Chris Tavenor, General Counsel, January 9, 2018
Each day, environmental cases flood the U.S. court dockets and businesses develop innovative sustainable inventions. It’s impossible to keep up with them all! The Law Center at the Ohio Environmental Council wants to help you stay up to date by sharing important environmental problems facing Ohio and the United States. Each blog in our series will highlight critical court cases and a “breakthrough technology” that could transform state and national energy and environmental policy for years to come.
A few years ago, the organization Our Children’s Trust (OCT) filed an ambitious federal lawsuit against the Executive Branch of the United States. You might have heard about this case in the news – it has made national headlines many times, from the Guardian and CNN to CBS and NBC. In 2016, the District Court denied the federal government’s motion to dismiss the case before it even reached trial – the Judge stated that she believed that a cause of action existed for the young plaintiffs! We won’t go over everything in this case, but we want to give you a brief look at the bold arguments made by OCT. If you’d like, you can read their full complaint.
Claim 1: The U.S. Government has had knowledge of anthropogenic climate change for many years. OCT supports this argument with an extensive review of historical documents. For instance, they cite a 1965 report to President Lyndon Johnson that states that anthropogenic pollutants like carbon dioxide “threaten the health, longevity, livelihood, recreation, cleanliness, and happiness of citizens who have no direct stake in their production, but cannot escape their influence.” This knowledge claim acts as a foundational element of the other claims.
Claim 2: The Federal Government must sustain public land, the atmosphere, and the ocean for future generations. OCT bolsters this bold claim by arguing that the federal government has assumed responsibility for the environment for future generations through statute. Consider 42 U.S.C. §4331(b)(1), which states that the federal government has “continuing responsibility” to “use all practicable means” to “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.” They also cite U.S. agencies and commissions, like the State Department, which stated it has “an obligation to current and future generations to take action” on climate change. If you want a more indepth look at this novel legal argument, consider reading Nature’s Trust, by Oregon law professor Mary Christina Wood.
Claim 3: The Federal Government has a special relationship with children because they cannot vote, and will be especially harmed by the worst effects of climate change. Essentially, OCT argues that because children have no political power, and because climate change will disproportionately affect their lives, the U.S. government has a special relationship with kids. Because the U.S. government has been “deliberately discriminating against children and future generations in exerting their sovereign authority over our nation’s air space and federal fossil fuel resources for the economic benefit of present generations of adults,” it has violated that special relationship with children and must provide relief for those same children.
Relief Requested:The Federal Government must prepare a national climate plan that will safeguard the climate for future generations. OCT provides an extensive list of federal actions which support the fossil fuel industry. OCT believes these actions go beyond just a failure to implement laws that limit fossil fuel extraction and combustion. For instance, they reference extensive federal approval of fossil fuel production on federal public lands, similar to the issues now facing Ohio in the Wayne National Forest. Likewise, they emphasize U.S. subsidies that favor fossil fuel exploitation along with the federal government’s decision to allow “interstate and international transport of fossil fuels.” Thus, because the federal government has extensive control over climate policy, OCT requests the court to order the federal government, similarly to how the courts ordered schools to desegregate following Brown v. Board of Education, to develop a “remedial plan” that will “stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”
So what comes next?
Just a few weeks ago, the 9th Circuit Court of Appeals heard oral arguments for the Trump Administration’s Writ of Mandamus, an extraordinary action to take against a case that hasn’t even reached trial. A Writ of Mandamus is intended as a means of last resort when you believe that something has occurred that should not legally occur, but no other avenues for legal resolution exist. During oral argument, the judges seemed to push back hard against the government on this claim, stating that a Writ of Mandamus isn’t the correct avenue to overturn a Motion to Dismiss.
If the Writ fails, the case will move back to the district court. But even after a trial, either party will probably appeal the decision back to the 9th Circuit Court of Appeals, and most likely on up to the Supreme Court. But just like any other monumental case – OCT compares their arguments to those of Brown v. Board of Education and Obergefell v. Hodges – achieving a momentous and historic win requires years of hard work. We suggest keeping your eyes on Juliana v. United States.
Technology Highlight – A Hyperloop running through Columbus?
A few years ago, Elon Musk made headlines by proposing a radical new form of transportation, known as a “hyperloop.” Some people thought the idea was crazy, but many companies have latched onto the idea and have engaged with cities and states to implement the technology. If you’ve not heard, take a look at the “Midwest Connect Hyperloop Proposal”; the Mid-Ohio Regional Planning Commission developed it for the Hyperloop One Global Challenge. Maybe someday we can travel from Columbus to Chicago in just a few minutes!