Want to stop climate change? Take them to court

Climate change is profoundly unfair: By failing to address it, today’s leaders are imposing what could prove to be an unbearable burden on future generations. But how can they be made to recognise the danger and act? Using the US legal system, a group of children has found a novel way to do so.

The 2015 Paris Agreement on reducing carbon emissions looked like a big step forward in addressing global warming. But since then, the US has pulled out, and many other governments have fallen short. Total emissions will likely rise this year in the US, India, China and elsewhere. Energy experts predict that we’ll go on using fossil fuels for decades, with atmospheric carbon dioxide levels more than doubling compared with pre-industrial times. In 50 years or so, we should expect a rash of effects: falling productivity in fisheries and farming, rising sea levels, and drought-driven migrations fuelling political instability.

It’s easy to see how this can be construed as a crime against children. So three years ago a group of them, along with Our Children’s Trust and the youth-centred environmental group Earth Guardians, sued the US government. They argued that its energy policies violated their constitutional rights to life, liberty and property, while also failing to protect essential public resources. They have a plausible case: In earlier proceedings, the US District Court in Oregon ruled that the due process clause of the Constitution guarantees citizens an “unenumerated fundamental right” to “a climate system capable of sustaining human life”.

The trial was supposed to begin last month. But in June, the government petitioned the Ninth Circuit Court of Appeals in San Francisco for a writ of mandamus, asking the suit be dismissed because the process of discovery — the pre-trial gathering of evidence — would be too burdensome and threaten the separation of powers. It didn’t work: Three judges dismissed the petition, ruling the issues the government raised “were better addressed through the ordinary course of litigation”.

Hence, a new trial date will be set. The stakes for the government could be high. The process of discovery alone promises to be embarrassing, as lawyers for the plaintiffs seek detailed information showing how long authorities have known about the risks of carbon emissions (probably more than 50 years). If the children win, the court could compel the US to produce and act on a firm plan to de-carbonise its energy system.

Granted, it’s probably fantasy to suppose such a ruling could survive the conservative Supreme Court, to which the government would almost certainly appeal. Yet the ultimate outcome may be less important than the mere fact that the case has come this far. The spectacle of a trial — or even arguments over whether the government can avoid a trial, and why it wants to — could inspire broader demands for real action, especially among younger people and those most vulnerable to global warming.

From civil rights to the environment, meaningful change requires persistent activism, growing public awareness and engagement. This case reflects a larger global trend, in which people are invoking existing law to protect the young.

Such cases rest on the notion of intergenerational equity, the idea that the actions of one generation should not be allowed to deprive future generations of similar opportunities.

A recent survey found the constitutions of some 144 nations, accounting for nearly three-quarters of all carbon emissions, have protections against climate change.

This case reflects a larger trend, in which people are invoking existing law to protect the young.