BROOKE GLADSTONE: If we shift our gaze to the courts, there's something interesting brewing in the judiciary. A lawsuit known as Juliana v. United States brought by a nonprofit group called Our Children's Trust. The Supreme Court declined to stop the case, meaning it will barring other legal hurdles, go to trial in an Oregon courthouse. Some background: In 2015, a group of 21 plaintiffs– who are now between 11 and 22 years old– filed a lawsuit arguing that the United States government had not only failed to tackle manmade changes to our atmosphere, it has contributed to them. Co-counsel Phil Gregory at a rally last week.
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PHIL GREGORY: These young plaintiffs have raised their voices. Let the experts testify. Let the courthouse doors be open.
CROWD: Woo.
PHIL GREGORY: This is not just the trial of the century, this is the trial for the future of this century.
CROWD: Woo. [END CLIP]
BROOKE GLADSTONE: Each plaintiff has a story about how climate change has harmed them. Homes damaged from intense tidal flooding, smoke induced asthma attacks from wildfires, family livelihoods choked off from droughts and on and on. The group has a podcast and a video series.
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CHILD: We don't have any water here. It's hard to live without water because it's the desert and it gets pretty hot here in the summer.
CHILD: This year we lost about eight feet. And the next two years, we might have to move a house.
CHILD: We see that it's happening here, you know, the proof is right in front of us. [END CLIP]
BROOKE GLADSTONE: Both the Obama and Trump administrations have been thwarted in their efforts to have the case thrown out. The government was not disputing the reality of human caused climate change, it argues and continues to argue that the plaintiffs don't have standing. That there's no direct line between US policy and actual harm. It also says that the courts shouldn't be dictating policy, but a court date has been set anyway.
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FEMALE CORRESPONDENT: The case was supposed to see trial on October 29th, but the Supreme Court put a stay on it which was lifted later. Well now, the Trump administration has gone to the 9th US Circuit Court of Appeals again requesting a stay of trial. [END CLIP]
BROOKE GLADSTONE: The plaintiffs are claiming that the country's energy policy violates what's called the Public Trust Doctrine. A centuries old part of our legal system. The architect of this argument is Mary Christina Wood professor of the University of Oregon School of Law. She says, “This isn't an environmental case. It's a civil rights case.”
MARY CHRISTINA WOOD: Yes, it's very much a civil rights case. It says that, by pursuing this perilous fossil fuel policy, the fundamental rights of these children will be infringed. So that's much different than a very narrow statutory claim under the Clean Air Act for example. This is a case with constitutional force and constitutional ramifications.
BROOKE GLADSTONE: Now, the plaintiffs claim that the country's energy policy, such as it is, violates the Constitution and the public trust doctrine–which we'll get to in a minute. But first, could you explain the constitutional claim.
MARY CHRISTINA WOOD: The constitutional claims are in two categories. One is that Americans have this right to life liberty and property, those are fundamental rights. And while the government doesn't have a duty to affirmatively protect us from danger, it does have the duty not to put us into affirmative peril. The plaintiffs are arguing that the government's energy policy, for decades, has put us on this very perilous track which will cause climate chaos. That will in turn, cause enormous disruption to civilization, tremendous loss of life, property and liberty. The equal protection claim is based on the children's status as an age group. They're saying that the government has prioritized the needs of present citizens over their needs. Because at the end of their lifetimes the predictions are that if our fossil fuel policy continues this planet won't be habitable.
BROOKE GLADSTONE: Which I guess brings us right to the public trust doctrine that I've mentioned. You call it the laws' DNA, as old is ancient Rome.
MARY CHRISTINA WOOD: Yes, the public trust actually dates back before the beginning of this country to Justinian times. And that's basically the premise that some resources are so crucial to our survival, namely air and waters and the shore and the sea. The government cannot treat those as private property. It must treat those as being in a trust that must endure for present and future generations of citizens. This principles been in our legal system since the beginning of this country. It was imposed on the English monarchy by the Magna Carta. It is the principle that inspired Gandhi's Salt March to the sea.
