21 Kids and a Scientist Sue to Force Obama to Fight Climate Change

Climate Change: The Next Generation from BillMoyers.com on Vimeo. Kelsey Juliana, an 18-year-old activist, is fighting climate change in the courts and walking across the country to spread the word on global warming.

by Gaius Publius

(Implicit in the headline, of course, is that it will take a lawsuit to force him. As James Hansen's written testimony makes clear, that implication is correct.)

I've been meaning to write this piece for a while, and my hesitation stems from the fact that it's actually at least a magazine-length article, if I do it any justice. Here are the main pieces, and I urge you to explore them, assuming the longer article won't be written today, or this week.

Those pieces:

     ▪ According to Thomas Jefferson (and many others), in principle the earth belongs to the living, not the dead. One of the outflows from that idea is that the dead should not write rules that constrain the living from exercising their own will. Another idea is that the dead should not "eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead."

     "Usufruct" is a Latin name for a specific kind of limited legal right with respect to property. To hold a property "in usufruct" means the right to (a) enjoy the use (usus) of a property (like, say, the earth and its atmosphere, or a plot of land) without destroying it; and (b) derive profits (fructus) from the property, again, without destroying it. (The right to destroy a property is, rightly, named abusus.) Jefferson in his letter to Madison holds in principle that "lands" are held by one generation for the next in "usufruct" — for non-destructive use and profit — and for that use only. If this were not the case and the land (the earth) instead destroyed, the next generation would inherit a useless thing, and a thing would remain forever the property of the dead.

     ▪ Climate change, in a very real sense, is destroying the property held in common by all humans — our earth and its ability to sustain civilized (non-hunger-gatherer) human life. If climate change is not stopped or reversed, when this generation of Kochs and Tillersons and, yes, Obamas, passes from the earth, and the generation that inherits it looks around, they will see that their elders have not only eaten its fruits — they've eaten the earth itself. That they've abused the earth for their own enjoyment only, then died and given a dead thing to the living.

     ▪ The principle that the government holds the country and its common resources "in public trust" is established in law.

     ▪ From these principles flows one more way to use force against this generation's "climate criminals" — and I'm using the term in a very real sense, considered in light of the ideas above. That way is the force of law, in particular, the law that constrains the government to protect what it holds, including the air, the atmosphere, "in public trust."

     ▪ There have been a number of lawsuits in U.S. courts attempting to force the government to reverse the destruction of the atmosphere by CO2 emissions. As the article below details, they have had some success at the state level. There's now a federal case, and it's being brought by 21 children on behalf of their generation — and climate scientist James Hansen, the grandfather of one of the children.

I hope you can see how this piece, if it were to explore each bullet-point above, would become a lengthy article indeed. For example, I'm not done with the idea of launching a very real "climate criminals" project. But for now, the news.

21 Kids and a Climate Scientist Sue to Force Obama to Fight Climate Change

I'd like to focus on the federal lawsuit, though much could be written about the various state suits as well. Here's John Light writing at Bill Moyers' site:

21 Kids and a Climate Scientist Are Suing to Force Obama to Fight Climate Change

When the young people working with Our Children’s Trust talk about their lawsuits to compel governments to act on climate change, they like to use a quote attributed to Mahatma Gandhi: “First they ignore you, then they laugh at you, then they fight you, then you win.”

This month, it looks like these young activists have made it to step three: On Nov. 12, three fossil fuel lobby groups asked a judge to let them join the federal case as co-defendants against the 21 children (and a climate scientist) who are suing [pdf; this is the lawsuit document itself] the Obama administration and federal regulatory agencies to take serious, science-based action on climate change.

The case is the culmination of a series of lawsuits brought by various groups of young people in all 50 states since 2011. Their argument is that the federal government is infringing on the constitutional rights of America’s youth and future generations by continuing to allow fossil fuel extraction and consumption. These activities cause climate change by damaging the atmosphere, and the atmosphere is a public trust, they say, that should be protected for future generations. Ultimately, they argue that this type of pollution discriminates against young people, because young people will suffer the impact of climate change far more than today’s policymakers.

