photo: Beth Price
What better way to divert attention on Election Day than to write something beyond political parties and votes—but wait, maybe it’s not so far beyond, as this election could make the difference for the future of the planet, and our children and grandchildren.
On November 2, the U.S. Supreme Court, with its newly constituted mix of justices rejected a maneuver by the Trump Administration to block a lower court trial scheduled to start on October 29th brought by young plaintiffs, known as the Children’s Trust. The purpose of the lawsuit is to force the federal government to reduce greenhouse gases and mitigate the otherwise certain dire effects of climate change. The young people’s claim is to protect their constitutional rights of life and liberty and public trust resources, like water and the hydrosphere from further irreparable harm attributable to the rise in the earth’s temperature that has increased the intensity, frequency, and size of extreme drought, floods, hurricanes and cyclones. The effects of events like last year’s hurricanes Maria and Harvey or California’s blazing forest fires will only worsen.
The Court’s decision dissipated the politically motivated desire by the Trump Administration to get its climate change denial agenda in front of what it thought would be a more favorable Court (ala appointment of Justice Brett Kavanaugh). In a 7 to 2 decision, with only Justices Gorsuch and Thomas dissenting, the Court signaled a green light for one of the most momentous trials, perhaps the most momentous for us homo- sapiens in the past 100 years. A decision in which the fate of the earth hinges on a collective effort, undeterred by government climate deniers and political influence, to hold the 1 degree rise in temperature of the earth to another .5 degrees in the next two decades, or face dire consequences as early as 2050—when the children plaintiffs in the case will be grandparents, and their children will sit in the cross-hairs of either humanity’s success or ultimate failure.
In 1925, in the Scopes Monkey Trial, John Scopes was acquitted for teaching the science of evolution in violation of Tennessee’s Butler Act. In the 1954 Brown v Board of Education decision, the Supreme Court ruled that state laws requiring segregated schools based on race, in that case the segregation of African Americans and other races by Kansas, denied equal protection of the law under the 14th Amendment of the Constitution. In the 1945 to 1946 Nuremberg Trials, the international law tribunal adopted the principles that acting as a leader of a country or under the orders of a superior could not be used to excuse criminal prosecution, conviction, and punishment under international law. In the 1965 Scenic Hudson case, a federal court of appeals court found that a group of public citizens who used and enjoyed the beauty and recreation along the Hudson River had the right to bring a lawsuit (legal standing) to protect the river. In 1973, the Court in Roe v Wade nullified a Texas law that would make it criminal for Jane Wade’s constitutional right of privacy to terminate her pregnancy in the first three months.
The timing for the Supreme Court’s decision to send the federal government back to trial couldn’t be better. The U.N.’s International Panel on Climate Change (“IPCC”) last month warned that humans individually and collectively have about 12 to 20 years to reduce carbon and methane emissions to keep the planet from scorching or flood and destroying the lives of our children and grandchildren.
The Supreme Court’s decision last week chastised the government for bringing a request for mandamus and request to block the trial. The Court observed these are “extraordinary” requests, and are only granted when a trial court exceeds or abuses its authority in handling a trial. The trial court had already denied the government’s motion to dismiss, ruling last year that the young children had filed a valid complaint to address the threat to due process caused by climate change that literally has caused and will harm seriously in the future their fundamental right to life and liberty. The trial court also ruled that the children, as beneficiaries under the public trust doctrine, had filed a proper claim to protect water and essential public trust uses like fishing, navigation, drinking water and sustenance. Under the public trust doctrine, each state holds these waters in trust for the benefit of and under a duty to protect these special uses.
The trial promises a full-blown review of the data, science, and remedies that exist to keep the temperature of the planet from rising more than 1.5 degrees. Finally, the influence of ideology and greed will no longer control the truth and orderly due process and justice, the very purpose of our judiciary and courts. But does this mean that Juliana and the other children, standing in for all of us really, have won the cause of climate change? No, not yet.
It means the federal court in Oregon will hear the evidence and decide the claims based on the evidence, data and science, not unlike the science of evolution played out in the drama of the Scopes and other trials 100 years ago. It means, finally, there will be an open process with witnesses and experts under oath and subject to cross examination on the questions of global warming, climate change, and human and governmental duties to prevent tragic and catastrophic loss of life, water, soils, and property. It means climate change will not be buried by an oppressive regime as in a Chekov short story or by a President and his political mob hell-bent on risking the future of humanity and earth for their own fossil-fueled addiction.
The Supreme Court has spoken: People have a right to bring a claim and have a trial to address deliberate government action or inaction that destroys the life and property of people and the air, water, and environment they depend on for life. What more can we ask and be thankful for than a hearing, overseen by a member of the federal bench, aimed at the truth, fairness and climate justice?
When you vote today, vote as the earth and your life depends on it, because it does!
A stellar review of this judgement, Jim! And a glimmer of hope for the future no matter what happens today. Thanks to FLOW for adding to our public awareness of the Public Trust principle.