Cheryl Gilmore: The children lead on climate


It may be that the U.S. leaders currently charged with governing in the public interest have gone AWOL on climate change, but our children have taken note and stepped in to fill the void.

They’re well aware that it’s their future being recklessly gambled away, and they’re not about to take that sitting down.

Beginning in 2011, young people from around the country filed lawsuits or petitions for administrative rule-making in all 50 states to promote science-based action to restore the climate.

Their legal actions, backed by Our Children’s Trust and others, were variously addressed by the courts and administrative agencies and are in differing stages of development.

So far these state actions have produced wins in Washington, New Mexico, and Massachusetts – and multiple other cases are pending.

New Mexico’s Court of Appeals ruled that its Constitution establishes the state’s public trust responsibility to protect the atmosphere, which is the first time any state appellate court has done so.

Massachusetts’ Supreme Judicial Court ordered the state’s Department of Environmental Protection to establish regulations setting limits on greenhouse gas emissions that would decline annually. A similar ruling was made in the Washington State climate lawsuit.

The big story, though, is the federal lawsuit initiated in 2015 by Our Children’s Trust against the Obama administration – Juliana v. United States. Environmental activists and authors Bill McKibben and Naomi Klein call it the “most important lawsuit on the planet right now.”

Twenty-one young people ages 9 through 20 from across the country claim that their future rights to life, liberty and property are threatened because – although the government knows burning fossil fuels causes climate chaos – it continues to take actions that promote fossil fuel use.

The lawsuit demands that the federal government put a plan in place to reduce emissions to safe levels by 2100.

“What we’re looking at is for the court to set a constitutional standard for protecting these kids’ rights that’s based on scientific evidence,” explains Julia Olson, the plaintiffs’ chief counsel.

In January 2016, three trade associations representing nearly every fossil fuel-related company in America – the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers and the American Petroleum Institute – were allowed to join the case as defendants. They claimed that the case posed a direct, substantial threat to their businesses.

All the defendants then filed motions to dismiss the case, but in April 2016 U.S. Magistrate Judge Thomas Coffin recommended that all motions to dismiss be denied. The defendants objected, and in September, U.S. District Court Judge Ann Aiken heard oral arguments on those objections.

In November she denied the requests to dismiss. In February 2017, the youth filed notice with the court that they would be replacing Obama with Trump, and immediately all defendants filed motions to appeal Judge Aiken’s decision.

Early this month, the Trump administration threatened to seek a ruling directly from the Ninth Circuit Court of Appeals if Judge Aiken’s Oregon court didn’t issue a decision on the appeal before June 9.

Judge Aiken denied the appeal, putting the plaintiffs one step closer to trial. A few weeks earlier, the three trade associations had filed motions to withdraw from the case – just as crucial discovery was required, asking them to state their positions on climate science. The court has yet to rule on their motions to withdraw.

The Trump administration’s latest desperate attempt to derail the lawsuit is a writ of mandamus petition, filed on June 9 with the Ninth Circuit Court of Appeals, asking for a review of Judge Aiken’s November 2016 decision and a “stay of proceedings in the district court” while the Ninth Circuit considers its petition.

This is an extremely rare procedure “reserved for the most extraordinary and compelling situations in which ordinary rules of appellate procedure must be overridden to avoid a manifest injustice,” says Douglas A. Kysar, professor of law at Yale Law School.

“For the Trump Justice Department to even seek a writ of mandamus in the current context is offensive to Judge Aiken, to the entire federal judiciary, and, indeed, to the rule of law itself.

“The writ should not be granted and we should all question why the Trump administration’s lawyers are willing to try such a trick rather than forthrightly defend the case.”

The fossil fuel industry and the federal government lining up against 21 kids! It’s a modern David and Goliath scenario – but so far David’s looking pretty good. We may ultimately have the children to thank for a livable world.


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