Saturday, October 13, 2018

Can 21 Children do What No One Else Can? Maybe

As the Federal Government dithers and ignores the overwhelming evidence and consensus that humans are altering the climate through the use of fossil fuels, municipalities and states throughout the US have taken to the courts, suing fossil fuel producers including Exxon, Shell, and Chevron, seeking damages to pay for mitigation they will be or are being burdened with as the impacts of climate change continue.

Coastal cities up and down the West Coast, from Seattle to San Francisco as well as Boulder, CO, New York City and the State of Rhode Island have filed lawsuits.

The basic arguments in all these filings is that the oil companies knew for decades that their products were causing climate change, yet they actively worked to obfuscate the issue by "orchestrat[ing] a campaign of deception and denial regarding climate change" and thus externalize the environmental costs of their products.

The problem is that several of these lawsuits have been dismissed including those filed by San Francisco, Oakland, and New York, not because the judges did not think the problem is real, but they reasoned that climate change mitigation is a problem to be addressed by Congress and the President, not the courts.

But there is one lawsuit, filed in 2015, that is still going on, and is going to go to trial this fall, despite the best efforts of the Trump Administration to quash it. The defendant is the Federal Government and the plaintiffs are 21 young people, ranging from 11 to 22, who are suing the Federal Government with the goal of forcing the government to address climate change, because they will be irrevocably harmed if nothing is done. The plaintiffs are represented by a non-profit called Our Children’s Trust.

I should note that the suit started under the Obama administration and they too, fought the suit. In fact, the fossil fuel industry, in the guise of the American Petroleum Institute (API) and National Association of Manufacturers (NAM), volunteered to become defendants, in order to bring their legal weight to bear against the plaintiffs.

On July 30th, the US Supreme Court rejected the Administration’s last gasp request for a stay, and the trial will go forward.

The premise of the suit, Juliana v. US, is that the US Government knew for decades that “burning fossil fuels would destabilize the climate system” but continued to support the fossil fuel industry, ignoring recommended policies and plans of its own agencies and experts to address the issue. This assertion is not in doubt. Reports to the President going back as far as 1965 warned about impending global warming caused by fossil fuel use.

As a result of the failure to take action, the US Government has “. . . violated and continue to violate Plaintiffs’ fundamental constitutional rights to freedom from deprivation of life, liberty, and property; Plaintiffs’ constitutional rights to equal protection; Plaintiffs’ unenumerated inherent and inalienable natural rights; and Plaintiffs’ rights as beneficiaries of the federal public trust.”

In broad strokes, the Plaintiffs allege that their 5th Amendment rights to due process and equal protection; as well as 9th Amendment rights under the public trust doctrine are being violated by willful government inaction on a problem the US Government knew full well was happening.

What do the Plaintiffs hope to have happen should they win?

“Order Defendants to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”


Here is an interesting tidbit, a year ago, both the API and NAM requested, and were granted, permission to withdraw from the suit. They did not give reasons, but most observers think they did not want to be subject to discovery, which would surely provide damning evidence about their long history of purposely misleading the public regarding climate change. I also suspect they knew that if the case went forward, they were going to lose. I suspect the Trump Administration knows that as well.

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” - John Adams, 2nd President of the Unite States

Wise man, that Mr. Adams.

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