Is Climate Change Violating the Rights of the Youngest Generation?

Q & A By DEBORAH LOHSE

As the current U.S leadership takes steps like pulling out of the Paris climate accords, purging data from the Environmental Protection Agency site, and discussing opening federal lands to oil drilling, one Santa Clara Law alumnus, Phil Gregory J.D./MBA ’80, is tackling climate change in a big way.

Gregory is co-lead counsel on a novel environmental lawsuit against nearly two dozen federal agencies, alleging that their collective failure to combat climate change has threatened the constitutional rights of future generations. Environmentalists have dubbed it “the most important lawsuit on the planet.”

The case, Juliana v. United States, is scheduled for trial on Feb. 5, 2018, in federal court in Eugene, OR, provided it overcomes a startling writ of mandamus to the Ninth Circuit Court of Appeals filed by the Trump Administration, which inherited the lawsuit as a defendant in the case filed in 2015.

The case centers on an allegation that plaintiffs—largely a group of 21 children ranging in age from 10 to 21—have been denied their due process rights to life, liberty, and property at the hands of the federal government. They accuse agencies of failing to act on knowledge—dating back decades—that fossil fuels cause dangerous levels of carbon dioxide in the atmosphere. They are seeking remedies to planet-threatening accumulations of CO2, such as cessation of fossil fuel subsidies and a national plan to reduce emissions.

Phil Gregory recently discussed the case with Santa Clara Law magazine.

Phil Gregory

How do we prove that these defendants had a role in causing climate change? We have experts like renowned climatologist Dr. James E. Hansen who are showing that the actions taken by the federal government are directly or indirectly responsible for that.

Phil Gregory JD/MBA ’80 is co-lead counsel on an environmental lawsuit that some are calling the most important lawsuit on the planet.

How Is This Case Unique?

The Juliana case, filed in 2015, will present climate science in the courts correlated to the impacts people now face and the short time left to seek meaningful remedies.

Also, the claims in Juliana are brought under the Constitution and the Public Trust Doctrine. A number of cases in the environmental field are brought under the Administrative Procedures Act. In those cases, you proceed as if the regulation, or the government action, runs afoul of a particular statute— the Endangered Species Act, or the Clean Air Act, or the Clean Water Act. And you “silo” it. It’s an action by a particular agency of the federal government that runs afoul of a particular statute or regulation. So it’s very, very specific. Our case isn’t like that at all.

Our case is that our federal government, government-wide, has known for decades that the fossil fuel system was going to cause problems for these children as well as future generations. They’ve known that. I can show you reports. I’ve got one here in 1977 where the National Academy of Sciences is telling the federal government that the potential consequences are extreme. They’re catastrophic. These and many other studies, another is a 1989 EPA report to Congress, say that children—future generations—are going to face a massive crisis if we don’t do anything right now.

Let’s say we weren’t talking about climate. Let’s say we were talking about fascism. Let’s say we were talking about communism. This federal government, historically, mobilized against those issues. All the resources of the federal government were taken up in opposing the spread of fascism in the fight that was World War II. And we prevailed. Or let’s say the federal government had decided that we’re no longer going to tolerate discrimination based on race, gender, whatever. The federal government has mobilized all its resources against further spread of those problems. We’ve known—again, for decades—that we’re facing a massive problem. And from a practical standpoint, nothing’s been done about it. Meanwhile, the situation has gotten dramatically worse, to the point—the precise point—where they said in 1977 we would be if we did nothing.

It’s not that the foundation of climate science is any more certain now than it was 40 years ago. It’s been settled for a long time, but the impacts are here, not just projected. In fact, the basic science of fossil fuel CO2 emissions increasing global CO2 levels, which causes climate change, has been understood for more than a century. Even the founding fathers understood that the global climate could be impacted by deforestation and the destruction of soils as well as industrialization. What has developed over time is not the certainty that climate change would be catastrophic if left unchecked, but the greater scientific certainty in projecting when certain impacts will occur. For a long time now, scientists have not questioned whether the harm would occur, but rather how quickly, and they have largely underestimated how quickly it would begin to happen.

