Guest essay by Dale Leuck
A so-far not-widely-noticed lawsuit was filed in the liberal United States District Court, Eugene Oregon Division, in September 2015, in response to the failure of the December 2009 Copenhagen Conference on Climate Change to reach any meaningful agreement, and in anticipation that the December 2015 Paris Climate Conference would also not result in a legally-binding agreement. Should the plaintiffs prevail at trial, the consequences for the U.S. economy would be severe.
Should the plaintiffs prevail, United States government offices, agencies, and departments shall be ordered (Par 12) “…to cease their permitting, authorizing, and subsidizing of fossil fuels and, instead, move to swiftly phase out CO2 emissions, as well as take such other action necessary to ensure that atmospheric CO2 is no more concentrated than 350 ppm by 2100, including to develop a national plan to restore Earth’s energy balance, and implement that national plan so as to stabilize the climate system.”
The lawsuit, organized and guided by Our Children’s Trust, was filed by a group called Earth Guardians, and a group of 21 children represented by their guardians, with defendants listed as the Office of the President, and various Offices, Departments and Agencies of Government. The lead Counsel is Julia Olson, the Executive Director of Our Children’s Trust.
The essence of the suit is that many official U.S. Government documents accept that climate change will cause various kinds of harm to the environment, that will affect today’s children, as well as future generations, through such things as drought, rising sea levels, migration, and political instability. As such, the defendants are alleged to have “…violated the Due Process Clause of the Fifth Amendment.” As Mark Buchanan points out:
“They have a plausible case: In earlier proceedings, the U.S. District Court in Oregon ruled that the due process clause of the Constitution guarantees citizens an “unenumerated fundamental right” to “a climate system capable of sustaining human life.”
What Buchanan is referring to is a 54-page November 10, 2016 decision by U.S. District Court Judge Ann Aiken denying the defendant’s motion to dismiss. Judge Aiken cites the public trust doctrine (36-51); “Obergefell v. Hodges, that guaranteed the right to same-sex marriage, and Roe v. Wade (pp 30-31), as supporting fundamental rights not enumerated in the Constitution.
She found that
“…the right to a climate system capable of sustaining human life is fundamental to a free and ordered society (pp.32)…just as marriage is the foundation of the family (pp.32).” Aiken agreed that “…inactions of the government…have ‘so profoundly damaged our home planet that they threaten plaintiff’s fundamental constitutional rights to life and liberty”.
Importantly, the November decision states that the “…lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed.” The Court is concerned about “…whether defendants are responsible…and whether this Court can direct defendants to change their policy without running afoul of the separation of powers doctrine.”
A Petition For Writ of Mandamus, to vacate the November 10 Order and dismiss the case was filed June 9, 2017 in the 9th Circuit Court of Appeals. The Appeals Court was asked to consider the undue burden placed on all government offices, departments, and agencies to provide detailed evidence dating back roughly fifty years, in the discovery process. The three-judge Appeals panel handed down its ruling March 7,2018, denying the Petition for Mandamus because the District Court had not yet issued any discovery orders, nor had the plaintiffs yet filed any motions compelling discovery. The Appeals Court noted that “…issues can be resolved by the district court, in a future appeal, or, if extraordinary circumstances later…by mandamus relief.”
The lawsuit shall continue winding its way through the Ninth Circuit Court system, with a heavy burden of proof now placed upon the defendants, seeming the reverse of usual court proceedings, in which plaintiffs bear the burden of proof.
The lawsuit is a collaborative effort between Dr. James Hanson, of the Earth Institute at Columbia University, and The Children’s Trust, and based on a 6-page non-technical paper whose lead author is Dr. Hanson. Hanson is named in the lawsuit as the guardian of both his plaintiff granddaughter, and plaintiffs “referred to as Future Generations, (who) retain the legal right to inherit well-stewarded public trust resources and protection of their future lives, liberties, and property.” Hanson was Director of the NASA Goddard Institute for Space Studies (GISS), from 1981 through 2013. As one of the two sources of surface-based temperature data, GISS periodically adjusts its data to favor the global warming, an example of which in 2016 is discussed at the 4:30 mark in this Tony Heller video. Hanson’s protégé, Gavin Schmidt, employed at GISS since 1996, has headed GISS since June 2014. Schmidt is one of the eight contributors to the blog, Real Climate, along with disgraced inventor of the “hockey stick,” Michael Mann (here, here, and here). Booker, pp. 23-25, describes how Hanson, Schmidt, and Mann contribute to a politicized “climate science.”
