Environmental lawyers fear that a lawsuit launched by California youth to hold EPA accountable for planet-warming emissions could backfire on other climate cases.
The worries echo concerns raised about Juliana v. United States, Our Children’s Trust’s first lawsuit against the federal government. When Juliana nearly reached the Supreme Court in 2021, environmental lawyers sounded the alarm that the conservative supermajority would strike down the kids’ case — and potentially block other climate activists from making their claims in court.
In Genesis v. EPA, the new federal case filed Dec. 10 by Our Children’s Trust, 18 young Californians are accusing the federal agency of violating their right to a healthy environment. But environmental lawyers who are not involved with the case say that Our Children’s Trust is teeing up a potential new Supreme Court showdown that is unlikely to end favorably for climate advocates.
“The absence of any real prospect of success raises questions about whether it was wise to file the case, well intended though it was,” Dan Farber, faculty director at the Center for Law, Energy and the Environment at the University of California, Berkeley, wrote in a blog post.
Farber said Genesis makes an “important moral statement” that society has not lived up to its obligations to future generations and that publicity around such lawsuits could mobilize activism.
“But that is not really what the judicial process is meant for,” Farber wrote, adding that the case could result in “a ruling that individuals never have standing based on harm from climate change.”
Any party that wants to file a lawsuit must establish standing, a legal doctrine that determines who has suffered harm from a policy or action and therefore has a right to challenge it in court. Conservative justices, however, have traditionally taken a more limited view of environmentalists’ standing, and could find that no single person or entity has the power to sue over climate change and could say that the threat is too diffuse to be resolved by the courts.
Cases like Juliana and Genesis, if they are appealed to the Supreme Court, would give the justices an opportunity to reach that conclusion, environmental lawyers say.
Such a ruling could have a chilling effect on other cases, including a raft of challenges brought by local governments that seek to hold the oil industry financially accountable for climate change effects, such as flooding and wildfires.
Our Children’s Trust say critics are missing the point and have mischaracterized their lawsuit.
“Genesis is a constitutional case. It’s not an environmental statutory case,” said senior attorney Andrea Rodgers. “This is a human rights case and a children’s rights case, and it needs to be viewed and analyzed through that lens.”
She said the Supreme Court has already found that children are entitled to special care when it comes to government conduct that violates their rights.
Rodgers said Our Children’s Trust consulted with various experts to develop their case, including Catherine Smith, a law professor at the University of Denver, who co-authored an amicus brief on children’s rights that was cited in Obergefell v. Hodges, the Supreme Court’s 2015 ruling recognizing same-sex marriages.
She said Farber’s concerns that Genesis shows disdain for EPA staffers “reaffirms what our complaint is all about: Adults really look at the law through an adult-centric lens and are concerned with adults’ feelings and interests at the expense of children.”
Genesis, Rodgers continued, “is trying to flip that around and have the court look at this problem through the eyes of children.”
She said EPA has celebrated other youth cases, including Held v .Montana, in which a state judge ruled in August that government officials were violating young people’s right to a clean and healthful environment by ignoring climate change. The administrator for EPA’s Region 8 office in Denver called the Held ruling a “landmark moment.”
EPA has declined to comment on pending litigation, but said that the agency is delivering on President Joe Biden’s promise of “bold action” on climate and is “moving forward with the urgency that the climate crisis demands.”
Rodgers also dismissed concerns that Genesis would affect the ability of other environmentalists to get to court, contending that the climate liability lawsuits from local governments are tort cases and face different standing requirements than constitutional challengers.
“Taken to the extreme, [the critics’] argument is that you shouldn’t file any case because it could potentially get up to the Supreme Court,” Rodgers said. “That kind of argument, that you’re going beyond what existing law has dealt with, that would have prevented the filing of cases like Brown v. Board of Education or Obergefell v. Hodges.”
EPA’s climate duty
While Genesis argues that EPA needs to do more to address climate change, Farber said that the Supreme Court’s conservative justices hold a “contrary view.”
In its 2022 West Virginia v. EPA decision striking down an Obama-era rule governing climate pollution from power plants, the Supreme Court “left no doubt that, in their view, EPA has already overstepped its authority,” Farber said.
The 6-3 decision also declared that federal agencies must get clear permission from Congress to regulate economically and politically important issues — such as climate change.
Genesis is based on several theories that U.S. courts have not embraced, including an “affirmative governmental obligation to protect,” said Jonathan Adler, a law professor at Case Western Reserve University.
He added that a number of the claims in the youth lawsuit are “legal theories that folks were hoping the court would ultimately embrace in the Warren and Burger courts” — which ended in 1986 and are considered to be the Supreme Court’s last liberal courts.
“These are not the sort of theories that would have much traction” with the modern-day court, Adler said.
Rodgers said Genesis doesn’t ask EPA to do more on climate. She said the case urges the agency to stop discriminating against children.
“There’s a strong misconception that whenever you file a climate change case, you’re arguing that the government is not doing enough,” she said. “We’re very clear as to what the conduct is that is harming children — conduct that the court can order to stop.”
‘This is not good timing’
Genesis may have landed at an inopportune moment, said Adler.
Although the Supreme Court earlier this year rejected efforts by the oil industry to quash a set of climate liability cases, there is one pending request by Exxon Mobil and other companies to move a lawsuit filed by Minnesota from state to federal court. Both sides of the climate liability litigation believe local governments are more likely to win monetary awards in state court.
“A case like [Genesis] does increase the risk on the margins that the broader litigation gets the Supreme Court’s attention,” Adler said. “If I’m the Minnesota folks, my view would be like, ‘This is not good timing.’“
Still, Adler said he’s skeptical that Genesis will get as far as the high court.
“On the merits,” he said, “I would think that the federal government could write a very powerful and persuasive motion to dismiss.”
Adler added that EPA is doing what lawmakers instructed the agency to do, but Genesis tries to argue that because Congress gave the agency a limited amount of authority, it now has a broader, constitutional obligation on climate change.
“It just doesn’t work that way,” he said.
The Juliana challengers — who called on the federal government to phase out fossil fuels, and have been rebuffed by the Obama, Trump and Biden administrations — avoided a trip to the Supreme Court in 2021, declining to ask the justices to overturn a ruling by a lower bench that scrapped their high-profile lawsuit.
A federal district court judge last month rejected the Justice Department’s latest effort to dismiss Juliana in what Adler called an “astounding order” that could propel the case to the Supreme Court.
He added that although climate activists may be cheering Aiken’s ruling, “should her shenanigans lead to premature high court review of pending climate claims, they may come to rue the day Judge Aiken refused to let the Juliana litigation stay dead and buried.”