Federal Court to Decide if Kids Can Sue Government for Failing to Act on Climate Change
By Clayton Aldern, Billmoyers.com
Courtrooms usually aren't jovial places, but with 21 youth plaintiffs and two busloads of supporting junior high-school students in tow, the air in the U.S. District Courthouse here on Wednesday felt more field trip than federal court.
The occasion for the youthful energy was a hearing on a complaint filed on behalf of the plaintiffs, aged 8 - 19, by Oregon nonprofit Our Children's Trust. The kids' lawyers assert that their clients and the younger generation as a whole, have been deprived of key rights by their own government. By failing to act on climate change, they argue, the U.S. government—including President Obama and a baker's dozen federal agencies—has valued its own generation more than future generations, who will bear a greater burden with respect to the climate crisis.
The Justice Department filed a motion to dismiss the complaint and Wednesday's hearing had a federal judge considering that motion. The youth plaintiffs' counsel sparred with government lawyers as well as attorneys representing fossil fuel interests. This kind of case might sound, well, juvenile, but trade groups with ties to the oil and gas lobby—the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers and the National Association of Manufacturers—were concerned enough about it that they joined as co-defendants in November of last year. Now, the Oregon U.S. District Court will decide whether or not the complaint will proceed to trial.
Xiuhtezcatl Tonatiuh Martinez, a 15-year-old indigenous activist and a plaintiff on the case, summed up the kids' perspective at a press conference after the hearing. “We are valuing our futures over profits," he said. “We are valuing this planet over corporate greed."
This isn't the first time Our Children's Trust has brought forth a youth climate lawsuit. Indeed, the group has at one time or another filed suit in all 50 states and currently has cases pending in five states. Back in November, in a case brought by a coalition of Seattle teenagers, a Washington judge ruled that the state was constitutionally obligated to protect its natural resources “for the common benefit of the people of the State"—a notable win for the young plaintiffs—but she did not go so far as to rule that the state's carbon emissions-limiting standards in question needed to adhere to the “best available science." A 2011 suit, which the youth plaintiffs ended up losing, also targeted the federal government for failing to keep the atmosphere safe for future generations. It perhaps goes without saying that these types of complaints are incredible long shots.
Julia Olson, a lawyer with Wild Earth Advocates and Our Children's Trust who argued the plaintiffs' case on Wednesday, is optimistic about the outcome of this complaint, though. “I believe in our Constitution and I think it can work to address even the most systemic, intractable problem of our generation," she told me.
The complaint alleges violation of the kids' Fifth Amendment rights to due process and equal protection. By failing to act on climate change, it argues, the government discriminates against youth as a class. Without access to a healthy climate, they're deprived of their fundamental rights to life, liberty and property.
The complaint is also built on the public trust doctrine, a carryover from English common law that says a government has the duty to protect certain natural resources and systems on behalf of current and future generations. “It originated with Emperor Justinian in Rome," Alex Loznak, a 19-year-old plaintiff, explained to the press. “It's reflected in the Magna Carta, the writings of Thomas Jefferson and cited in U.S. court decisions dating back to the 1800s."
An important question at hand on Wednesday was whether the public trust doctrine applies to the federal government. The U.S. government and its fossil-fuel industry co-defendants argued that legal precedent only considers it to apply to states. That's a crucial distinction, because it will help determine whether or not the plaintiffs even have standing in the federal court system.
The defendants also contend that if the federal court took on the case, it would amount to an egregious overstep of authority by the judiciary. “This is the type of problem that is designed to be solved by the political branches," argued U.S. counsel Sean C. Duffy at the hearing. He said that denying the U.S. government's motion for dismissal would effectively turn the judicial branch into a “de facto super-agency."
Another core argument of the defense is that all cases addressing constitutional rights must demonstrate that the government, through its actions, has infringed upon these rights or exceeded its authority. Instead, the defense argued, the kids' case alleges a failure to act and you can't require the government to simply “do more." “Our Constitution is one that limits the power of government," argued intervenor counsel Quin Sorenson, who represented industry interests at the hearing.
That's not how Olson sees it, though. “What we have today is not just a failure to act," she told the press after the hearing. “The government is not just sitting by and doing nothing. They are doing everything to cause this problem." Indeed, the complaint calls out the government for its continued actions to “permit, authorize and subsidize fossil fuel extraction, development, consumption and exportation."
Courthouse in Eugene, OR, after the hearing. The banner reads, “Our future is a constitutional right." Photo credit: Clayton Aldern / Grist
It's also not unprecedented for a court to demand that the government meet a specific standard to ensure its citizens' safety, she said. In Brown v. Plata, for example, a 2010 Supreme Court case concerning prison reform, the court required a mandatory limit on prison populations for the sake of health and safety. Summarizing the decision, she said that while the Supreme Court had no scientific standards to apply at the time, it ruled that it could rely on expert evidence. “The Court selected the number—it set the standard—to keep those prisoners safe." And when it comes to determining the safe level of climate pollution in the atmosphere, “we have scientific standards," she said.
pose with Our Children's Trust attorneys Phil Gregory (top left) and Julia Olson
(bottom left). Photo credit: Clayton Aldern / Grist
“The way I hope it will go is that the judicial branch will say, 'You've got to do something,'" said Dr. James Hansen, adjunct professor at Columbia University and former director of NASA Goddard Institute for Space Studies. Hansen's granddaughter is a plaintiff in the case and he's formally listed in the complaint as the legal guardian of “Future Generations." He continued, “Hopefully the court will ask for a plan: How are you going to ensure the rights of young people?"
