Rory Kress Mandel, JD Anticipated May 2023
The kids are not alright: they’re angry about climate change. And they have every right to be furious–even litigious. Today’s leaders are imperiling their right to a planet that can sustain human life and kids need to force them to act. This is the forward-looking theory behind several, high-profile lawsuits both in the US and around the world: bring together dozens of young plaintiffs to sue their respective governments for permitting and even promoting the use of fossil fuels while fully aware of their danger to the people of the future.
Kids belong in the climate fight–win or lose. If they win in the courts, they claim a meaningful victory that can bring real change and give future plaintiffs precedent to build upon. If they lose, youth plaintiffs can still push the courts to develop well-reasoned opinions and dissents that provide persuasive authority in future litigation both at home and in similar efforts abroad. And when the courts prove slow to act, climate kids can take their case to the court of public opinion, generating protest and outrage that can drive legislative change.
The ABCs of Climate Kids in Court
Juliana v. United States provides the most recent, prominent example of a youth-led climate case in the American court system and demonstrates why kids belong in the climate fight. Juliana has been marching up and down the federal courts for three presidential administrations (and counting). But in all these years, even as some have aged out of being rightfully called child plaintiffs, the Juliana kids can claim several victories. For one, they generated a strongly-written decision from a federal court that affirmatively recognized that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” Oregon District Judge Ann Aiken wrote in her decision that climate is as vital to society as marriage is to the concept of family. While Judge Aiken declined to extend this constitutional right so far as to cover any environmental harm, she did make the climate right broad enough that plaintiffs need not demonstrate that the government’s action will result in human extinction to bring their case. Ultimately, she unequivocally held that government action that substantially damages the climate states a claim for a due process violation: “To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.”
A forceful decision from a federal judge–even if overruled on other grounds–is still valuable to the climate fight. Judge Aiken’s decision used sound reasoning that climate attorneys can cite for the consideration of future courts. Beyond this, the Ninth Circuit’s decision, while disappointingly overruling Judge Aiken, actually created inroads on the matter of recognizing standing for children in climate court.
Climate lawyers have been wise to bring in children as plaintiffs in environmental cases as a way of contending with the problem of temporality. There is no lobby group from the future that can file a lawsuit, write an amicus brief, or address the world on the damage we stand to do. To make matters more challenging, our legal system is not calibrated to help the not-yet-born plaintiff. Enter climate kids: they are the proverbial tip of the iceberg, representing just a fraction of the people who will be harmed in the future. But to do so, they first have to demonstrate that they meet the requirements for Article III standing.
Standing is one of the most fundamental inquiries at the heart of a lawsuit. Logically, it’s simple enough for a child–climate litigant or not–to understand: you can’t complain if it didn’t even happen to you and the court can’t fix it. More formally, a plaintiff must demonstrate three elements to invoke Article III standing: injury, causation, and redressability. While the question of who can sue for the environment has been a thorny one, the Supreme Court in Massachusetts v. EPA recognized standing for a state to sue a federal agency to force it to use its regulatory power on greenhouse gas emissions.
It was yet another small victory in the climate fight that the Ninth Circuit recognized that the Juliana plaintiffs, who own no land of their own, could meet the injury and causation prongs for Article III standing. After all, the Juliana plaintiffs’ claim to invoke standing was distinguishable from that of the plaintiff commonwealth in Massachusetts v. EPA: the group of child plaintiffs in Juliana was not the “sovereign state” plaintiff from Massachusetts v. EPA that could be said to own much of the territory at stake in the litigation’s outcome. Still, the Juliana plaintiffs could undoubtedly claim they had been injured by climate change: Jaime was driven from her family’s home on the Navajo Nation Reservation by water scarcity; Jayden weathered three devastating hurricanes in her home state of Louisiana that damaged her family’s home and property; Alex lived on a farm that has been in the family since his ancestor arrived by the Oregon Trail but is now facing record heat that could destroy his future livelihood. The Ninth Circuit rejected the government’s counter argument that these “alleged injuries…[were] not particularized because climate change affects everyone” and the injuries alleged must be “concrete and personal.”
The dual affirmation that climate kids can satisfy both the injury and causation prongs for Article III standing will be essential for advocates to stand on in future climate litigation. Furthermore, the court’s recognition of the causation prong for climate actions could be persuasive authority in the growing trend of climate tort claims against fossil fuel corporations where demonstrating causation is a critical element. However, these wins cannot be fully leveraged in future litigation without first learning from the case’s failure on the third prong of Article III standing: redressability.
Article III redressability has two requirements to establish standing: the plaintiffs must show that the relief sought is both substantially likely to redress their injuries and is also within the court’s power to award. Redress must be more than “merely speculative,” but need not be guaranteed. In Juliana, the young plaintiffs were seeking both declaratory and injunctive relief. For the former, the plaintiffs sought a declaration that the US government’s inaction on climate change was a constitutional violation. The court was skeptical here: “A declaration, although undoubtedly likely to benefit the plaintiffs psychologically, is unlikely by itself to remediate their alleged injuries absent further court action.”
