The Trial of the Century
Will 21 young plaintiffs ultimately be able to persuade a conservative-dominated US Supreme Court that the federal government is violating their constitutional right to a livable planet? It depends on whether the Court is willing to heed the scientific evidence.
PRINCETON – Next month, a judge in Oregon will begin hearing a case brought against the United States government on behalf of 21 young people, supported by the non-profit organization Our Children’s Trust, who allege that the authorities’ active contributions to the climate crisis violate their constitutional rights. The government defendants have repeatedly tried – so far without success – to have the case thrown out or delayed, and the trial is currently scheduled to start on October 29.
In principle, governments, not courts, are best placed to decide which policies will best solve environmental and social problems. In 1992, countries, including the US, China, India, and all European states (and a total of 189 by 2006) accepted responsibility for addressing climate change. Meeting at the “Earth Summit” in Rio de Janeiro, they agreed to stabilize greenhouse gases “at a low enough level to prevent dangerous anthropogenic interference with the climate system.”
The agreement did not specify what level is low enough to prevent such dangerous interference with our climate, but the scientific consensus is that to allow the global temperature to rise to an average of more than 2°C above pre-industrial levels is to risk catastrophe. The basis of this conclusion is that warming of this magnitude may make much more warming inevitable.
When the Arctic Ocean warms, it contains less sunlight-reflecting ice and more dark water that absorbs the sun’s heat. Similarly, as the frozen Siberian earth thaws, it releases methane, a powerful greenhouse gas that accelerates global warming.
Even a rise of 1.5°C will clearly be dangerous. Scientists predict that exceeding that lower limit will cause low-lying Pacific island states to disappear beneath the rising seas, and will lead to unprecedented drought, wildfire, and flooding. To preserve safe climate conditions, we need to hold the global temperature increase to no more than 1°C.
Yet, with very few exceptions, governments have failed to take sufficient action to halt climate change, and most exacerbate the danger by continuing to support the use of fossil fuels. Hence activists in Belgium, Colombia, Ireland, New Zealand, Norway, Pakistan, Switzerland, and the Netherlands are seeking to use the courts to gain what they cannot obtain through political action.
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The first climate litigation to win a positive decision was Urgenda Foundation v. The State of Netherlands, in which a Dutch court ruled, in 2015, that the government must ensure that the country’s emissions are cut by one quarter within five years. In response, the Dutch government did step up its actions to reduce emissions, but it also appealed the judgment. In October, The Hague Court of Appeals will deliver its verdict on that appeal.
Important as Urgenda has been, Juliana v. United States is by far the most significant climate case to date. If ever a case has deserved to be called “the trial of the century,” this is it. Its outcome has ramifications for everyone who will live on Earth during the remainder of the twenty-first century and perhaps for several centuries beyond.
The US is the world’s second-largest greenhouse-gas emitter, and its per capita emissions are about twice those of the largest emitter, China. If we take the view that every person on this planet is entitled to an equal share of the atmosphere’s capacity to absorb our greenhouse-gas emissions, then the US is emitting 3.5 times its fair share. The US emits more greenhouse gases than India, for example, although it has only one-quarter of the population. Moreover, the principle of equal per capita emissions is generous to the old industrialized countries, because it ignores their historical responsibility for the past emissions that have led to the situation we face today. In not sharply reducing its greenhouse-gas emissions, the US arguably is acting contrary to international law, for it is violating the most basic human rights guaranteed under the Universal Declaration of Human Rights and other international covenants.
Plausible as this argument may be, it is not the basis of the plaintiffs’ case in Juliana. The lawyers working pro bono on the case understand that to win, they will ultimately have to persuade the conservative-dominated US Supreme Court that the government’s failure to act is a clear violation of its constitutional responsibilities.
The plaintiffs claim that their government’s active contribution to climate change has violated their constitutional rights to life, liberty, and property. When the government sought to prevent the case from being heard, the federal district court of Oregon issued a historic ruling that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”
When Juliana v. United States is appealed to the US Supreme Court, as seems inevitable, the question may no longer be whether the preservation of the plaintiffs’ constitutional rights requires “a climate system capable of sustaining human life”; it undeniably does. Instead, the Court will have to decide whether it is willing to heed the scientific evidence that the actions of the US government are indeed jeopardizing the survival of human life on our planet. If it is, even the most conservative justices will find it difficult to escape the conclusion that the government is in violation of the US Constitution.