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Douglas Grandt answerthecall@me.com

Children Sue Over Climate Change
November 17, 2015 at 9:06 AM
Rex Tillerson Rex.W.Tillerson@ExxonMobil.com, David Rosenthal David.S.Rosenthal@exxonmobil.com, Kenneth P Cohen
kenneth.p.cohen@exxonmobil.com

PRO-GROWTH vs KIDS

Schedule the retirement of all refineries, replace refineries with renewables, reinvent
ExxonMobil as an energy company

Children Sue Over Climate Change

By Eric Holthaus | November 16, 2015 | Slate | Bit.ly/Slate16Nov15

ince adults arent doing such a great job at saving the planet, a group of kids
has decided to try to protect their future on their own. (OK, some lawyers are
helping, too.)

A new lawsuit against the federal government, filed by a group of 21 children and
young adults between the ages of 8 and 19, could become a major new front against
climate changeand a preview of the next important civil rights struggle of the
21stcentury.
Climate justice means securing the right of all peoplethose alive today and those in the
futureto a stable environment that protects their life, liberty, and property. In his
environmental encyclical this summer, Pope Francis argued that climate change is one

of the principal challenges facing humanity in our day, a human rights issue that, on our
current course, threatens to worsen racial, economic, and social injustice, and
challenges the basic decency that makes us human. Top climate scientists tell us, in
increasingly urgent dispatches, that were running out of time to change course.
Obviously, if youre a 10-year-old and hearing about all this for the first time, youre going
to be pretty mad.
The Obama administration has recently issued a bevy of new regulations designed to
reduce American emissions, but the numbers still fall short. The latest science says
much bolder action is necessary, especially by historically large polluters like the
United States, to avert a truly horrific, and potentially irreversible, modification of the
atmosphere, oceans, and biosphereEarths basic life-support system that makes
human civilization possible. This month, world leaders, including President Obama, will
meet in Paris to negotiate the first-ever global agreement on climate change, so the
stakes are especially high right now.
At first glance, the circumstances surrounding this lawsuit read like a storyline straight
out of a Disney movie: On one side, a group of energetic kids, joined by a wise and
genial grandfather who is fond of fedoras. On the other side, the president of the United
States. Will the kids save the world?
The legal team behind the new federal case, Our Childrens Trust, has been pursuing the
same basic strategy for several years now, though this is its highest profile case. A
separate petition from the group, filed in Washington state, recently got the attention of
the governor, who agreed to meet with the teenage petitioners and subsequently
ordered stricter emissions reductions for his state.
Kids understand the threats climate change will have on our future, said 13-year-old
Zoe Foster, a petitioner in the Washington state case. Im not going to sit by and watch
my government do nothing. We dont have time to waste. Im pushing my government to
take real action on climate, and I wont stop until change is made.
Last week brought an interesting twist in the plot: Three groups representing the fossil

fuel industry joined the federal case as intervenors, arguing that the lawsuit is
extraordinary and a direct threat to [their] businesses and that, if the kids win,
massive societal changes and an unprecedented restructuring of the economy could
result.
The groups are the American Petroleum Institute, which includes BP, Chevron,
ExxonMobil, and Shell; the National Association of Manufacturers, which calls itself the
leading advocate for a pro-growth agenda; and the American Fuel and
Petrochemical Manufacturers, which includes DuPont and Koch Industries. All have
been outspoken against climate legislation. They will argue that the kids, in this case,
dont have standingthe individualized harm that gives the plaintiff a legal cause of
actionbecause climate change is mostly a prediction of harm, and that, even if they are
being harmed, climate change is a question for Congress to decide anyway.
The kids lawyers see it differently.
The biggest fossil fuel polluters on the planet, including Exxon and Koch Industries, just
asked the court for permission to argue that young people dont have a constitutional
right to life if it means reducing fossil fuel use, Julia Olson, the lead attorney from Our
Childrens Trust said in a statement. In a follow-up interview with Slate, Olson went a
step further: Its good news for us that theyre doing this. They see this as a legitimate
case.

The original title was

in honor of his
granddaughter:
Sophie vs. Obama.

Michael Blumm, a professor at Lewis and Clark

Law School in Portland, Oregon, who is not
involved in the lawsuit, agrees the addition of fossil
fuel industry representatives could make things
awkward for the Obama administration. One of

the ironies of the case is: The government, which is bashed by the fossil fuel industry for
its alleged war on coal and for the Keystone thing, is now in lockstep with them in this
lawsuit. Blumm added that it wasnt unusual for groups like these three to intervene on
high-profile cases where they might expect the government, as a defendant, wouldnt

necessarily be arguing in their best interests.

