{"id":2559,"date":"2022-07-04T19:15:52","date_gmt":"2022-07-04T23:15:52","guid":{"rendered":"https:\/\/www2.law.temple.edu\/lppp\/?p=2559"},"modified":"2022-07-04T19:15:56","modified_gmt":"2022-07-04T23:15:56","slug":"jack-and-juliana-went-up-the-hill-why-child-plaintiffs-should-represent-future-humanity-in-climate-court","status":"publish","type":"post","link":"https:\/\/www2.law.temple.edu\/lppp\/jack-and-juliana-went-up-the-hill-why-child-plaintiffs-should-represent-future-humanity-in-climate-court\/","title":{"rendered":"Jack and Juliana Went Up the Hill: Why Child Plaintiffs Should Represent Future Humanity in Climate Court"},"content":{"rendered":"\n

Rory Kress Mandel, JD Anticipated<\/strong> May 2023<\/strong><\/p>\n\n\n\n

The kids are not alright: they\u2019re angry about climate change. And they have every right to be furious\u2013even litigious. Today\u2019s 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.<\/p>\n\n\n\n

Kids belong in the climate fight\u2013win 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.<\/p>\n\n\n\n

The ABCs of Climate Kids in Court<\/strong><\/p>\n\n\n\n

Juliana v. United States<\/a><\/em> 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 <\/em>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 <\/em>kids can claim several victories. For one, they generated a strongly-written decision from a federal court that affirmatively recognized that \u201cthe right to a climate system capable of sustaining human life is fundamental to a free and ordered society<\/a>.\u201d Oregon District Judge Ann Aiken wrote in her decision<\/a> 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\u2019s action will result in human extinction to bring their case. Ultimately, she unequivocally held<\/a> that government action that substantially damages the climate states a claim for a due process violation: \u201cTo hold otherwise would be to say that the Constitution affords no protection against a government\u2019s knowing decision to poison the air its citizens breathe or the water its citizens drink.\u201d<\/p>\n\n\n\n

A forceful decision from a federal judge\u2013even if overruled on other grounds\u2013is still valuable to the climate fight. Judge Aiken\u2019s decision used sound reasoning that climate attorneys can cite for the consideration of future courts. Beyond this, the Ninth Circuit\u2019s decision, while disappointingly overruling Judge Aiken, actually created inroads on the matter of recognizing standing for children in climate court.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

Standing is one of the most fundamental inquiries at the heart of a lawsuit. Logically, it\u2019s simple enough for a child\u2013climate litigant or not\u2013to understand: you can\u2019t complain if it didn\u2019t even happen to you and the court can\u2019t fix it. More formally, a plaintiff must demonstrate three elements<\/a> 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<\/a><\/em> recognized standing for a state to sue a federal agency to force it to use its regulatory power on greenhouse gas emissions.<\/p>\n\n\n\n

It was yet another small victory in the climate fight that the Ninth Circuit recognized that the Juliana <\/em>plaintiffs, who own no land of their own, could meet the injury and causation prongs for Article III standing. After all, the Juliana <\/em>plaintiffs\u2019 claim to invoke standing was distinguishable from that of the plaintiff commonwealth in Massachusetts v. EPA<\/em>: the group of child plaintiffs in Juliana <\/em>was not the \u201csovereign state\u201d plaintiff from Massachusetts v. EPA<\/em> that could be said to own much of the territory at stake in the litigation\u2019s outcome. Still, the Juliana <\/em>plaintiffs could undoubtedly claim they had been injured by climate change: Jaime was driven from her family\u2019s home on the Navajo Nation Reservation by water scarcity; Jayden weathered three devastating hurricanes in her home state of Louisiana that damaged her family\u2019s home and property; Alex lived on a farm<\/a> 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<\/a> rejected the government\u2019s counter argument that these \u201calleged injuries\u2026[were] not particularized because climate change affects everyone\u201d and the injuries alleged must be \u201cconcrete and personal.\u201d<\/p>\n\n\n\n

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\u2019s 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\u2019s failure on the third prong of Article III standing: redressability.<\/p>\n\n\n\n

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\u2019s power to award. Redress must be more than \u201cmerely speculative,\u201d but need not be guaranteed. In Juliana<\/em>, the young plaintiffs were seeking both declaratory and injunctive relief. For the former, the plaintiffs sought a declaration that the US government\u2019s inaction on climate change was a constitutional violation. The court was skeptical here: \u201cA declaration, although undoubtedly likely to benefit the plaintiffs psychologically, is unlikely by itself to remediate their alleged injuries absent further court action.\u201d<\/p>\n\n\n\n

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\u2019s \u201cdepriv[ing] them of a substantive constitutional right to a \u2018climate system capable of sustaining human life.\u2019\u201d The Juliana <\/em>plaintiffs relied on Massachusetts v. EPA<\/em> to say that while the requested relief would not solve \u201cglobal climate change,\u201d 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\u2019 proposed remedy, it was not within the court\u2019s power to provide it: \u201cNot every problem posing a threat\u2026can be solved by federal judges.\u201d Instead, the majority wrote that the plaintiffs made a compelling case for the legislative branch to manage instead.<\/p>\n\n\n\n

