Project Report:
Atmospheric Trust Campaign
Juliana v. U.S. Public Rally

Purpose
- Explores and develops market-based solutions.

Summary

Our Children’s Trust (OCT) is a non-profit public interest law firm representing youth around the globe in constitutional, public trust, and human rights legal actions to secure their binding legal rights to a healthy atmosphere and stable climate. This legal work – all guided by constitutional, public trust, human rights laws and the laws of nature – aims to secure systemic climate mitigation planning and remedies at federal, state, and global levels. We seek legally-binding, country and statewide science-based Climate Recovery Plans that will return atmospheric carbon dioxide concentrations to below 350 parts per million (ppm) by the year 2100: the scientific prescription necessary for a safe climate system.

The 21 Juliana v. U.S. Youth Plaintiffs
The 21 Juliana v. U.S. Youth Plaintiffs

Description

We are making calculated progress in the legal actions we lead across the globe to secure systemic and science-based mandates to resolve the climate crisis.

Presently, we have cases advancing in the U.S. federal courts against the U.S. government, in state courts against the state governments of Alaska, Washington, Montana, and Florida, in global domestic courts against the Canadian, Mexican, Indian, Pakistani and Ugandan governments, as well as several cases in active development in multiple other states and countries.

Much like the frame-changing cases in Brown v. Board of Education, where youth seeking constitutional mandates that governments no longer segregate schools were initially denied relief by the lower courts, but after advancing their constitutional cases through the orderly judicial process, were ultimately vindicated; our youth plaintiffs are also advancing their cases through orderly judicial processes, seeking constitutional mandates that their governments must no longer exacerbate the climate crisis that threatens their lives, liberties and property. Like the lower courts and judges in the Brown v. Board of Education cases, not all the lower courts and judges have ruled in our youth plaintiffs’ favor. However, our youth plaintiffs have received validation of claims and constitutional entitlements from two lower court judges and other judges around the nation.

The U.S. District Court has ruled in the youths’ favor. U.S. Court of Appeals Judge Staton has ruled in their favor. Oregon Supreme Court Chief Justice Walters has ruled in their favor. And several other lower state and global courts have similarly ruled in their favor. And, like Brown v. Board of Education, where the dissenting opinion of Judge Harlan in Plessy v. Ferguson ultimately became the law of the land, and where critical constitutional protections of fundamental rights were confirmed, we are optimistic that the decisions in our favor to date, including powerful dissenting opinions, will become the law of the land in time to spare future generations the worst of the climate crisis that ALL courts acknowledge is imminent.

Our complementary film, media, and curricular efforts that help build public awareness of these youth-led legal actions are also advancing in step with our legal campaign.

“THE MOST IMPORTANT LAWSUIT ON THE PLANET”

In our lead case, we represent 21 young Americans, Earth Guardians and Dr. James Hansen (as Guardian for future generations), in Juliana v. United States, the ground-breaking constitutional climate recovery lawsuit against the U.S. government. Bill McKibben and Naomi Klein call this case “the most important lawsuit on the planet.”

Historic Constitutional Climate Ruling in Children’s Favor: In 2016, the U.S. District Court found in favor of the young Juliana plaintiffs, ruling for the first time in history that the U.S. Constitution secures the fundamental right to a climate system capable of sustaining life and that Courts have authority to order government to implement a science-based climate recovery plan to stabilize our climate system. The court ruled that the youth had “standing” to bring their claims, and that their case should advance to trial.

Trump Administration Shadow Docket: However, the Trump administration defendants have placed Juliana v. U.S. on what legal scholars call the “shadow docket:” a group of cases the Trump administration has targeted for extreme tactics to obfuscate the orderly administration of justice. A Harvard Law Review essay identifies Juliana v. U.S. as “perhaps the most striking example” of this Trump administration tactic (page 144). The goal of the tactic is to keep Juliana v. U.S., and others like it that would establish legal principles inimical to Trump administration goals, from ever getting to trial where facts would be established at trial, and where the government would likely lose on the facts.

