A group of California youth is suing a slew of government agencies, including the EPA, for failing to develop a plan of action against climate change.
The plaintiffs demand that the federal government immediately devise a climate recovery strategy to avoid 2 degrees C of warming above preindustrial levels. Commonly touted as the amount of flex room humans have before a deadly degree of climate change is unleashed across the planet, the threshold is something of a best-case-scenario at this point, according to researchers, who warn the planet is on track to reach twice that by the end of the century. What's more, a recent study by James Hansen, former director of NASA's Goddard Institute for Space Studies, cautions that even 2 C is too much if "young people, future generations and nature" are to be spared "irreparable harm."
With studies like these in mind, the case, which has made its way to the Washington D.C. Circuit Court of Appeals, invokes the public trust doctrine. Originating in the Roman concept of common property, the principle places the responsibility of protecting natural resources like water squarely on the shoulders of government, and represents the backbone of a revolutionary legal strategy known as Atmospheric Trust Litigation (ATL).
The brainchild of University of Oregon's Mary Wood, the faculty director of the school's Environmental and Natural Resources Law Program, ATL takes a "macro" approach to what Wood considers to be a "civilizational threat."
"Hurricane Katrina was a watershed moment for me," Wood, an expert in environmental law, told Nature World News. "I dropped everything to focus on what had been written on climate change."
What she found startled her.
"What stood out to me was just how urgent it all was because of these tipping points," she said in reference to scenarios characterized by researchers as points of no return. They include, for example, major shifts in ocean currents and atmospheric circulation, as well as changes in the ocean's temperatures and acidity - or, in other words, a rewiring of the Earth's various ecosystems, all with potentially catastrophic ends.
The more she read, the more Wood was impressed by the magnitude of the threat. "The scale of potential harm is almost inconceivable," she said. She immediately got to work retooling the public trust doctrine to fit the climate crisis. It didn't take much, she explained. The responsibility of government under the principle to protect waterways and wildlife is already well established by the courts. Applying the same concept to the atmosphere is hardly a stretch, she argued.
The result was ATL, a legal approach quickly adopted by individuals throughout the world.
The current D.C. court case, Alec L. v. McCarthy, includes five teenagers and the non-profit organizations Kids vs. Global Warming and WildEarth Guardians. Meanwhile, it is supported by more than 30 environmental and constitutional professors. "It's thoroughly vetted," Wood said.
Among the teens involved is Xiuhtezcatl Roske-Martinez, a 13-year-old climate activist who officially got his start at the age of 6 when he spoke at a rally in his hometown of Boulder, Colo., calling on individuals everywhere to take personal responsibility for their actions and the effect they had on climate change.
Raised in the Aztec tradition by his father, Roske-Martinez was taught that all life was sacred.
"Growing up I always felt connected to nature, to the mountains and forests in Boulder," he said. Realizing that his generation was on track to experience the brunt of climate change, Roske-Martinez decided to take action.
In the opposite corner is the EPA and Departments of Commerce, Interior, Agriculture, Energy and Defense. Speaking out on their behalf is the National Association of Manufacturers (NAM), which issued its own amicus brief arguing against not only the potential fallout should the plaintiffs win, but the very nature of the case.
The kind of changes the plaintiffs are demanding, the brief warns, "would have profound consequences for the Nation's economic development and productivity, social policies, security interests, and international standing."
Moreover, the NAM argues that the "unprecedented claim, presented under the guise of the 'public trust doctrine,'" has no place in federal court, but instead falls under state law. The brief cites the Supreme Court's 2012 opinion in the case PPL Montana, LLC v. Montana, which states that "the public trust doctrine remains a matter of state law" and that the "contours of that public trust do not depend upon the Constitution."
The brief adds: "In no case has any court ever invoked the doctrine to compel regulatory action by the federal government, much less adoption of a sweeping new regulatory agenda of the type sought by these plaintiffs."
Wood admits ATL is, in some regards, unprecedented - but then so are the times.
"There's no precedent because the courts haven't had to face the climate crisis."
Furthermore, she explained, just because the application of the doctrine in this precise context is unique does not mean the principles it represents are without precedent, as seen in courts determining that the public has a continuing right to water that the government must protect.
"There is a constitutionally-based, inalienable right to have essential resources protected for survival," Wood said.
She's not alone in defending the case's place in court. Karl Coplan, a professor at Pace Law School in New York, is one of 34 legal scholars who joined together to file an amicus brief in support of the plaintiffs.
"This case, which seeks to establish constitutional protections for future generations in the same way that Brown v. Board of Education established equal protection for African-Americans, may be the most important appeal the D.C. Circuit Court of Appeals hears for a very long time to come," Coplan wrote in a statement.
He added: "The sovereign Public Trust principles at issue in the case are part of the constitutional bedrock of our nation, recognized by our founders, and they support the conditions that our youth need in their future. We believe the Constitution was formulated to limit the power of one generation to undercut the endurance of the nation and deprive posterity of the conditions necessary for citizens to survive and prosper."
And according to a brief issued by James Hansen, along with other leading climate scientists, survival is precisely what hangs in the balance.
The brief cites rising sea levels, droughts, wildfires, loss of sea ice, an increasing rate of species extinctions and the acidification of the oceans as just a few items in a long list of currently apparent impacts of a warming planet.
"Unless action is undertaken without further delay, the continuing increase of atmospheric CO2 will drive Earth's climate system toward and past points of no return, with disastrous consequences for young people and future generations," they write.
For this reason, the scientists "urge this Court to remand with instructions for the United States to demonstrate that its plan of action would avert dangerous climate change and preserve a viable climate system. Such remand order by this Court may be the best, the last, and, at this late stage, the only real chance to preserve a habitable planet for young people and future generations."
Put more simply, Wood said: "The D.C. Circuit has the planet on its docket." Which is why Wood was dismayed when the court decided to cancel oral arguments originally set to be held May 2.
"It's almost inconceivable that they're not taking 40 minutes to hear it out."
The plaintiffs have filed a motion to reconsider.
Beyond this particular case, the OCT is awaiting decisions from the Alaska Supreme Court, the Oregon Court of Appeals and the Texas Court of Appeals, with a briefing continuing before the New Mexico Court of Appeals. In both Colorado and Pennsylvania, rulemaking petitions are pending, and according to Executive Director Julia Olson, others are "in the works." Beyond the United States, the group has a hearing April 30 in their Uganda ATL case and a case pending in the Netherlands even as others are being prepared in countries around the world.
But even some of the setbacks have been worth it, Olson said.
"We have had numerous successes in defeating jurisdictional defenses of governments and even in some initial losses in places like Arizona and Iowa, where the Court's have affirmed the basic premise of the cases and provided blueprints for moving forward," she said. "These were important stepping stone decisions."
Unlike Roske-Martinez, Olson isn't propelled out of concern for her own generation, but that of her children.
The mother of two boys, Olson describes growing up in the late 1980s, watching with "awe and joy" as the Berlin Wall fell and the "great weight of the Cold War was lifted."
"It was awe-inspiring. And yet, over 60 percent of the greenhouse gas emissions contributing to climate disruption have been emitted since that time. We are on the planet at this time to create the future we want for posterity. And we can't act quickly enough. That's what motivates me."
© 2021 NatureWorldNews.com All rights reserved. Do not reproduce without permission.