From The Intelligent Optimist
Summer 2016
In what could be a growing movement, courts in the United States and the Netherlands are siding with environmental activists who argue that governments that promote fossil fuel use and development are violating environmental laws and constitutional rights, particularly of younger generations.
In a significant ruling in April, climate scientist James E. Hansen and 21 young plaintiffs won a major victory in their effort to sue the United States government and the fossil fuel industry. Hansen and his co-plaintiffs, aged 8 to 19, successfully argued in Oregon federal court that their constitutional climate change case should go forward.
The lawsuit, called “unprecedented” by the judge, is part of an effort led by the Oregon nonprofit Our Children’s Trust. The plaintiffs, who also include environmental activist groups, argue that the federal government is “violating their constitutional rights to life, liberty and property, and their right to essential public trust resources by permitting, encouraging and otherwise enabling continued exploitation, production and combustion of fossil fuels.”
The complaint alleges that for decades the U.S. government has ignored its extensive knowledge of climate change and the experts it commissioned to evaluate the dangers posed by continued fossil fuel burning.
U.S. Magistrate Judge Thomas Coffin of the federal district court in Eugene upheld the plaintiffs’ claims. His ruling noted that the federal government’s action and inaction regarding climate change could severely impact a discrete class of society, namely younger and future generations who will inherit the negative consequences, while allowing “present (and older) generations to reap the economic benefits of higher carbon emissions.”
Coffin wrote, “If the allegations in the complaint are to be believed, the failure to regulate the emissions has resulted in a danger of constitutional proportions to the public health.”
The plaintiffs now have the right to prove how the government may have harmed them through its policies on fossil fuels and their release of harmful carbon dioxide emissions.
In addition, the Oregon case invoked the concept of harm to natural resources held in the public trust, a doctrine that also guides the Clean Water Act. The court found that the federal government is subject to the public trust doctrine. The judge further interpreted the plaintiffs’ complaint as “a novel theory somewhere between a civil rights action and a NEPA [National Environmental Policy Act]/Clean Air Act/Clean Water Act suit to force the government to take action to reduce harmful pollution.”
The Oregon case also noted a Dutch court’s decision last year to accelerate efforts to reduce global warming to protect citizens of that country. On June 24, 2015, a district court in The Hague ordered the Dutch government to reduce greenhouse gas emissions by at least 25 percent by 2020. The Urgenda Foundation v. The State of the Netherlands case is considered the first climate liability suit brought under human rights and tort law. Nearly 900 plaintiffs initiated the case in 2013, aiming to force the Dutch government to adopt more stringent climate policies.
The impact of the Dutch case already is spreading. Legal proceedings began in Belgium, where the nonprofit Climate Case is pressuring the government to significantly reduce greenhouse gas emissions by 2020.
As lawsuits continue to wind through the courts, environmental activists, while they cite their landmark victories to date, acknowledge the enormous task before them.
“The science is clear that if we do not obtain the relief we seek in this case, our climate system will be irreversibly and catastrophically damaged,” said Julia Olsen, counsel for the Oregon plaintiffs and executive director of Our Children’s Trust. “Now these young plaintiffs have the right to prove that the government’s role in harming them has been knowing and deliberate for more than 50 years.” | Valli Herman