Their scientific forecasts have all come true. I’m not going to go into the doom and gloom that we all know is currently out there, whether it’s the ice sheets or the coral reefs or the agriculture issues. But it’s a systemic problem.

How Do You Litigate This?

Well, first our climate kids could go to Congress, but we know Congress is going to do nothing. Or our plaintiffs could go to the executive branch, but we know this president and his team are not going to do anything. So the only resort is the courts. But climate isn’t an issue that can be siloed. It’s not one power plant that’s the problem. It’s not one pipeline that’s the problem. It’s the system. It’s the delivery of energy through fossil fuels, not only in the U.S., but to foreign countries. You talk about all the fossil fuels that we’re exporting to China. We’re a huge exporter of these. So in other words, we’re not only worsening our own problem, we’re seriously worsening problems in other countries. In short, we are running out of time.

So the issue is, from a litigation perspective, how do you take that on? Well, the only overarching document, we believe, is the Constitution. And so we’ve focused this case on how to bring a constitutional claim as a result of the climate crisis. We’ve looked at other social justice cases like this, such as gay marriage, and spoken with those attorneys. A case that went on trial here in the Northern District of California, Perry v. Schwarzenegger, tried before Judge Vaughn Walker in federal court was a Constitutional case that was of Constitutional dimensions.

How Did Perry v. Schwarzenegger Inform This Case?

As with the issue of the right to gay marriage, the key issue in our case is related: How do you bring this large-scale problem into the court so that the judge feels that he or she can grasp the problem, understand the problem, and remedy the problem? And so what we’ve done is we’ve tried to compartmentalize how we’re going to try this case.

We’ve got our plaintiffs who are young kids who are suffering injuries. We’ve got Jayden in Louisiana who woke up one morning, rolled out of bed, and stepped into climate change when her home was flooded. She lives in Rayne, Louisiana, near Baton Rouge, where she was experiencing her second once-in-athousand- year flood in three years. So the point is these kids are suffering serious injuries. Levi, another one of our plaintiffs, lived on an island in Florida where he could see, by virtue of the sea level rise, his beach going away. It was obvious. So these kids are experiencing climate change directly, and being affected by that.

Then we turn to the issue for proof purposes of causation. Well, how do we prove that these defendants had a role in causing climate change? We have experts like renowned climatologist Dr. James E. Hansen who are showing that the actions taken by the federal government are directly or indirectly responsible for that.

How Is Juliana Akin to Civil Rights Cases?

Let me give you an analogy. Another line of cases similar to ours is the civil rights cases. A classic example is where you had a municipality in the South owning a garage. Anybody could park in that garage, but the municipality leased or licensed property to a diner, to a restaurant. And that restaurant engaged in segregation, and the municipality knew the restaurant engaged in segregation. The municipality was responsible for a civil rights violation by enabling the segregation to occur in the restaurant.

Well, we have the same thing here. As everybody knows, our federal government leases federal lands for fossil fuels, coal being an obvious example. And the amount of money the federal government receives for the coal lease is a mere pittance compared with what it costs our society to deal with the effects of burnt coal, or what we call the social cost of carbon. Our evidence shows the judge that our federal government has enabled the fossil fuel system to flourish. It continues to enable it—through subsidies, through leases and the like—along with itself being a major emitter of fossil fuels. So we’ve got causation; we’re going to show that.

What About Redressability?

Finally, we have to show the court what it can do about the situation—redressability. Two obvious model approaches are school busing and prison overcrowding. In the busing cases, the court set targets or goals of what the schools had to achieve by way of integration, and then required the school district or agency to propose a plan that achieved those goals. That started through the second Brown v. Board of Education decision. It was not the job of the court itself to develop the plan, but to set the target and for the agency or district to develop and implement the plan once it been approved by the court. The other example is California prison overcrowding. California prisons were overcrowded to the tune of over 200 percent. The prisoners went to court and succeeded: The court set a target and told the California prison system, “You have to get to that target or we, the court, are going to start releasing prisoners.” And so the court didn’t spell out the plan to reach the target; it set the target and had the prison system develop the plan.

