A District Court Judge in Oregon has accused the federal government of failing to protect future generations from climate change, in rejecting a motion to dismiss a constitutional challenge being brought by 21 young people.

The plaintiffs – ranging in age from 9 to 20 and represented by environmental organisation Our Children’s Trust – are taking the case alongside climate scientist, Dr James E Hansen, who is serving as guardian for future generations and his granddaughter.

The plaintiffs filed proceedings in August 2015, claiming that federal government is violating their constitutional rights to life, liberty, and property, and failing its obligation to hold certain natural resources in trust for the people and for future generations. In January 2016, three fossil fuel industry associations requested and were granted defendant status in the case given that it presents a substantial threat to their business – voluntarily entering themselves into the case.

The case argues that climate change is worsened by the aggregated actions of the federal government in permitting fossil fuel development, subsidising the fossil fuel industry, and wilfully prioritising short-term gains for more than five decades with full knowledge of the extreme dangers they posed. The defendants, however, sought to dismiss the action on the basis that “the case presents non-justiciable political questions, plaintiffs lack standing to sue, and federal public trust claims cannot be asserted against the federal government.”

Upholding a magistrate judge’s recommendations that the case be allowed to proceed, Judge Ann Aiken had “no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” In her opinion “a stable climate system is quite literally the foundation of society, without which there would be neither civilization nor progress.” She concluded that the plaintiffs could pursue a claim that the government had violated the so-called public trust doctrine, which she summarised as “the fundamental understanding that no government can legitimately abdicate its core sovereign powers.” She rejected arguments that the public trust doctrine only applies to states and not the federal government. This has been seen as an unprecedented expansion of US common law …

This is an extract from the PILA Bulletin of 23 November 2016.

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