The lawsuit seeks comprehensive, science-based legislation to return atmospheric
carbon dioxide to 350 parts per million by 2100. Thats why the kids team has enlisted
the help of James Hansen, the renowned former NASA scientist, who filed lengthy,
emotionally charged testimony with the suit on behalf of his granddaughter, Sophie
Kivlehan, one of the plaintiffs, who is 17.
Unlike many previous cases filed by Our Childrens Trust, which have focused on the
somewhat obscure legal idea that governments have an innate duty as
intergenerational trustees to protect the natural resources under their domains, this case
is a straight-up constitutional challenge aimed at securing intergenerational equity in the
context of climate change. The atmospheric trust idea has so far gained only limited
traction in the several times its been tried, including a 2011 federal case dismissed by
the U.S. Court of Appeals for the District of Columbia Circuit, Alec L. v. McCarthy, which
was brought by Our Childrens Trust.
Blumm, who filed an amicus brief in support of Alec L., believes the constitutional claim
made by the current case is different. It would be a path-breaking suit if it succeeds,
Blumm told me. Theyre trying for revolutionary change on the order of Brown v. Board
and Obergefell v. Hodges, and they may be able to succeed.
Earlier this year, a Dutch court found that its federal government was legally obligated
to reduce greenhouse emissions, the first ruling of its kind anywhere in the world.
Constitutional law scholars are generally divided on whether a challenge like this will be
successful in the United States, because our Constitution doesnt specifically provide the
right to environmental protection.
Still, the lawyers behind the kids case say that may not matter.
They assert that the Due Process Clause of the Fifth and 14th Amendments and the
Equal Protection Clause of the 14th Amendmentthe basis of many civil rights cases
require the government to pay special attention to the harm climate change inflicts on

children and future generations.

The case is the latest example of a quickly growing cultural realization that what humans
are doing to the climate is fundamentally unjust and that traditional political change is just
too slow to address it. With a congressional deadlock on climate likely to continue into
the next presidency, regardless of who wins the White House in 2016, the court
system may be the last reasonable pathway for change on the scale that scientists say is
necessary.
Still, a case like this is aimed at energizing the political branches, not superseding them.
Its a very unlikely scenario that this specific case reaches the Supreme Court and
results in a favorable decision. But a favorable Supreme Court decision would likely
result in a historic mandate for Congress to decide on the best way to put the country on
a crash carbon diet with minimal economic impact.
Instead, this particular case will probably die at the district or circuit court level, though
even if that happens, it could inspire follow-on lawsuits for years that would hope to catch
a more favorable judge or cultural moment, according to environmental and
constitutional law scholars I spoke with.
If Congress remains reluctant to act and those follow-on lawsuits also fail, young people
would likely inherit a federal government with a much diminished opportunity for
addressing climate change. People in the political branches 20 or 25 years from now
are going to look back on people in the political branches today and say, You gave us a
mess, said Blumm.
Meanwhile, we will be watching geological-scale change happen in the span of a human
lifetime. If climate ambition is framed based on whats possible politically in this current
moment, then we will fail. This lawsuit, and future ones like it, helps to moralize climate
action and make it much more personal.
Hansen, now 74, says of his continuing research and advocacy on climate change since
leaving NASA in 2013: I am doing this for my grandchildren and future generations, and

that does give you a completely different feeling. It makes it possible to keep working
hard.
His most recent paper, a deeply troubling assessment of the near-term potential for
worst-case-scenario sea level rise, made global headlines earlier this year. In a 2013
paper, he outlined how fast the world would have to switch to carbon-neutral forms of
energy to preserve a stable climate. The original title, Hansen told me, was in honor of
his granddaughter: Sophie vs. Obama.
At the heart of his work is frustration with the slow pace of political progress on the
climate issue. Though governments have pledged significant cuts in emissions as part of
the runup to the Paris negotiations, theres a big difference between pledges and
actual, legally enforceable policy.
Another risk, Hansen says, is that you dont want people believing in what I call the halfbaked, half-assed solution. You dont want people believing that theyre actually solving
the problem if they arent. There is a danger that theyll claim victory, and people wont
notice for another decade that it wasnt victory.
So Hansen, who will attend the Paris climate

Top Comment
It's never too early to teach your
kids about motions to dismiss
under Rule 12(b)(6). More...
-Tony Suburbs

talks, has put his name on this lawsuitmostly

as a way to force Congress and the president to
pay more attention to climate change, and, in his
words, the sooner the better.
Whether this case gains significant tractionand
more importantly, how many years it takes for

this case or one like it to succeedmay well decide Americans quality of life for
generations. But just as the struggle for same-sex marriage felt hopeless until it
succeeded, right now, for these kids at least, its a long shot.