In a time of gridlock and sorely needed climate action, the case couldn't come soon enough, Hansen said. “It gets harder and harder to stabilize the climate if you go longer and longer without turning the curve."
Addressing climate change is perhaps the greatest challenge of our time and it necessarily causes us to ask some big questions. Is there a constitutional right to be free from climate change? Is there a constitutional right to a safe climate? Is youth a class or simply a mutable trait? If the federal government takes actions that worsen the climate crisis, does that amount to an abuse of its power?
Said Olson: “We are not just in a climate crisis. We will have a significant constitutional crisis and a crisis in our democracy if this doesn't work."
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Of all the plastic we've ever produced, only 9% has been recycled. So what happened to all that plastic you've put in the recycling bin over the years?
Triangle of Mistruths<p>The myth created around plastic recycling has been one of simplicity. We look for the familiar triangle arrows, then pop the waste in the recycling bin so it can be reused.</p><p>But the true purpose of those triangles has been misunderstood by the general public ever since their invention in the 1980s.</p><p>These triangles were actually created by the plastics industry and, according to a report provided to them in July 1993, <a href="https://www.npr.org/transcripts/912150085" target="_blank">were creating "unrealistic expectations"</a> about what could be recycled. But they decided to keep using the codes.</p><p>Which is why many people still believe that these triangular symbols (also known as a <a href="https://sustainablepackaging.org/101-resin-identification-codes/" target="_blank" rel="noopener noreferrer">resin identifier code</a> or RIC) means something is recyclable.</p><p>But according to the American Society for Testing and Materials International (ASTM) – which controls the RIC system – the numbered triangles "<a href="https://www.astm.org/Standards/D7611.htm" target="_blank" rel="noopener noreferrer">are not recycle codes</a>." In fact, they weren't created for the general public at all. They were made for the post-consumer plastic industry.</p><p>In other words, the symbols make it easier to sort the different types of plastics, some of which cannot be recycled – <a href="https://www.ecobin.com.au/understand-recycling-codes/" target="_blank" rel="noopener noreferrer">depending on the recycling facility</a>.</p><p>"Unfortunately, just placing your plastic into the recycling bin doesn't mean it will get recycled," says Lara Camilla Pinho. She is an architect and lecturer at the UWA School of Design who is researching novel uses of plastic waste.</p><p>"The recycling system is complicated and often dictated by market demand. Not all plastic is recyclable. We cannot recycle plastic bags or straws for example."</p>
Behind the Scenes<p>So, what makes recycling plastics so difficult?</p><p>"Essentially, there are two types of plastics – thermoplastics and thermosets. While thermoplastics can be re-melted and re-molded, thermosets contain cross-linked polymers that cannot be separated meaning they cannot be recycled," says Lara.</p><p>"Even thermoplastics have a limit to the amount of times we can recycle them, as each time they are recycled they downgrade in quality."</p><p>Even when plastics are recyclable, it is <a href="https://www.theguardian.com/environment/2019/oct/13/war-on-plastic-waste-faces-setback-as-cost-of-recycled-material-soars" target="_blank">often more costly</a> than simply making new plastics.</p>
Sugar, Seaweed and Mushrooms<p>If the conventional recycling system isn't working, what else can we do with all the plastic we've created?</p><p>Lara is looking for ways to add value to recycled plastics such as using it in the design and development of architectural products. She hopes to use these architectural products to help underserved communities that are disproportionately affected by plastic waste.</p><p>In addition to recycling, we also need to find ways to reduce our use of virgin petroleum-based plastics.</p><p>Bioplastic is one such product that has been getting a lot of hype over the last few years. And although they're better than petroleum-based plastics, bioplastics also come with their own <a href="https://phys.org/news/2017-12-truth-bioplastics.html" target="_blank">set of challenges</a>.</p><p>"There are already a lot of bio-based alternatives to plastic, such as bagasse – a byproduct of sugar cane processing," says Lara.</p><p><a href="https://blogs.scientificamerican.com/observations/the-mycelium-revolution-is-upon-us/" target="_blank" rel="noopener noreferrer">Mycelium</a>, a type of fungi we most often associate with mushrooms, are also providing an interesting plastic alternative.</p><p>"In the field of architecture, mycelium is starting to be used as an alternative to plastic insulation, but also as compostable packaging and bricks," says Lara.</p><p>"The bricks take around five days to make and are strong, durable, water resistant and compostable at the end of their use."</p><p><a href="https://www.arup.com/news-and-events/hyfi-reinvents-the-brick" target="_blank" rel="noopener noreferrer">Hy-Fi Tower</a>, created by <a href="http://www.thelivingnewyork.com/living_about.html" target="_blank" rel="noopener noreferrer">The Living</a>, is an example of a building made from these bricks.</p><p>And finally, there's seaweed.</p><p>"[Seaweed is] cheap and can reproduce itself quickly without fertilizers. In architecture, there is use for seaweed as an alternative to plastic insulation but also as cladding," says Lara.</p>
More Money, More Problems<p>While all these alternatives are great, the main cause of our plastic dilemma is not scientific or technological, but economic.</p><p>As long as it remains <a href="https://engineering.mit.edu/engage/ask-an-engineer/why-is-it-cheaper-to-make-new-plastic-bottles-than-to-recycle-old-ones/" target="_blank">cheaper to create new plastics</a> from fossil fuels rather than from bioplastics or from recycling, we're going to be stuck with plastic garbage islands floating in our oceans.</p><p>The true cost to our health and our environment has yet to be included in the equation. But once it is, maybe that is when the real shift will happen.</p>
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