Juliana v. United States and the Principle of Intergenerational Equity in Climate Change Law

By Eric Holthaus, a meteorologist and contributing writer for Grist, covering climate science, policy, and solutions. He has previously written for the Wall Street Journal, Slate, and a variety of other publications. Originally published at Grist.

The best shot at large-scale climate action under the Trump administration might lie with a lawsuit set to go to trial early next year.

Juliana v. United States has a plot suitable for a Disney movie: An eclectic group of 21 kids (and their lawyers) fighting to save the world by forcing the federal government to adopt a science-based plan to reduce emissions. Their lawsuit got a boost this past week when climate scientist James Hansen published a paper in support of their cause.

The time may be right for Juliana and other lawsuits like it to gather real momentum, paving the way for meaningful victories, says Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. He says that a “groundswell of litigation” could put “real pressure” on industries and governments to pay for local adaptation projects and make firm commitments to reduce emissions, all within Trump’s first term.

Legal experts say Juliana has helped open a new front in the battle against climate change in the United States and around the world. It’s the culmination of years of legal strategizing by Our Children’s Trust, the advocacy group that helped organize the effort. Our Children’s Trust has brought related suits in all 50 states, as part of a buckshot strategy to get one of them to break through.

“This case is especially crucial in the fight against climate disruption,” says Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute. Cases like Juliana, she says, empower young people to advocate for their rights, and that “drives social change.”

The buzz about Juliana comes amid a flurry of legal challenges to the Trump administration’s efforts to dismantle environmental rules. Just this week, a series of lawsuits were filed in California as a direct challenge to the oil industry on climate change grounds, using a legal theory similar to the landmark tobacco industry lawsuits of the 1990s. The administration’s quest to roll back or reverse pending Obama-era EPA regulations is also getting blocked in the courts.

When it comes to climate change, “so far, the Trump administration is losing more frequently than it’s winning,” says Burger.

At the heart of this suit is the principle of intergenerational equity. In essence, the 21 plaintiffs in Juliana say that the federal government’s refusal to take serious action against climate change unlawfully puts the well-being of current generations ahead of future generations.

This argument might have helped spur legal action abroad, too. Since Juliana was filed in 2015, similar lawsuits have been brought by youth in Pakistan, New Zealand, and India, Burger says.

“Worldwide, there is a great deal of interest in the Juliana case not just because of the practical outcome that it might or might not achieve, but because of what it represents,” he says. “Deeply held values about environmental protection, about intergenerational equity, about the need to address climate change — these things can be linked to specific legal rights embodied in constitutions or in common law.”

So far, the courts agree. In November, they scored their first major victory, when a federal district court allowed the suit to go to trial. Judge Ann Aiken set a judicial precedent in her decision, ruling that climate change may pose an unconstitutional burden on younger generations. “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” she wrote.

Late last month, a trial date for the Juliana case was scheduled for next February in Eugene, Oregon. It’s sure to set a dramatic spectacle of the kids and their lawyers on one side of the room against representatives of the Trump administration on the other, with the future of the climate on the line.

In his paper published on Wednesday, Hansen — whose granddaughter Sophie Kivlehan is a plaintiff in the case — presented an updated scientific basis for the suit’s claims. The new study, which has 14 coauthors from around the world, concludes that the burden climate change has placed on younger generations is now so huge that continuing on a high-emissions scenario would cost a minimum of $89 trillion (and as much as $535 trillion) to clean up by the end of this century. And that cleanup job would rely mainly on the still-unproven technology of negative emissions — literally sucking carbon dioxide out of the atmosphere.

Such a burden “unarguably sentences young people to either a massive, implausible cleanup or growing deleterious climate impacts or both,” the paper argues. The best alternative, Hansen says, is a court-ordered mandate to reduce emissions now.

After decades working as a NASA climate scientist and at times being politically pressured into silence, Hansen quit his post in 2013 in part to help build the scientific evidence backing the Juliana case. “It’s hard to solve this politically,” he said on a conference call with the media this week. “That’s why we need to take advantage of the fact that the judiciary is less subject to that pressure.”

To be sure, the ultimate success of Juliana hinges on the composition of the Supreme Court, if the case makes it that far. That fact makes Burger and his colleague, Michael Gerrard, less optimistic. “I can’t foresee a scenario where there are five votes to uphold such a ruling,” says Gerrard. Burger called success in a Supreme Court during Trump’s first term “a near impossibility.”

But victory in the Supreme Court isn’t the only objective for the kids and their lawyers. This is a trailblazing case, designed to pave the way for future success of other cases, too.

“This is strategic impact litigation,” says Burger. “As you can see from the global interest, it’s already had a real impact. It’s starting to shape the conversation about climate change.”

