I founded Our Children’s Trust 11 years ago to address the reality that my children – and all children now and to come – will suffer most from the devastation wreaked on our planet by fossil fuels.
I knew that the actions taken by the legal community, myself included, in the first decade of this century would not avert the climate crisis, and that it was not being treated as the human rights issue – the children’s rights issue of the century – that it emphatically is.
In 2015, we filed Juliana v United States on behalf of 21 young Americans, asserting that the US government has caused and contributed to climate change through the systemic actions it has taken, thus violating the youngest generation’s constitutional rights. At the same time, our government has abdicated its duty to protect essential public trust resources such as air and water.
This summer the undeniable effects of the climate emergency – smoke-filled skies, flooded streets, decimated forests – were felt in communities around the globe. These impacts are also felt in children’s bodies, and many of my young clients live in a state of perpetual physical and emotional trauma from climate danger.
In 2016, US District Judge Ann Aiken issued a landmark decision in Juliana, ruling that the US constitution protects our fundamental right to a climate system capable of sustaining human life. In addition, Judge Aiken found that the young plaintiffs had put forward enough evidence that they were being harmed at the hands of their government and trial was justified.
In 2020, however, a divided appeals court affirmed that ‘the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change,’ but reversed Judge Aiken’s decision that the youth had a right to go to trial. In contrast to courts around the world, two judges on the panel – with another judge in dissent – said the court lacked the power to direct the government to act in a particular manner on climate. The plaintiffs have since returned to Judge Aiken with an amended complaint that addresses the deficiency found by the two appellate judges. If Judge Aiken accepts the new complaint, the case will once again be on track to trial. In the meantime, the plaintiffs are participating in court-sponsored settlement discussions with the Biden administration.
Young people have a long history of leading the great social movements of the modern era: civil rights, labour rights, Black Lives Matter, Water is Life, DACA, which sought to defer the deportation of child migrants from the US, LGBTQ+ rights and women’s rights, to name a few.
They continue to make bold and unflinching demands for their safety, security, and equality – and when necessary, they take that advocacy to the courts.
In Juliana, for example, young people will suffer disproportionately from the harms caused by climate change, yet they have no vote and no lobbying money, and thus no political power in the democratic process. But with unflinching courage and with the constitution in hand, they still take a stand against the political power bent on silencing them.
Our Children’s Trust also works on state-level cases across the country and around the world, and we base our efforts, in part, on the public trust doctrine.
This 1,500-year-old legal principle, dating back to Roman times, is rooted in long-standing indigenous and religious traditions, and reflected in the writings of the founders of this nation. It requires governments to hold critical natural resources in trust for the benefit of present and future generations. It is a law centered on inter-generational justice and responsibility, namely that governments have a duty to protect those things essential to their citizenry – air, water, seas and the shores of sea. This doctrine provides a legal framework for addressing the climate crisis and driving much-needed change.
Globally, courts are beginning to act to protect the fundamental rights of their citizens, realizing the necessity for judicial intervention and the critical role they must play in solving the climate crises.
In May, Royal Dutch Shell was ordered to reduce its greenhouses gases by 45 per cent by 2030, while an Australian court ruled on the government’s duty of care to protect Australian children from foreseeable future climate harms.
This is heartening progress, because only rights-based or constitutional court orders can finally bring about the durable and science-based solutions necessary to truly resolve the climate crisis.
While the shifting market towards affordable clean energy and transportation is encouraging, the market alone has never been the driver of our energy systems. Our governments subsidize, promote, facilitate and invest in the energy systems of today and tomorrow. When there is no constitutional check on the actions of politicians and their love of fossil fuels, we move towards climate tyranny.
This is a global crisis of epic proportions, and there is, as Martin Luther King Jr so eloquently put it, ‘a fierce urgency of now’ at stake. Our children are being harmed before our eyes due to the actions of their own governments.
It is the job of the courts to protect their rights now, to hold governments accountable now, and to stop the harm of children at the hands of unconstitutionally wielded political power.