By Heather Hansen, Red Lodge Clearing House
A few weeks ago, a band of juvenile activists made headlines around the country when they, with the help of some eager adults, filed lawsuits demanding our nation’s leaders do their part to reduce carbon dioxide in our atmosphere.
Two 11-year-olds in Boulder signed onto the Colorado suit, which claims that, “Our children and our children’s children will suffer the harms and losses caused by the state’s lack of necessary action.” When asked about the lawsuit, one of the kids said, “Right now, our governments are not protecting our planet; they are just destroying it. I want to make sure my planet is habitable for future generations so we won’t be stuck with this mess.” Both Boulder youths specifically reference an up-tick in wildfires and a decline in air quality, recreational opportunities and aesthetic appeal of their changing western landscape as reasons they’ve brought their battle to the courts.
The suits are intriguing in a couple of ways. First, rather than being based on state or federal statues, they rely on the common-law doctrine of “public trust.” The theory is hardly new—it’s been used to safeguard wildlife and waterways for over a century—but it has never before been applied to the atmosphere (although law professor Mary Wood suggested the idea in an HCN interview in 2008). The idea is that our atmosphere is a public resource, worthy of special protection and, as trustees of that resource, our government has failed in its duty and should be held accountable.
The argument shows imagination, for sure, and optimism. Convincing any court of the viability of their cases, however, will require establishing a new legal standard, which is highly unlikely.
Last month, the Supreme Court heard oral arguments on a similar suit—American Electric Power Company Inc. vs. Connecticut—a landmark global warming case, in which several states are suing a handful of utilities based on the idea that their carbon emissions are causing a “public nuisance” that hurts the environment and the health of their citizens by changing the climate. (Collectively, the five companies emitted 650 million tons of carbon dioxide into the atmosphere, or about 10 percent of all US emissions in 2004, the year the suit began.)
Despite the fact that the concept of public nuisances, like light and noise pollution, are a long-standing fixture of common law, the case is hardly a slam dunk. In their comments, even the most liberal Justices sounded skeptical of the courts’ role in regulating GHGs, and basically punted the responsibility of tackling climate change back to federal regulatory agencies. They eluded to their 2007 ruling that said, if the Environmental Protection Agency (EPA) concluded that GHGs threaten human health, it could regulate them under the Clean Act. Two years later, the EPA determined just that, but has yet to actually limit GHGs in any way.
The federal public trust case to mitigate climate change, filed in U.S. District Court in California on behalf of non-profits Kids vs. Global Warming and WildEarth Guardians and several individual children, points out that our leaders fully acknowledge that climate change is a threat to the public. The suit names as defendants the EPA, the Department of Defense and the Department of the Interior, among others.
The complaint quotes the DOI as having said, “Climate change is affecting every corner of the American continent,” and the EPA as having said, “Greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare.” Current Chariman of the Joint Chiefs of Staff, Admiral Mike Mullen has stated, “Whatever the root cause, climate change’s potential impacts are sobering and far-reaching.”
And still, the concentration of atmospheric carbon dioxide continues to climb.
So what’s a group of civic-minded minors to do when their leaders admit the existence of a problem, and have the authority to affect change, but continue to refuse to do anything? They tear themselves away from American Idol to start non-profits, while still in grammar school, drawing attention to the issue (as some of these kids with extensive activist resumes have done); they ask their neighbors to sign petitions; they picket on the steps their state capitols; and, when none of that spurs their leaders to action, they sue.
Critics call the public trust lawsuits frivolous, at best, and, at worst, albatrosses that could jam up the courts and spawn excessive regulations. They suggest it’s cruel to raise the hope of these idealistic youths in the face of an unwinnable war.
Despite knowing these lawsuits are a long-shot, I’m sticking with the Monkey Bars Gang.
Today’s youth are standing in the road with a bus barreling towards them (Admiral Mullen, for one, warns of impending humanitarian crises brought on by climate change). Even if we stopped using fossil fuels cold turkey, we’re committed to a certain amount of change already ‘in the pipeline’.
Court victories wouldn’t stop the bus, but they might slow it down some, by forcing greenhouse gas regulation. Assuming no one brought these, or any, children into the world intentionally to suffer, we owe them that much.
Essays in the Range blog are not written by High Country News. The authors are solely responsible for the content.
Heather Hansen is an environmental journalist working with the Red Lodge Clearinghouse /Natural Resources Law Center at CU Boulder, to help raise awareness of natural resource issues.
Image courtesy iMatterMarch.org.
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