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Young Litigants Suing On Behalf Of The Planet Find A New Anchor For Litigation — State Constitutions

Much better odds going for constitutionality than criminal liability for now.

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comparing green earth and effect of air pollution from human action, glbal warming concept, green tree and green earth with light and arid land with air pollusion at backgroundSure, prioritizing oil profits over future generations is the major ethical issue of our lifetimes, but is it constitutional? It’s a given that the youngest among us face the harshest consequences from the effects of global warming, but does their future well-being suffice to satisfy standing? The trend in ecology-based litigation should answer these questions, and more, as time goes on. From The Guardian:

The number of cases focused on the climate crisis around the world has doubled since 2015, bringing the total number to over 2,000, according to a report last year led by European researchers.

“I don’t know of another time in history where so many courts in so many different levels all over the globe [have been] tasked with dealing with a similar overarching issue,” said Karen Sokol, law professor at Loyola University New Orleans College of Law.

Research also continues to unearth more about the fossil fuel industry’s knowledge of climate change. A January study revealed that Exxon had made “breathtakingly” accurate climate predictions in the 1970s.

Outside of fringe climate deniers, it is a generally accepted truism that global warming is anthropogenic and that corporate emissions (along with cow farts, but even that traces back to a profit incentive) have been largely responsible. It is fashionable for corporations to turn their impact on the environment into a sales pitch, but the decision to challenge the action of states and corporations based on state constitutions is a novel practice that may pick up steam:

Held v Montana, is based on the state’s constitutional guarantees to a clean and healthy environment, which were enshrined in the 1970s and which the plaintiffs say the state has violated by supporting fossil fuels. It will next week become the first-ever constitutional climate lawsuit to go to trial in the US.

“Our government knows the devastating effects of fossil fuels and must take action to protect the land that my family and fellow Montanans rely upon and hope to conserve for future generations,” the plaintiff Rikki Held, then 18, said in 2020.

…

Litigation based on state constitutional rights, also filed by Our Children’s Trust, is currently pending in four other states. One of those cases brought by Hawaii youth is set to go to trial, possibly as soon as this fall.

Why state constitutions opposed to our supreme federal one? Well, as it turns out, the founding fathers didn’t really write that document with CO2 in mind. From Michael B. Gerrard:

The U.S. Constitution has no explicit right to a clean environment, and efforts to persuade judges to find an implied right have not succeeded. Most recently, in the famous Juliana v. United States case, plaintiffs sought an order directing the federal government to slash the nation’s greenhouse gas emissions. The district court in Oregon in 2016 seemed to favor such a right, but a divided Ninth Circuit concluded in 2020 that the plaintiffs lacked standing. (The plaintiffs are now back in the district court seeking much more modest relief.)

But six state constitutions — Hawaii, Illinois, Massachusetts, Pennsylvania, Rhode Island, and, obviously Montana — home of the Held case — include explicit environmental rights, while several others speak broadly about protecting the environment. State constitutions are easier to amend than the federal one and since the 1970s, states have put environmental language in there for litigants to use.

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It is an open question if courts will side with constitutionality or corporate interests. Post Held, it is clear that Montana and the Ninth Circuit will at least recognize that the youths have standing, but that’s the thing about grounding claims in a particular state’s constitution. What about the other circuits? Will courts recognize — at the very least — that our youth have the right to sue over our climate’s future? If future generations have any hope for times to come, the hope should lay on courts preferring the former.

‘Game Changing’: Spate Of US lawsuits Calls Big Oil To Account For Climate Crisis [The Guardian]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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