A federal judge in Oregon ruled that 21 young people have the right to sue the federal government for failing to properly protect future generations from the dangers of climate change.
In this landmark decision, Magistrate Judge Thomas Coffin took his cue, in part, from a lower court in the Netherlands that said the Dutch government must act on climate change because of its existential threat to its citizens.
The case now goes to US District Court Judge Ann Aiken, who will determine if and when there would be a trial. According to Pat Parenteau, a law professor at Vermont Law School, if the case did go to trial, it would be “the trial of the century.”
“It'll outdo the Scopes trial,” Parenteau say, “because you’re going to have all kinds of climate scientists coming in saying how grave the threat is and how little time we have to address it, and that would be a very interesting spectacle, frankly.” But Parenteau believes a trial is a remote possibility. Aiken may even reject the recommendation of the magistrate judge.
“Judge Coffin has done something no other judge has been willing to do,” Parenteau explains, “which is to recognize that the youthful plaintiffs have a potential constitutional claim that the United States government is falling down in its duty to protect the younger generation from the threats of climate change going forward.”
The case is one of a series of lawsuits filed in federal and state courts by a group called Our Children's Trust. In the past, Parenteau says, the children who are the named plaintiffs have won only some minor procedural victories, so this recent ruling is significant.
The plaintiffs are claiming their rights are being violated under the ninth amendment to the US Constitution, Parenteau explains. “This is the same amendment that has given rise to the right to privacy, to marriage equality and to a variety of individual rights not spelled out in the constitution, but contained within what's called the penumbra of the ninth amendment. ... The judge is relying on case law from the Supreme Court that recognizes there are certain unwritten rights in the Constitution that come to light, if you will, as judges evaluate threats to American citizens.”
In this case, the youth are saying they face threats from the effects of climate change that older generations of Americans will not face, because they won’t live long enough to see the consequences. “The children are saying, ‘We're a special class when it comes to climate change, because the only way for us to avoid the effects ... is if efforts are stepped up now to reduce carbon pollution,’” Parenteau says. “That's what makes this both a fascinating case and a really difficult case for the courts to deal with.”
The plaintiffs are seeking a broad range of remedies from the court. They ask that the government do an accounting of the greenhouse gas emissions occurring today and to explain how it plans to reduce those emissions in the future and over what period of time. They are specifically asking that the court order the government to reduce the loading of carbon in the atmosphere to 350 parts per million, the level that has been recommended by several respected climate scientists, including James Hansen, who is named as a guardian in the case.
“They're asking for an extraordinary relief, never before ordered by a court,” Parenteau says, “telling the government to begin reducing carbon emissions and, literally, bring them down to a point where there is, at least, no longer a serious threat from climate change.”
Parenteau believes the courts are going to have a hard time ordering the United States government to take the steps the plaintiffs seek. “It may be that the real value of a case like this is to elevate this issue in the court of public opinion ... and try to get the elected politicians to respond to this,” he says.
On the other hand, Parenteau notes, courts have recognized the right of "bodily integrity" — that is, the right to be free of contaminants or threats to health that emanate from permitted government activities or from activities that are not restricted by the government, but should be.
“It's in that vein, I think, that this judge is referring to climate change as not only a threat to the bodily integrity of these young plaintiffs, but, even more fundamentally, a threat to the very viability of ecosystems to provide food and shelter and so forth for citizens,” Parenteau says.
“In that sense, it’s at the outer edges, certainly, of constitutional theory, but the idea that American citizens should be protected from an existential threat like climate change is not really that far-fetched,” he concludes. “It is, after all, the fundamental duty of government to protect the citizens from existential threats — and that's exactly what climate change represents.”