Fascinating read in New York Times by Jason Schwarz on Julia Olson, the lead attorney on a long-shot lawsuit by young people against the Federal government for lack of action on climate change. Some highlights:

 

The climb and return, which she can power through in an hour, is a head-clearing ritual for Ms. Olson, an environmental attorney. It is also a place to compose the soaring language of opening and closing arguments. “I do my legal thinking here,” she said.

If all goes as planned, Ms. Olson will deliver her opening argument on Monday in a landmark federal lawsuit against the Trump administration on behalf of 21 plaintiffs, ages 11 to 22, who are demanding that the government fight climate change. It is a case that could test whether the judicial branch has major role to play in dealing with global warming, and whether there is a constitutional right to a stable and safe climate.

The young plaintiffs claim that the government’s actions, and inaction, in the face of global warming violate their “fundamental constitutional rights to freedom from deprivation of life, liberty, and property.” Their age is central to their argument: For older Americans, the potentially catastrophic effects of climate change are somebody else’s problem. But today’s children will be dealing with disaster within their lifetimes; the youngest of the plaintiffs, Levi Draheim, will be just 33 in 2040, the year by which a United Nations scientific panel now expects some of the biggest crises to begin.

***

Then came President Trump, whose administration is reversing Obama-era climate policies and encouraging the use of fossil fuels, which greatly contribute to warming. “In the view of the plaintiffs, Obama was moving too slowly, and now Trump is moving backward,” said Michael B. Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School.

The young plaintiffs have demanded, among other things, that the courts force the government to “implement an enforceable national remedial plan to phase out fossil fuel emissions” in an effort to “stabilize the climate system.” The courts could then supervise the government’s efforts.

The Trump administration’s lawyers are not arguing that climate change is a hoax. Instead, they are making similar arguments to those that the Obama administration made when it, too, tried to dismiss the case: that the young people don’t have standing to sue (a legal formula requiring plaintiffs to show that, among other things, they have suffered a concrete, particular injury because of the actions of the defendant) and that the courts are the wrong place to deal with the issue.

***

Legal experts view Ms. Olson’s chances with a measure of ambivalence.

“The claims are compelling, and the legal theory is creative,” said David M. Uhlmann, a law professor at the University of Michigan and a former top Justice Department official on environmental crimes. However, he said, “It is hard to see the Supreme Court upholding a favorable verdict, if the case gets that far.”

Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, pronounced himself a fan of the suit. Though he acknowledged that the courts tend to frown on creative legal theories, he noted that they do sometimes make new law in cases like Obergefell v. Hodges, which found a right to same-sex marriage, and Brown v. Board of Education, the landmark school desegregation case. “Creative lawyering there triumphed,” he said. With this case, he said, “We’ll see how it goes in the courts.”

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Posted by Carlos Alvarenga

Carlos A. Alvarenga is the Executive Director of World 50 Labs and Adjunct Professor in the Logistics, Business and Public Policy Department at the University of Maryland’s Robert E. Smith School of Business.

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