Searching For Climate Justice

photovoltaic-power-plant-871290688251zayBy Sean McLernon

Global warming is terrifying for many people under the age of 30, and, as someone in that cohort who hopes to make it to old age, I’m a bit worried myself.

Working as an environmental news reporter reminds me daily of the bleak long-term outlook. There’s no quick and easy fix. The American political system provides little incentive for elected leaders to devise long-term solutions without short-term benefits, which creates a major stumbling block for citizens seeking government action on climate change.

Nonetheless, a group of young advocates finding a way around that structural obstacle by turning to the one branch that isn’t beholden to opinion polls and wealthy donors.

A New Direction: Judicial Actions

The nonprofit Our Children’s Trust and the dozens of young plaintiffs they have backed in court battles across the country are successfully fighting carbon pollution where others have struggled by using a novel legal tool that is older than the U.S. Constitution. It’s called the public trust doctrine, and it’s been used for centuries to protect natural resources. The concept dates back to ancient Roman law, granting the government the power to manage natural resources that cross property lines and other boundaries.

U.S. courts have ruled that the doctrine applies to bodies of water like rivers and streams, and it has expanded over the years to include groundwater, submerged land under lakes and even historically significant land like battlefields. A few years ago, New Jersey’s high court found that the doctrine covers dry sand beaches, and California’s highest court said the doctrine also applies to ecological preservation and recreation.

The doctrine has not historically covered air, but there’s never been much of a need for it before carbon pollution began to raise public concern. These young plaintiffs, many of them college-aged or younger, argue that the atmosphere deserves protection under the doctrine. A Texas judge has agreed with them, ruling that the state has an obligation to protect the air for public use. That ruling has been appealed, and will most likely be decided by the state Supreme Court.

Similar cases are pending in the federal court system and more than a dozen other states. Nothing short of survival is at stake, the young plaintiffs argue, because the government has failed to reduce carbon emissions. Last year, the Alaska Supreme Court became the first state high court to take up the matter, and the justices could hand down their decision any day now.

For these young people fearing for their future, these rulings can’t come soon enough.

Progress in Congress and the White House

Federal lawmakers looked poised to take action following the 2008 election, when the Democrats controlled the presidency and both houses of Congress, but even a Senate supermajority wasn’t enough for the leadership to push through a cap-and-trade bill that would have put a price on carbon emissions.

Similar measures have been enacted in Europe and other parts of the world, which have decided to take bold action as the United Nations and scientists across the globe have been urging governments to step up to the plate on climate change. The U.S. is showing much more caution despite a growing grassroots movement that is putting more political pressure on elected leaders.

The ongoing review of the proposed Keystone XL pipeline project is a recent example of measured success for climate activists. The president singled out the project during his major climate speech this June at Georgetown University, promising that he would only approve the pipeline project if it “does not significantly exacerbate the effects of carbon pollution.”

The problem for the anti-Keystone crowd is that last week the State Department released a final supplemental environmental impact assessment concluding that the pipeline is unlikely to significantly increase the amount of oil tar sands coming out of the ground. If the Keystone isn’t built, the oil will make it to market by rail or another pipeline, the State Department said.

Regardless of what happens with Keystone, the president has promised to take executive action to do all he can to fight climate change, ordering the U.S. Environmental Protection Agency to enact carbon emissions regulations for new and existing stationary power sources. Those new rules could dramatically reduce the number of coal-fired power plants, substantially lowering the level of industrial carbon pollution in the U.S., but the agency’s power to enact them is the subject of a U.S. Supreme Court challenge scheduled for oral arguments at the end of February.

No matter how well-intentioned the president may be, he can’t get around the fact that he is treading on less-than-solid ground when it comes to environmental regulation. The federal Clean Air Act, which was last updated 24 years ago, does not address greenhouse gases as a pollutant ripe for regulation.

The Future for Our Children’s Trust

The EPA has still used its authority under the CAA to determine that greenhouse gases pose a potential threat to human health and the environment, and can be regulated. The U.S. Supreme Court agreed with them in its landmark 2007 decision in Massachusetts v. EPA, but industry groups are arguing that the agency went too far when it concluded that its decision to regulate carbon emissions from mobile sources like cars automatically triggers regulation for stationary sources like power plants. The Supreme Court could strike down this so-called triggering rule, sending the EPA back to square one when it comes to power plant regulation.

Even if a majority of the justices side with the EPA, the president has promised that fossil fuels will still be a critical part of the nation’s energy picture for the next few years. Touting an all-of-the-above energy plan, the White House are promoting coal and gas as important resources while the country makes the transition to renewable sources like wind and solar.

It may be too little too late for the youngest Americans who are claiming the government isn’t treating climate change with the urgency it deserves. They may finally find a sympathetic ear among federal and state judges who could force public officials to take drastic action much sooner.

Several courts have dismissed the suits, but the young plaintiffs have won concessions from some judges that could benefit them during the appeals process. An Arizona appeals court, for example, rejected the state’s argument that air quality cannot be considered part of the public trust, even as it found that the plaintiff didn’t show that government inaction on climate change qualified as a public trust violation. These cases will continue to play out over the next few months, and possibly even years. They probably won’t get the attention pipeline protests or anti-coal rallies receive, but they may be the best chance for significant action on climate change.

University students and others in the academic community can participate by filing friend-of-the-court briefs appealing directly to decision makers in a way that’s nearly impossible when it comes to Congress and the president.

The courts have forced the government’s hand before when it has been slow to act on issues like segregation, reproductive rights and, most recently, marriage equality. Climate change could be next.

[Sean McLernon is the senior environmental reporter for the LexisNexis legal and business news wire Law360. Reach him at and follow him on Twitter @SFMcLernon]

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