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Youth and climate change: an advocate's argument for holding the US government's feet to the fire

Author: Julia Olson

Olson, Julia. “Youth and Climate Change: An Advocate’s Argument for Holding the US Government’s Feet to the Fire.” Bulletin of the Atomic Scientists, vol. 72, no. 2, Mar. 2016, pp. 79–84. EBSCOhost, doi:10.1080/00963402.2016.1145903.

Youth and climate change: an advocate’s argument for holding the US government’s feet to the fire

Julia Olson


For more than 50 years, the US government has been aware that the burning of fossil fuels is increasing the concentration of carbon dioxide in Earth’s atmosphere and thereby raising the planet’s temperature. Despite this knowledge, the federal government has never adopted a comprehensive plan to remedy the problem, and even today the White House and Congress continue to pursue energy policies that permit and promote the continued consumption of fossil fuels – and that will not achieve meaningful climate recovery in the coming decades. Even if the United States and other nations keep all of the promises they made in the recent Paris climate deal, the resulting reductions in greenhouse gas emissions will not be enough to stabilize the climate. The author, an attorney who represents 21 youth plaintiffs and a well-known climate scientist, describes a lawsuit that her clients are bringing in an effort to force the US government to end its systemic discrimination against young people and future generations and adopt policies that protect them from dangerous climate change. It is their hope that the third branch of the federal government, the judiciary, will step in to protect their fundamental rights.

KEYWORDS Climate change; climate litigation; Earth Guardians; fossil fuels; future generations; Lyndon B. Johnson; Our Children’s Trust; Paris Agreement

Air pollution is no longer confined to isolated places. This generation has altered the composition of the atmosphere on a global scale through radioactive materials and a steady increase in carbon dioxide from the burning of fossil fuels. –Lyndon B. Johnson (1965a)

