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Judge Denies Motions by Fossil Fuel Industry and Federal Government in Landmark Climate Change Case

Climate

U.S. Magistrate Judge Thomas Coffin of the Federal District Court in Eugene, Oregon, decided in favor of 21 young plaintiffs in their landmark constitutional climate change case against the federal government. Judge Coffin ruled Friday against the motion to dismiss brought by the fossil fuel industry and federal government.

The court's ruling is a major victory for the 21 youth plaintiffs, ages 8-19, from across the U.S. in what Bill McKibben and Naomi Klein call the “most important lawsuit on the planet right now."

The youth plaintiffs after the hearing on March 9 in Eugene, Oregon. Photo credit: Our Children's Trust

These plaintiffs sued the federal government for violating their constitutional rights to life, liberty and property, and their right to essential public trust resources, by permitting, encouraging and otherwise enabling continued exploitation, production and combustion of fossil fuels.

“This decision is one of the most significant in our nation's history," plaintiffs' attorney Philip Gregory said.

"The court upheld our claims that the federal government intensified the danger to our plaintiffs' lives, liberty and property. Judge Coffin decided our complaint will move forward and put climate science squarely in front of the federal courts. The next step is for the court to order our government to cease jeopardizing the climate system for present and future generations. The court gave America's youth a fair opportunity to be heard."

As part of Friday's historic decision, Judge Coffin characterized the case as an “unprecedented lawsuit" addressing “government action and inaction" resulting “in carbon pollution of the atmosphere, climate destabilization and ocean acidification."

In deciding the case will proceed, Judge Coffin wrote:

“The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society. It may be that eventually the alleged harms, assuming the correctness of plaintiffs' analysis of the impacts of global climate change, will befall all of us. But 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. This is especially true when such harms have an alleged disparate impact on a discrete class of society."

“This decision marks a tipping point on the scales of justice," Kelsey Juliana, one of the youth plaintiffs from Eugene, said. "Youth voices are uniting around the world to demand that government uphold our constitutional rights and protect the planet for our and future generations' survivability. This will be the trial of the century that will determine if we have a right to a livable future, or if corporate power will continue to deny our rights for the sake of their own wealth."

The court rejected the courtroom arguments of the federal government and fossil fuel industry that Congress could sell the coastal sea waters of the U.S. to Exxon. Instead, the court found that the federal government is subject to the public trust doctrine and that “such a sweeping and profound effect" as suggested by the defendants is not consistent with U.S. Supreme Court jurisprudence. In January 2016, defendant status was granted to three fossil fuel industry trade associations, representing nearly all of the world's largest fossil fuel companies, who called the case “extraordinary" and “a direct, substantial threat to [their] businesses."

The decision denied motions seeking to dismiss the youth's climate change lawsuit. The motions were brought by the federal government and the fossil fuel industry who denied any duty under the constitution or the public trust doctrine to protect essential natural resources, such as air and oceans, for the benefit of all present and future generations.

“Science clearly establishes that our planet's increasing energy imbalance—caused in substantial part by our government's support for the exploitation and combustion of fossil fuel—imposes increasingly severe risks on our common future," Dr. James Hansen, guardian in the case for all future generations and world-renowned climate scientist, said.

"Now, from Eugene Oregon, comes a prescient and insightful ruling from a federal district court. Judge Coffin in effect declares that the voice of children and future generations, supported by the relevant science, must be heard. We will now proceed to prove our claims. It is perhaps not too late for serious action to preserve a viable climate system that will be required by our posterity."

The court heard oral arguments from attorneys for two hours on March 9, before hundreds of people supporting the youth, while hundreds more waited in lines to enter the courthouse. In an unprecedented move, oral argument was streamed via video feed into three additional courtrooms in Eugene, Oregon and one in Portland.

In denying the motions of the federal government and the fossil fuel industry, the court's decision framed the issue as follows:

“Plaintiffs are suing the United States … because the government has known for decades that carbon dioxide (C02) pollution has been causing catastrophic climate change and has failed to take necessary action to curtail fossil fuel emissions. Moreover, plaintiffs allege that the government and its agencies have taken action or failed to take action that has resulted in increased carbon pollution through fossil fuel extraction, production, consumption, transportation, and exportation. Plaintiffs allege the current actions and omissions of defendants make it extremely difficult for plaintiffs to protect their vital natural systems and a livable world. Plaintiffs assert the actions and omissions of defendants that increased C02 emissions 'shock the conscience,' and are infringing the plaintiffs' right to life and liberty in violation of their substantive due process rights."