The lawsuit has, among its plaintiffs, an articulate spokesperson, Xiuhtezcatl Martinez, the now 17-year-old climate activist and Youth Director of Earth Guardians. His vita states that the precocious Xiuhtezcatl began his career at the age of six, speaking at “…the Rio+20 United Nations Summit in Rio…to addressing the General Assembly at the United Nations in New York city. He is the 2015 recipient of the Peace First Prize, …(the) 2016 Captain Planet Award and the 2016 children’s Climate Prize, from Sweden.” Among his claimed accomplishments were getting “pesticides out of parks, coal ash contained, and moratoriums on fracking.” Xiuhtezcatl has no scientific expertise but brings “music to the masses,” but represents a sympathetic minority (Aztec) youth as an expert on things he knows nothing about.
The lawsuit states (pp.7-8) that the then-15-year old, Xiuhtezcatl, “…engages in sacred indigenous spiritual and cultural practices to honor and protect the Earth…and has suffered harm to his spiritual and cultural practices from Defendant’s actions,” as well as his “…personal safety, property, and recreational interests through the resulting increased frequency and intensity of wildfires, drought, declining snowpack, pine-beetle infested forests, and extreme flooding.” The reference to “spiritual and cultural practices” may arguably allude to an infringement upon freedom of religion.
Page 15 of the lawsuit describes the harm Defendant’s actions have caused 10-year old plaintiff Avery M, who herself has
“…worked to increase awareness in her community about climate change…and advocated for carbon dioxide reductions before her representatives at…municipal and state levels.” The harm done to Avery is related to her enjoying backpacking and “swimming in natural bodies of water.” Not only was Avery unable “…to participate in these recreational activities as frequently as past years due to warmer temperatures, drought, low water levels, forest fires, and algal blooms” but the “…increase of hungry bears in the (Yellowstone) area due to the decline in white bark pine trees forced postponement of a backpacking trip.
Then there is 13-year old plaintiff, Isaac V, who in the lawsuit expressed that summer 2015 was “…the hottest summer Isaac remembers, with temperatures at 100 degrees.” And 14-year old Miko V, an immigrant from the Marshall Islands, who
“…fears she will never be able to travel back…as she intends…because the islands will likely be underwater in the future.”
Plaintiff Sophie K., a 16 resident of Allentown, Pennsylvania “…became passionate about climate science” from stories told by her guardian (representing her in the lawsuit) and grandfather, Dr. James Hansen.
“Extreme weather events…caused Sophie to miss school on many occasions; hailstorms have damaged her house; floodwaters often inundate roads by her house…” and she is “deeply concerned about the future.”
Crusades by idealist, uninformed, and undereducated children, motivated and supported by malevolent adults generally do not end well. The Children’s Crusade of 1212, to expel Muslims from the holy land, for example, was inspired by the teachings of adult preachers. Much like the global warming hysteria, the preaching appealed to idealistic youth, who were torn from and sometimes encourage by their families, and thrust into a closed environment of groupthink. Some thirty thousand, most not yet teenagers, led by a youth known as “Stephen,” massed at Vendome, and trekked towards the port of Marseilles, many dying on the way. When the sea refused to part, as Stephen claimed Christ Himself had promised, in a vision, many turned against him. As if a miracle, two merchants offered seven ships to carry them to the Holy Land. Eighteen years later, a returning French priest, who had accompanied the children, revealed that the two merchants had arranged to sell the children and accompanying adults into slavery. The priest had survived and prospered because of his education, eventually set free.
The youths party to the lawsuit shall most certainly find life disappointing, even if the lawsuit succeeds. But, its success will create an obvious onerous burden on all generations.