A U.S. Army helicopter helps battle a wildfire, exacerbated by drought, in Tennessee in November 2016. Army photo

Can I, Too, Sue the Government Over Climate Change?

Legal challenges to climate inaction face big obstacles

by AJAI RAJ

There’s been a decent amount of fanfare recently about a court decision in Eugene, Oregon, in which Judge Ann Aiken, of the U.S. district court, ruled that a ragtag group of lovable scamps can sue the federal government and the fossil fuel industry for playing it fast and loose with their futures.

I know! It sounds like the plot of a 1980s movie. But it really happened. Aiken’s decision denied the motion of the rich kids from the camp across the lake — I mean, various government agencies and petroleum concerns — to dismiss the plaintiffs’ case, and they live to fight another day.

That’s all well and good, you might be thinking. But what about me? It’s my future, too, but I’m old and fat and I have no friends. Can I also sue the government?

Probably not. Asked how one might sue the government over climate change, Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, replied, “With great difficulty, at great expense, and with low probability of ultimate success.”

Part of that difficulty is the fact that the U.S. constitution has nothing to say about the environment, and no court decisions have ever interpreted any of its provisions as guaranteeing the right to a clean environment — until now.

In her decision, Aiken cited the public trust doctrine, a principle inherited from English common law that holds the government responsible for safeguarding natural resources for public use, and concluded that the “plaintiffs’ public trust rights both predated the constitution and are secured by it.”

Aiken added that while “the public trust predates the constitution, plaintiffs’ right of action to enforce the government’s obligations as trustee arises from the constitution,” specifically the Due Process Clause.

In other words, per public trust doctrine, the government is responsible for maintaining the environment as part of the plantiffs’ — and therefore every American’s — rights to life, liberty and the pursuit of happiness. Per the Due Process Clause, the plaintiffs — and therefore even us fat, friendless slobs — have the right to call them on it.

But don’t get too excited. “We have one decision from a district court judge,” Gerrard pointed out in an email. “We need to see what happens on appeal. If the decision is upheld on appeal, it will lead to more suits under similar theories, but probably not until then.”

So there you have it. The children — these children, in particular — really are our future.

By the way, Aiken’s decision really is worth reading in full, if only because it may be the first and only time the phrase “our home planet” has been used in a court ruling, outside of Scientology litigation.

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