More than 50 years ago, in a speech to Congress and a subsequent report by a scientific advisory committee, President Lyndon B. Johnson’s White House first warned the public about the impacts of climate change – foretelling Antarctic ice sheet loss, sea level rise, and ocean acidification (Johnson 1965a, 1965b). In the five decades since, the US government’s response to Johnson’s warning has been disastrous. Many Americans, especially young Americans and scientists, believe that current federal policies and plans to address climate change are too little, too late. In August 2015, the Oregon nonprofit Our Children’s Trust, which I represent as the group’s chief legal counsel, supported 21 youth plaintiffs and prominent climate scientist James Hansen (as “guardian for Future Generations” as well as for his granddaughter Sophie) in filing a lawsuit against the United States (Juliana et al. v. United States et al. 2015). President Barack Obama and several federal agencies are listed as co-defendants. Today, Obama agrees that climate change is real, and that it is one of the greatest challenges of our time. Personally, he has become a strong spokesperson for climate action. However, in his official capacity as chief of the executive branch, he continues to permit fossil fuel development, to authorize the transport and export of fuels, to establish new systems that will increase carbon concentrations in our atmosphere, to subsidize an industry that is poisoning our planet, and to put forth piecemeal climate policies that are not grounded in any current scientific prescriptions for meaningful climate recovery. The president’s climate policies to date, including the Clean Power Plan, are not tied to any scientific calculations that are predicted to stabilize the climate system. Instead, they are tied to discreet and insufficient emission reductions targets that will allow the nation’s carbon pollution to continue increasing at dangerous levels for decades, legitimized by the president’s ongoing “all of the above” energy policy. Obama continues to advocate for limiting atmospheric global warming to no more than 2 degrees Celsius above preindustrial levels – a target that runs “an unacceptably high risk of global catastrophe,” according to Hansen (2015, 12). As a result of these policies, the president is violating the US Constitution and the public trust doctrine. While lauded as a global step in the right direction, the international agreement reached in Paris a few months ago (UNFCCC 2015) will not stop climate catastrophe. After 50 years of procrastinating, the question of whether we will live to see climate change recovery may ultimately be decided by how federal judges respond to the lawsuit brought by youth plaintiffs – and to others like it that are being filed in other countries. Long after Johnson pointed to his generation’s responsibility for carbon pollution, young people are taking matters into their own hands to protect themselves and future generations. Climate change in 1965 It has been a revelation to learn that long before my grandparents were even born, scientists understood that increases in atmospheric carbon dioxide would warm the planet. Scientists have known since the 1800s that gases such as carbon dioxide trap heat in our atmosphere and that a doubling of atmospheric carbon dioxide might raise the surface temperature of the earth by 5 degrees Celsius (Arrhenius 1896; Fourier 1824; Tyndall 1861). In 1938, Callendar (1938) estimated that a 10 percent increase in atmospheric carbon dioxide in the preceding 100 years was the possible explanation for observed warming. The National Academy of Sciences (1957) first reported in 1957 that, “[i]n consuming our fossil fuels at a prodigious rate, our civilization is conducting a grandiose scientific experiment.” It has been a shock to my conscience to know that just a few years before I was born, President Johnson’s White House (1965, 9) released a report, “Restoring the Quality of Our Environment,” that warned: Carbon dioxide is being added to the earth’s atmosphere by the burning of coal, oil and natural gas at the rate of 6 billion tons a year. By the year 2000 there will be about 25% more CO2 in our atmosphere than at present. How did those predictions play out? By 2000, the carbon dioxide level had risen to 366 parts per million (ppm), only 15 percent higher than the 1965 level of 317 ppm. So Johnson’s team was not on the money, but that is still not good news. Per the most current climate science, 350 ppm is the level to which we must return to make our climate system safe (Hansen et al. 2008, 2013, 2015). Catastrophically, by the 50th anniversary of Johnson’s report, the carbon dioxide concentration had risen to 400 ppm, more than a 25 percent increase since 1965, and as predicted, we are starting to lose control of the climate system – with glacial melt and other impacts quickly approaching tipping points that would make climate recovery unattainable. The 1965 report prepared by the President’s Science Advisory Committee covered not only climate change, but also other major environmental pollution expected to require government action at the time. “The fact that there are more than 100 recommendations in the report is evidence that there is much to be done,” Johnson’s accompanying statement read (Johnson 1965b). “I am pleased at the thoroughness with which the panel has investigated pollution. This report will surely provide the basis for action on many fronts.” In the report, the White House scientists wrote that “[p]ollutants have altered on a global scale the carbon dioxide content of the air,” and that greenhouse gases “are accumulating in such large quantities that they may eventually produce marked climatic change.” The scientists warned: “Within a few generations we are burning the fossil fuels that were