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.

35 comments

  1. Richard

    Argggh. I just wrote a lengthy response to this post, and it was eaten by some vengeful god. Probably the god of carbon.
    Anyway, thanks Lambert for sharing this with us. I had not heard of this lawsuit before, but the idea of intergenerational equity is very interesting to me.
    I teach 2nd grade, and often struggle with the idea of how to best prepare my young friends for what lies ahead. Much of what I do relates to foundational understandings in reading and math, but we often have time for other projects, and more big picture stuff. Most of my thinking is practical: more gardening (our school sponsors a gardening program, but it’s not at every grade), learning to weigh evidence, develop opinions and express them, and navigating struggle. But really, the whole thing feels monstrous to me (and many others I am sure). Why should this of all generations be forced really deal with such cataclysm? How on earth can we ask this of them, and not feel utter shame? And who the family blog is speaking up for them?
    Well, now I know the answer to this question; some of them are speaking up for themselves loud and effing clear (I am so cursy today), and I feel like I’m on fire! This is the second time of written this, and I still can’t stop smiling (okay, I’m only smiling a little now). I want to introduce my school to this idea of intergenerational equity using a model of student advocacy. We are a K-8, so it’s age appropriate. I was thinking of a student led club. Now I know it’s not the same as speaking directly to powerful people and telling them they have NO LEGITIMACY, NO RIGHT, to destroy the Ultimate Common Good. But it’s a start. I mean, one thing we might do is try to persuade our senator, Maria Cantwell, to withdraw her sponsorship of the fracking rights bill of 2017 (not its real name, sorry 😐)
    But of course students will have their own ideas as well, and if it works will take it and run. But I’d love to hear any ideas from the NC readership. Maybe I could present it to the school community in another form, not a club? Or if you have any ideas for club activities? Remember, they should be appropriate for I’m thinking 4th through 8th grade, student led, and be fun!
    Be bold everyone! Always!

    1. Carla

      Those 2nd-graders are damned lucky to have you, as are all their school-mates.

      And it must be a great school system, where you have time for more than readin’, writin’ and ‘rithmetic — here in Ohio, it’s all teaching to the standardized tests, all the time, not a minute in the day for anything else.

      1. Richard

        Thanks Carla! Our public achools in Seattle are generally pretty strong, but I can’t speak to the level of “enrichment” at other schools (funny how writing this at NC makes me especially aware of the implications of that word we use). There is a shared understanding among our staff and parent community about the importance of breaks for exercise and free play during the day; this is what research supports at this point too. Most (all?) Seattle schools offer art and PE for elementary students; ours offers music as well. And of course the offerings for our big kids are much more extensive, I’m not even up on some of them, but we have drama and sports of course, and MESA for the science achievers, and coding and environmental studies.
        I am saddened but not surprised that Ohio public school students are not being given the same opportunities. I know this has mostly to do with local political leverage (we have a strong union here) and particular privilege. More affluent parent communities are able to buy back a humanistic education for their children by pouring money into PTAs, that finance it. I am somewhat ashamed to say that my own school benefits from such patronage. It should belong to everyone, as a birthright.
        Funny I want to do something with the bigger kids; I’m often a little shy around them. Oh well, be bold!

      2. Richard

        Oh, and also Carla, I may be mistaken but I think you were on here several days ago with information about the amendment to deny “personhood” to corporations. Are you familiar with the group Move To Amend? They flood my inbox with appeals, but the association with David Cobb makes me nervous. Do you know anything about them?

        1. Scott A. Weir

          Richard, Move To Amend was one of the first groups to organize a movement to overturn “Citizens United.” The amendment they proposed then is still the most comprehensive in driving a stake through the heart of the absurd notion of corporate personhood, including the “Buckley v Valeo” decision c. 1976 that ruled (absurdly) that money is speech. Numerous other amendments have been proposed or introduced in Congress. Most have serious flaws, some no doubt intentional.

          I think David Cobb has evolved in his politics, at least w/r/t certain major issues.

          I know how hard it is to keep abreast of what is happening in the world while teaching, most certainly a full-time job twice over. A friend gave me a T-shirt that reads, “Those who can, teach. Those who cannot pass laws about teaching.” I wore it at the end of the semester the last couple of years before retiring from 13 years of teaching first math then economics in community colleges.

