One Case At A Time, Lawyers Fight To Save The Planet
Many environmental lawyers around the country have filed lawsuits against corporations and the government for their role in climate change. Many of these cases fail, stall, or are dismissed, but the quest to litigate the climate crisis continues.
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Nathan Baring says in many ways, his environmental activism began on the soccer field when he was 13. He grew up in Fairbanks, Alaska, remembers the wood smoke that filled the air.
“My mom gave me the ultimatum and said that if we didn't get this under control, I was going to have to stop playing soccer for my respiratory health,” Baring says.
He joined a local environmental group and attended conventions where scientists explained the existential threats posed by climate change. Temperatures in Alaska have been rising at twice the global average, and wildfires have become more destructive.
"The Arctic, which my identity is very dependent on, will be permanently changed on this trajectory," Baring says. "And I won't have those experiences, and that lifestyle I guess, that comes with the traditional arctic, to pass on to my children or grandchildren."
He wrote letters and met with state lawmakers, asking them to act before it was too late.
“And the response that I got from some of them was basically, ‘Aw, that's cute, but don't be a pawn for adults’”, he remembers.
Language Of Power
But in 2015, his advocacy did catch the attention of Oregon-based nonprofit Our Children’s Trust. The group was looking for teenagers interested in suing the federal government over climate change. Barring was in. He says this felt like a way to finally be heard.
“A lawsuit is the language people in power speak,” he says.
So Baring and 21 other young people around the country sued the federal government. The lawsuit argues that the White House has encouraged the production and use of fossil fuels for decades.
The plaintiffs allege that infringes on their fifth amendment right to life, liberty, or property.
Baring says the Covid-19 pandemic has only reminded him why addressing climate change is so urgent.
“COVID almost charts a map for our future almost. The same things we’re facing with COVID, in terms of economic disparities, health disparities, recovery disparities, all of those exact things are going to play into climate change,” he says
But Baring is also frustrated by how quickly many people lose focus or fail to see the connections.
The First Major Lawsuit Against Big Plastic
Sumona Majumdar is a lawyer with Earth Island Institute in Berkeley, and she’s one person who does. In February of this year, she file a lawsuit against several of the world’s biggest soft drink, food, and product manufacturers.
“We've picked up the costs that are associated with those products. People are...increasingly feeling like we can’t do that anymore,” she says.
Until a few years ago, Majumdar enforced environmental laws for the Justice Department. Then Donald Trump was elected president. That same year, she found out she was expecting a child. She ended up deciding to quit her job and find a different way to defend the planet.
“I wanted to be able to say I was doing everything I could to ensure that she inherits a world that is healthy, and an enjoyable place to live,” she says.
But when she walks along the shoreline park by the Port of Oakland with her daughter, she sees a world that’s becoming increasingly uninhabitable. Roughly 7 trillion tiny pieces of plastic flow into the bay every year. Plastic is a form of fossil fuel. It takes a lot of energy to make.
“Plastic is a byproduct of oil and gas. From its entire life cycle, from the extraction to the production of plastic, to plastic degrading, you have emissions of greenhouse gases,” Majumdar points out.
The Same Playbook
Most plastic we put in recycling bins ends up in landfills. From there, it often blows into the ocean or gets dumped there. The Earth Island Institute lawsuit alleges products from companies like Coca Cola and Clorox are filling the ocean with plastic, and misleading consumers by telling them their products are being recycled.
“This is the same playbook that big oil used, the same play book that big tobacco used. Just these very sophisticated narratives that really convince people that this is a problem because of individuals,” she says.
Dave Owen is an environmental law professor at UC Hastings. He says lawyers have been attempting to fight climate change in the courts for a long time, but these efforts accelerated over a decade ago.
“Climate change has been a concern for environmental advocates for a long time. But the level of worry increased significantly in the 2000s as the research became more and more inescapable and more and more dire,” he says.
In 2006, Al Gore’s film ‘An Inconvenient Truth’ brought the issue of global warming to the mainstream.
A year later, the United Nations issued a climate report that unequivocally declared humans were to blame. Dave Owen says it became clear to many lawyers that the White House was not going to address the climate crisis on its own.
“And so attorneys started to think, ‘We can't wait. We have to come up with some other creative strategies.’ And some of those strategies meant turning to the courts,” he says.
Now there are dozens of court cases tied to climate change. Cities like Richmond, San Francisco, and Oakland have since filed lawsuits against Chevron.
In 2019, the Supreme Court of the Netherlands ordered the government to cut the nation's greenhouse gas emissions. This was the first time any nation had been required to take action against climate change. Then, just days ago, a group of Irish Citizens won a similar case against their government.
Fossil Fuel Lawsuits
But Owen says lawyers in the United States have never won a lawsuit against fossil fuel companies for their role in climate change. Instead, judges have argued those kinds of cases are too political for a judge to respond, and that the real fix should be sought through the elected branches of government.
But attorneys filing many of these lawsuits do not trust the government to act swiftly enough.
On The Eve Of Destruction
In Juliana v. United States, the plaintiffs argue the federal government has contributed directly to the pending climate catastrophe.
Earlier this year, a federal appeals court issued a ruling in that lawsuit. And the judges were sympathetic to the argument the plaintiffs were making.
One judge wrote in the majority opinion, “In the mid-1960s, a popular song warned that we were ‘on the eve of destruction.The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer.
The judge adds that failure to change existing policy may hasten an environmental apocalypse, but then declares that, “such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.”
Philip Gregory, an attorney in the case, has filed a petition asking the Full Ninth Circuit Court of Appeals to convene a new panel of 11 circuit court judges to review the opinion.
He disagrees with the argument, and he still believes they can win. He says the courts have taken on big issues before. Like Brown v. Board of Education, where the Supreme Court ordered schools to desegregate.
'It Was The Courts'
“It wasn't like the president said, in Brown vs. Board of Education, ‘Oh, we need to deal with segregation.’ It was the courts who were out front, and it was the kids that really forced the courts to address these issues,” he says.
Nathan Baring joined this lawsuit when he was fifteen in 2015. “It's our generation and it's our future that is being harmed. So it makes sense that we're the ones that are having to show up right now,” he says.
But this youth-led movement is also running out of time.
“If you ever get involved in litigation, you learn justice moves slowly. It’s not like someone files a case, and then there's a court order where they win, the next day. It's more like they win in the next decade. And we don’t have a decade,” he says.
Gregory believes in the courts. But he also says this issue must be tackled on multiple fronts. The attorneys taking on climate change litigation agree: it will take a movement, plus persuasive grandchildren, to finally push judges to rule in their favor.