laid in the earth over 500 million years.” The Johnson Administration knew climate change was a real threat, yet 50 years went by and the crisis worsened at the hands of the US government. By 1977, the National Academy of Sciences reported the growing scientific consensus that warming caused by greenhouse gases would lead to “potentially catastrophic” temperature increases in the next century or two (National Academy of Sciences 1977). Drawing on research from the 1960s, glaciologist John Mercer published a paper predicting warming-induced collapse of the West Antarctic Ice Sheet and a resulting sea level rise of 5 meters (Mercer 1978). But what feels like the biggest deception of all is that when I was a freshman in college, and the Cold War was ending and the Berlin Wall falling, the US government was preparing two plans at the request of Republicans in Congress to stabilize atmospheric carbon dioxide at then current levels: 350 ppm. Both the EPA and the Congressional Office of Technology Assessment prepared road maps for the United States to lead the transition away from fossil fuels – through taxing carbon; providing financial incentives for emission reductions; regulating emissions; leaving fossil fuels in the ground; funding research and development into clean energy, alternative transportation systems, efficient agricultural and manufacturing systems, and thermal efficiency in buildings; and leading the world’s energy transition through technology transfers, trade mechanisms, and US influence on international and multinational organizations. In spite of the clear knowledge of what would happen in the absence of stabilizing carbon dioxide levels, the US federal government shelved the two plans and proceeded to open up more fossil fuel reserves by leasing public lands, and to provide subsidies and 80 J. OLSON Downloaded by [EP- IPSWICH], [Deviprasad K] at 02:54 13 April 2016 permits for all aspects of the fossil fuel industry. Those years of public deception led to the steepest growth in US carbon dioxide emissions from the burning of fossil fuels than during any other period in US history. Although President George H. W. Bush signed the United Nations Framework Convention on Climate Change in June 1992, and the Senate ratified it four months later, the federal government has never implemented any comprehensive, science-based plan to stop climate change. It has never set a fee on carbon, and has continued an all-of-the-above policy on fossil fuel use that has imperiled the climate system and the planet. If we believe the reports from our federal government for the past 50 years, and the consensus of 97 percent of the planet’s scientists who study and publish research on the climate system – and acknowledge the changes happening before our eyes and experienced profoundly by indigenous peoples who are deeply connected to the land – we know that human civilization, and future generations, are in peril. We know that burning fossil fuels and deforesting the land are the primary causes. The youths’ lawsuit It is difficult to imagine a greater threat to human life, liberties, or property than the consequences already unfolding and those predicted for the coming decades and throughout the century: sea level rise, increasing severity of storms and flooding, extreme heat and drought conditions and disastrous wildfires, massive species extinction, an increase in disease and pests, diminished water supplies and unstable agricultural conditions, public health threats, and massive dislocation and social and political disruption – with the youngest living generation and generations yet to come bearing the most severe consequences. My plaintiffs individually understand what is at stake for their future. These are children and teens who have been working in their own communities, and some internationally, to advocate for climate protection. Levi (8 years old) has given talks to Florida residents about how sea level rise threatens his home and beloved beaches, while his community does emergency planning and sandbagging to protect their coastal infrastructure. Xiuhtezcatl Tonatiuh (15 years old) of Earth Guardians – a group of youth activists, artists, and musicians – has spoken three times before the United Nations and has mobilized hundreds of thousands of youth around the world to raise their voices for a safe future, while he watches his forests of Colorado burn and his community suffer unprecedented flooding. Victoria (16 years old), named by Bloomberg Businessweek as one of nine “top attendees” at the Paris climate talks (Roston and Wiener 2015), lived through Superstorm Sandy and saw firsthand the destruction in her community and the foreshadowing of threats to her Manhattan school from rising seas and storm events. Eleven of my plaintiffs live in Oregon, where they are actively working on local climate recovery ordinances, pressing the state for comprehensive climate action, and opposing the fossil fuel export terminals and pipelines that threaten their communities. The Oregon youth just lived through the warmest summer of their lives, with significant drought and wildfires and poor air quality impacting their health and, for some families, their economic well-being. And James Hansen, who speaks for future generations in the lawsuit, has been studying Earth’s climate system for as long as I have been alive. He keenly understands the rights that are threatened by climate destabilization. The first sentence of the plaintiffs’ complaint explains why they are suing their government: For over fifty years, the United States of America has known that carbon dioxide pollution from burning fossil fuels was causing global warming and dangerous climate change, and that continuing to burn fossil fuels would destabilize the climate system on which present and future generations of our nation