          1. Richard

            Thanks for the reply Scott, and the info about MTA. So is the amendment they proposed the same as the one that is already in Congress with sponsors and whatnot? Is there more than one version out there?
            I actually don’t know much about how Cobb stands as to most policy issues, but some of his moves as a Green, to not compete directly with the Dems in all states when he was the pres. candidate in 2004, and the push for using party money to fund a recount that directly supported the Dems, these things make me very suspicious. Our country badly needs a third party. A left, third party that can show people what real reform looks like. The Greens are perfectly positioned for this, and are such a flipping mess that they couldn’t even poll 1% running against Donald Trump, and the most despicable Dem candidate since James Buchanon (Hill doesn’t own slaves, so she gets the nod). I am highly wary of that Party, and Cobb’s role in it. I think at the very least we can say, he’s been in a position to help develop a strong electoral alternative to our duopoly that is truly a monopoly. He’s been in that position for a number of years, and the party is still not a serious alternative. Maybe time to rethink his involvement.
            You may have info about him I don’t of course.
            Thanks for the quote! It is so true. Hey, I have another crackpot idea (I am doing this crackpot idea theme over on the links page)! No one can propose any law regarding the education of children without first spending an entire day, unaided, leading a public school classroom through a day of learning. And if you’re smart, you’ll do that first, then try to think of your dang law.

            1. Scott A. Weir

              Richard, I’ll have to reply tomorrow, and it will be evening Eastern time. As frequently happens, I got completely derailed twice today and am just now getting back to my desk (10:00 here). Adam Eran’s comment below is consistent with what I think I know.

        2. Adam Eran

          FYI, David Cobb has left Move to Amend. For the benefit of others, Cobb got the Greens on the ballot in Texas. I don’t know any other objectionable thing he’s done.

          MTA is currently headquartered in Sacramento. They differ from other such groups in that they’re not only promoting the idea that money is not speech, they also want to deprive corporations of personhood (e.g. the right to privacy, etc.). Their website contains the specifics.

          They are very much responsible for the eventual appearance of an advisory initiative that allowed people to advise their legislators to support these two things–money is not speech, and corporations aren’t people. After some hesitation to get it on the ballot (the court went back and forth), the proposition passed.

          I doubt this is a panacea, but it certainly looks like a step in the right direction to me.

          1. Scott A. Weir

            Thanks Adam. I did not realize that Cobb had left MTA, or that it is now headquartered in CA, or that there was a ballot initiative (presumably in CA). My reading of the proposed amendments to “undo” CU, some of which have been introduced in Congress, is exactly as you say, and of a good number that have been proposed there is perhaps one other which is comprehensive and bulletproof, with some that appear to be Trojan horses.

    2. Tyronius

      This is a brilliant idea! I suggest you develop a curriculum for your students- and then as a class project, send it to the White House and the headquarters of every oil company in America. Children were instrumental allies in the last generation’s fight to save wildlife such as whales, and they’re the natural advocates for the upcoming fight against climate change shortsightedness.

      For shame, indeed.

      1. Richard

        Thanks for the encouragement Tyronius! I was not aware of that earlier model, wildlfe preservation, so thanks also for that info.

      1. Richard

        Thanks Vatch! I’ve already hollared an email at her. I need to bug her flunkies on the phone next. But I think in the end, 20 some teenagers in her office, staring at her and waiting for her to act like a human grown up, that will be just the thing to unnerve her!

        ps I mean grown up in the best sense!

  2. Richard

    Sorry, there were some indelicacies of style there. I won’t “introduce an idea IG equity to my school using a model of student advocacy”. I will introduce an idea of student advocated IG equity using my voice. Or keyboard, or something.
    As for the rest, que sera!

    1. funemployed

      This kind of thing happens to be my peculiar area of educational expertise. I started writing a list of things you could do, then I remembered that you could just read “Spectacular Things Happen Along the Way” by Brian Schultz. The student project is different (preventing the closure of a community school), but the model could easily be used for climate change. Same age range too. Also short and well written.

        1. Richard

          Thanks fun, and VK! I will look for the full text; it does indeed share a common theme with my (still forming) idea, of students developing an awareness of their power, and standing up for what should be an inalienable right, in this case, to be educated in safety and comfort. I am awed and again, a little ashamed, by the fight these kids took on, fighting for things I (and my students) take for granted.

  3. UserFriendly

    This article is premature in assuming that the Supreme Court would strike down a ruling that forces action on climate change. The justices may be ideological but that doesn’t mean they want their legacy to be the judge that killed the planet for future generations. Especially if it starts getting more and more evident that the climate is family blogged and that thanks to their irresponsible citizens united ruling congress is incapable of action.

  4. Ignacio

    I agree that there are good legal arguments, or at least those are quite convincing for me. As a father of two, I am very much worried on the burden climate change will impose on my descendants. This is “biological” or genetically determined in my mind. Even if I had no descendants, I would have genetically determined constraints. I think that “solidarity” is an evolutionary trait that has been selected in at least some humans. Besides there are educational/cultural constraints on sustainability and future burdens as valid as the former, and even more valid from a legal point of view.