The court's decision also upheld the youth plaintiffs' claims in the Fifth and Ninth Amendments “by denying them protections afforded to previous generations and by favoring short term economic interests of certain citizens." Judge Coffin upheld plaintiffs' assertion of violations under the public trust doctrine, ruling that there is a federal public trust and plaintiffs' claim can proceed.

“Judge Coffin accepted the complaint's presentation of undisputed scientific evidence that the federal government has, and continues to, damage these young plaintiffs' personal security and other fundamental rights," Julia Olson, counsel for the plaintiffs and executive director of Our Children's Trust, said. "Unlike almost every other case deciding constitutional rights throughout history, the climate rights that will now be decided in this case, cannot be vindicated by future generations."

This case alleges the federal government is violating plaintiffs' constitutional and public trust rights by promoting the development and use of fossil fuels. The complaint explains that, for more than 50 years, the U.S. Government has known that carbon dioxide (CO2) pollution from burning fossil fuels causes global warming and dangerous climate change, and that continuing to burn fossil fuels destabilizes the climate system. The next step is a review of Judge Coffin's decision by another judge in the same court, Judge Ann Aiken.

“When those in power stand alongside the very industries that threaten the future of my generation instead of standing with the people, it is a reminder that they are not our leaders," Xiuhtezcatl Tonatiuh Martinez, one of the youth plaintiffs and youth director of Earth Guardians, said.

"The real leaders are the twenty youth standing with me in court to demand justice for my generation and justice for all youth. We will not be silent, we will not go unnoticed, and we are ready to stand to protect everything our "leaders" have failed to fight for. They are afraid of the power we have to create change. And this change we are creating, will go down in history."

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Guillain-Barre syndrome occurs when the body's own immune system attacks and injures the nerves outside of the spinal cord or brain – the peripheral nervous system. Niq Steele / Getty Images

By Sherry H-Y. Chou, Aarti Sarwal and Neha S. Dangayach

The patient in the case report (let's call him Tom) was 54 and in good health. For two days in May, he felt unwell and was too weak to get out of bed. When his family finally brought him to the hospital, doctors found that he had a fever and signs of a severe infection, or sepsis. He tested positive for SARS-CoV-2, the virus that causes COVID-19 infection. In addition to symptoms of COVID-19, he was also too weak to move his legs.

When a neurologist examined him, Tom was diagnosed with Guillain-Barre Syndrome, an autoimmune disease that causes abnormal sensation and weakness due to delays in sending signals through the nerves. Usually reversible, in severe cases it can cause prolonged paralysis involving breathing muscles, require ventilator support and sometimes leave permanent neurological deficits. Early recognition by expert neurologists is key to proper treatment.

We are neurologists specializing in intensive care and leading studies related to neurological complications from COVID-19. Given the occurrence of Guillain-Barre Syndrome in prior pandemics with other corona viruses like SARS and MERS, we are investigating a possible link between Guillain-Barre Syndrome and COVID-19 and tracking published reports to see if there is any link between Guillain-Barre Syndrome and COVID-19.

Some patients may not seek timely medical care for neurological symptoms like prolonged headache, vision loss and new muscle weakness due to fear of getting exposed to virus in the emergency setting. People need to know that medical facilities have taken full precautions to protect patients. Seeking timely medical evaluation for neurological symptoms can help treat many of these diseases.

What Is Guillain-Barre Syndrome?

Guillain-Barre syndrome occurs when the body's own immune system attacks and injures the nerves outside of the spinal cord or brain – the peripheral nervous system. Most commonly, the injury involves the protective sheath, or myelin, that wraps nerves and is essential to nerve function.

Without the myelin sheath, signals that go through a nerve are slowed or lost, which causes the nerve to malfunction.

To diagnose Guillain-Barre Syndrome, neurologists perform a detailed neurological exam. Due to the nerve injury, patients often may have loss of reflexes on examination. Doctors often need to perform a lumbar puncture, otherwise known as spinal tap, to sample spinal fluid and look for signs of inflammation and abnormal antibodies.

Studies have shown that giving patients an infusion of antibodies derived from donated blood or plasma exchange – a process that cleans patients' blood of harmful antibodies - can speed up recovery. A very small subset of patients may need these therapies long-term.

