Kelly Matheson and #YouthvGov: The Trial of a Generation

Sharon Duggan and Kelly Matheson of Our Children’s Trust prepare for trial (photo: Pam Vergun)

The landmark trial of Juliana v. United States — aka #YouthvGov — was supposed to start on Monday, October 29. The 21 youth plaintiffs in the case allege that “through the [U.S.] government’s affirmative actions that cause climate change, [the government] has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources.” However, on October 18, 2018, following Justice Brett Kavanaugh’s ascension to the U.S. Supreme Court, the Trump administration filed a writ of mandamus to try to stop the trial from proceeding — even though the Court had previously said that the case could move forward. What happens next is in the Supreme Court’s hands.

Kelly Matheson is president of the board of directors of Our Children’s Trust, the nonprofit that is helping 22-year-old Kelsey Juliana and 21 other youth co-plaintiffs bring the landmark climate change case. Through their work, the organization is fighting for recognition of the United States’ youngest generations’ constitutional right to a healthy climate — and with that, their human and constitutional rights to life, liberty and property. Kelly is also senior attorney and program manager for the international nongovernmental organization WITNESS, as well as author of WITNESS’ Video as Evidence Field Guide, a seminal resource that teaches individuals around the world how to capture information on smartphones to build the records needed to fight abuse and bring perpetrators to justice.

On October 23, at an event co-hosted by the Human Rights Center at Berkeley Law, Kelly joined Jordan Diamond of the Center for Law, Energy and the Environment, Sharon Duggan of Our Children’s Trust, and others to discuss the threat of climate change. Below, Kelly talks about the importance of this monumental case.

AK: What is the Juliana case about?

KM: Climate change not only exacerbates, but truly prevents solutions to all the major crises of the world — including war, migration, poverty, and health. If we don’t fix the climate, we can’t fix those problems. The Juliana case is about restoring our climate system so that we can also address all of the other human rights violations that are happening throughout the world. Because the United States is a major emitter of greenhouse gases, the United States must play a leading role in addressing this crisis.

AK: How did you become involved with Our Children’s Trust and the Juliana case?

KM: When I was in law school, I took a number of classes from Mary Wood — she was (and still is) one of my favorite professors. She’s incredibly dynamic, innovative, passionate. And she has a fire in her belly.

Mary, at her core, understood that a healthy climate was necessary to the next generation’s right to life, liberty, and property, so she went to work to figure out how the law could better protect our climate system. The legal theory she developed was groundbreaking. It’s called atmospheric trust litigation and it’s rooted in the public trust doctrine and intergenerational rights, which is a core human rights principle. Her idea was novel even though it’s simply common sense — a healthy climate system is mandatory to ensure everyone, including future generations, can exercise the rights set forth in our Constitution.

Mary knew the concept of an atmospheric trust would be closely scrutinized. This is where WITNESS — where I work now — entered the movement. In 2010, a group of young people — with the support of Our Children’s Trust — decided to move Mary’s legal theory about an atmospheric trust into practice. I went to WITNESS with the idea of producing a series of ten films that would help Americans — and the world — understand that we all have a right to a healthy atmosphere. Understanding the urgency of the climate crisis, WITNESS supported the production of a film series to highlight the stories of the youth plaintiffs and underscore why the Juliana case is so profoundly important.

Over the course of a year we produced ten films, nine about the plaintiffs, and one about the scientists and the lawyers working on the case. Every time we would file a major legal action we would release one of the films with a press statement to help the public understand that they have a fundamental constitutional right to a functioning climate. Today, courts around the world seem to be understanding the importance of tackling climate change. Let’s hope that the U.S. Supreme Court also understands.

AK: Why is the Juliana case so groundbreaking, so important?

KM: There are so many reasons: perhaps most importantly, because it’s not just a case — it’s a movement. The case empowers young people not just to be in our courts, where the doors of justice should always be open, but also to be in city council meetings, to be in the Oval Office, to be in the halls of Congress. It empowers them to take to the streets. It educates them about their constitutional rights. It allows them to participate in democracy at every level — at the legislative branch, at the executive branch, and at the judicial branch. This is how we should all be participating in democracy.

It also educates the public about their fundamental human right to a clean and healthy environment. From a legal perspective, it’s groundbreaking because it’s the first time in our history plaintiffs have concretely articulated why the right to a healthy climate system is a [U.S.] Constitutional issue.

AK: So the Juliana case has been filed in the United States, but as you emphasized in your talk at Berkeley Law it’s also an international phenomenon. How is the case international?

KM: The beautiful thing about the legal theory that underlies the Juliana case is that it’s about children’s constitutional rights to life, liberty, and property. These fundamental rights are embedded in every constitution, all over the world.

So it’s not just young people in the U.S. who can — and are — bringing cases to secure their constitutional rights to life, liberty and property, it’s young people in Norway, it’s young people in Pakistan, it’s young people in India — young people everywhere.

And we have reason to hope: recently there have been successes in Colombia at the Supreme Court and in Netherlands at the Court of Appeals. Equally as promising is a decision issued just last week in Ecuador where a court evoked indigenous rights and the rights of nature when they protected the headwaters of the Aquarico river from mining. While that case is different from the Juliana line of cases, this landmark decision from Ecuador shows us that courts around the world increasingly understand that without a healthy environment, we cannot exercise any of our other basic rights.

AK: How did you end up working on environmental and human rights-related issues?

