Teens File Lawsuits to Attack Climate Change

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Teenagers who want to make a difference are trying to use the legal system to force the government to address the controversial topic of climate change. Backed by Our Children’s Trust, an Oregon-based nonprofit dedicated to “securing the legal right to a healthy atmosphere and stable climate,” young people are working to file lawsuits or administrative petitions in every state and against the federal government seeking protection from the adverse impact of climate change. The thrust of the lawsuits is that federal and state governments have a legal obligation to implement policies that will protect the atmosphere by reducing greenhouse gas emissions.

The young litigants are represented in court by lawyers who work for environmental organizations. For example, the Western Environmental Law Center is helping kids press for science-based regulations in the State of Washington that would reduce carbon emissions. The Washington Department of Ecology responded that it is in the process of developing those rules.

Lawsuits in some states have been dismissed while others are moving forward. None of the suits, which depend upon the state’s application of the public trust doctrine, have yet been successful.

Public Trust Doctrine

The legal actions generally invoke the public trust doctrine, the ancient legal principle that some natural resources belong to the public and that the government, as the public steward, has an obligation to preserve and protect those resources for the public benefit. The shoreline between high and low tide is a traditional example of a resource that is part of the public trust, regardless of private ownership of coastal property.

Courts have invoked the public trust doctrine to prohibit private ownership of navigable waters. Some states have extended the doctrine’s reach to protect groundwater. The degree to which the public trust doctrine applies to resources other than public waters is not always clear. Although some legal scholars contend that the atmosphere falls within the realm of the public trust doctrine, some courts have held that the public trust doctrine protects water, not air.

Equally unclear is whether the public trust doctrine creates a judicially enforceable right to demand the protection of natural resources when the government is perceived as failing to meet that obligation. While the government’s general duty to act for the public benefit is usually enforced by electing representatives who serve the public’s will, some legal scholars have argued that courts can order the government to carry out its duty as a trustee of public resources even if elected representatives are unwilling to do so. Still, courts are usually reluctant to interfere with legislative judgments about environmental issues, declaring the need for environmental regulation to be a political question that should be resolved by legislatures, not courts.

Legal Hurdles

The young plaintiffs face an uphill battle. Their lawsuit against the federal government was dismissed on the ground that the public trust doctrine does not provide the basis for a federal remedy and, even if the doctrine applies to the federal government, it has been preempted by the Clean Air Act. They face similar preemption challenges to their state court lawsuits.

Another legal hurdle is the difficulty of establishing standing to bring the lawsuit. As a general rule, an individual only has the right (or “standing”) to bring a lawsuit if that individual has been harmed or is otherwise aggrieved by the actions of the person being sued. In the early 1970s, Christopher Stone wrote Should Trees Have Standing in response to court decisions holding that the Sierra Club had no standing to protect a valley from development because the valley had no right to exist in its natural state. The book was popular and influential, but Stone’s notion that the environment should be vested with legal rights was never adopted by courts.

The teens make the point that they (and others of their generation) will be adversely affected by climate change if measures are not taken to slow or reverse global warming. Whether that potential harm is sufficient to confer standing is unclear.

Teens Fighting for Change

Whether or not the lawsuits will ultimately provide a remedy, they have been taken seriously by industries that oppose environmental regulation. The National Association of Manufacturers and trade organizations representing the transportation industry have opposed the lawsuits on the ground that environmental regulations aimed at reducing global warming would harm “industrial and economic productivity” and “global competitiveness.”

The kids, on the other hand, argue that their interest in living long, healthy lives outweighs the short-term desire of business owners to maximize profits. Even if the teens who bring climate change lawsuits do not prevail in courts of law, they may prevail in the court of public opinion by raising awareness of a global problem.

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