by Reinout Debergh
Climate change affects fundamental human rights such as the right to food, the right to water and the right to life. As action on climate change continues to remain inadequate, it is no surprise that people are turning more and more to the courts . Between 2015 and 2022, climate litigation cases doubled and the increase is expected to continue [2, 3]. Environmental rights of children could take on a more and more important role in the future . Fortunately, they have help from organisations like Our Children’s Trust (OCT).
Our Children’s Trust
OCT is a non-profit public interest law firm that helps young people by offering legal services and supporting their actions to help protect their right to a safe climate. It has two main guiding principles:
- OCT “advocates on behalf of youth and future generations”;
- OCT “advocates for legally-binding, science-based climate recovery policies” .
It was founded in 2010 by Julia Olson (currently executive director and chief counsel) who before then often represented grassroot organizations in environment-related cases. At OCT, she is currently supported by a team of 37 colleagues. Julia Olsen has also received two awards for her efforts (one together with the OCT) .
Taking it to the courts
On May 4th, 2011, OCT took action in all 50 US states. They did this in two ways: filing a petition for rulemaking (PfR) or directly filing a lawsuit. PfRs have so far been filed in 43 states. State (and federal) laws allow OCT to ask the relevant administrative agency to create rules which in this case is to reduce greenhouse gas emissions . Until now, only one PfR has been successful, namely for Florida [6, 7]. Often cited reasons for denying a PfR include: the agency has no authority, the state alone cannot reduce climate change and that the issue is already being addressed by the agency. Despite this limited success, it is still important to file PfRs as in cases where OCT did not, courts sometimes dismissed their lawsuits due to “failure to exhaust administrative remedies” .
Fig 1. Overview of where OCT filed PfRs and their status [6, 8, 9]. Scales for Alaska and Hawaii are in hundreds of km and 10s of km respectively.
OCT has filed lawsuits in 19 states, 3 of which still have pending cases . The main basis for lawsuits is the public trust doctrine (PTD) . Under the PTD, states have to “manage natural resources for the benefit of the public” . In the US, it has usually been applied to water resources rather than the atmosphere . OCT therefore asks:
- “That the air and atmosphere are included in the public trust doctrine;
- the government has an affirmative duty to protect the atmosphere under the public trust doctrine;
- the government has violated its duty under the public trust doctrine” .
So far, only one filed lawsuit case has been successful (Massachusetts). Other cases were not successful for various reasons ranging from state law to the political questions doctrine. The latter states that courts will not hear cases that involve political questions .
Fig 2. Overview of where OCT filed lawsuits and their status [6, 8, 9]. Scales for Alaska and Hawaii are in hundreds of km and 10s of km respectively.
Noticeable is the case Held vs. Montana which will be the first ever constitutional climate trial and first ever children’s climate trial in U.S. history. It will take place this year from June 12th until June 23rd .
In 2015, OCT also filed a lawsuit against the federal government: Juliana vs United States. Since then, every administration (Obama, Trump and Biden) has been fighting this lawsuit with every means possible . It should be noted that OCT also supports cases in other countries. It has done so in 18 countries, five of which are still ongoing: Canada, Mexico, India, Pakistan and Uganda .
Massachusetts and Florida: victories for the OCT
In 2008, Massachusetts adopted the Global Warming Solutions Act (GWSA) to reduce emissions by 25% by 2020 and by 80% by 2050 (relative to 1990). Yet, the state’s Department of Environmental Protection (DEP) had not adopted the required regulations . In 2016, two years after OCT filed the lawsuit, the court ruled that the DEP failed to fulfill its legal obligations, ordering it to “promulgate regulations that address…greenhouse gas emissions, impose a limit on emissions that may be released…and set limits that decline on an annual basis” [14, 15].
In 2022, OCT filed a PfR asking the Florida Department of Agriculture (DoA) to set a target of 100% renewable electricity by 2050 based on a 2011 law which asked the DoA to set renewable targets, which it never did [7, 16]. OCT was successful and later that year a rule became effective that set renewable energy targets of 40% by 2030, 63% by 2035, 82% by 2040, and 100% by 2050 . However, enforcement is the responsibility of another agency, namely the Public Service Commission (PSC) which typically does not go against the interests of utilities. Youth climate activist Reynolds (who led a former lawsuit by OCT in Florida: Reynolds v. State of Florida) expects to fight it every step of the way [7, 16].
