When the Declaration of Independence was forged by Thomas Jefferson and James Madison, the rights to life, liberty and pursuit of happiness were enshrined as “unalienable.” If a group of young people known as the “Climate 8” get their way in a lawsuit being heard in King County Superior Court, the right to a stable climate system could be one step further to being as “unalienable” —at least under Washington state law — as any conceived by the founding fathers.
The founders wrote that “governments were created to protect” the rights given to all human beings “by their creator.” The idea that a stable climate system is a right that governments must protect for young people, in particular, is currently being tested in the courts in Washington, several other states, and a federal court. Some of the states’ courts have rejected the efforts.
The local lawsuit, filed on behalf of eight teens and tweens in Washington, argues that the state Department of Ecology has a mandatory duty to protect natural resources for future generations and come up with tough new standards for cutting carbon emissions. Oral arguments in the case were heard early this month. Attorney Andrea Rodgers with the Western Environmental Law Center, lead attorney for the Climate 8, says a scientific prescription for the planet has been developed by scientists like Dr. Richard Gammon at the University of Washington and James Hansen who calculated the kinds of reductions needed to prevent catastrophic degrees of global warming.
“There's a lot of work to do,” says Rodgers. “Washington scientists calculated the state needs to reduce greenhouse gas emissions by 4 percent a year beginning in 2015 through 2050,” she adds. The lawsuit asks Ecology to adopt a rule for an effective emission reduction strategy based on the “best available climate science” and recommend it to the Legislature. The 2008 Legislature set targets for carbon limits, but the state has not taken binding action to achieve the goals.
Lawsuits similar to the Climate 8 are pending in Oregon, Massachusetts, Colorado and North Carolina, according to Our Children’s Trust, which has organized efforts in another half-dozen states as well. New Mexico's Court of Appeals ruled that the state's constitution establishes the state's public trust responsibility to protect the atmosphere. The idea of securing young people's legal right to a stable climate system and forcing governments to act was the brainchild of attorney Julia Olson, founder of Our Children's Trust. Olson says young people are disproportionately impacted by the decisions made by adults because they'll bear the brunt of the impacts, can't vote, and don't have money to lobby.
Olson came to Seattle for the hearing this month and is optimistic that the court in Washington may issue a favorable ruling. A Seattle Weekly story suggested that the court progress so far on the suit is unique among the states where suits have been filed.
A federal lawsuit was filed against the Obama administration on similar grounds but the government has filed a motion to dismiss. Olson says Our Children's Trust will appeal.
The Obama administration is resisting without saying much about its reasons. Similarly, Keith Phillips, Gov. Jay Inslee's Special Assistant on Climate and Energy, did not return a request for comment.
In an interesting twist, fossil-fuel companies, including Exxon and Shell, and a host of business groups have filed a motion to support the Obama administration on the case, saying it could cause economic upheaval, according to MSNBC. Most national media reporting have questioned the likelihood of state and federal lawsuits, but as a new Slate article suggests, some see the cases potentially “energizing” action by the president, Congress or state governments.
This summer, Inslee directed the Department of Ecology to begin rule-making to cap and reduce greenhouse gas emissions after a high profile failure to convince the Legislature to pass a cap and trade program. The governor also met with some of the youth and attorney Rodgers over the summer. The agency is expected to issue its own initial proposal for public review by the end of the year, with a final rule expected in summer 2016.
Stuart Clark, Ecology air quality program manager, says the new rule, which will cap 60 percent of emissions in the state, may not be as stringent as the youth lawsuit seeks, but it will cover large industrial emitters, petroleum producers and natural gas distributors. Where Ecology appears to differ strategically with the lawsuit is whether they have an immediate obligation to use “the best available science” absent a law by the Legislature or order from Inslee. December's climate talks in Paris, says Clark, will include recommendations from scientists about how much greenhouse reduction is necessary to achieve climate stability. They “will inform us about what our fair share of that is,” he said. Until then the agency is going forward with the rule making requested by the governor.
At this month's hearing for the Climate 8 lawyers for the youth asked King County Superior Judge Hollis Hill to order Ecology to use the “best available science.”
Mary Wood, a noted environmental law scholar at the University of Oregon, says the children's right to a stable climate system is a fundamental one that goes back to the public trust doctrine, a legal principle with roots in early Roman law. The doctrine holds that the public has “property rights to natural resources critical to survival” – water, land, shorelines, and even the atmosphere, says Wood. Moreover, she says, “this has been interpreted as a constitutional principle with constitutional implications in the sense that it holds even legislatures accountable and certainly agencies like the Department of Ecology.”
As Wood sees it, children going to the courts is not so much a tactic as a legal campaign about children going to court and “asking the court to perform its role and enforce their fundamental rights under the public trust doctrine by protecting resources critical to their survival.”
Others, though, see little possibility that the courts provide an answer to climate questions. Todd Myers, Environmental Director of the free market-oriented Washington Policy Center, says the lawsuit is “unscientific and ill-informed” and adds “more politics when we really need less.” He says the children “are being used by activists.”
The young plaintiffs involved in the lawsuit give many reasons for joining the lawsuit. Many are members of local chapters of Plant-for-the Planet, a global movement with an ambitious goal of fighting climate change by planting trees around the world. Athena Fain, an 11-year-old at Hamilton International Middle School in Seattle, worries that the orcas she loves may be extinct in 20 years with hotter than normal waters like those the region experienced this summer becoming the norm and further impacting the salmon they rely on.
Wood, the University of Oregon scholar, says governments are nearly out of time to make deep carbon cuts before irreversible thresholds are passed. The world has reached a tipping point, she says, creating emergencies and lawsuits like those by the Climate 8. “In other words there's a window of opportunity that creates the urgency and it's not as if government has not known of this problem for decades. It's an emergency really of the government's own making by neglecting the problem for decades.”
When asked how she thought the judge would rule in the case, Climate 8 attorney Rodgers said she's not a betting woman. “I'm a lawyer. It's a hard case to force the agencies to do something that many believe is impossible.” She pauses briefly in a corridor at King County Superior Court before adding, “The only people who don't believe it's impossible to draw down our greenhouse gases are the kids. That's why they brought this case.”