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Nature’s Trust

Kids sue the state to fight climate change

Wednesday, November 4, 2015

Children huddled in the autumn chill outside the King County Courthouse on Tues., Nov. 3. They weren’t waiting to cast a vote. They’re too young for that. They were taking action of another sort. They were lending their support to a decision underway in Courtroom W-941, a decision that could be the most profound and consequential legal decision in their lifetimes.

Inside, Superior Court Judge Hollis R. Hill listened to oral arguments in a case brought by seven youths to address the state Dept. of Ecology’s persistent refusal to set carbon pollution limits based on current climate science.

The seven petitioners have now asked the agency twice to set emissions targets based on that science. Both times, Ecology has refused, committing only to half-measures. The petitioners argue that more delay in resolving their legal claims will result in irreversible infringement on their right to a livable world.

The Oregon-based nonprofit Our Children’s Trust has been leading efforts to file lawsuits or administrative petitions in every state and against the federal government. Some of the youth-led cases have been dismissed, while others are pending in states including Massachusetts, Pennsylvania, North Carolina, and Oregon.

In March, the youths filed their opening brief in their climate change case, Zoe & Stella Foster v. Washington Department of Ecology, to King County Superior Court, requesting an adminstrative ruling that require the agency to draft a plan to markedly reduce carbon emissions.

“We’re the ones who have to live with it if the oceans are acidic and the planet is 5 degrees warmer,” said Gabriel Mandell, 13, an eighth-grader and plaintiff in the case. “The snowpack is melting. Ocean is acidifying. The Earth is warming. Everything that can go wrong is going wrong, and we need to fix it.”

“Under the law, the people of this state, including the kids who have brought this case, have a fundamental right to a healthy environment,” said Andrea Rodgers of the Western Environmental Law Center, attorney for the youth petitioners. “Faced with the increasing harms posed by climate destabilization and ocean acidification, the young people brought this lawsuit to vindicate this right on behalf of themselves and future generations.” 

Ecology acknowledges that climate change is currently happening and will have devastating impacts on the natural environment of Washington. After the youths filed their case, Ecology issued an alarming update to the Legislature that confirms the young people’s assertions:

“The sea level is rising on most of Washington’s coast, ocean acidification has increased, and there’s long-term warming,” Ecology noted. “Glaciers and spring snowpack have declined and the timing of stream flows has changed for many rivers. And, climate extremes like floods, droughts, fires and landslides are already affecting Washington’s economy and environment.

“The effects of climate change on water supplies, public health, coastal and storm damage, wildfires, and other impacts will be costly unless additional actions are taken to reduce greenhouse gases.”

Ecology agrees that if immediate action is not taken, the costs of climate change and ocean acidification impacts to Washington are projected at $10 billion per year by 2020. The agency’s report to the legislature supports precisely what the youth petitioners seek.

Current climate science finds that atmospheric carbon dioxide levels must be reduced from the current global annual mean concentration of 399 parts per million to 350 ppm by 2100 in order to achieve climate stabilization and protect our oceans from catastrophic acidification.

“Kids understand the threats climate change will have on our future,” said 12-year-old petitioner Zoe Foster. “I’m not going to sit by and watch my government do nothing. We don’t have time to waste. I’m petitioning my government to take real action on climate, and I won’t stop until change is made.”

Given the acceleration of the phenomena and the sluggishness of regulatory response, the courts may offer the last recourse for a generation whose very lives and livelihoods are at risk from climate change, argues Christina Wood, a professor of environmental law and founding director of the University of Oregon’s nationally acclaimed Environmental and Natural Resources Law Program.

The regulatory conundrum

Wood expresses doubt that statutes alone can address what is fundamentally a human rights issue. A different framework is required, Wood argues. Wood is author of Nature’s Trust: Environmental Law for a New Ecological Age, a book that describes that framework.

“Environmental law protections were passed in the 1970s with great promise—the Clean Air Act, the Clean Water Act—but they were micro approaches for the problems understood then,” Wood noted. “Each act was directed toward a certain sort of problem. Had they been implemented as throughly as they were supposed to be, we probably wouldn’t be facing a climate crisis on the scale we see today.

“But what happened was, the regulatory agencies were given tremendous discretion on all levels—state and federal. Agencies became politicized in ensuing decades, in essence became captured by the very industries they’re supposed to regulate, and they’ve placed the interests of these industries ahead of citizens time and time again.

