Our children will have to deal with the world their parents leave behind and where the idea always was that they should be better off than us, it appears that the opposite is about to happen. The massive amounts of soot floating about in the air will infringe on their right to life; the effects of global warming like rising sea levels, droughts, floods, mass migration and armed conflict will infringe on their pursuit of happiness.
The principle of intergenerational equality, derived from the second paragraph of the Declaration of Independence and the 5th Amendment, extends the concept that all men are created equal to future generations. It holds that “Resources and assets (such as quality and diversity of environment) which do not ‘belong’ to any generation are to be administered and preserved in trust for all future generations.”
Our Children’s Trust
The non-profit organization OurChildrensTrust, based in Eugene, Oregon, assists minors in taking legal action against federal and state agencies and corporations in the US and abroad for violation of that trust. In 2011, they helped Jaimie Lynn Butler, a then 9-year old Navajo living in Cameron, Arizona, to file suit against the Governor and the Arizona Department of Environmental Quality for failing to protect the atmosphere as a public trust. That case died in the Arizona Court of Appeals in 2013.
Much better fared a preliminary complaint filed by OurChildrensTrust in 2015 in Oregon on behalf of 21 underage plaintiffs against the Office of the President of the United States of America, the US government and a number of companies in the petrochemical industry. The children, 9 to 19 years old, allege that although the adverse effect of fossil fuel emissions on the atmosphere has been known for decades, the defendants continue to promote them as a primary source of energy. The redress they seek is a court order forcing the government to take stringent measures to reduce emissions to a sustainable level. The action is also supported by famed climate scientist James Hansen, whose granddaughter is among the plaintiffs.
The case is unique in that it is about a violation of the U.S. Constitution, rather than federal common law such as the Clean Air Act.
A preliminary complaint is basically a test case to see if the Courts think that the case is viable. The action, known as ‘Juliana et al. v United States’ got its legal legs in November 2016, when the District Court of Eugene denied the defendants’ motion to dismiss. Judge Ann Aiken said in her ruling that “There is no contradiction between promising other nations the United States will reduce C02 emissions and a judicial order directing the United States to go beyond its international commitments to more aggressively reduce C02 emissions.”
If the plaintiffs prevail, it will be the second time in history that a national government is forced by the courts to step up efforts to reduce carbon emissions. The first time was in 2015 in the Netherlands, which nevertheless will be unable to meet the requirements of the Paris Climate Accords, because the Dutch are knee-deep in methane-emitting pig poop.
The trial is slated for the second half of 2017. Some legal experts consider it the trial of the century, because the entire planet is at stake. It will test the fundamental responsibility of federal and state governments to preserve natural resources for future generations and whether the atmosphere can be regarded as such. Doubtlessly it will also test the sustainability of the current administration’s disdain for the issue.