What we are asking the court to do is to find the appropriate target. So, for example, zero fossil fuel emissions by a certain date. Or 350 parts per million—whatever the target or goal is that the court sets—and then have the court turn to these defendants and say, “Given the urgency of the situation”— just like in Brown, just like in the prison cases I talked about—“you have to develop a plan. You submit it to me within a certain time frame, and I, the judge, will review that plan. And if it’s appropriate, if I believe it’s going to reach the goal or target I’ve set, then you have to implement that plan promptly, particularly given the urgency to these kids and future generations.”

How Will Expert Testimony Be Part of the Case?

So our aim in trying this case is to focus on injury, causation, and redressability. We’re going to do that in an overarching way by putting the science before the court. We’re going to have the most prominent experts in their various fields explain to the court, “This is what’s occurring on the ice sheets, this is what’s occurring with the coral reefs, this is what the federal government is doing or not doing.” And from a scientific perspective, they’re also going to show that we can achieve an energy system in the near future that has minimal fossil fuel emissions, and then certainly by 2050, no fossil fuel emissions, if not sooner.

We are working with top scientists and other experts around the country and globally, including several Nobel laureates. The evidence we present at trial will more than support a victory for our plaintiffs. At this time, our expert testimony is not yet public, but our complaint, and Dr. Hansen’s accompanying declaration, lays out the core science. Read it online here: www.ourchildrenstrust.org/us/federal-lawsuit/.

The point is our country can achieve these goals. California is an example of a political body working hard to get to these goals. Various other states and cities are working to get to these goals. The only political entity of any weight that’s, let’s call it, holding back, is the federal government. And it’s going to take this judge to force that federal government to confront reality and implement a plan. We believe a trial and a judgment can be issued within the first six months of 2018.

We then hope that the judge will set a very short time fuse for the government to develop its plan. Historically—everybody knows this, but I want to make clear—the federal government has an inventory of how bad its emissions, directly or indirectly, are. They have that inventory. The data is all there. And so the judge can say, “Okay, here’s the baseline. This is what the data shows. This is where we are.” Once we have that inventory, a baseline, our case will be just like in the prison cases. We know how many prisoners are in the California prison system, or we know what the student population is in these school district cases. Now what we need to do is figure out how to move them around, so the situation is, from a Constitutional basis, no longer presenting a crisis. And that’s a decision we believe the court can issue.

Not only does the federal government have an inventory, by the way, but they have plans which have existed over time, since certainly the ’80s, of federally developed policy options that could be implemented. Now the technology’s gotten better. People are now moving to rooftop solar, electric cars—those are common occurrences. Well, the federal government could work to enhance those opportunities, but it isn’t right now; in fact, it’s backsliding on all of that. So we want the judge to issue an order where not only will there be a plan, but there’ll be implementation of the plan. And that will occur.

What Is Your Appeal Strategy?

Obviously, we’re going to face the next question: What do we do when our judgment is appealed, first to the Ninth Circuit and then to the United States Supreme Court?

Well, we’re basing our case on constitutional principles where there’s a lot of authority in other areas. That way we’re asking the District Court here to address it—in a similar way as other cases once the injury has been shown, where the federal government has caused or created the injury. So we believe that this case is grounded in a great deal of Supreme Court and Ninth Circuit precedent. Rather than a new case with new law, it’s actually grounded in the precedent of civil rights cases and various decisions where Constitutional rights were violated. And importantly, we’re not seeking damages here. We’re not seeking any money. We’re seeking purely equitable relief. We believe that the District Court will frame an order that the judge believes is not only proper but will stand up on appeal. That’s the case we’re putting together for trial on February 5.