But it was on the request for injunctive relief that the case truly fell apart. The plaintiffs sought a court order directing the government to implement a plan that would bring fossil fuel emissions to an eventual stop. They intended their injunction to be a remedy for the government’s “depriv[ing] them of a substantive constitutional right to a ‘climate system capable of sustaining human life.’” The Juliana plaintiffs relied on Massachusetts v. EPA to say that while the requested relief would not solve “global climate change,” it would meet the redressability requirement by slowing emissions. But the court was not persuaded and found that even if the redressability prong were satisfied by the plaintiffs’ proposed remedy, it was not within the court’s power to provide it: “Not every problem posing a threat…can be solved by federal judges.” Instead, the majority wrote that the plaintiffs made a compelling case for the legislative branch to manage instead.
Despite this holding, the climate fight gained a new and useful piece of persuasive writing in Juliana’s ardently-voiced dissent. There, Justice Josephine Stanton compared the majority’s doleful rejection of the plaintiffs to a now-unthinkable scenario where the court in Brown v. Board of Education could have decided that the matter of desegregation was too wrought with obstacles to be done in a way that would meaningfully bring redress. “Mere complexity…does not put the issue out of courts’ reach. Neither the government nor the majority has articulated why the courts could not weigh scientific and prudential considerations–as we often do–to put the government on a path to constitutional compliance.” This invocation of the shameful history of segregation could be a powerful argument for climate advocates to stand on in future litigation, compelling a reluctant court to act even when it seems difficult to make a bold and needed change.
Are We There Yet?
Today, there is still some hope for Juliana–but the plaintiffs are stuck waiting. Still, they’re learning: just weeks after the Ninth Circuit’s decision, the plaintiffs filed a second request to amend their complaint, leaving out the request for injunctive relief that had apparently tanked their case. Climate advocates nationwide have gotten the hint and are now pushing state and federal courts to issue only declaratory relief that a given energy policy is unconstitutional. Promising youth-led examples are already underway in Virginia and Montana state courts.
Of course, it wouldn’t be a climate fight without politics. In the year since the Juliana plaintiffs filed their motion to amend, states across the nation have taken up arms both for and against them: Attorneys General in 18 states–all predictably “red states”–moved to become intervenors in the lawsuit despite the plaintiffs’ objections that the litigation was now in its sixth year and far too advanced to have these states inserting themselves. In response, six Attorneys General from “blue states” filed amicus briefs to support the young plaintiffs. In November, settlement talks ended without resolution, leaving the Juliana plaintiffs on hold.
And the world is watching. Juliana is part of an international ecosystem of youth-led climate cases, many of which are also currently waiting for a ruling. A win in one nation can be a tool for all to cite as persuasive authority against their own governments. A loss can be disappointing, but even a dissent can serve as persuasive precedent in a different jurisdiction. But kids are not known for patiently waiting around. So while the court cases drag on worldwide, climate kids have another plan of attack to which they are uniquely suited.
The Kid Stays in the Picture
Whether or not they can invoke Article III standing, kids always have standing in the court of public opinion. And like it or not, it’s this court that often drives voters to the ballot box for legislative change.
Take, for example, Greta Thunberg. She is a household name whose words and rightful anger on behalf of the climate are memorable. Recall her powerful impassioned speech to the UN climate summit in 2019: “How dare you…you have stolen my dreams and childhood.” At the time, Thunberg was only 16, but with her long, school-girl braid, she appeared even younger. The image was provocative: a child rebuking the world’s grown-ups and politicians for their inaction.
Children can also put much-needed pressure on the party most prepared to act on climate change: the Democrats. In 2019, a video from the Sunrise Movement went viral, showing California Senator Dianne Feinstein dismissing a group of climate kids requesting her help on the Green New Deal. She said: “That resolution will not pass the Senate and you can take that back to whoever sent you here.” One child wisely replied: “Senator, if [climate change] doesn’t get turned around in ten years, you’re looking at the faces of the people who are going to be living with these consequences.” Senator Feinstein then asked the children’s age and remarked “Well, you didn’t vote for me.” The interaction went all the way up to the highest court of public opinion: Saturday Night Live. There, a parody of the encounter had Senator Feinstein telling the bright-eyed climate kids to “stay in your lane and f*** off.” The embarrassment resonated and even now serves as a cautionary tale to other Democrats who fail to heed the younger generation’s call to go green.
But climate kids must be deployed gently on a global stage–they are, after all, still kids. Thunberg has faced bullying on a global scale, even the cruel mockery of a sitting U.S. President. Climate kids also invite concern that can undercut their value: are the kids really the ones doing the talking or are they just unwitting–or even unwilling–puppets for their parents? A recent This American Life told the sad tale of climate activist Michael Foster who initially brought fame to his family and kids by making them the face of his protests–only to drive his household apart by “stage dadding” his children for the movement.
Senator Feinstein is right about one thing: these kids can’t vote. But that does not mean they should give up. Instead, they should take to the courts and to the world stage to make their voices heard. And so far, the climate kids are doing just that. If Juliana eventually fails in the courts, it has still been one of the most effective organizing tools yet, giving lawyers and advocates a playbook for provoking change. In time, that could mean another youth-led climate lawsuit will succeed, standing on the shoulders of the Juliana decision–both its lessons and its heartbreaks. In the words of lead plaintiff Kelsey Juliana herself, the youth climate movement is not going anywhere and is staying focused on the future: “I see our future as bright and youthful and engaged…Tell them we were climate kids. And we were here. And we did work.”