Youth suing government expect good news in upcoming decision

Published On November 4, 2016 | By Andrew Tsubasa Field |

Words by Andrew Tsubasa Field / Photo by David Zupan / ‘Crisis Inherited’ documentary

 

When Department of Justice attorney Sean C. Duffy, representing the federal government, argued that a lawsuit against the government for climate change was unconstitutional, he needed only 15 minutes. The opposition’s lawyers, speaking on behalf of 21 youth suing the federal government for the impacts of climate change, took one hour and 36 minutes.

“If your honor has any questions, I would be happy to respond,” Duffy said.

Ann Aiken, the Oregon District Judge, had one.

“… that’s all you have?”

The 350 supporters of the young plaintiffs laughed from the audience.

It was a hopeful moment for said plaintiffs, aged 8-19. The youth are part of the Our Children’s Trust nonprofit, which has helped young environmental activists bring similar cases to courts in Oregon, Colorado, Massachusetts, Pennsylvania, and Washington, as well as around the world. Aiken’s comments on Sept. 13 made it likely that the lawsuit — which U.S. Magistrate Judge Coffin approved in April — will move to the Court of Appeals. They are expecting good news when the judge releases her ruling in the upcoming weeks.

The end goal is for the U.S. Supreme Court* to pass the landmark case and order the U.S. government to make a plan addressing climate change.

Although Judge Aiken said on Sept. 13 that she would announce her decision sometime before Nov. 12, the plaintiffs celebrated outside after the event in what — to most of them — was a hint that she would rule in their favor.

“We will not allow the federal government to silence our voices,” said plaintiff Xiuhtezcatl Tonatiuh, 16, to a crowd on the steps of Eugene’s Wayne L. Morse federal courthouse after the hearing. “… until every pipeline has been shut down, until we force the federal government to put in place climate recovery plans to ensure a healthy, just, and sustainable planet.”

To the young activists, a victory would bring hope to an issue which has already started impacting their lives.

Plaintiff Alex Loznak, 19, grew up on a farm in Kellogg, Oregon founded 150 years ago. Record hot temperatures have brought drought on his family’s orchards, wildfires have engulfed the farm in smoke, and toxic algae have formed where he fishes. There were also plans to build the Pacific Connector Natural Gas Pipeline 30 miles from his home.

That same pipeline would have ran directly behind the home of another Oregon plaintiff, Jacob Lebel, 18, who lives in Roseburg on an organic farm. As well as facing similar problems to Loznak’s area, tree diseases surrounding Lebel’s farm are rampant, with many vulnerable to pine beetles due to drought. Both Lebel and Loznak travelled to the Oregon capitol to protest the pipeline proposal, which was shot down by federal regulators in March.

Two months later, during the Break Free from Fossil Fuel protests in Anacortes, Washington, plaintiff Kiran Oommen, 19, joined more than 150 protesters as they set up tents on train tracks leading to the Shell and Tesoro refineries. Nearby, on a pier overlooking the same refineries, Aji Piper, 15, marched among 1000 activists to protest the research of fossil fuels. The next morning, police turned up at Oomen’s camp and arrested him when he refused to leave. Piper was there and led protesters in song — the civil rights movement anthem, “Ain’t Gonna Let Nobody Turn Me Around” — as those who disobeyed law enforcement were taken away.

It isn’t only the government who the plaintiffs are up against. During the Sept. 13 court hearing Quinn Sorenson, an attorney representing the fossil fuel industry, stood alongside Duffy.

Sorenson criticized the “Public Trust Doctrine,” an ancient principle driving the case, stating the government controls the natural resources, not for itself, but for the benefit of present and future generations.

“The constitution itself makes no mention of the Public Trust Doctrine,” Sorenson said during the hearing. “It states the contrary: that in respect to resources, assets, and other property owned by the federal government, it has plenty of authority to dispose of those assets.”

Sorenson said the Supreme Court case Montana v. Environmental Protection Agency (1996), where Montana fought against the EPA treating its Sioux tribes as states under the Clean Air Act, supports his claim.

Montana used the public trust constitutional doctrine principle to argue that the tribe’s resources were constitutionally under its control, but the courts saw the doctrine as state law, not in the constitution. Duffy supported this. He said that Congress is best suited to enact environmental law through the EPA, as it has done with the Clean Air Act — not the courts.

Julia Olson, adjunct law professor at the University of Oregon and lead attorney of OCT, started the organization after being inspired by fellow law professor Mary Wood, who applied the public trust doctrine to the atmosphere. Olson saw things differently from Sorenson:

She mentioned that the public trust doctrine pre-dates back to Roman times, before constitutions. Olson pointed towards Robinson Township v. Commonwealth of Pennsylvania (2012), which ruled that laws to develop natural gas from shale were unconstitutional. The decision ruled in favor of the doctrine by stating that the Pennsylvania’s government had a duty to “conserve and maintain” its natural resources for its people.

Sorenson also argued that the government cannot be accused of starting any danger, only allowing climate change to be created by not restricting emissions. But Olson feels that this couldn’t be further from the truth; that the federal government is an active perpetrator of the problem.

“Through systemic programs, national priorities, thousands of authorizations and permits…” Olson countered. “The United States not only control the makeup of our energy systems, they control the energy as well, and the pollution that comes out our systems.”

Judge Aiken ended by complementing government successes like bringing in China on climate talks, but asked Duffy and Sorenson, “Isn’t it better to have the pressure to continue to do that, and to move that timeline faster because to leave people up to their own devices wouldn’t go out to good use?”

But on Sept. 13, the activists, coming from all over the U.S., were united in Eugene. Supporters filled three rooms of the courthouse, many of them the same age as the plaintiffs.

In nearby South Eugene High School (SEHS), junior Corina MacWilliams, 16, along with friends from the Earth Guardians 350 club, gathered 60 fellow students to show the plaintiffs their support. They chanted and cheered, holding sunflower signs.

“This [event] is so unprecedented: there has never been a case like this in the past,” she said. “Nothing can function without a stable climate, and obviously we are running out of time. Basically, this is our last shot.”

The SEHS students, as well as those who turned up from other schools, skipped classes in order to attend the hearing. Most watched the hearing until it ended, but had to rush off to catch their fourth and fifth periods. For MacWilliams, she had to return to school for physics class.

“We were really happy that we were able to march out there and show support to the youth plaintiffs,” she said, “because there is no crisis that is more threatening to our society than climate change. We were really thankful for the opportunity, and really glad we live in Eugene to witness it.”

 

*Correction: The end goal is for Oregon’s U.S. District Court to pass the landmark case, not the U.S. Supreme Court. 

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