depend for their wellbeing and survival. (Juliana et al. v. United States et al. 2015) And yet, for 50 years, the federal government has continued to exacerbate the harm and endanger these young people. When the political system condones the infringement of fundamental constitutional rights, and the executive and legislative branches of government endanger US citizens, the third branch of government must step in as a check against abuses. As the Supreme Court noted in Obergefell v. Hodges (the landmark 2015 case affirming the right to same-sex marriage), “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution … [W]hen the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decisionmaking” (Supreme Court 2015, 10, 24). Most of the youth plaintiffs whom I represent in the climatechange lawsuit, as well as future generations yet to be born, lack the right to vote, so the court system is their only means of redress for the constitutional and public trust violations caused by the federal government’s fossil fuel policies. These young plaintiffs are asking the court to declare their constitutional and public trust rights, and to order the federal government to prepare and BULLETIN OF THE ATOMIC SCIENTISTS 81 Downloaded by [EP- IPSWICH], [Deviprasad K] at 02:54 13 April 2016 implement a comprehensive climate recovery plan based on the best science about how quickly emission reductions must happen. Their case presents four core claims. First, plaintiffs challenge the federal government’s promotion of the exploration, extraction, development, production, refinement, transportation, export, import, and burning of fossil fuels – despite the knowledge that these policies and actions would make the climate situation more dangerous and threaten the personal security of the plaintiffs. Under the Fifth Amendment’s due process clause, the federal government has a constitutional duty to protect citizens when the government’s conduct has placed them in danger. Second, plaintiffs challenge the federal government’s aggregate acts in promoting the fossil fuel system as discriminatory against the plaintiffs’ ability to exercise their fundamental constitutional rights to their lives, liberties, and property rights. Plaintiffs argue that their inherent and unalienable right to be free from danger in the use of essential natural resources, like the climate system, is implicit in their fundamental rights protected by substantive due process and is deeply rooted in the nation’s history. Third, plaintiffs assert under the equal protection principles of the Fifth Amendment – and through the Constitution’s preamble – that posterity, or future generations, should be treated as a protected class needing extraordinary protection from the majority-rule political process, which discriminates against them and treats them inequitably. Fourth, plaintiffs claim that the federal government is required under the public trust doctrine to safeguard vital natural resources, because some resources are so central to the well-being of the community that they must be protected by the courts for both present and future generations. The individual harms caused by their federal government, and the possibility of redress through this suit, are significant and enormously important for these young Americans and for their nation, as Obergefell was for all Americans’ right to marry, and as Brown v. Board of Education was for black Americans’ rights to equal, nonsegregated public education. Neither the fundamental right to marry nor the fundamental right to equal, nonsegregated public education is explicitly written in the US Constitution, yet they are integral to citizens’ liberties and democracy. Historians have called Brown v. Board of Education one of the most humane moments in all of US history, because it ended legalized racial discrimination and called for desegregation “with all deliberate speed” (Urofsky 2004). In the 21st century, the most humane moment will come when the Supreme Court declares the Federal Government’s knowing and deliberate climate destabilization unconstitutional and mandates plans to decarbonize the nation and preserve the climate system and oceans with all deliberate speed. A gamechanging case On 13 January 2016, the federal court allowed three fossil-fuel trade associations to intervene in the youths’ case. In arguing their motion to join the federal government as defendants, the three industry groups, representing nearly every fossil fuel company in the nation, said that if plaintiffs win this case, it will force major reductions in fossil fuel use and carbon dioxide emissions. Their participation shows the power and significance of the case (Our Children’s Trust 2016). While this David-versus-Goliath story sometimes seems apt for a television drama, the plaintiffs’ 96- page complaint, their filing of dozens of compelling court documents, and the very participation of the fossil fuel industry is evidence that this case is much more than a publicity stunt. As a lawyer, I never bring a meritless case I cannot win. I have litigated and won many cases against the federal government over the last 19 years, and I can fairly say that I have never had evidence as compelling as in this case. These are the best facts I have ever gone to court with, although they are the worst facts for these young plaintiffs’ futures. The law is similarly compelling. This case may be unprecedented, but its claims are deeply rooted in the US law system, and backed up by the best climate experts on the planet. A landmark court decision needs all of these things. It also needs a courageous judge, the kind of judges throughout our history who have righted injustices when they have been presented the opportunity, even at times to significant personal consequence, as happened in the civil rights era. On 9 March 2016, the federal court in Eugene, Oregon, will hear oral arguments on the motions by the federal government and the fossil fuel industry to dismiss the case. Either way, this will be but one step in a critical legal fight for the future. If the plaintiffs succeed, we will be heading toward the trial of the century. The Paris agreement Even if the lawsuit succeeds, it will only directly affect climate policy in the United States. However, youth will soon file domestic legal actions in other countries including Canada, France, Australia, India, and Pakistan. The Canadian case will be very similar to the US lawsuit. The suits draw attention to the shortcomings of the international climate deal made in Paris in December 2015. 