BROOKE GLADSTONE: Now we described you as the architect of this argument. So I'm wondering, what inspired you to apply the public trust doctrine in this way?
MARY CHRISTINA WOOD: Back in 2006, when Hurricane Katrina hit, I really woke up to this climate crisis. I started reading the science and was truly shocked at the urgency of the situation. Congress had failed and the agencies had failed to address this problem for decades, even though they had clear authority to do so in the Clean Air Act. And something in the law must force them to carry out their obligations to the people. And that something is the public trust, it always has been.
BROOKE GLADSTONE: So the Juliana v. US case is one of over a dozen that Our Children's Trust has been coordinating around the country. There have been similar kinds of litigation in other countries too, inspired by your argument. Can you tell us about one?
MARY CHRISTINA WOOD: Yes, the High Court of the Netherlands ordered the Dutch government to reduce carbon dioxide emissions 25 percent by 2020. It said the fundamental rights of the citizens required.
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MALE CORRESPONDENT: That the landmark ruling says the Dutch government must protect its people from the effects of climate change. And its current plan simply don't go far enough. [END CLIP]
MARY CHRISTINA WOOD: And other cases are moving forward around the globe largely inspired by the Juliana case here in the United States.
BROOKE GLADSTONE: How does the legal team intend to prove the Juliana case in court?
MARY CHRISTINA WOOD: One line of evidence is public documents indicating that every single president the United States, dating back several decades, was explicitly warned and chose to continue a fossil fuel policy, despite those warnings. There was one document from a close adviser to President Nixon, it was reported in the national media. The adviser to Nixon explained climate change and said the sea level rise will be devastating and these were the words, 'good-bye Washington, good-bye New York, for that matter. We have no data on Seattle.' And so these reports are quite explicit. They were talking about a generation at some point in the foreseeable future. While, the dates used in foreseeing these catastrophes would be around 2015 and so.
BROOKE GLADSTONE: Is part of this about telling a story to that part of the American public that still skeptical about the impact of climate change?
MARY CHRISTINA WOOD: Oh I do think so. The power of a trial is that, not only does it produce evidence and a ruling and a remedy but the bigger power is it does tell a story. It focuses the attention of the American people on this incredibly grave problem that affects each and every one of them.
BROOKE GLADSTONE: You describe a breakdown in government accountability. The public's interest, overrun essentially by corporations or financial interests or the need for jobs, fossil fuel companies. But we could say that the same scenario applies not just to the care of the environment but to say the financial industries and the regulation of banks or of large agro businesses that supplier food. I mean, this is an old and vast problem of the government failing or perhaps choosing not to act as a matter of principle because it believes that acting would encroach on the free market and on our liberty.
MARY CHRISTINA WOOD: Yep, we have to recognize that in many of these other realms–tax policy, criminal policy, foreign relations–government is not acting as a manager of the public's property. So where the government does so, it is held to a trustee's standard. Because if we didn't hold the government to that standard, at some point in time the public would not have the resources it needs for the endurance of the nation. There's a lot of problems elsewhere too. The public trust does not solve those problems.
BROOKE GLADSTONE: So what happens next with the Juliana case?
MARY CHRISTINA WOOD: This week, the attorneys are meeting with the judge. That starts with a status conference and then a pre-trial conference and then I expect, a trial date will be set. At the same time the Department of Justice is actually engaged, all three levels of the judicial branch, in its extraordinary efforts to stop the trial from going forward. But I do expect that, unless stopped by a higher court, we will see a trial date emerging rather quickly.
BROOKE GLADSTONE: Thank you very much.
MARY CHRISTINA WOOD: Thank you so much
BROOKE GLADSTONE: Mary Christina Wood is professor and faculty director of the Environmental and Natural Resources Law Center at the University of Oregon School of Law. She's also author of Nature's Trust: Environmental Law for a New Ecological Age. Coming up we ask a historian and a data scientist whether we are capable of self-governance. This is On the Media.
