A dramatic new plan to fight climate change: Sue the federal government

A new federal lawsuit alleges that the US government 'violated the youngest generation’s constitutional rights' by enabling climate change.

Chris Pietsch/ The Register-Guard via AP
Demonstrators carry a model of the earth past the front of the US District Court in Eugene, Ore. on Tuesday, Sept. 13, 2016, as a group of young plaintiffs wait to meet inside the courthouse in order to keep alive their climate change lawsuit vs. the US government.

If you want something done right, sometimes you have to do it yourself.

That’s the mindset behind a new federal lawsuit, filed by climatologist James Hansen and legal advocacy group Our Children’s Trust. The suit alleges that the US government “violated the youngest generation’s constitutional rights” by enabling climate change. On Tuesday, Dr. Hansen published a new research paper offering scientific support for the case.

Political affiliation plays a major role in the way Americans perceive climate issues, recent studies find, and that polarization holds true among the country’s highest legislative powers. Could citizen litigation cut a valid path forward?

Hansen’s latest study, which is still under review by the journal Earth System Dynamics, isn’t particularly significant for its specific findings. Instead, the paper's value lies in its scope – it compiles various sources of existing research into a single document – and its clear, simple language.

“Jargon is a real problem that we scientists have in communicating with the public in general. We just aren't very good at it,” Hansen tells The Christian Science Monitor in an email. “When I was the director [of NASA’s Goddard Institute], I required the scientists to try to write a short summary of their published papers such that their mother would be able to understand it.”

“This was not always successful,” he adds. But when it is, scientific clarity can give a considerable boost to legal arguments for environmental action.

And litigation can be a powerful tool for environmentalists. In 2007’s Massachusetts v. Environmental Protection Agency, the Supreme Court found that the EPA was responsible for regulating greenhouse gas emissions. The petitioners, which included 11 other states and several US cities, cited the 1963 Clean Air Act as the legal basis for their argument.

“The courts have been very important in implementing environmental policy – when Congress has passed a law they can apply,” Michael Gerrard, a professor of environmental law at Columbia University, tells the Monitor in an email. “The Supreme Court's 2007 decision … has been the foundation for most of the actions the Obama administration has taken on climate change.”

The approach wasn’t unique to the US court system, but its outcome was unusual. Only a handful of other cases, such as the 2015 Urgenda Foundation’s lawsuit against the Netherlands, have achieved similar success via the court system. 

But a victory in court doesn't necessarily translate quickly into effective environmental results, says Justin Gundlach, a climate law fellow at Columbia’s Sabin Center for Climate Change Law, in a phone interview.

“Yes, the Bush administration EPA lost that case,” Mr. Gundlach says. “But what followed wasn’t a quick effort on the part of the EPA to go regulate greenhouse gas emissions. They promulgated an ‘Advanced Notice of Proposed Rulemaking’ that sought input from stakeholders, and the administration left office before they got any further than that. There’s a lot of flexibility in government to hear what a court says and say, ‘Oh yeah, we’re working on it.’”

Meanwhile, Hansen and colleagues hinge their case on a lofty question: does the federal government have a constitutional responsibility to leave a “viable climate system” for future generations?

“It is the most fundamental concept in our Constitution and even our Declaration of Independence: all people have equal rights,” Hansen says. “They all have equal protection of the laws and cannot be deprived of life, liberty or property without ‘due process’ of law.”

Climate scientists have long warned that warming trends continue, general quality of life will drop on the global scale. Coastal communities are particularly vulnerable, facing certain property loss if sea levels continue to rise. And the youngest generation, Hansen says, will be footing the bill.

But with few clear legal precedents to draw from, the odds may be stacked against Hansen and Our Children’s Trust.

“The courts have been much less willing to act when there is no clear statutory basis,” Mr. Gerrard says. “No federal court has found a constitutional right to a clean environment. If this lawsuit succeeds and survives appeals, it would be a revolutionary development. But I wouldn't bet the farm on that happening.”

Regardless of the outcome, Hansen and colleagues acknowledge that litigation isn’t the only solution. Sometimes it’s the debate, rather than the outcome, which holds the power to create change.

“I think that it is essential, because our Congress and even the executive branch of government are so strongly under the influence of the fossil fuel industry,” Hansen says. “However, it is not enough. People concerned about climate change need to affect the political process.”

“I would hope that people would look at this and find that it’s something worth paying attention to,” Gundlach says. “My concern, of course, is that it’s a court case. It’s one side versus the other, and the way such things tend to be covered is like a sporting event. That’s always the risk when you litigate over anything, that the substance of the argument falls by the wayside and the attention is paid to who’s in the lead.”

Editor's note: This article has been updated to clarify the legal precedent for the Our Children's Trust lawsuit.

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