The majority of Guillain-Barre Syndrome patients improve within a few weeks and eventually can make a full recovery. However, some patients with Guillain-Barre Syndrome have lingering symptoms including weakness and abnormal sensations in arms and/or legs; rarely patients may be bedridden or disabled long-term.

Guillain-Barre Syndrome and Pandemics

As the COVID-19 pandemic sweeps across the globe, many neurologic specialists have been on the lookout for potentially serious nervous system complications such as Guillain-Barre Syndrome.

Though Guillain-Barre Syndrome is rare, it is well known to emerge following bacterial infections, such as Campylobacter jejuni, a common cause of food poisoning, and a multitude of viral infections including the flu virus, Zika virus and other coronaviruses.

Studies showed an increase in Guillain-Barre Syndrome cases following the 2009 H1N1 flu pandemic, suggesting a possible connection. The presumed cause for this link is that the body's own immune response to fight the infection turns on itself and attacks the peripheral nerves. This is called an "autoimmune" condition. When a pandemic affects as many people as our current COVID-19 crisis, even a rare complication can become a significant public health problem. That is especially true for one that causes neurological dysfunction where the recovery takes a long time and may be incomplete.

The first reports of Guillain-Barre Syndrome in COVID-19 pandemic originated from Italy, Spain and China, where the pandemic surged before the U.S. crisis.

Though there is clear clinical suspicion that COVID-19 can lead to Guillain-Barre Syndrome, many important questions remain. What are the chances that someone gets Guillain-Barre Syndrome during or following a COVID-19 infection? Does Guillain-Barre Syndrome happen more often in those who have been infected with COVID-19 compared to other types of infections, such as the flu?

The only way to get answers is through a prospective study where doctors perform systematic surveillance and collect data on a large group of patients. There are ongoing large research consortia hard at work to figure out answers to these questions.

Understanding the Association Between COVID-19 and Guillain-Barre Syndrome

While large research studies are underway, overall it appears that Guillain-Barre Syndrome is a rare but serious phenomenon possibly linked to COVID-19. Given that more than 10.7 million cases have been reported for COVID-19, there have been 10 reported cases of COVID-19 patients with Guillain-Barre Syndrome so far – only two reported cases in the U.S., five in Italy, two cases in Iran and one from Wuhan, China.

It is certainly possible that there are other cases that have not been reported. The Global Consortium Study of Neurological Dysfunctions in COVID-19 is actively underway to find out how often neurological problems like Guillain-Barre Syndrome is seen in hospitalized COVID-19 patients. Also, just because Guillain-Barre Syndrome occurs in a patient diagnosed with COVID-19, that does not imply that it was caused by the virus; this still may be a coincident occurrence. More research is needed to understand how the two events are related.

Due to the pandemic and infection-containment considerations, diagnostic tests, such as a nerve conduction study that used to be routine for patients with suspected Guillain-Barre Syndrome, are more difficult to do. In both U.S. cases, the initial diagnosis and treatment were all based on clinical examination by a neurological experts rather than any tests. Both patients survived but with significant residual weakness at the time these case reports came out, but that is not uncommon for Guillain-Barre Syndrome patients. The road to recovery may sometimes be long, but many patients can make a full recovery with time.

Though the reported cases of Guillain-Barre Syndrome so far all have severe symptoms, this is not uncommon in a pandemic situation where the less sick patients may stay home and not present for medical care for fear of being exposed to the virus. This, plus the limited COVID-19 testing capability across the U.S., may skew our current detection of Guillain-Barre Syndrome cases toward the sicker patients who have to go to a hospital. In general, the majority of Guillain-Barre Syndrome patients do recover, given enough time. We do not yet know whether this is true for COVID-19-related cases at this stage of the pandemic. We and colleagues around the world are working around the clock to find answers to these critical questions.

Sherry H-Y. Chou is an Associate Professor of Critical Care Medicine, Neurology, and Neurosurgery, University of Pittsburgh.

Aarti Sarwal is an Associate Professor, Neurology, Wake Forest University.

Neha S. Dangayach is an Assistant Professor of Neurology and Neurosurgery, Icahn School of Medicine at Mount Sinai.