“This is not just an isolated problem,” Wood noted. “This is systemic across virtually all natural resources and environmental law. And this is not to say there has not been some related successes, but a change is required because we appear to be reaching the end of a road now, where the effects of climate change may become irreversible. We’ve reached a state where—as hard as it may be to believe—we are facing a planetary emergency. We are facing an all-out climate catastrophe if we don’t rapidly reduce carbon dioxide—and methane emissions.”

Now, environmental law has become Nature’s worst enemy, in a sense, because the agencies often use the law, not to protect Nature but to permit the destruction of Nature.

“These laws that once held so much promise have been turned into a blanket permitting system,” Wood said, noting 16 major fossil fuel projects for Washington and Oregon alone that have come forward in the last four years alone. “With every proposal there are agencies at all levels poised to hand out permits, even though they understand the accumulation of these projects pushes our world toward a great cliff.

“And yet—I always come back to this—government is the authority designed to protect citizens, and it has no more authority than the citizens give it. So we need to understand citizenship as crucial at this moment in time.”

Nature’s Trust

Wood notes there are three branches of government. And all of the destruction has been permitted by just two—the legislative and administrative branches. Yet there is a third branch of government, the courts, and the instruments of the judicial branch may be useful in the challenge ahead, Wood observes.

“A public trust creates a new narrative in the public’s mind, but it also provides the legal basis for studying damage to the environment,” she said “The public trust can help the courts protect the public’s property rights. And we see this strongly in the Indian approach to trusts and their property rights.

“These are legal grounds provided by statutory law that come from property law. The public trust approach says the public has actual property rights in the atmosphere, the stream beds and fisheries, in their safety and well-being, and government is a trustee of these crucial assets that we need for our survival.

“This is nothing new,” Wood said. “This is one of the oldest doctrines in law that reaches back to Roman times. It’s been on the books in our cases since literally the beginning of the nation. The trust model is a restraint on government, that’s what people need to understand.”
Washington’s trust model is particularly firm, Wood noted.

“In Washington, there are very strong public trust cases affirming the public’s right to protect crucial resources,” Wood said, “Conceivably, the public can go to court to protect this right, and the courts have a duty to respond.”

The tribes, using a cousin of these principles that protect them from the excesses of the federal government by treaty, have been particularly successful in applying the principles to protect natural resources. Lummi Nation, she noted, has been very prominent in establishing this model.

Gavel as hammer

Commenting on Zoe & Stella Foster, Wood noted Our Children’s Trust—a nonprofit organization advocating for urgent emissions reductions on behalf of youth and future generations—earlier this year filed for judicial relief in every state. Some states lack the framework to move these cases forward, but Washington and Oregon are uniquely suited to hear these claims, which could set a precedent for the rest of the nation.

“This effort is gaining enormous support across the country, and across the world, because every other proposed solution is failing,” Wood said. These lawsuits on behalf of youth all say the same thing—“we have public trusts rights to the atmosphere that supports our survival and well-being, and that governments, as trustees, must protect those rights. And that means reducing carbon dioxide and other greenhouse gas emissions, according to best available science of leading scientists around the world.’

“Washington is probably the most important trust case in the country because, boiling it down, Judge Hollis earlier said the Dept. of Ecology was wrong to deny the youth petitions to reduce climate emissions. Middle school kids took this opinion to the governor and asked for real action on climate. Now they’re back in court to get a determination on how much action is necessary to hold Ecology to its duty and develop an effective recovery plan.

“This is a legal supervision that never ends, because agencies routinely want to slip out of their duty to serve the public,” Wood observed. “They don’t want to make the hard decisions, and they won’t without that third branch of government.

“Without the third branch of government, you have something akin to administrative tyranny,” Wood observed. “There’s really no legislative oversight at the state or federal levels. the legislatures don’t want to pick up a hot potato, which leaves the agencies making all the decisions unless directed otherwise by the courts.”

The outcome in Washington could establish the precedents and framework that would guide similar administrative rulings in other states, permitting courts to supervise a remedy. In Washington and Oregon, the courts have really rode herd on remedies in other trust cases, she noted, such as the 1970s Boldt decision establishing treaty fishing rights in Washington. An administrative ruling in Zoe & Stella Foster could provide a similar mechanism to permit the court’s constitutional role in overseeing the other branches of government.

Without that supervision, “the agencies will simply run back to their industries that pressure thir policy,” Wood said, “But ‘business as usual’ will not protect the rights of youth to all of the fundamental rights we understand they have—rights to life, liberty and property—across their lifespans.

“One of the reasons the Washington case is so important is because it starts a momentum of judges stepping up to their duty. Judges are in a unique position of sitting in their seats at probably the most crucial moment in human history, as we face these catastrophic changes in a closing window of time. We need judicial momentum pushing us forward.”

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