Divided Ninth Circuit Determines Children’s Only Remedy is at the Ballot Box: Unfortunately, these “shadow docket” tactics indirectly resulted in the 2016 historic ruling advancing Juliana to trial being reversed by a 2:1 divided decision of the U.S. Court of Appeals for the Ninth Circuit. That Ninth Circuit majority decision found that the 21 youth are in fact being individually and particularly harmed by the climate crisis, and that the climate crisis is caused and exacerbated by the U.S. government. Nonetheless, the majority “reluctantly concluded” that the court could do nothing about that harm or causation. From a technical legal point of view, the majority found that the court could not “redress” the youth’s harms at the hands of their government, and as a result, the youth did not have “standing” to bring their claims to trial. Thus, the two judge majority determined that the Juliana case should not proceed to trial, and instead told the children that their only recourse “on the eve of destruction” was at the ballot box. Paradoxically, since many of the young plaintiffs are minors and too young to vote, the very recourse the court told them to exercise is wholly unavailable to them.

By sharp contrast, dissenting Judge Staton decided in favor of the children, finding that their case should proceed to trial, just as the U.S. District Court had ruled in favor of the children. Judge Staton reasoned that there were numerous ways the court could “redress” the harms that all three of the Ninth Circuit judges agreed were being imposed on the youth by their government. Like the U.S. District Court, dissenting Judge Staton argued vehemently that the court has a constitutional duty to order and enforce such relief; and that the majority’s failure to do so was to “throw up their hands” in face of the impending “environmental apocalypse” the majority acknowledged was upon the children.

Next Steps: We have requested that the 2-1 divided decision of a 3-judge panel of the Ninth Circuit be reviewed by a larger 11-judge panel of the Ninth Circuit whose decision would supplant the previous 2-1 decision of the 3-judge panel. We are optimistic that the Ninth Circuit will convene this 11-judge “en banc” panel, and will reverse the 2:1 majority decision, affirming the U.S. District Court and dissenting judge’s decisions in our favor, and advancing the case to trial. Numerous national, international and regional groups and experts have filed “Friend of the Court” briefs in support of the children’s request for review. However, if the 11-judge en banc review is not granted, the children’s next available step would be to seek a writ of certiorari in the U.S. Supreme Court.

Biden Administration as Defendants: The Trump administration’s “Shadow Docket” strategy egregiously frustrates the orderly administration of justice, by presenting the federal appellate courts with cases for judicial review with no factual records upon which to base their appellate decisions, and the U.S. Supreme Court has not taken kindly to the strategy. In Juliana for instance, the U.S. Supreme Court twice rejected the strategy, both times sending Juliana back to the trial court for development of a factual record.

The Biden administration will take over as defendants in Juliana on January 20, 2021. We expect the Biden Department of Justice and Solicitor General's office to reverse the shadow docket strategy and instead to preserve the integrity of trial and appellate court jurisdiction. The Biden administration’s likely honoring of this orderly administration of justice from trial to appeal offers additional prospects for the Juliana case to again be returned to the U.S. District Court for trial, whether by the Ninth Circuit through en banc review, or by the U.S. Supreme Court on writ of certiorari, or by the Biden administration’s pursuit of a consent decree relating to the Juliana claims, establishing its legacy as the administration that finally enshrined science-based climate protection in the U.S.. Just as the Trump administration flipped the orderly defensive tack the Obama administration took in Juliana (where the Obama administration admitted many of the facts in the youths’ Complaint), the Biden administration is likely to revert to an orderly, defensive tack, which we believe may lead to agreement to have the facts of the youths’ claims heard at trial, or to broader substantive settlement of the youths’ claims via consent decree.

21 preeminent international and Nobel prize winning experts are ready to testify in support of the children’s case. When the Juliana case does come to trial, indisputable evidence will demonstrate that for more than 50 years the U.S. Government has known that CO2 pollution from fossil fuels causes global warming and destabilizes the climate system on which all present and future generations depend. Despite this knowledge, the U.S. government actively promoted fossil fuel production and consumption for decades and failed to implement its own plans to reduce CO2 pollution to levels it knew to be safe: 350 ppm. As a result, atmospheric CO2 increased dramatically, creating the grave climate emergency we face today. With this evidence in their favor, the youth are well positioned to secure the science-based climate mitigation relief they seek.

