I co-authored an article published in the North Carolina State Bar Journal back in 2017 entitled “The Trial of the Century: Kids, Climate, and Law’s Role in Allocating Responsibility for Harm.” The case, Juliana vs. United States, in the 9th circuit federal appellate court, raised critical questions, not just about the climate emergency and who is, in fact, responsible for harm, but also importantly I think, questioning our judicial system’s trustworthiness to mete out justice nowadays. The relevance of that question may be even more apparent today for reasons far too obvious to restate here. So, I thought I’d look back at this case, dealing with a problem that will spare nobody if left to business as usual, and still being contested as we strive for a just and sustainable future for us here now and future generations.

The case was dismissed by the 3-judge panel, but as law professors, atmospheric trust litigation experts and co-authors [1] of a piece on The Conversation reminds us, there are some hopeful signs and admissions by the justices that this case isn’t finished, including:

1. Youth do have a constitutional right to a stable climate system; the panel, though unanimous on this point, just passed the buck with two of the justices (a majority) saying it wasn’t up to them. Looking at you, the rest of the federal government!

2. The court agreed in blunt terms that the government’s policies may in fact cause “clear and present danger.” Again though, it shifted the burden and followed up with a mind boggling admission that they, the majority, didn’t think that “political leaders would respond in time.”

Here’s a sample of the court’s blunt language, just to let it sink in how asleep at the wheel our important institutions are:

The three judges did agree on something: The federal government’s promotion of fossil fuel use is pushing the nation toward collapse.

The utterly disturbing part of this however may be that the majority, even in acknowledgment, nevertheless said the following, still evidently able to sleep at night:

…policies now in place may hasten ‘environmental apocalypse’- burying cities, unleashing life-threatening disasters and jeopardizing crucial food and water sources.

Fortunately, the lone dissenting voice called out the majority’s utter bankrupt coldness, and I have to say I like the asteroid metaphor!

In a forceful dissent, Judge Josephine L. Staton countered:
“It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. The government bluntly insists that it has the absolute and unreviewable power to destroy the Nation. My colleagues throw up their hands.”

Even though this case isn’t on front page news now, nor likely in the front of our minds, it’s a reminder that we have to be able to “walk and chew gum” now with so many critical issues and very short fuses burning. I think a lot of us right now THROW UP OUR HANDS too. I think we’re starting to do something about about it too. That’s the big, collective WE. Keep the pressure on. Our Children’s Trust, the plaintiff legal counsel in this case, is a nonprofit doing just that. They’re still on the case. It’s not over yet.[2] The justices own words and admissions that I’ve quoted above are on the record thanks to how far the remarkable “trial of the century” has advanced thus far, and should be shouted out everywhere we can to illustrate that it’s past time to reclaim our institutional and moral sensibilities. We need a new system in the biggest sense and now is an opportunity.

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[1] University of Oregon law professor, Mary Wood; and Lewis & Clark law professor Michael Blumm.

[2] Aside from Juliana vs. United States, it’s interesting to see that other issues and cases in high courts, including the US Supreme Court, have a bearing on climate law and legislation. See for example, “What Does Today’s Decision Holding that Employers Can’t Discriminate Against LGBTQ Employees Have to Do with Climate Change?”