CLIMATE:

The mother behind kids' long-shot legal crusade

Correction appended.

EUGENE, Ore. -- For Julia Olson, it all started with "An Inconvenient Truth."

The then-thirtysomething environmental lawyer watched Al Gore's climate change documentary while eight months pregnant with her second child.

By her own admission, she "cried through the whole film" and spent several sleepless nights plotting a way to increase public awareness of climate change. Her initial idea was to plan public marches on Washington, D.C., but she ending up launching a national legal campaign aimed at forcing government action on climate change.

Enlisting children as plaintiffs, she advanced the novel legal theory that the atmosphere is a "public trust" under common law and that the states and federal government have a duty to preserve it.

Ensconced in space rented from the Western Environmental Law Center down a quiet side street here in Eugene, the earnest -- some might say messianic -- Olson, now 41, is the executive director of Our Children's Trust, the group established to coordinate the legal campaign.

Although those legal arguments haven't proved to be very successful so far, Olson's crusade has tied up plenty of government lawyers, prompted judges around the country to scratch their heads and generated plenty of attention.

And she isn't done yet.

Our Children's Trust is effectively a two-person outfit: Olson, who obtained her law degree from the University of California Hastings College of the Law in 1997, and outreach coordinator Meg Ward. Several law students serve as assistants, and a board oversees the operation. The group has two offices on the second floor of the law center's building, which was formerly home to a primal-scream therapy practice. Olson pointed out the thick walls downstairs on the way up to her office.

There are no official ties with the law center or the nearby University of Oregon School of Law, but there are clearly unofficial ones. Olson, for example, teaches some environmental courses at the law school. After meeting a visitor, she was heading there to give a lecture called "The Failure of Environmental Law."

Sitting at her desk during a recent interview, with law books and children's artwork sharing space on a shelf behind her, Olson explained that it took her a couple of years after watching Gore's movie to figure out how exactly to harness her enthusiasm.

The key moment was a lecture given by Mary Wood, a professor at the law school.

It was Wood who advocated the idea of expanding the notion of the "public trust" to the atmosphere. Although the theory has been around for centuries, most often applied to the right of the public to access water bodies, it was more recently seized upon by environmental advocates in the 1970s. The general idea is that the government has a responsibility to protect certain shared public resources. Joseph Sax, then a University of Michigan law professor, wrote an influential article in 1970 that most credit for a trend toward applying the doctrine to natural resources in general.

Under Wood's theory, the atmosphere should be classified as one of the resources that the government has a duty under common law to protect.

Olson's reaction: "It just clicked and resonated with me."

Wood also examined what relief plaintiffs could seek. Her conclusion was that they could first seek an "accounting" that would determine the state of the atmosphere. Then, courts could order a recovery plan that would restore it to its original state.

In climate change terminology, that would mean trying to reduce the amount of carbon in the atmosphere to 350 parts per million.

The idea of having children front the campaign came after climate scientist James Hansen introduced Olson to teenager Alec Loorz who, with his mother, Victoria, started a group called Kids Vs. Global Warming.

When Loorz heard about the possibility of public trust litigation, he announced that he wanted to be a plaintiff. That is what led to the idea of signing up multiple children to be plaintiffs in the various lawsuits.

"I called every lawyer I know around the country, and a lot of law students," Olson said.

As the concept became more concrete, so did Olson's role. Our Children's Trust was then set up as the umbrella organization that would coordinate the litigation around the country. Partners include the Sierra Club and Greenpeace International.

Patrick McGinley, an environmental law professor at West Virginia University, was signed up as one of seven board members, attracted by the idea of applying the public trust doctrine in a novel way.

"I thought it was a tool that could be used to push the envelope," he said in an interview. "I didn't think it was going to be an easy road."

Everything was in place by Mother's Day 2011.

King Canute

The enthusiasm and momentum that led to the campaign launch have not generally penetrated the courtroom.

So far, Our Children's Trust has filed lawsuits against the federal government and 12 states, with more to come, and, with a couple of exceptions, judges have not been receptive.

The general view from the bench -- not to mention from the majority of environmental law experts -- is that the claims are not something courts can do much about. States invoke the "political question doctrine," the theory that there are certain issues -- relating to policymaking -- that courts have no role in addressing.

In the case against the federal government, the plaintiffs were not helped by the Supreme Court's ruling last year in American Electric Power v. Connecticut, in which the court held that the Clean Air Act and Obama administration efforts to regulate emissions had displaced federal common law public-nuisance claims.

U.S. District Judge Robert Wilkins of the District of Columbia dismissed the suit in June, saying the plaintiffs were "asking the court to make similar determinations regarding carbon dioxide emissions."

Ultimately, "these are determinations that are best left to the federal agencies that are better equipped and have a congressional mandate," he added (Greenwire, June 1).

