San Francisco Federal Court Takes Up Young People's Climate Change Suit

Spot quiz: who said this?

“This generation has altered the composition of the atmosphere on a global scale through…a steady increase in carbon dioxide from the burning of fossil fuels.”

Time’s up.

Those were the words of President Lyndon Johnson — in 1965. And you might call him “Exhibit A” in a lawsuit moving through the courts this week, and brought by plaintiffs far too young to remember LBJ.

The suit goes back two years to when plaintiffs who now range in age from 12 to 21, sued the Obama Administration over what they consider the U.S. government’s decades-long complicity in the acceleration of global warming.

“This is a social rights violation, contributing and promoting climate change,” says Kelsey Juliana of Eugene, Oregon, “because it affects our economy, it affects housing opportunities, it affects — in very serious ways — health.”

Juliana is the lead plaintiff in the case, Juliana v. United States, which is still battling to get to trial.

“The reality is that our government is just not keeping up with the times,” says the 21-year-old, “and is not keeping up with the urgency and the direness of this climate crisis, which is really why this case is so important and so pressing.”

Juliana and her fellow “youth plaintiffs” contend that the federal government has shirked its duty to protect them from the ravages of a changing climate, and thus “infringed on [their] fundamental constitutional rights to life, liberty, and property,” according to the original 2015 complaint, filed in Oregon.

After numerous hearings and reams of court filings, the young plaintiffs are now headed to the 9th Circuit Court of Appeals in San Francisco on Monday, where a panel of three judges will hear oral arguments on whether the case can move forward.

UPDATE: On Dec. 11, Judges heard oral arguments on the government’s motion. For details, Scott Waldman offers this excellent summary for Climatewire.

“The Trump administration is very scared of our case,” says Phil Gregory, a Burlingame-based lawyer who is representing the youth plaintiffs pro bono.

Really? The federal government? Scared of a bunch of kids?

“What it will do is place the science in the courtroom,” he says.

That is, the Trump administration might have to convince the court that the science linking global warming to things like rising seas and catastrophic wildfires is still too uncertain to constitute a danger (the science endorsed in numerous reports from U.S. government agencies, which the plaintiffs say sort of makes their case).

Though the Justice Department declined to comment for this story, its court filings have sought to have the case thrown out. In a motion filed last summer, the government argued that trying the case would place “a staggering burden” on the Trump administration, as it would have to dig up federal documents about climate change and energy policy going back decades.

While he admires the plaintiffs’ pluck, legal expert David Levine says he’d be surprised if the case actually gets to trial.

“I mean it really is swinging for the fences,” says the UC Hastings law professor, “to have this small group of plaintiffs trying to bring this case against the federal government to effect massive change in policy.”

But plaintiff Jacob Lebel, now 20, says without that massive change in policy, his generation will bear the consequences.

“Years from now, Trump and his cabinet—they won’t be the ones dealing with starvation and refugees and resource wars and all that stuff,” says Lebel. “We’re the ones who are gonna be dealing with that. As young people, we think about that every single day.”

Lebel and his fellow plaintiffs want the courts to force the federal government to set a course that would drastically cut the burning of fossil fuels and dial back atmospheric carbon dioxide — the principal greenhouse gas — from more than 400 parts per million to about 350, a level that scientists have said could stabilize the climate.

But is a courtroom the right place to settle the science of climate change?

“It’s a little bit like you’re going into a casino,” says Some, like Stanford climate scientist Ken Caldeira, “because you don’t know what judge you’re gonna get and what ruling you’re gonna get. So if it ends up embodying bad science into bad law, then that could be bad.”

“Bad” because it could give the feds a free pass on climate policy — or as the plaintiffs see it, permission to continue ignoring it.

“I feel like, as a whole, society right now should be ashamed,” says Avery McRae.

As the youngest plaintiff in the case, she might have the most at stake. But at the ripe old age of 12, she’s not naive about what’s blocking progress on climate at the policy level.

“I think that a lot of the choices being made are being made for money,” she laments, “and what a sad thought that we’re putting that before all the beings on this earth. We’re really needing to take action now, and that’s one of the most important things about our lawsuit.”

As if to underscore the urgency, a new study published just last week by Caldeira’s team at Stanford suggests that most forecast models have likely been understating the pace of global warming.