, against it.  Three groups representing the fossil fuel industry joined the federal case last week as intervenors, arguing that the lawsuit is “extraordinary” and “a direct threat to [their] businesses” and that, if the kids win, “massive societal changes” and an “unprecedented restructuring of the economy” could result.

The groups are the American Petroleum Institute, which includes BP, Chevron, ExxonMobil, and Shell; the National Association of Manufacturers, which calls itself “the leading advocate for a pro-growth agenda”; and the American Fuel and Petrochemical Manufacturers, which includes DuPont and Koch Industries. All have been outspoken against climate legislation. They will argue that the kids, in this case, don’t have standing—the individualized harm that gives the plaintiff a legal cause of action—because climate change is mostly a prediction of harm, and that, even if they are being harmed, climate change is a question for Congress to decide anyway.

Read the full article at Slate.