Despite this holding, the climate fight gained a new and useful piece of persuasive writing in Juliana\u2019s <\/em>ardently-voiced dissent. There, Justice Josephine Stanton compared the majority\u2019s doleful rejection of the plaintiffs to a now-unthinkable scenario where the court in Brown v. Board of Education<\/em> could have decided that the matter of desegregation was too wrought with obstacles to be done in a way that would meaningfully bring redress. \u201cMere complexity\u2026does not put the issue out of courts\u2019 reach. Neither the government nor the majority has articulated why the courts could not weigh scientific and prudential considerations\u2013as we often do\u2013to put the government on a path to constitutional compliance.\u201d 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.<\/p>\n\n\n\n

Are We There Yet?<\/strong><\/p>\n\n\n\n

Today, there is still some hope for Juliana<\/em>\u2013but the plaintiffs are stuck waiting. Still, they\u2019re learning: just weeks after the Ninth Circuit\u2019s decision, the plaintiffs filed a second request<\/a> 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<\/a>.<\/p>\n\n\n\n

Of course, it wouldn\u2019t be a climate fight without politics. In the year since the Juliana <\/em>plaintiffs filed their motion to amend, states across the nation have taken up arms both for and against them: Attorneys General in 18 states<\/a>\u2013all predictably \u201cred states\u201d\u2013moved to become intervenors in the lawsuit despite the plaintiffs\u2019 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 \u201cblue states\u201d<\/a> filed amicus briefs to support the young plaintiffs. In November, settlement talks ended without resolution, leaving the Juliana <\/em>plaintiffs on hold.<\/p>\n\n\n\n

And the world is watching. Juliana <\/em>is part of an international ecosystem<\/a> 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<\/a> 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.<\/p>\n\n\n\n

The Kid Stays in the Picture<\/strong><\/p>\n\n\n\n

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\u2019s this court that often drives voters to the ballot box for legislative change.<\/p>\n\n\n\n

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<\/a>: \u201cHow dare you\u2026you have stolen my dreams and childhood.\u201d 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\u2019s grown-ups and politicians for their inaction.<\/p>\n\n\n\n

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<\/a> went viral, showing California Senator Dianne Feinstein dismissing a group of climate kids requesting her help on the Green New Deal. She said: \u201cThat resolution will not pass the Senate and you can take that back to whoever sent you here.\u201d One child wisely replied: \u201cSenator, if [climate change] doesn\u2019t get turned around in ten years, you\u2019re looking at the faces of the people who are going to be living with these consequences.\u201d Senator Feinstein then asked the children\u2019s age and remarked \u201cWell, you didn\u2019t vote for me.\u201d The interaction went all the way up to the highest court of public opinion: Saturday Night Live<\/a>. There, a parody of the encounter had Senator Feinstein telling the bright-eyed climate kids to \u201cstay in your lane and f*** off.\u201d The embarrassment resonated and even now serves as a cautionary tale<\/a> to other Democrats who fail to heed the younger generation\u2019s call to go green.<\/p>\n\n\n\n

But climate kids must be deployed gently on a global stage\u2013they are, after all, still kids. Thunberg has faced bullying on a global scale, even the cruel mockery of a sitting U.S. President<\/a>. Climate kids also invite concern that can undercut their value: are the kids really the ones doing the talking or are they just unwitting\u2013or even unwilling\u2013puppets for their parents? A recent This American Life<\/a><\/em> told the sad tale of climate activist Michael Foster<\/a> who initially brought fame to his family and kids<\/a> by making them the face of his protests\u2013only to drive his household apart by \u201cstage dadding\u201d his children for the movement.<\/p>\n\n\n\n

Senator Feinstein is right about one thing: these kids can\u2019t 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 <\/em>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 <\/em>decision\u2013both its lessons and its heartbreaks. In the words<\/a> of lead plaintiff Kelsey Juliana herself, the youth climate movement is not going anywhere and is staying focused on the future: \u201cI see our future as bright and youthful and engaged\u2026Tell them we were climate kids. And we were here. And we did work.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

Rory Kress Mandel, JD Anticipated May 2023 The kids are not alright: they\u2019re angry about climate change. And they have every right to be furious\u2013even litigious. Today\u2019s 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 … <\/p>\n

Read More<\/a><\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[4],"tags":[],"coauthors":[67],"class_list":["post-2559","post","type-post","status-publish","format-standard","hentry","category-blog","infinite-scroll-item","masonry-post","generate-columns","tablet-grid-50","mobile-grid-100","grid-parent","grid-50"],"yoast_head":"\r\nJack and Juliana Went Up the Hill: Why Child Plaintiffs Should Represent Future Humanity in Climate Court - Law & Public Policy Program<\/title>\r\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\r\n<link rel=\"canonical\" href=\"https:\/\/www2.law.temple.edu\/lppp\/jack-and-juliana-went-up-the-hill-why-child-plaintiffs-should-represent-future-humanity-in-climate-court\/\" \/>\r\n<meta property=\"og:locale\" content=\"en_US\" \/>\r\n<meta property=\"og:type\" content=\"article\" \/>\r\n<meta property=\"og:title\" content=\"Jack and Juliana Went Up the Hill: Why Child Plaintiffs Should Represent Future Humanity in Climate Court - Law & Public Policy Program\" \/>\r\n<meta property=\"og:description\" content=\"Rory Kress Mandel, JD Anticipated May 2023 The kids are not alright: they\u2019re angry about climate change. 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And they have every right to be furious\u2013even litigious. Today\u2019s 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 ... 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