Is Anti-Trump Climate Litigation the New Brown v. Board of Education?

We need not rehash my misgivings about the legal effort by adolescents and pre-adolescents in Oregon to force the Trump administration to implement policies to reduce carbon emissions; opinions on this lawsuit have hardened, and I don’t expect to change anyone’s minds one way or the other about the case. However, I did raise an eyebrow when I read this quote from Julia Olson, the attorney for the children and teenagers involved in this case:

“This case is this generation’s Brown v. Board of Education,” said Julia Olson, legal counsel for the youth. “It is time we heed James Madison’s words. He said in 1818, ‘The atmosphere is the breath of life, without which they all perish.’ The founders saw that government could abuse its power in such a way as to deprive people of their very lives and the foundation of life, and it is time for the court to be the impenetrable bulwark that stops that abuse of power and protects these young people and all future generations.”

Is this sort of litigation really comparable to Brown v. Board of Education? The plaintiffs are not, as a group, socially disenfranchised and oppressed in the way the plaintiffs in Brown were. The plaintiffs in Juliana v. United States have not been branded by the larger society as social inferiors. The Supreme Court held in Brown that segregation inflicted, among other cruelties, psychological harm upon African-American children; the threat posed by carbon pollution is more physical than psychological, no?

Olson risks offending potential allies with this sort of rhetoric. Whatever its merits, Juliana v. United States is not a civil rights case. Olson is apparently entreating the federal courts to take the boldest action possible to protect the planet by invoking Brown, but doing so with this analogy is questionable.

Veteran environmental attorney David Bookbinder thinks the plaintiffs may well succeed on the merits:

[The plaintiffs are] claiming that they [have] a constitutional right to a climate capable of supporting human life, and that the government has a “trustee” responsibility to maintain the atmosphere free of “substantial impairment.” Their goal is to get the government to draft, and then execute, a comprehensive plan to dramatically reduce US emissions using the full panoply of federal authority.

The government’s response to the suit was, in part, to describe its “strong” and “substantial” efforts to tackle the problem via various regulatory measures, and to urge the court to therefore “decline Plaintiff’s invitation to short-circuit” this process. But District Court Judge Ann Aiken did not buy it. Refusing to defer to the government (the outcome you might expect), she held that the case could go forward…

Ultimately, of course, the Juliana plaintiffs would have to convince the Supreme Court. And while they’d have a steeply uphill battle if the high court were asked to vote today, the dynamic will change as the climate problems get worse, and as the record grows richer as lower courts review the facts and weigh the legal issues.

The constitutional claim that would demand a particular climate policy remains an extreme long shot, but courts have been sympathetic to the view that the government has a “public trust” duty with respect to natural resources. Five years from now, the Juliana plaintiffs might well have a chance of swaying five justices.

Bookbinder, of course, assumes that Justice Anthony Kennedy, who was in the majority on the 2007 Massachusetts v. Environmental Protection Agency ruling recognizing the EPA’s authority to regulate greenhouse gases, won’t be retiring at the end of this term, and won’t be replaced by a Trump nominee every bit as grotesque as Neil Gorsuch. Even if Kennedy sticks around, would he and four other Supreme Court Justices really be inclined to issue a ruling that goes far beyond the scope of Massachusetts v. Environmental Protection Agency–a ruling that would, in effect, declare that domestic operators of fossil fuel companies are violating the constitutional rights of the plaintiffs? I wouldn’t bet money on that outcome.

If the goal of this lawsuit is to raise awareness about the threat posed by human-caused climate change, that aim is admirable. If the goal of this lawsuit is to actually force the federal government to significantly restrain the activities of domestic fossil fuel companies, that aim may well be impossible. At the end of the day, how many federal judges would have the courage to go against Big Oil, Big Coal, Big Fracking, Big Ag, the Republican Party and the right-wing media apparatus? You can probably count the number of such judges on one hand…and still have a few fingers left over.

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D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.