‘We have reached the moment in our history, where we need to decide how much humanity means to us.’
Seventeen-year-old Vic Barrett shared these words with the UN General Assembly in 2016 when addressing delegates on the urgency of climate action.
Barrett didn’t linger on how she had recently joined more than 300,000 people at the People’s Climate March in her home state of New York, or how she spoke at the signing of the historic Paris Agreement and became a fellow at the Alliance for Climate Education – all before her 18th birthday. Nor did she single out leaders and industries who ignore scientific facts for short-term ends. And she didn't dwell on her long-term involvement with 20 other young people in a landmark climate change litigation case.
‘We must ensure that we are not characterised or held prisoner by our mistakes of the past,’ she said calmly, ‘but that we are defined by our perseverance and bravery of the present.’
She may not have made it the focus of her speech, but Barrett's participation in a current legal case is significant. Twenty-one plaintiffs, aged between 11 and 22, were due to have their day in court on 29 October in a lawsuit called Juliana v US. They were to be accompanied by their pro bono lawyers from Our Children’s Trust (OCT) and an ex-NASA director, James Hansen, heralded as ‘the father of climate science’.
The case was originally filed in 2015 (against the Obama administration) at the US District Court for the District of Oregon. The plaintiffs argued that despite five decades of awareness by the US government, continued endorsement of a fossil fuel energy system compromised their constitutional right to ‘life, liberty, and property’.
The legal claims are as diverse and as creative as the plaintiffs themselves. During argument at the US Court of Appeal for the Ninth Circuit in December 2017, in which the government asked the court to dismiss the case, an 18-year-old Obama-prize-winning hip-hop artist of Aztec descent explained his experiences of increased drought, declining snowpack and flooding in Colorado. On the other side of court, government lawyer Eric Grant continued to dryly characterise the case as being of ‘clearly meritless character’. In the context of the impending climate emergency – detailed this October in the IPCC Special Report on Global Warming of 1.5ºC – the courtroom contrast was as shameful as it was cinematic. The Court of Appeal rejected the government's argument and set 29 October as the trial date.
Then, just 11 days before trial, US government defence lawyers submitted a third and final request for the case to be dismissed. Hurdling the jurisdiction of the Oregon District Court, the request was received and a temporary, administrative stay was granted by the Supreme Court to allow it time to consider the federal government’s petition. On 22 October the plaintiffs filed a response to this delay, requesting that the court allow their trial to proceed and pointing to numerous mischaracterisations of the lawsuit. As of yet, the case has not been heard, but it is not yet over. In Eugene, Oregon, and across the US, young people are now rallying outside dozens of courthouses calling for intergenerational justice on an urgent issue they didn’t create but are burdened to inherit.
Photo by Robin Loznak/Our Children’s Trust; Interviews by Matt Maynard
Government lawyers do not dispute established climate science in this case, or that mankind is responsible for observed atmospheric changes. What the US government under the Trump administration continues to contest are the legal rights of the plaintiffs. OCT lawyer Julia Olson has built her case partly around the ‘public trust’ doctrine. With origins in Roman Law, the doctrine prevents the government of any country from taking actions that will deny the future well-being of its citizens. It applies to running water, the sea and – crucially – the air.
When district judge Ann Aiken ruled back in 2016 that the trial could go ahead, she stated: ‘I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.’ But her statement marked only the start of the battle. Defence lawyers last week argued at the Supreme Court that Judge Aiken’s statement is ‘entirely without basis in this nation’s history or tradition’. As federal lawyer Eric Grant told the judges: ‘This court has exceeded its prescribed jurisdiction, and… is on a collision course with the executive branch.’
The greatest mistake the government seems to be making is to underestimate their young opponents. In their October request for dismissal they referred to the plaintiffs as ‘21 minor children’. That was incorrect when the case was filed back in 2015. It’s certainly incorrect now. More than half of the Juliana plaintiffs are now old enough to elect politicians that represent their values in the imminent mid-term elections. They represent diverse indigenous communities from the Tangle People Clan to the Yankton Sioux Nation. Their experiences of climate change range from increased ice storms and wildfires in Alaska, to rising sea levels and algae blooms in Florida. They have experience outside Washington D.C. and have conversed with the leaders of nations.
Young people in the US, and around the world, are increasingly unwilling to hedge their future on the received fossil-fuel wisdom of their elders. With the absence of vested interests, and with no distorting political lens with which to view the world, they have a unique vantage on a planet headed for mass loss of species, destruction of island nations, crop failures, disease, habituated natural disasters, mass migrations and potential war within their lifetimes. As well as pursuing justice through the courts, some are now taking direct action to challenge the climate deniers still in power. From August of this year, 15-year old Swedish student Greta Thunberg has been striking from school until Sweden aligns with the Paris Agreement on emission reductions. Her actions have sparked solidarity strikes across Australia from even younger activists.
Photos courtesy of Schoolstrike4climate.com
For the Juliana plaintiffs it is crucial that youth-led climate litigation has worked before. In April 2018, 25 activists from across Colombia, aged between 7 and 25, successfully won a landmark climate lawsuit against their government. The ruling required the president and the ministries of environment and agriculture to develop an intergenerational pact for the life of the Colombian Amazon within four months. These executive agencies were tasked with reversing the trend of deforestation and reaching net zero emissions by 2020 to comply with existing commitments under the Paris Agreement.
Both the Colombian and the Juliana case utilised the expert evidence of Dr James Hansen. In his advisory opinion to the Bogota court, the NASA scientist drew on his 2017 research Young People’s Burden in which he explains how ‘continued high fossil fuel emissions today place a burden on young people to undertake massive technological CO2 extraction if they are to limit climate change and its consequences’.
Colombian lawyers from the advocacy and social justice organisation Dejusticia used a powerful civil-rights legal tool called a Tutela. Once invoked, a judge must resolve the case within ten days. Gabriela Eslava, one of the lawyers, drew inspiration from the successful Urgenda climate litigation case in the Netherlands as well as the progress of Juliana. She notes how the deliberately narrow filing of her lawsuit in Colombia avoided conflict and helped expedite proceedings.
Photos courtesy of DeJusticia
‘We need global leadership to work towards our long-term existence,’ concluded Juliana plaintiff Vic Barratt when speaking at the UN General Assembly in 2016. International consensus, cooperation and leadership is the planetary-level requirement for addressing what Dr Hansen refers to as the ‘mortal threat’ of climate change.
On a national level, Juliana-type litigation could be a useful tool in strong-arming governments who are disengaged with the climate crisis. At the individual level, it needs a little imagination. The younger generations are showing they are capable of visualising climate breakdown and its consequences, not only for the duration of their lifetimes, but for unborn generations too.
As Barratt said at the UN: ‘I could stand up here and tell you a personal story about my life, and the effect climate change has had on me. But this isn’t a story about me. This is a story about all of us.’
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