Disclosure statement: Sherry H-Y. Chou receives funding from The University of Pittsburgh Clinical Translational Science Institute (CTSI), the National Institute of Health, and the University of Pittsburgh School of Medicine Dean's Faculty Advancement Award. Sherry H-Y. Chou is a member of Board of Directors for the Neurocritical Care Society. Neha S. Dangayach receives funding from the Bee Foundation, the Friedman Brain Institute, the Neurocritical Care Society, InCHIP-UConn Center for mHealth and Social Media Seed Grant. She is faculty for emcrit.org and for AiSinai. Aarti Sarwal does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Reposted with permission from The Conversation.


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Unity Task Forces formed by presumptive Democratic presidential nominee Joe Biden and Sen. Bernie Sanders unveiled sweeping party platform recommendations Wednesday that—while falling short of progressive ambitions in a number of areas, from climate to healthcare—were applauded as important steps toward a bold and just policy agenda that matches the severity of the moment.

"We've moved the needle a lot, especially on environmental justice and upping Biden's ambition," said Sunrise Movement co-founder and executive director Varshini Prakash, a member of the Biden-Sanders Climate Task Force. "But there's still more work to do to push Democrats to act at the scale of the climate crisis."

The climate panel—co-chaired by Rep. Alexandria Ocasio-Cortez (D-N.Y.) and former Secretary of State John Kerry—recommended that the Democratic Party commit to "eliminating carbon pollution from power plants by 2035," massively expanding investments in clean energy sources, and "achieving net-zero greenhouse gas emissions for all new buildings by 2030."

In a series of tweets Wednesday night, Ocasio-Cortez—the lead sponsor of the House Green New Deal resolution—noted that the Climate Task Force "shaved 15 years off Biden's previous target for 100% clean energy."

"Of course, like in any collaborative effort, there are areas of negotiation and compromise," said the New York Democrat. "But I do believe that the Climate Task Force effort meaningfully and substantively improved Biden's positions."

 

The 110 pages of policy recommendations from the six eight-person Unity Task Forces on education, the economy, criminal justice, immigration, climate change, and healthcare are aimed at shaping negotiations over the 2020 Democratic platform at the party's convention next month.

Sanders said that while the "end result isn't what I or my supporters would've written alone, the task forces have created a good policy blueprint that will move this country in a much-needed progressive direction and substantially improve the lives of working families throughout our country."

"I look forward to working with Vice President Biden to help him win this campaign," the Vermont senator added, "and to move this country forward toward economic, racial, social, and environmental justice."

Biden, for his part, applauded the task forces "for helping build a bold, transformative platform for our party and for our country."

"I am deeply grateful to Bernie Sanders for working with us to unite our party and deliver real, lasting change for generations to come," said the former vice president.

On the life-or-death matter of reforming America's dysfunctional private health insurance system—a subject on which Sanders and Biden clashed repeatedly throughout the Democratic primary process—the Unity Task Force affirmed healthcare as "a right" but did not embrace Medicare for All, the signature policy plank of the Vermont senator's presidential bid.

Instead, the panel recommended building on the Affordable Care Act by establishing a public option, investing in community health centers, and lowering prescription drug costs by allowing the federal government to negotiate prices. The task force also endorsed making all Covid-19 testing, treatments, and potential vaccines free and expanding Medicaid for the duration of the pandemic.

"It has always been a crisis that tens of millions of Americans have no or inadequate health insurance—but in a pandemic, it's potentially catastrophic for public health," the task force wrote.

Dr. Abdul El-Sayed, a former Michigan gubernatorial candidate and Sanders-appointed member of the Healthcare Task Force, said that despite major disagreements, the panel "came to recommendations that will yield one of the most progressive Democratic campaign platforms in history—though we have further yet to go."

 

Observers and advocacy groups also applauded the Unity Task Forces for recommending the creation of a postal banking system, endorsing a ban on for-profit charter schools, ending the use of private prisons, and imposing a 100-day moratorium on deportations "while conducting a full-scale study on current practices to develop recommendations for transforming enforcement policies and practices at ICE and CBP."

Marisa Franco, director of immigrant rights group Mijente, said in a statement that "going into these task force negotiations, we knew we were going to have to push Biden past his comfort zone, both to reconcile with past offenses and to carve a new path forward."

"That is exactly what we did, unapologetically," said Franco, a member of the Immigration Task Force. "For years, Mijente, along with the broader immigrant rights movement, has fought to reshape the narrative around immigration towards racial justice and to focus these very demands. We expect Biden and the Democratic Party to implement them in their entirety."

"There is no going back," Franco added. "Not an inch, not a step. We must only move forward from here."

Reposted with permission from Common Dreams.

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