Light then details the success of similar suits, including one in Washington State and another in the Netherlands. Though I won't quote those sections, each of them is interesting. About the federal suit he writes (my emphasis):

In August, Our Children’s Trust took its case to the federal level with 21 young Americans and renowned climatologist James Hansen as plaintiffs. (Hansen’s 17-year-old granddaughter Sophie is one of the plaintiffs, and in the case he plays both the role of her guardian and “guardian” to as-yet-unborn generations.) Last Tuesday, the Obama administration filed a motion to dismiss the youths’ suit, arguing that the plaintiffs don’t have the right to bring the lawsuit in the first place, and that even if they did, the court doesn’t have authority to create climate policy. The judge may or may not choose to dismiss; if the case goes to trial, it will be this winter.

Note that the defendant is the Obama administration, and that the administration is contesting the suit. That is, the Obama administration is upholding its right to allow the fossil fuel companies to destroy the land it holds "in trust" for the children and grandchildren of those in current control, including ... itself.

Shorter lawsuit: "You can't destroy the world we will live in when you're dead." Shorter Obama: "Yes, we can, and we'll fight your attempt to stop us."

Exxon's Friends Are Asking to Join Obama As Co-Defendants

That's no joke. As you read above, the fossil fuel companies, through their entirely-controlled trade associations, have asked to join Obama and his administration as co-defendants. As well they should, in my view. Light again (my emphasis):

But for the plaintiffs [the children and Hansen], the big development this month was the request by three of Washington’s most powerful trade groups — each representing major players in the fossil fuel industry, including ExxonMobil, Shell, Chevron, Koch Industries and BP America — asking the judge to let them join the Obama administration in the suit as co-defendants. That means the American Petroleum Institute (API), the American Fuel and Petrochemical Manufacturers (AFPM) and the National Association of Manufacturers (NAM) would make their case side-by-side with the Obama administration, using their own lawyers — including Roger Martella, the former General Counsel of George W. Bush’s EPA — to argue against the youths and Hansen.

“It’s fairly common for trade associations to move to participate in lawsuits that could affect their interest,” says Michael B. Gerrard, a professor at Columbia Law School and the director of the Sabin Center for Climate Change Law.

Why would they do that? I think for several reasons. First, as Gerrard notes: “I think it shows that they’re not utterly certain it will be dismissed.”Second, they can throw their high-priced lawyers into the case. And finally ... well, perps of a feather flock together. As well they should.

Documents for Your Perusal

I think this could turn into a big deal, and yet fly way under most radars, including most (but not all) radars at MSNBC and PBS. (Obviously it hasn't flown under Bill Moyers' radar at PBS, and it may well make the news at the climate-excellent All In With Chris Hayes.)

If you'd like to read some of the source material, the data I'll be analyzing for later presentation, here are some links:

• The lawsuit itself:
  http://ourchildrenstrust.org/sites/default/files/15.08.12YouthComplaintAgainstUS.pdf
   
• James Hansen's written testimony (a fascinating document):
  http://csas.ei.columbia.edu/2015/08/12/youth-versus-obama-dr-hansens-testimony-against-the-government/
   
• Thomas Jefferson's Letter to James Madison, September 6, 1789:
  http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl81.php

There are others, but these make a great place to start, as well as good reads in themselves, especially the Hansen testimony.

"If a man eat up the usufruct of the lands, then the lands would belong to the dead"

I want to quote some of that Jefferson letter (excerpts partly gathered from here; my emphasis):

I set out on this ground which I suppose to be self evident, "that the earth belongs in usufruct to the living;" that the dead have neither powers nor rights over it. The portion occupied by an individual ceases to be his when himself ceases to be, and reverts to the society....

[T]he child, the legatee or creditor takes it, not by any natural right, but by a law of the society of which they are members, and to which they are subject. Then no man can by natural right oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment of debts contracted by him. For if he could, he might during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be reverse of our principle. What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of individuals.

What Jefferson says about a generation destroying the use of a land by charging it with a debt that the next generation can never repay (something that France did to Haiti, by the way, when France was driven outand Haitian slaves freed), is equally true of any "debt" that destroys the use of a property held by one generation in trust for the next. We're going to follow this case closely. I hope you will follow it with us.

"First they ignore you, then they laugh at you, then they fight you..."

GP