States, meanwhile, have found it easy to be dismissive of Our Children's Trust, in both legal and rhetorical terms.

Take Kansas, for example. In a brief calling for a court to dismiss the lawsuit filed against the state, lawyers call the claim "a child's wish for a better world," which is not something a court can do much about.

"No order issued by the District Court of Shawnee County can hold back global warming, any more than King Canute could order the tide to recede," the brief notes.

Olson insists that it remains worthwhile suing the states and not just the federal government. She conceded that the federal government "has the bird's-eye view" when it comes to addressing climate change, but she maintains that there are plenty of actions states can take, too, citing building efficiency, public transportation and renewable energy development as examples. States also have a role in urging the federal government to do more, she added.

Olson does claim some victories, although others might dispute whether they could be described as such.

A court in Texas held that the atmosphere is, in fact, a public trust. In doing so, Judge Gisela Triana of the state district court in Travis County was the first in the nation to rule that atmosphere is one of the natural resources that are protected under the public trust doctrine. The judge still ended up ruling for the state, however, on the grounds that there is already pending litigation over state and federal action on climate change (Greenwire, July 12).

There is only one other state -- New Mexico -- where a lawsuit survived the motion-to-dismiss stage.

Legal scholars, even those who want action on climate change, don't think Olson's crusade has legs in the courtroom.

"It's Hail Mary pass litigation," said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School, with whom Olson recently met to discuss her work.

Douglas Kysar, an environmental law expert at Yale Law School, had a similar reaction.

The idea of extending the public trust doctrine to the atmosphere, for which no single government entity has responsibility, "is way more complicated" than applying it to an distinguishable natural resource like a lake, he said.

"We are not just talking about a discrete resource within the boundaries of one jurisdiction," he added.

Board member McGinley acknowledged the uphill battle in court but noted that the litigation has yet to make its way to the appeals courts.

"I'm sure it's difficult for judges to look at established case law and project the existing common law so broadly," he said. "It's really a big step."

A positive appeals court decision -- or movement from a state legislature -- could change the dynamic dramatically, McGinley added.

Future generations

The stuttering nature of the legal campaign is not the whole story for Our Children's Trust.

Separately, the group has not been shy about drawing attention to its work. The Associated Press and newspapers from Florida, Texas and elsewhere have all written about the various lawsuits.

Via its website, the group also preaches a broader message encouraging climate activism among the public.

Videos profiling its clients, produced by a nonprofit media group called Witness, have been shown at events around the country and sent to high-profile figures in state and federal government. One video features an 18-year-old Yale University student who at one point stands in front of Fenway Park and observes that, because of climate change, the landmark ballpark could become unusable because of sea level rise sometime in the next 100 years.

The group also encourages youth to participate in activism on their own. The website, for example, urges people to write a letter to President Obama or take steps to reduce their own carbon emissions.

In fact, it could be said that Our Children's Trust is more effective outside the courtroom than in it, a notion that Olson bristles at.

"I wouldn't be litigating these cases just to create awareness," she said. "I really don't like to lose cases."

For Columbia's Gerrard, though, it is the publicity campaign that is the most meaningful aspect of Our Children's Trust's work.

The campaign, he said, helps "increase public consciousness" and "adds to the groups that are engaged."

Likewise, law professor Kysar thinks Olson shouldn't be -- and most likely isn't, when not speaking in public or to reporters -- focusing on courtroom victories.

"If that's the way you are measuring success, then it's not successful," he said. "If it's about raising awareness of the responsibilities we owe to future generations, then it has been successful."

Whatever her overall aims, Olson takes the setbacks and criticism with good grace and appears to have unshakable confidence in the road ahead.

"She has got a fairly heavy burden," McGinley admitted. "She has a lot of responsibilities, and she comes to them with enormous energy and enthusiasm."

There is certainly plenty of activity on the docket. The plaintiffs are appealing adverse decisions in several states, and more lawsuits are on the way, including one in Pennsylvania that Olson is excited about.

The group is also continuing with a separate effort to ask for rulemaking in states where it hasn't filed suit. It's a strategy Olson adopted out of necessity because she doesn't have enough lawyers lined up to file lawsuits. Petitions for rulemaking don't require a lawyer.

Over lunch at a nearby brew pub, Olson -- whose two boys are now 8 and 6 -- admitted to feeling a weight on her shoulders. That her sense of urgency about the need to tackle climate change is not shared by others is clearly exasperating to her.

"Doing this, on an emotional level, is brutal," she said. "It may be one of the reasons people don't engage on a deeper level. It's a powerful motivator, but it's a struggle to engage on that every day."

Not that she is ready to give up, despite the potshots that come her way.

To those who might ask whether it is worth all the effort, Olson has this response: "Do you know anyone under 20 who you love?"

Correction: An earlier version of this story misspelled the name of Kids Vs. Global Warming's Alec Loorz.