LEGAL ACTIONS AGAINST OTHER NATIONAL AND STATE GOVERNMENTS

To achieve coordinated science-based climate mitigation policy in individual states and in other nations with that at the U.S. federal level, Our Children’s Trust also supports youth climate actions against multiple other national and state governments seeking parallel and related relief. With partners around the globe, OCT leads efforts now advancing in the national courts of Canada, Mexico, India, Pakistan and Uganda, in the supreme court of Alaska, in the state courts of Washington, Montana and Florida. OCT is also working with youth and lawyers to develop new legal actions in additional global domestic and state jurisdictions.

Adverse Decision from the Oregon Supreme Court: In late October, against the arguments of more than 175 individuals and groups representing government, law professors, communities of color, public health, young people, faith groups, businesses, conservation and education, who supported the youth plaintiffs’ claims with friend of the court briefs, the Oregon Supreme Court denied the claims of Kelsey Juliana and Ollie Chernaik, two young Oregonians who filed suit nine years ago against the state of Oregon for failing in its public trust duty to protect essential natural resources -- including water, wildlife, and the atmosphere -- from ongoing impacts of the climate crisis. In a divided decision that erroneously characterized the relief the youth requested, which in turn led the court to erroneously restrict its expansion of public trust protections to the atmosphere, the court left the door open for future claims. “The public trust doctrine in Oregon currently encompasses submerged and submersible lands underlying navigable waters and the navigable waters themselves. We do not foreclose the possibility that the doctrine could expand to include other resources in the future to include additional duties imposed on the state,” the ruling held.

However, the Oregon Supreme Court Chief Justice issued a clarion call in a powerful dissenting opinion. Chief Justice Martha Walters recognized the “ravages of climate change” and affirmed “the judicial branch has an important constitutional role to play and should declare the governing law.” Departing from the Oregon Supreme Court majority’s unwillingness to declare the law and duty of government at this urgent time of climate crisis, Justice Walters declared that “the time is now.”
The Chief Justice explained in dissent that in reaching its decision the majority had reframed the plaintiffs’ case to reach the adverse result. In the divided ruling, the Court agreed with the youth that navigable waters are subject to the public trust doctrine, but said the state has no affirmative duty to take care of its resources.
Chief Justice Walters, however, said the courts “must not shrink from their obligation to enforce the rights of all persons to use and enjoy our invaluable public trust resources. How best to address climate change is a daunting question with which the legislative and executive branches of our state government must grapple. But that does not relieve our branch of its obligation to determine what the law requires.”

Justice Walters also soundly rejected the State’s separation of powers arguments (an issue not addressed by the majority) and said the State “confuses initial decisions about how to combat climate change -- decisions only the legislative and executive branches can make -- with a review of such decisions for their legality -- a review that the judicial branch is charged to conduct.”

Chief Justice Walters’ dissent clearly illuminates the constitutional duty of the courts to hold the political branches accountable and will serve as a beacon to other judges nationwide, showing that the separation of powers principles requires a role for the court to compel the other branches of government to confront this existential climate threat before it is too late. We expect Chief Justice Walters' dissent to provide guidance and framework for decision-making as related cases come to decision around the nation.

Canadian Case Proceeds To Court Of Appeal: In late 2019, 15 plaintiffs – who range in age from 10 to 19 – filed La Rose v. Her Majesty the Queen, a lawsuit alleging that the Canadian government causes, contributes to and allows dangerous levels of greenhouse gas emissions, and therefore is responsible to address the climate related harms they are experiencing. The La Rose case asks the court to declare that Canada is interfering with the youth’s Charter rights to life, liberty, security of the person and equality, and calls on the court to order the government to prepare and implement a plan to reduce its greenhouse gas emissions in a manner consistent with the best available science.

In early November, 2020, Justice Manson of the Federal Court of Canada decided in La Rose that until a higher court rules otherwise, the Canadian government will not face trial for its contributions to climate change.

