Historic Climate Case Led By Kids Is Headed to Trial

Twenty-one children want to hold the federal government accountable for climate change, potentially changing how we handle environmental law.

Early one morning this past August, as torrential rains pounded Louisiana, a 13-year-old named Jayden Foytlin woke up, stepped onto her bedroom floor, and found herself ankle-deep in water. At first she was confused, Foytlin says. She knew the storm would cause flooding, but it wasn’t supposed to reach her home, in the small city of Rayne. By the time the storm passed, 7 trillion gallons of rain had fallen across the state, flooding more than 60,000 homes and leaving 13 people dead. According to the National Oceanic and Atmospheric Administration, the odds that the central Gulf region would be hit by a rain event of that magnitude have increased by at least 40 percent compared to a century ago because of climate change. 

Foytlin first learned about climate change when she was seven or eight. “I always thought, ‘Oh, there are people that will handle it,’ ” she recalls. But as the years passed, “I noticed that nothing is getting better,” she says. “They aren’t taking control.” So in 2015, when she and her mother heard that an Oregon-based nonprofit called Our Children’s Trust (OCT) was looking for youth plaintiffs to participate in a potentially groundbreaking climate lawsuit, she wanted in. In August of that year, Foytlin and 20 other children from around the country—joined by renowned environmental expert James Hansen—filed a civil suit that accuses the government of failing to protect future generations from the impacts of climate change. As a remedy, they’re asking the court to order federal agencies to develop a science-based plan to rapidly reduce carbon emissions so that atmospheric greenhouse gas levels drop to 350 parts per million by 2100 (we’re currently at about 400 parts per million). OCT is simultaneously litigating similar youth claims in courts around the country to compel state governments to come up with and enforce their own plans to cut emissions. So far, there have been victories in Massachusetts, Washington, and New Mexico

When the federal lawsuit was filed, the U.S. government and attorneys representing the fossil fuel industry quickly responded with motions to dismiss (a similar federal case filed by OCT in 2011 had been dismissed). But yesterday, in a move that surprised many observers, a district court judge rejected the motions, allowing the case to move forward to trial. “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it,” she wrote in her decision.

Now, the United States judicial system is being forced to grapple with a fundamental question: Do governments have a legal obligation to do everything in their power to protect their citizens—including those not yet born—from the most catastrophic environmental crisis humans have ever faced?

OCT’s federal lawsuit essentially rests on two claims: First, that by actively enabling the development of fossil fuels and spurring severe climate destabilization, the government has violated children’s constitutional rights to life, liberty, and property, and has discriminated against them by burdening them with an unstable environment. Second, it claims that the government has also violated the public trust doctrine, a principle based in common law—the body of broad legal principles that have their roots in centuries of Western governance, yet aren't articulated in the Constitution or statutes—that holds sovereign governments as the trustees and protectors of shared resources, such as land and water.

The problem, according to Michael Burger, the executive director of Columbia Law School’s Sabin Center for Climate Change Law, is that no U.S. federal court has ever accepted that there’s a constitutional right to a stable climate, or that the public trust doctrine even applies to federal governments. In other words, “the plaintiffs here are asking the court to accept legal theories that haven’t been accepted before,” Burger says.

That doesn’t mean it’s impossible. Gerald Torres, a professor of environmental law at Cornell, finds the case to be persuasive. The atmosphere, he says, is available for common use, and can be regulated and preserved by the government if manipulated by private persons, for example, through excessive carbon loading.

If the legal framework of the lawsuit seems unprecedented, it’s only because the threat posed by climate change itself is unprecedented. For Julia Olson, OCT’s director and chief legal counsel, the lawsuit falls in the vein of groundbreaking cases that sought to reverse deeply entrenched, systemic discrimination, like Brown v. Board of Education, or Obergefell v. Hodges, the 2015 Supreme Court case that legalized same-sex marriage. She points out that the equation the government uses to calculate the “social cost of carbon” literally assigns a lower per-person economic value to future generations. That, she says, is intentional discrimination.

By reframing climate change in the public sphere, via sympathetic plaintiffs and an intuitive, moral argument, OCT has pursued a smart strategy. “They’re taking this most profound, even existential, question about our relationship to the climate and they’re pressing it into a judicial forum where a judge has to respond, based on evidence and reason and principle,” Doug Kysar, a climate-law researcher and professor at Yale, says. Even if it doesn’t succeed, he argues, it makes us rethink climate change policy as a question of fairness and responsibility, not money and politics.

That on its own could help spark a social movement. “There are well over 80 million Americans who have already made clear that reducing greenhouse gases is an important policy goal,” Torres says. As that number expands, the courts are bound to take notice. Ignoring 21 kids is one thing; but ignoring millions more—where’s the justice in that?