What’s the point of inheriting the Earth if it’s only going to burn (or drown)?

Kids around the world are asking governments this question and demanding answers in court. For example, on Dec. 11, Juliana v. US pitted the president and American lawmakers against the very children whose future they so often invoke when seeking votes. The kids argued that the government’s negligence in caring for the planet impedes on their rights, and it must remedy this by adopting policies that mitigate climate change.

The case is currently set to go to trial in February. The government is fighting fiercely to dismiss the matter as fast as possible—the Dec. 11 court date was to decide whether the government’s dismissal argument has any merit. But in some senses, whatever happens, it’s already a win for the 21 young Americans who are plaintiffs and their global movement. In bringing the case to the courts, the kids are challenging the world’s most prominent climate change denier, US president Donald Trump. And they are getting a chance to highlight the science that’s being ignored at their expense in the court of public opinion.

Kids v. Feds

Juliana v. US (pdf) was originally filed in an Oregon district court in 2015 by 21 minors from around the country. The youth—now ages 10 to 21—argue that by adopting policies that promote fossil fuel use, leading to the emission of carbon dioxide at rates that change the climate, despite knowing these energy sources are warming the planet, the federal government violates “the youngest generation’s constitutional rights to life, liberty, and property,” and fails to protect essential resources held in trust for the public.

The children say everything is at stake for them. “I hope that the court understands the urgency of the climate crisis and allows our case to proceed to trial,” one plaintiff, 17-year-old Jaime Butler from Flagstaff, Arizona, explained at a press conference last week (pdf). “This case will ultimately determine the livelihood of my tribe, the Navajo Nation, and all native people in this country.”

A fundamental right to a stable climate that sustains life is implied in the constitution, the kids argue. It’s not explicitly written—but it’s assured by the document’s general principles. The right to pursue life, liberty, and happiness, which the constitution provides, is meaningless on a planet that can’t sustain life, so it follows that protecting the environment for the American people is an essential if unexpressed element of the law. The children also claim they are being discriminated against. The government’s past and current policy decisions, they say, disproportionately impact young people, violating the constitution’s Equal Protection Clause.

New but doable

The case has already gone much further than industry or the federal government hoped.

Last year, the National Association of Manufacturers, the American Fuel and Petrochemical Manufacturers, and the American Petroleum Institute—who together claim to generate 8% of the US economy and support 9.8 million US jobs—intervened, joining the government as defendants against the children. Together, they moved to dismiss the case. In June, after the motion was denied, the trade associations sought to withdraw from this tricky matter.

Ninth Circuit federal magistrate judge Thomas Coffin’s decision granting the businesses’ request to withdraw contained a subtle jab at their sudden eagerness to leave the fray:

Given that Intervenors are comprised of more than 15,000 members who are leaders of the coal, oil, and natural gas industries, as well as petroleum refiners and petrochemical manufacturers, and that their economic interests are impacted by this litigation, the court has no doubt that they have thoroughly studied the issue at the core of this case and are in a position to tender their own scientific evidence regarding climate change if they desire to challenge Plaintiffs’ evidence or the admissions of the United States.

Coffin’s point was that the litigation will involve reviewing decades of scientific evidence on fossil-fuel use and its connection to climate change, and studying countless documents to determine what the government knew. It will be costly and time-consuming, and if the energy industry wanted out, that’s probably because it knew it wasn’t going to win, or at least not easily.

Coffin recommended the case proceed to trial at the district court level, finding no reason to dismiss the case as the government and associations requested, noting a similar 2015 Netherlands case advanced by Dutch kids as precedent. In it, courts ruled that the Dutch government was in negligent breach of policies adopted to stop global warming; the government was ordered to reduce emissions by 25% within five years. Coffin, in his June decision, pointed out that the Dutch government’s argument that one nation alone cannot mitigate climate change failed to convince courts that the Netherlands wasn’t responsible for at least trying to stop global warming.

After that, the federal government’s justice department petitioned (pdf) the Ninth Circuit in San Francisco to halt the case with a special writ, basically asking a panel of judges to order the lower court to do its job, which here would be to dismiss the kids’ unprecedented claim, they say.

On Dec. 11, three Ninth Circuit judges listened to the government’s lawyers argue that there’s no fundamental right to “a climate system capable of sustaining human life.” If the courts were to find that this “amorphous and sweeping” right does exist, it would create an impossible situation, with indefinite judicial review of “all federal policy decisions related to fossil fuels, energy production, alternative energy sources, public lands, and air quality standards.” That, the government argues, is unprecedented “to say the least.”

Just because it’s new or difficult to do, doesn’t mean it can’t or won’t happen, however. In fact, observers of the hearing didn’t seem to think it went the government’s way. Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University told Inside Climate News that, based on the panel’s questions, the matter will likely proceed to trial in Oregon next year. Still, if it does, the government will surely keep on trying anything to thwart the kids, he predicts.

A win-win-win

In the long view, whether or not there is a trial in February and whatever the outcome if it does happen, the case is a victory of sorts for everyone.

By claiming the constitutional right to a cool future, and reminding adults that they are merely the Earth’s trustees, not its owners, children create legal precedent, make their case in the court of public opinion, and do society a service by introducing the ideas that are later deemed progress.

This is how rights are made, through legal fights that seem a lost cause in isolation, but build up steam, finding increasing societal support over time until courts can no longer deny the claims. Civil rights were won this way in the 1960s, as was the right to same-sex marriage in the new millennium. Now, in the 2010s, children are stepping up for the planet in courts all over the world:

In the US, the young Americans already sense their efforts are working. “I felt that the court understood the gravity of our need for trial,” Nathan Baring, a 17-year-old plaintiff from Fairbanks, Alaska said after this week’s hearing in San Francisco (pdf). “I believe that the momentum is on our side and it’s time for climate science to have its day in court.”