    It will be interesting to see how this arguments are legally counter-argumented. It must be with some kind of anti-scientific argumentation. Something religious.

    1. witters

      “It must be with some kind of anti-scientific argumentation. Something religious.”

      It will be temporal discounting… (aka as “writing off your kids/the future”)

  5. johnnygl

    I’m wondering when a group of wealthy people who live on the coast will sue for the future loss of their property, due to sea level rise. Eventually homeowner’s insurance companies will look for compensation, too, you’ve gotta figure.

  6. jefemt

    Just the fact that these cases have come to the fore is heartening. But I keep coming back to it: what tis each one of us doing, day in and day out, personally, to mitigate carbon impacts? Installing solar arrays? Telecommuting? Putting food by? Bathing washing clothes less often? Walking/ biking intermodal versus one person one internal combustion car? Eating lower on the food chain? If we wait for the kids and the governments to be the change, we are blowing it. We each of us need to do a deep cleanse and change our routine behaviors, profoundly.

    OK, here– let me put my soapbox out of the way…

  7. PKMKII

    There’s a sense to the argument, that the government is subsidizing current day polluter profits with what will inevitably be a cost burden to the public in the future. I see two problems this may run into under the current courts, though. One, if the climate change policies are set by elected officials, that creates due process, and the court does not care how stupid a policy or legislation is that the elected officials create, as long as it is constitutional. Second, I don’t think the court, with its current slant, is going to be big on the idea of the court determining what is and is not a negative externality. The key is going to be that the lawyers need to find an argument by which current policy denies some sort of right to the future generations. Not sure what that would be, though.

  8. IC_deLight

    Sounds like the judge erred. Article claims the judge said “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” There is no such “right”.

    1. Alfred

      I took the judge to be relying on the rights to “Life, Liberty and the pursuit of Happiness” specified in the Declaration of Independence.

    2. PKMKII

      Well, you’re not going to have a free and ordered society without a planet capable of sustaining human life. No people, no society.

  9. Richard

    There may not be. So let’s make one, for gods sake! What other right could I possibly have that could mean a tinkers dam if capital driven climate change leads to mass extinction? Or more to the point, what right could an 8 year old possibly have that matters more? Not that I want to speak against those other rights, my point being I think this is a promising way forward.

  10. Tough Think

    If we’re going to be serious about climate change, we have to stop immigration to the West. Moving millions from a low-carbon-footprint lifestyle to a high-carbon-footprint-lifestyle only makes matters worse.

    1. Ignacio

      So, being serious about climate change means thas some (like you and other “westeners”) have inherited a rigth to contaminate as much as you, or we, can while others “non-westeners” cannot have it just because they were born elsewhere. Very serious indeed! Is “tough” synonimous of stupid?

  11. Richard

    We could start by getting out of the “regime change/I get to throw your life into turmoil because I’m exceptional and just decided that your society is ‘failed’ ” business. That would prevent millions of future refugees.
    It is true that across the planet, things are going to have to get a lot more local, and the sooner the better.
    And oops, I just realized that I meant to make this a reply to Tough Think, but didn’t tap that so it won’t be in the right place. Sorry!

  12. hemeantwell

    I’m very leery of intergenerational equity (IE) arguments since they can serve as yet another intraclass divider. (The Petersen Institute periodically runs IE around the track to get some mojo going for SS cutbacks with no success, making me wonder if it’s carrying out an unintended inoculation function.) So I was primed to argue with the article. But after the banner there was next to nothing about IE and an Everybody’s Lives Matter principle reigned instead. Whew, but why bring it up?

    1. Richard

      I’ll have to take a look at that; but since the whole IE thing around SS was and is such a fraud, it’s really apples and oranges. That was a cynical attempt to divide and conquer; and surely this lawsuit, and this concept, belong in an entirely different ballpark?! Sorry to mix the metaphor…

    2. Irrational

      A long time since I read my Bible, but is there not something about mankind having been given stewardship of the Earth? Other sources of ethics would say something very similar. Surely that implies sustainable use of resources and keeping the planet fit for future generations to inhabit? No fancy economics needed here!

  13. Forklift Driver

    Central to these cases is a legal principle called the “public trust doctrine”. Read about it here…

    https://www.outsideonline.com/2083441/newest-legal-tool-fight-climate-change-old-ancient-rome

    Also google Mary Christina Woods, a strong advocate of this principle and advisor to The Children’s Trust (including a Bill Moyers interview). These cases and this doctrine could be game changers, as judges have a problem ruling against these cases while looking these children in the eye.

  14. Richard

    Thanks for the great link Forklift. A legal principal dating back to the time of Justinian, eh? There is also a link inside your link to the text of the Juliana lawsuit, which is very handy.

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