Justice Manson acknowledged in his decision that the Public Trust Doctrine is a justiciable issue and “clearly a legal question, which the Courts can resolve.” In addition, he clarified that his “comments above are not to be taken as suggesting that the Defendants should not be responsible or unaccountable in addressing climate change.” However, he still ruled that the courts were unable to advance the case on the basis of justiciability, “...no matter how critical climate change is and will be to Canadians’ health and well-being, which is acknowledged.” Despite acknowledging that “the negative impact of climate change to the Plaintiffs and all Canadians is significant, both now and looking forward into the future,” Justice Manson granted the government’s Motion to Strike the lawsuit.

The plaintiffs, who come from seven provinces and one territory, are already being harmed by the government’s contributions to dangerous climate change by being exposed to deadly wildfire smoke, sea level rise, extreme temperatures, more frequent hurricanes, and other devastating personal impacts. In his ruling, Justice Manson said his concern was not that the plaintiffs are asking that the court “consider a network of Canada’s actions and inactions related to climate change, but with the undue breadth and diffuse nature of that network, which puts Canada’s overall policy choices at issue.”

Justice Manson added that, although the case would be “based on scientific data and the assessment of that data,” he believed the questions raised in the case “are so political that the Courts are incapable or unsuited to deal with them.” This abdication of judicial responsibility to set the parameters of what government action respecting the climate crisis is and is not constitutional, is abdication of the most critical responsibility of the judiciary to “check and balance” the actions of the political branches of government, and to ensure that those actions are constitutional.

On November 24, 2020, the youth plaintiffs in La Rose filed their appeal of Justice Marston’s decision to the Canada Court of Appeal.

ENGAGING PUBLIC DISCOURSE ON CONSTITUTIONAL SOLUTIONS TO THE CLIMATE CRISIS

In tandem with our strategic federal, state, and global domestic youth-led climate mitigation legal campaign, we implement coordinated media and education efforts to inform the public about constitutional climate rights, the scientific prescription for climate recovery, and the legal solutions to the climate emergency. We coordinate youth plaintiff testimony before Congress, and we earn literally hundreds of media reports that include high-profile mainstream and legal media outlets, including features on 60 Minutes, in The New Yorker, and many others. We have completed the first season of our podcast, “No Ordinary Lawsuit,” and we have released a 5-lesson high school curriculum for teachers around the U.S. to bring Juliana to their students at the very moment the case comes before the highest courts in our land, and as the climate emergency intensifies around those students. A book by Lee van der Voo, "As the World Burns," was published in September, 2020, about the Juliana lawsuit, and an important feature-length documentary by Barrelmaker Productions and Vulcan Productions, "Youth v Gov" also about Juliana v. U.S., is scheduled for public release in early 2021, following the film’s world premiere in November, 2020 at the DocNYC Film Festival. This far reaching, strategic, multi-channel media and education effort is critical to demonstrating to decision-makers the significance of the science-based climate mitigation sought in all of our work.

7 of the 15 Jovenes v. Gobierno de Mexico Youth Plaintiffs
7 of the 15 Jovenes v. Gobierno de Mexico Youth Plaintiffs

Purpose

We support a network of youth, scientists, economists and experts from multiple disciplines, to bring about macro governmental action at the federal, state, and global domestic levels that drives systemic market incentives and public policy to place our society on a scientific prescription for atmospheric health, climate stability and ocean de-acidification.

Scope

The scope of our work is global. We support youth, legal counsel, experts and partners in multiple states in the U.S., and in several other nations, in related legal actions and public education efforts, all geared toward achieving systemic market incentives and public policies necessary to mitigate the climate crisis.

Information Dissemination

We disseminate information about our work through our media and education efforts generally, and through speaking engagements for our team and for the youth plaintiffs. We will report our continued progress on the Foundation's website, updating our report to include new legal actions, judicial decisions, and significant developments in our work. Additionally, we will provide our primary Alex C. Walker Foundation contacts with more regular updates through email and telephone communications.

Project Link www.ourchildrenstrust.org

Amount Approved
$100,000.00 on 4/17/2020 (Check sent: 7/8/2020)


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Posted 2/7/2020 11:45 PM
Updated   5/16/2021 5:32 PM

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La Rose v. Her Majesty the Queen Canadian Youth Plaintiffs at Vancouver Press Conference
La Rose v. Her Majesty the Queen Canadian Youth Plaintiffs at Vancouver Press Conference

 
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