82 J. OLSON Downloaded by [EP- IPSWICH], [Deviprasad K] at 02:54 13 April 2016 While lauded as “a historic breakthrough” (Davenport 2015) and a “big step forward” (BBC News 2015), the Paris Agreement alone will not stop climate catastrophe. President Obama says the Agreement “can be a turning point for the world,” and that we can now be “more confident that this planet is going to be in better shape for the next generation” (Obama 2015). Sadly, it is true that the Paris Agreement – which obliges 195 countries to work collaboratively in an effort to limit global warming to no more than 2 degrees Celsius above preindustrial levels – is technically “progress” compared with the status quo. But it does not come close to what is needed to stop the destruction of the climate system and to protect children and future generations. The agreement is woefully lacking – both in terms of substance and enforceability. Even if the signatories actually followed through with all of their respective carboncutting commitments, the planet would be on pace for a temperature increase well in excess of the stated goal – which would limit warming to 2 degrees Celsius above preindustrial levels, while urging nations to keep warming below 1.5 degrees Celsius. But there is no reason to believe the countries will actually keep their commitments, given that the agreement prescribes no enforcement mechanism. In President Obama’s own words: “The problem is not solved because of this accord” (Obama 2015). The Paris Agreement does more harm than good if it allows citizens and leaders of the 195 countrysignatories to believe they have come up with a plan to ensure a safe and livable planet for children and future generations. Delaying immediate, substantive, science-based action because of a belief that the Paris Agreement has “taken steps in the right direction” would be irresponsible and reckless. The Agreement does not commit any nation to any specific level of emissions reduction. It merely “invites” and “requests” that nations set nationally determined contributions toward emissions reduction (UNFCCC 2015). An analysis by an MIT team showed that the plans of 187 countries submitted prior to the Paris Conference (together responsible for 90 percent of all CO2 emissions), if followed, would lead to between 2.9 and 5 degrees Celsius of warming by 2100 (Reilly et al. 2015, 2). The Agreement, therefore, fails to limit warming to 2 degrees Celsius – or, preferably, 1.5 degrees Celsius – let alone a safe level of warming, which should be no more than 1 degree Celsius long term (Hansen et al. 2013). Further, the agreement imposes no firm date when nations must start reducing emissions nor does it prescribe any timeline or trajectory on which those reductions should take place. The agreement does not demand that nations reduce emissions immediately; it encourages them to resubmit their voluntary reductions in three years and start reducing by 2020. US Secretary of State John Kerry stated that the agreement “doesn’t have a mandatory scheme and it doesn’t have a compliance enforcement mechanism” (US Department of State 2015). My client, 15-year-old plaintiff Xiuhtezcatl Tonatiuh of Earth Guardians, went to Paris to fight for his generation and those to come. At its close, he wrote on the group’s Facebook page (Tonatiuh 2015): Another year of gathering for the Conference of Parties come and gone. And still, after 21 years of meetings. After 21 years of destruction. After 21 years of exponential increases in climate destruction across the globe. After 21 years of the increased suffering of frontline and indigenous communities, people of color, women and children, these agreements are still not enough. The evidence is clear. The science is present. The stories are being told. Lives are being lost. Communities being destroyed. People being displaced. Forests burning. Seas rising. Glaciers melting. Islands sinking into the ocean. Unprecedented floods and droughts devastating communities. This is not a game. This is not about politics. This is not about leadership. This is not about money. It’s not even about the environment anymore. This is about every living person and creature on the planet, our lives and our safety being threatened by the greatest issue of our time, climate change. All this and it still isn’t enough. Not enough has already been lost to show our world leaders that they need to make significant change to reverse the effects of climate change and prevent further destruction.

Disclosure statement

No potential conflict of interest was reported by the author. Funding This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes on contributor

Julia Olson is the executive director and chief legal counsel of Our Children’s Trust, a nonprofit organization based in the United States advocating for governments to adopt and implement enforceable science-based Climate Recovery Plans with annual emissions reductions to return to an atmospheric carbon dioxide concentration of 350 ppm. She is an adjunct instructor at the University of Oregon School of Law.


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