KM: I became an activist when I was probably about 8 or 9 years old. We were studying pollution in school. One afternoon, I was laying in my front yard in Iowa. It was a sunny day and the sky was bright blue. And I was laying in the bluegrass looking up at the sky and closing my eyes really tight and then opening them again, over and over, because I wanted to remember how blue the sky was — because I thought that by the time I got to be an adult the sky wouldn’t be blue anymore because of pollution. And I’m pretty sure that’s the day I became an activist.

Then, when I got out of college, I began teaching youth about natural science in an outdoor setting — on rivers, on mountains and in deserts. It was a young man named Noah who made me realize I needed to go to law school.

Seven years into teaching I helped organize a week-long workshop for 12–14 year olds. To launch the workshop we told the kids they were going to hear two different sides to the story about whether to cut down trees in the ­­­­Warner Creek Burn area in Oregon, and we wanted them to ask really tough questions of guests we’d brought in for the exercise — a Fire Ecologist named Tim Ingalsbee who was working to protect this ecologically-rich old growth area and a Forester named Tucker who was employed by the company that wanted to harvest the timber— and to then make up their minds about what should be done with Warner Creek: protect it or cut it? (A serendipitous connection — Tim is Kelsey Juliana’s dad.)

During the week, we heard from both Tim and Tucker and then we went into the burn site, where the kids gathered physical data so they could assess whether it was Tim or Tucker who was being most honest. When we got back from the field, Noah took all of his notes — from Tim, from Tucker, and from the field trip —and went straight to the computer and started plotting the data and designing graphs. Once he finished he turned to me and said, ‘The timber companies aren’t telling us the truth.’ And I was like, ‘You’re right, they’re not.’ He had figured it out for himself. And that’s when I decided I needed to go to law school because I wanted to protect the forests and the rivers and the oceans until the young people I was working with could fight for themselves. And now they can.

AK: In addition to your work in international environmental law, you’re an icon in the field of international criminal law — not least for your work establishing how to best capture video on smart phones to generate evidence to build war crimes and human rights cases. How did you come to work on video documentation?

KM: Oh gosh — the long and the short of it is I was at a conference at the University of Oregon listening to attorneys and activists talk about the Chevron Texaco oil spill and they were showing imagery. At that time, it wasn’t video, it was photographic evidence of the spill and its effects.

There was a picture of a man who was covered in oil and he was washing himself in Amazon waters using gasoline to get the oil off of his skin. It was at that moment that I realized the power of images when backed by the power of law. It’s also the moment I decided to go to law school to fight for international indigenous and environmental rights because of what I saw our country, or at least the corporations in our country, doing to other cultures. I saw the University of Oregon as the only choice because it was — and still is — one of the best public interest environmental law programs in our country. And the professors — Mary Wood, Mike Axline and John Bonine, to name a few — are world leaders in the field of public interest law, as well as mentors. So, I went there and started practicing domestic oil and gas law.

As a public interest lawyer, it our responsibility to communicate to the public what we are doing on the public’s behalf. Not so long ago in the late 1990s, early 2000s we didn’t have social media — YouTube, Facebook, Twitter — so we sent out written press releases to [traditional] media. I thought that there had to be a better way to communicate with the public. Then I learned about the Masters in Science and Natural History Filmmaking program at Montana State University and its mandate to teach people how to better communicate environmental science concepts with the world.

I applied thinking there was no way I would get accepted because I was a lawyer, I wasn’t a filmmaker, and I had never picked up a camera. But there was a professor named Rick Rosenthal. He was the underwater photographer for BBC’s Blue Planet. Rick called me up and said, ‘Kelly you are the exactly the type of person that we need in this program. You have no qualifications to be in here, but I want you. Come interview and use your advocacy skills to convince the admission committee why you should be here.’

At the time, Rick was working on this film called Coiba, A Savage Paradise, which was about an island off the coast of Panama that was 80 percent biologically intact because it had been a prison island. The project had two advocacy goals: one, to secure protection for the island as a national park — they were thinking about building resorts and golf courses, etc. — and two, to get UNESCO to declare Coiba a world heritage site.

I thought, this is exactly I want to do.

[Montana State] allowed me to pursue a Fulbright research fellowship to use video to support a public health campaign to prevent the transmission of Ebola. I was working in communities throughout the Congo where the literacy rate was zero, so film was the most effective way to communicate public health protocols and the science underlying [the disease]. Research for that project led me to WITNESS, where I now have the honor of working with activists from around the world to use video to strengthen human rights law. My job combines teaching, law and film — all the things that I love.

AK: How can law students and others support the Juliana climate change effort?

KM: In the short term, people can show up: They can show up at the rallies. They can show up on Twitter. They can write letters to their Congresspeople. They can advocate for concrete climate action in front of their city councils, their state decision makers, and courts around the world. They can participate in all of the grassroots activism that they can possibly think of.

In the long term? As far as law students go, we need people to help build a line of constitutional jurisprudence, whether that’s in the United States or elsewhere. Courts worldwide are already starting to guarantee environmental human rights in their opinions, because everywhere in the world there is a right to a healthy environment. We need to strengthen and enforce that right.

AK: What else should we know?

KM: Tell everyone to read the New Yorker article on Pauli Murray.

Tell them that back in 1944, there was a young law student named Pauli Murray who envisioned a very different world than the one she lived in, and that she wasn’t afraid to take risks. Because that’s what every law student who cares about constitutional and human rights should be doing: They should be taking risks, they should be questioning authority, they should be creative, they should be imaginative — and they should be out there to bring cases that set precedent.