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Legal Learning: Juliana v. U.S. may be very big

James Manahan

This lawsuit may be the most important in 65 years. It was that long ago (1954) when the United States Supreme Court decided in Brown v. Board of Education that public schools must be desegregated. "Separate but equal" schools for black and white children were declared to be no longer constitutional.

Now a lawsuit in Oregon has the potential to have an even bigger impact on American society. The CBS news show "60 Minutes" recently reported on Juliana v. United States, a lawsuit brought by 21 young people against the federal government.

The "climate kids," as they are called, are asking the court to order the federal government to develop a plan to reduce carbon dioxide emissions. They claim they have a constitutional right to breathe clean air and drink clean water.

The U.S. Department of Justice, in response, argues that there is "no constitutional right to a pollution-free environment," and that the court system is not the proper venue to effect such changes.

However, the federal judge who is hearing the case, Ann Aiken, ruled in November 2016 that the right to "a climate system capable of sustaining human life" was a fundamental right.

According to Michael Gerrard, director of the Center for Climate Change Law at Columbia University, "this decision goes further than any other court ever has in declaring a fundamental obligation of government to prevent dangerous climate change."

The case has been set for trial several times, but the government keeps filing emergency appeals to stop the case from going forward. Last November, the Supreme Court issued an order denying the government's request for a stay, but expressing skepticism about the lawsuit, noting that the breadth of the plaintiffs' claims was "striking."

Now, the plaintiffs have asked the Court of Appeals to block the federal government from approving any fossil fuel production activities either on federal land or needing federal approval, such as coal mining on federal land, oil or natural gas drilling offshore, or pipelines that need federal approval. Oral arguments in the Ninth Circuit are scheduled for the week of June 3 in Portland.

Attorney Julia Olson is representing the climate kids. When I saw her on "60 Minutes," I have to say that she was very convincing. She is prepared to present evidence that climate change will have a severe impact on today's children.

A United Nations scientific panel expects that by 2040, when the youngest plaintiff will be just 33 years old, some of the biggest crises will begin.

Kelsey Juliana, the plaintiff whose name appears first in the case, is the oldest of the climate kids at 22. Julia Olson, she said, is "an idol of mine" who balances her legal practice with activism and motherhood.

Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, pronounced himself a fan of the suit. Though he acknowledged that the courts tend to frown on creative legal theories, he noted that they do sometimes make new law in cases like Obergefell v. Hodges, which found a right to same-sex marriage, and Brown v. Board of Education, the landmark school desegregation case.

"Creative lawyering there triumphed," he said. With this case, he said, "We'll see how it goes in the courts."

Many environmental groups such as the Sierra Club, the Union of Concerned Scientists and Greenpeace have filled amicus briefs supporting the plaintiffs.

Several members of Congress also filed a brief arguing that "We, members of Congress, believe that youth's fundamental rights to life, liberty, and property and the access to the essential natural resources they need to survive are being threatened by a man-made climate crisis caused, in large part, by our national fossil fuel energy system.

"This court must exercise its duty in assessing the conduct of its co-equal branches and evaluating the constitutionality of the conduct which violates the fundamental rights of these youth plaintiffs and future generations.

"Not only does the court have the power to interpret the law and provide remedies for systemic violations, the federal judiciary as a whole must fulfill its duty despite the inappropriate politicization of climate change."

Judge Aiken has already ruled that evidence submitted by plaintiffs shows that "fossil fuel emissions are responsible for most of the increase in atmospheric CO2 and that increasing CO2, in turn, is the main cause of global warming, and that the atmospheric concentrations of greenhouse gases, due to fossil fuel combustion, are increasing quickly such that planetary warming is accelerating at rates never before seen in human history."

We will see how it goes in the courts.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's Top Ten Attorneys. He now handles family law, wills and probate in the Lake County area, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. He can be reached at jimmanahan@gmail.com or jamesmanahan.com.

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