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Jan. 28, 2020 by Karen Sokol

Despite Recent Setbacks, Juliana and Other Climate Suits Deserve their Day in Court

On January 17, a panel of the Ninth Circuit Court of Appeals issued a much-awaited decision dismissing Juliana v. United States, a climate case that gained more traction in the courts than anyone had expected, given, as U.S. District Court Judge Ann Aiken stated in her opinion denying the motions to dismiss in the case, it was "no ordinary lawsuit."   

Aiken's statement is true in many respects, including the nature of the right asserted by the plaintiffs – 21 young people ranging from eight to nineteen years of age, and a climate scientist acting as guardian for future generations. They asserted that the U.S. Constitution protects the right to a "climate system capable of sustaining human life," something that had not been recognized by a federal court until Aiken issued her opinion in the case.

Furthermore, the violation the youth plaintiffs alleged was quite extraordinary – that, for at least the past half century, the U.S. government has acted in violation of their rights because, in full knowledge of the grave danger that fossil fuel use and production presents to the climate system, it nevertheless systematically promoted the development of a fossil fuel …

Jan. 27, 2020 by Joel Mintz
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From time to time, a judicial decision from a federal court has the potential to have a profound impact on American society and government policy. Such a case is Juliana v. United States, in which a group of 21 young people, together with an environmental organization and "a representative of future generations," brought suit against numerous federal agencies and officials seeking a judicially mandated plan to phase out fossil fuel emissions and a drawdown of excess atmospheric carbon.

Though it could result in needed, far-reaching changes in our nation's climate change policies, this lawsuit recently ran into a legal obstacle before a three-judge panel of the United States Court of Appeals for the Ninth Circuit. By a two-to-one vote, the judges clearly acknowledged the grave and growing peril posed by an ongoing buildup of greenhouse gases in the atmosphere. At the same time, however, the panel …

Nov. 21, 2019 by Karen Sokol
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This post was originally published by Expert Forum, a blog of the American Constitution Society. Reprinted with permission.

In her opening statement on the second day of the House public impeachment hearings, former Ambassador to Ukraine Marie Yovanovitch recounted how President Trump and his personal lawyer Rudolph Giuliani undermined the State Department's ability to "promote stated U.S. policy against corruption." "If our chief [diplomatic] representative is kneecapped," she said, "it limits our effectiveness to safeguard the vital national security interests of the United States. These events should concern everyone in this room."

Although this particular instance of the Trump administration's "kneecapping" of a civil servant who had dedicated her life to safeguarding us may be the most high-profile to date, it is unfortunately one among many. In fact, many of the other civil servants kneecapped by the administration were attempting to implement the …

Nov. 7, 2019 by David Flores
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As Californians endure yet another round of devastating wildfires, they are rightly wondering if blazes of such frequency and reach are the new normal. The hard truth is that they may very well be. The fingerprints of climate change are all over this disaster, as they have been all over recent hurricane damage, and the trendline is unmistakable. With that in mind, a new report from the Center for Progressive Reform takes a look at the situation in the Golden State and elsewhere and highlights the crucial role state courts play in securing justice for those harmed by climate change.

Just as climate change heats the ocean’s waters, thus increasing the intensity of storms, it also helps drive the drought, wind, and vegetation conditions that provide the fuel and fan the flames of larger and more intense wildfires. Tracing the climate crisis back to its corporate …

Sept. 25, 2019 by David Flores
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On September 23, I attended the Climate Emergency: Tri-State Pipeline Strike in downtown Roanoke, Virginia. While affiliated with the Global Climate Strike week of action, the event in Roanoke was another milestone in the years-long and continuing struggle to prevent construction of natural gas pipelines through parts of North Carolina, Virginia, and West Virginia.                      

The day prior, my family and I attended a “Circle of Protection” event atop verdant Bent Mountain, which is home to a farming community and is part of the Roanoke River watershed, a source of drinking water for urban Roanoke. Bent Mountain and the greater Roanoke region are the site of multiple Native American burial grounds and other archeological sites that have been dug up and destroyed in the last two years to make way for the pipeline, so the event began with an acknowledgment of the original inhabitants of the land, their …

Sept. 19, 2019 by Katie Tracy
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Tomorrow (September 20), I'm standing up for workers' rights by marching to the U.S. Capitol in Washington, D.C., as part of the Global Climate Strike. I'll be walking in solidarity with the students and youth organizing the strike to spread the message that climate action is imperative.                      

Addressing the growing climate crisis and creating jobs are two necessary actions often pitted against each other, as if only one were possible at a time. That's a false choice, misleading rhetoric created by the fossil fuel industry and climate science deniers in Congress to slow down government action while continuing to pass the cost of dirty energy extraction onto families and communities – both in dollars and in health consequences. The reality is that we can have both good, green jobs and a healthy environment; thriving workers and a thriving planet go together.

Discussions about climate change often …

June 17, 2019 by Lisa Heinzerling
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In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better – even after they knew the terrible risks we faced if they continued on their preferred course. It calls upon venerable legal doctrines, deployed as modern bulwarks against the most pressing challenge of our time.

The legal theories these lawsuits pursue do not come from statutes, but instead rely on constitutional law, natural law, and the common law. This is the kind of litigation that is most likely to draw criticism not only from the governmental and industrial institutions it seeks to constrain, but from within the environmental community itself, as some worry that …

Jan. 22, 2019 by Daniel Farber
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Originally published on Legal Planet.

Juliana v. United States, often called the "children's case," is an imaginative effort to make the federal government responsible for its role in promoting the production and use of fossil fuels and its failure to control carbon emissions. The plaintiffs ask the court to "declare that the United States' current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of United States CO2 emissions," and use that inventory to "prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend."

More specifically, they ask the court to "order Defendants to cease their permitting, authorizing, and subsidizing of fossil fuels and, instead, move to …

Sept. 14, 2018 by Joseph Tomain
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This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

We have seen the pictures before. A man and his dog, both wet and disheveled, gliding down the middle of a residential street in a rowboat past downed power lines. As they drift, they pass the tops of cars parked at the curb, immobile. As they drift further, they see a woman and child standing on the roof of a darkened house, dazed.  Is the child missing a toy or maybe a pet? Is the woman missing a spouse or maybe a child?

Now consider sitting at home watching the game or a movie or the news when the TV flickers and then goes out, along with all the other lights and electrical appliances in your home. After a minute or two your concern rises as you reach …

May 21, 2018 by Karen Sokol
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Back in 2007, the Intergovernmental Panel on Climate Change (IPCC) noted the likelihood of an increase in what is now often referred to as "climate change" or "climate justice" litigation. The reason for the increase, according to the IPCC, is that "countries and citizens will become dissatisfied with the pace of international and national decision-making on climate change." Just over a decade later, that observation now looks quite prescient, with several cities and counties taking the oil industry to court over climate-related damages. 

In addition to suits against national governments based on international and national environmental laws in various countries, the IPCC pointed to the first climate change tort case brought in the United States: American Electric Power Co. v. Connecticut (AEP). In that case, states sued major oil and gas companies for climate change harms caused by their greenhouse gas emissions based on the common …

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