Where government action creates a danger to constitutional rights, which it allegedly has through its indifference to climate change and the harm it poses to the young and future generations, the state must protect those rights.
In an important victory a US magistrate judge has recommended denial of the national government and fossil fuel industry's call to dismiss a lawsuit brought by a number of young people.
The case is Kelsey Cascade Rose Juliana v United States and is available here.
The children and teenagers, aged between eight and 19, are suing the US government for violating their constitutional rights to life, liberty and property by failing to regulate carbon dioxide emissions.
The claim is part of a suite of litigation currently being brought against US state and federal governments by the NGO 'Our Children's Trust' based partially on the concept of the Atmospheric Public Trust, developed by the academic Professor Mary Christina Wood of the University of Oregon School of Law.
In what the magistrate judge called a "novel theory", the young people are making a number of claims against the US government, and are asking the court to confirm:
That it has violated and is violating the youths' fundamental constitutional rights to life, liberty and property by substantially causing or contributing to a dangerous concentration of carbon dioxide in the atmosphere that is dangerously interfering with a stable climate system required by the nation and the plaintiffs;
That section 201 of the Energy Policy Act and the statutory authorisation of the export of Liquefied National Gas from a terminal in the state of Oregon are unconstitutional; and
That the US government has violated its public trust duties.
Government must be ordered to act on climate!
The youth want the court to order the government to phase out fossil fuel emissions and draw down excess atmospheric carbon dioxide to stabilise the climate and protect the vital resources on which they depend, now and in the future.
On 14th January 2016, the court allowed three powerful industry lobby groups - the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers and the American Petroleum Institute - to join the case as interveners.
The US government and the lobbyists filed motions to dismiss the suit, claiming that the children lacked standing, raised non-justiciable political questions and failed to state a constitutional claim. They also argued that the public trust doctrine does not allow a case at national level as it is part of state law.
On 9th April 2016, Magistrate Judge Thomas Coffin of the US District Court of Oregon recommended that the government and lobbyists' motions to dismiss the case be denied.
Much of his reasoning departs from established precedent and if it is adopted by the District Court Judge and upheld on appeal, the case will be a huge breakthrough in climate litigation.
Crucially, Coffin rejected the government and lobbyists' arguments that the youths did not have the legal right to bring the claim, known as standing. This has previously been a significant hurdle for climate change litigants in the US, defeating an earlier lawsuit brought by the residents of the native village of Kivalina, Alaska, against America's largest utilities and energy companies.
The young litigants have standing - here's why
To establish standing, a plaintiff must show that:
They have suffered an injury in fact that is concrete, particularised and actual or imminent;
The injury is fairly traceable to the challenged conduct and;
The injury is likely to be redressed by a favourable court decision.
The magistrate judge said national courts are not the right place to air general grievances against government. However, after citing the wide variety of harm alleged, he concluded that "given the allegations of direct or threatened harm, albeit shared by most of the population or future population, the court should be loathe to decline standing to persons suffering an alleged concrete injury of a constitutional magnitude."
Interestingly, he also characterised young people as a discrete class of society, noting the intergenerational issues associated with the suit:
"The intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government".
Coffin agreed that the US environment agency's action or inaction on regulating greenhouse gasses could result in harm to the plaintiffs. He also took a unique approach to redressability and justiciability, finding that the courts do have the power to fashion an appropriate remedy addressing the plaintiffs' injuries without interfering with policy decisions of government.
The state's duty of protection to its citizens
In a fascinating application of international precedent, he cited the Dutch Urgenda case, in which the Hague District Court ordered the Netherlands to increase its national greenhouse gas emissions reduction target
Although he recognised that the case "does implicate some unmanageable issues", they did not bar the case completely, and a court could conceivably direct the US environment agency (EPA) to adopt standards that prevent the alleged constitutional harm and to take "a hard look at the best available scientific evidence".
The finding also rejected the federal governments' arguments that there is no constitutional right to be free from carbon dioxide emissions. Instead, it accepted that where government action creates a danger to constitutional rights, which it allegedly has through its deliberate indifference to climate change and the imminent harm it poses to the young and future generations, the state must protect those rights.
The magistrate judge noted that the government's actual knowledge or wilful ignorance of impending harm could amount to conduct that "shocks the conscience", thus meeting the legal threshold.
In a comment that will give heart to climate campaigners, he also said that the case could uncover evidence to show when the fossil fuel industry became aware of the harmful effects of carbon dioxide emissions, exposing their duplicity. This appears to be a reference to the recent revelations and investigations into the extent to which Exxon Mobil and other energy companies misled the public about their knowledge of the effects of climate change.
Public trust doctrine applicable at national level
Finally, the magistrate judge also left open the possibility that the public trust doctrine could exist under national law (as opposed to state-level), declining to follow legal precedent.
Under the public trust doctrine, American states are prevented from alienating certain lands, including navigable waterways, coastal tidelands and in some cases public reserves. They must also protect those resources and the public's interest in them. In a strong vindication of continued relevance of the doctrine, the magistrate judge said that the public trust reflects "core values of our Constitution and the very essence of the purpose of our nation's government".
However the decision does not go so far as to recognise an atmospheric public trust, with the impact of climate change on navigable waterways apparently sufficient to ground the public trust claim.
With this important decision, climate change litigants may have wedged open the door to a breakthrough in the fight for climate justice.
Sophie Marjanac is a lawyer at ClientEarth.
Author's note: We will be following the litigation closely, and will provide further updates on the District Court's final ruling, as well as the inevitable appeal, as the case progresses.