It should be noted that while other efforts didn’t succeed directly, there were some indirect successes:
Table 1: some noticeable results where OCT failed to succeed directly .
|New Mexico||Included the atmosphere in the PTD.|
|Colorado||The Colorado Oil and Gas Conservation Commission has to “consider the protection of “public health, safety, and welfare, including protection of the environment” in the development and production of fossil fuels.|
|Arizona||Acknowledged that the judicial branch could expand the PTD (but didn’t do so)|
|Washington||Due to public pressure, Washington’s Department of Ecology established GHG emission standards.|
OCT success has been very limited yet its importance should not be understated. Even if cases or PfRs fail, they attract media attention and enhance public awareness. They also allow OCT to reflect on how to adjust their strategies to attain future success. All eyes will be on Montana later this year and a positive outcome for the climate would mean so much. Youth deserve a voice and OCT helps give them one.
 Fredenburgh, J., We’re going to see more climate lawsuits brought against governments, Imperial College London, https://www.imperial.ac.uk/news/241374/were-going-more-climate-lawsuits-brought/, accessed on 27/02/2023.
 Trends in climate litigation, Loyens & Loeff, https://www.loyensloeff.com/insights/news–events/news/trends-in-climate-litigation/, accessed on 27/02/2023.
 Surge in court cases over climate change shows increasing role of litigation in addressing the climate crisis, UNEP, https://www.unep.org/news-and-stories/press-release/surge-court-cases-over-climate-change-shows-increasing-role, accessed on 27/02/2023.
 Our Mission, Our Children’s Trust, https://www.ourchildrenstrust.org/mission-statement, accessed on 27/02/2023.
 Our Team, Our Children’s Trust, https://www.ourchildrenstrust.org/our-team, accessed on 27/02/2023.
 Christiansen, A. 2020, Up in the Air: A Fifty-State Survey of Atmospheric Trust Litigation Brought by Our Children’s Trust. Utah L. Rev., 867, https://doi.org/10.26054/0D-TE0K-S71M.
 Florida, Our Children’s Trust, https://www.ourchildrenstrust.org/florida, accessed on 02/03/2023.
 State Legal Actions, Our Children’s Trust, https://www.ourchildrenstrust.org/state-legal-actions, accessed on 02/03/2023.
 State boundaries (generalized for mapping), USGS, https://www.sciencebase.gov/catalog/item/52c78623e4b060b9ebca5be5, , accessed on 03/03/2023.
 Rollins, B., The Public Domain: Basics of the Public Trust Doctrine, The National Agricultural Law Center, https://nationalaglawcenter.org/the-public-domain-basics-of-the-public-trust-doctrine/, , accessed on 02/03/2023.
 Montana, Our Children’s Trust, https://www.ourchildrenstrust.org/montana, accessed on 02/03/2023.
 Rock, J., Biden is preparing to crush a historic climate change lawsuit, MR online, https://mronline.org/2022/05/30/biden-is-preparing-to-crush-a-historic-climate-change-lawsuit/, accessed on 02/03/2023.
 Active Global Cases, Our Children’s Trust, https://www.ourchildrenstrust.org/active-global-cases, accessed on 02/03/2023.
 Conca, J., Children Win Another Climate Change Legal Case In Mass Supreme Court, Forbes, https://www.forbes.com/sites/jamesconca/2016/05/19/children-win-another-climate-change-legal-case-in-mass-supreme-court/, accessed on 04/03/2023.
 Massachusetts, Our Children’s Trust, https://www.ourchildrenstrust.org/massachusetts, accessed on 04/03/2023.
 Harris, A., Herald, M., Florida to set goals for 100% renewable energy by 2050. But will it actually happen?, WUSF Public Media, https://wusfnews.wusf.usf.edu/environment/2022-02-12/florida-to-set-goals-for-100-renewable-energy-by-2050-but-will-it-actually-happen, accessed on 04/03/2023.