In the late summer of 2006 the then eight month’s pregnant Oregon Lawyer and mother Julia Olson found herself seeking shelter from the August heat in an old-time movie theatre. In doing so she happened to choose one that was at the time playing the former American Vice President Al Gore’s movie ‘An Inconvenient Truth’. Olson was at this stage an environmental lawyer so she was not unfamiliar with the basics of climate science but the movie made her think about her unborn child and what the state of the world that he and his slightly older brother would inherit from her own generation. This thought was to be the catalyst for Olson along with the organization that she helped form, Our Children’s Trust as well as five teenagers and two other non-profit organizations to file a 2011 Federal lawsuit against the American Government on behalf of the younger generation (Alec L. v. McCarthy1). In the process of doing so she had enlisted the support of one of the United States foremost climate scientists, James Hansen then working at NASA but now at Columbia University. And so this was the beginning of a now five year legal battle to extract justice from the current generation for the next generation’s inheritance of what is quite clearly going to be an inferior environment. In effect their claim was on the Public Trust Doctrine that they submit requires that the US Government protect and maintain survival resources for the next generation including particularly the atmosphere. They have been represented, pro bono, by Cotchett, Pitre & McCarthy, LLP the Burlingame, California, law firm of former U.S. Republican congressman Paul "Pete" McCloskey and by their own in-house team of lawyers.
The decision not to allow this case to go forward at the Federal level was affirmed in the United States Court of Appeals by Garland, Srinivasan and Ginsburg and their decision (filed June 5, 2014) backed up the District Court view that it did not qualify for Federal jurisdiction essentially therefore sending the case back to State level. As well as the existence of a somewhat contradictory ruling in 20112 (in which Ruth Bader Ginsburg said that the existence of the U.S. Clean Air Act meant that States could not decide such issues) there has also been dissent on this decision on its own merits. Michael C. Blumm and Lynn S. Schaffer wrote that the decision was over-reliant for its precedent3 on cases that had referred to the 1892 Illinois Central Railroad v. Illinois4 case and that consequently this decision (along with the previous decisions referred to) was in error as it was based on a misreading of the same case. Further they stated that there was in reality little precedent for the decision and a lot of precedent on the other side of the decision (i.e. precedent that would have affirmed Federal jurisdiction). These authors also note the seemingly cursory way that United States Court of Appeals decision was handled (it is worth paying attention to the footnotes on this paper as these accusations are big hints as to what the authors really think of those who made the ‘decisions’. Freedom of speech, even in democracies, is far from absolute5.). The Supreme Court then denied certiorari (a type of appeal) on December 8, 2014 stopping this case from going any further and confirming the courts view that it was a state issue6. Our Children’s Trust had helped to facilitate litigation in the 50 States at the same time as they had taken the Federal action so that was now the focus for the non-profit organization albeit they were also supporting action in Ukraine7.
In the action at State level “depending on the circumstances of each state, either a lawsuit was filed in court, or a petition for administrative rule making was brought before the appropriate state agency”. In most cases in the various States the petitions were denied fairly quickly by the various State Environment Departments. In most cases the Energy Industry has joined with the Government in defending the litigation as they have Federally too. Currently there are actions proceeding in the States of Colorado, Maine, Massachusetts, Oregon, Pennsylvania and Washington. In Colorado there is widespread community support of the petition for rulemaking by Our Children’s Trust supported action that currently involves six youth including Xiuhtezcatl Martinez who has spoken on Climate Change to the United Nations. The petition covers fracking as well as environmental concerns including those with the atmosphere. This petition was refused (in February 2016) by the Denver District Court Judge J. Eric Elliff . This was after an earlier Judge (Andrew P. McCallin) had denied the same request from the Colorado Oil and Gas Conservation Commission. Consequently the petition is now in the appeal process, the outcome it would seem may depend somewhat on the Judge who hears it. And in May of this year the Supreme Judicial Court in Massachusetts found in favour of the Children’s Trust supported plaintiffs which in turn may have encouraged a group in Maine to petition again after an initial 2011 ruling that went against them. On the other hand a recent decision in Pennsylvania has gone against the Our Children’s Trust supported minors. In the last state of these six, Washington, a decision has yet to be decided.
In the meantime twenty-one youth supported by Our Children’s Trust took Federal action once again, this time by filing a lawsuit at the U.S. District Court for the District of Oregon. This time the Federal action was successful and on April 8, 2016, U.S. Magistrate Judge Thomas Coffin ruled in the plaintiffs’ favour.
The case is now under review by Judge Ann Aiken after oral arguments were given in September and she has promised to make a decision on whether it proceeds or not within 60 days, which should mean the decision is out by mid-November. Hopefully the election of the President on the November 8, 2016 doesn’t make such a decision a moot one.
References
These were originally footnotes
44 ELR 20130, No. 13-5192, (D.C. Cir., 06/05/2014)
VOA, Top US Court Rules States Can't Sue Utilities Over Emissions
http://www.voanews.com/a/top-us-court-states-cant-sue-utilities-over-emissions-124213894/169671.html
Precedent is the use of decisions in previous and similar cases to affirm decisions in the current case. Not all precedents are equal, some are considered good and some are considered bad.
146 U.S. 387 (1892)
Alec L. ex rel. Loorz v. McCarthy, 135 S. Ct. 774 (2014) (mem.), denying cert, to 561 Fed. Appx. 7 (D.C. Cir.), aff'g Alec L. v. Jackson, 863 F. Supp. 2d 11 (D.D.C. 2012).
Our Children’s Trust/Global Legal Actions/Ukraine
Juliana, et al v United States of America, et al
#climatechange #jameshansen #childrenscase #ourchildrenstrust #intergenerationaljustice